November 10, 2017 

Mr. Jonodev Chaudhuri, Chairman 

National Indian Gaming Commission 

1849 C Street NW 

Mailstop #1621 

Washington, DC 20240 

Re: Comments on 25 C.F.R. Part 547 Proposed Rule 

Dear Chairman Chaudhuri: 

On behalf of the 184 member tribes of the National Indian Gaming Association, I am pleased to 

submit the following comments regarding the National Indian Gaming Commission’s (“NIGC”) 

Proposed Rule of 25 C.F.R. § 547.5 as published in the Federal Register on September 28, 

2017.1

 We appreciate the opportunity to review and comment on the Proposed Rule and hope 

that our comments below prove helpful to the NIGC in promulgating its Final Rule. 

We appreciate the NIGC’s decision to embrace a consultative process in its update of 25 C.F.R. 

§ 547.5 and commend the NIGC’s efforts to engage in robust discussion with tribal governments 

in developing this Proposed Rule. We further commend the NIGC’s acknowledgement that 

Class II gaming continues to be a vibrant and indispensable economic resource for tribal 

governments. Indeed, Class II gaming continues to account for a significant portion of the $31.2 

billion in gross revenues now generated by the Indian Gaming industry.2

 Class II gaming also 

generates revenues that sustain jobs, funds programs and services critical to tribal and local 

communities, and strengthens not only tribal economies, but the U.S. economy as a whole. 

We are pleased by the NIGC’s responsiveness to the many comments it received from Indian 

Country following the release of the June 14, 2017 Discussion Draft, particularly with regard to 

the Sunset Provision and certain technical reporting requirements. We agree that a reasonable 

and workable Class II technical standard will help provide for the continued safe and efficient 

operation of pre-2008 Class II gaming systems, while at the same time ensure a sound 

framework for regulatory oversight and verifiable technical compliance. We believe that much 

of the Proposed Rule serves this shared objective. At the same time, however, we remain 

concerned that some remaining provisions of the Proposed Rule create undue burdens and are 

not critical to achieving the Proposed Rule’s stated purpose – i.e., to ensure the integrity of Class 

II games and gaming revenue.3

 

1 Technical Standards, 82 Fed. Reg. 45,228 (proposed Sept. 28, 2017). 2 Press Release, Nat’l Indian Gaming Comm’n., 2016 Indian Gaming Revenues Increased 4.4% (July 17, 2017), 

https://www.nigc.gov/news/detail/2016-indian-gaming-revenues-increased-4.4. 3 Technical Standards, supra note 1 at 45,228.
I. We Strongly Support the Proposal to Repeal the “Sunset Provision” and Remove 

the Annual Review Reporting Requirement. 

We applaud and fully support the NIGC’s proposal to remove the so-called “Sunset Provision” 

from the Proposed Rule, as it marks a significant departure from the existing requirement that 

pre-2008 Class II gaming systems must undergo fundamental modifications to meet the NIGC’s 

Class II technical standard or be removed from operation by November 10, 2018. 4 Tribal 

governments and industry technical experts alike have long maintained that there is no 

regulatory, technical, or practical basis or justification for mandating the removal of pre-2008 

gaming systems simply because of their manufacture date. 

In nearly a decade since the Sunset Provision was first introduced, there has been no evidence to 

support the claim that pre-2008 gaming systems somehow pose a threat to the integrity of 

gaming, the safety of the public, the interests of the Tribes, or the public interest generally. A 

large number of these gaming systems continue to operate in Indian County today. These pre2008 gaming systems and their components continue to be certified by independent testing 

laboratories, continue to function as designed, continue to play and pay as advertised, and 

continue to be operated under the primary regulatory jurisdiction of tribal gaming regulatory 

authorities. 

We also support the proposed removal of the annual reporting requirement introduced in the 

Discussion Draft, as it properly recognizes TGRAs as the primary regulators of tribal gaming 

under IGRA. However, as discussed below, we have some remaining concerns with the overall 

annual review process and question whether it will help accomplish the stated regulatory purpose 

of Part 547. 

II. The Proposed Annual Review Requirement is Unnecessary and Burdensome. 

The Proposed Rule retains from the Discussion Draft a new mandatory process requiring TGRAs 

to annually review and assess each pre-2008 Class II gaming system operating within its 

jurisdiction for compliance with Part 547.5(b).5

 This new provision requires TGRAs to not only 

identify specific Class II gaming systems not conforming to Part 547.5(b), but to also enumerate 

all components of each system that functionally prevent compliance with Part 547.5(b).6 

However, it should be noted that both the current Rule7 and the Proposed Rule8 already require 

TGRAs to review and document lab reports, render technical findings, and issue certifications 

for pre-2008 Class II gaming systems and their components; and to submit this information to 

the NIGC. In fact, many TGRAs effectuate these requirements not only as pre-2008 gaming 

systems are brought into operation, but on an ongoing basis as pre-2008 gaming systems are 

maintained. In this respect, it would be redundant to require TGRAs to annually re-review 

testing laboratory reports, reassess all pre-2008 Class II gaming systems and components, and 

produce what amounts to a restatement of certification opinions that have already been rendered 

and submitted to the NIGC. 

 

4 25 C.F.R. § 547.5(b)(1) (2012).

5 Technical Standards, supra note 1, at 45,231 (proposed 25 C.F.R. § 547.5(a)(2)(iii)). 6 Id. 7 25 C.F.R. § 547.5(b)(2) (2012).

8 Technical Standards, supra note 1, at 45,231 (proposed 25 C.F.R. § 547.5(a)(1)(v)). 
3 

The NIGC has not suggested any specific reasons why the existing system of analysis, 

certification, and documentation - which has stood for many years - should be amended, nor are 

we aware of any need for amendment. The preamble to the Proposed Rule does not identify a 

clear need for the data or demonstrate how this data will be helpful or even used by the NIGC. 

The proposed new approach to pre-2008 Class II gaming systems should not be adopted absent a 

strong, factually based demonstration of need for each of the new requirements. Such a need 

cannot be merely speculative or conjectural, but based on an existing, concrete concern that the 

information from the annual review will help resolve. 

We are not persuaded that a compelling regulatory need for the annual review exists and believe 

that the current proposal will instead result in excessive regulatory costs and burdens on TGRAs 

without generating any appreciable regulatory benefits. The process of reviewing all of the 

components of each individual system, identifying the compliance status of each component 

within that system, and documenting the modifications necessary for the system to become fully 

compliant with 547.5(b) will require substantial time and effort and significant expense. 

Complying with these new requirements would be an expensive burden that could prove costprohibitive for those TGRAs already operating under constrained budgets with limited staffing. 

The increased workload would also divert critical resources away from other more pressing 

regulatory priorities. 

As noted above, the current rules already provide adequate recordkeeping measures for pre-2008 

Class II gaming systems. It should also be noted that all gaming systems, including pre-2008 

systems, are inventoried, frequently tested, and subject to recording requirements in accordance 

with tribal internal control standards. If the purpose of the annual review is to better understand 

the number and status of pre-2008 Class II gaming systems in existence, having the NIGC 

perform a records review during its on-site compliance visits would be a far more reasonable and 

less burdensome approach than what now appears in the Proposed Rule. 

III. The New Requirement that All Modifications Must Be Tested for Compliance with 

Part 547 Should Be Removed. 

The Proposed Rule also retains from the Discussion Draft the requirement that all modifications 

to a pre-2008 Class II gaming system must be submitted to a testing laboratory and tested for 

compliance with all technical standards of Part 547, not just those standards provided for pre2008 systems.9

 According to the NIGC, this new requirement is necessary to ensure that TGRAs 

have the information they need to determine whether a modification will maintain or advance 

compliance. 

While we understand the intent behind this proposed new requirement, we wish to point out that 

there may be instances where testing to the standards applicable to newer systems may be 

unnecessary and offer no benefit to the TGRA. This proposed new requirement appears to be 

based on the assumption that all modifications are capable of affecting the compliance status of a 

pre-2008 gaming system. This is simply not the case. There may be instances where a game 

modification is known by both the TGRA and the game manufacturer to have no impact as far as 

 

9 Technical Standards, supra note 1, at 45,232 (Proposed Rule, 25 C.F.R. § 547(c)(2)).
compliance with 547.5(b) is concerned. Under such circumstances, it would be unreasonable to 

require the TGRA to submit the component for testing against the full standards. 

We strongly believe that the decision of whether to test to the full standards should be within the 

discretion of the TGRA, not mandated in the regulation. This is, indeed, consistent with the 

primary regulatory role of TGRAs in ensuring the security and integrity of Class II gaming. We 

question the need for this proposed change given that the existing system for approving 

modifications has worked well without any significant problems or risks to the integrity of the 

game. 

IV. Conclusion

In closing, we would like to thank the NIGC for this opportunity to share our views and 

comments on the Proposed Rule of 25 C.F.R. § 547.5. We respectfully seek your favorable 

consideration of our comments and ask that you carefully consider our views and concerns as 

you move through the rulemaking process. 

Please do not hesitate to contact us if we can provide any additional information. 

Sincerely,

Ernest l. Stevens, Jr. 

Chairman

National Indian Gaming Association