COMMENTS REGARDING 25 CFR Parts 502, 556, and 558 

(See comments referencing highlighted or redlined areas in proposed rule below)

(Only those areas of the proposed rule with comments are included)

DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Parts 502, 556, and 558

Definitions; Background Investigation for Primary Management Officials and Key Employees; Gaming Licenses for Primary

Management Officials and Key Employees

AGENCY: National Indian Gaming Commission, Department of the Interior. ACTION: Proposed rule.

SUMMARY: The National Indian Gaming Commission proposes to amend its regulations to add definitions, amend existing

definitions, and amend requirements for conducting background investigations and issuing licenses. Proposed amendments

include adding general managers and other persons with similar management responsibility to the primary management official

definition; limiting the definition to those with duties similar to those of a chief financial officer rather than persons who have 

financial management responsibility; and limiting primary management officials to employed management officials designated by

Tribes instead of any person so designated. The proposed amendments to the key employee definition consolidate certain of its 

subsections; include gaming operation employees authorized for unescorted access to secured areas that are designated as such by

Tribal gaming regulatory authorities; remove compensation as determinative factor with the exception of the four most highly

compensated persons in the gaming operation; and allow Tribes to designate any other employee of the gaming enterprise as a 

key employee instead of ‘‘any other person.’’ Other proposed amendments incorporate the addition definitions for Gaming

Enterprise and Tribal Gaming Regulatory Authority and clarify licensing application and background investigation retention.

Specifically, the proposed amendments focus on licensing of primary management officials and key employees instead of

employment of them; adding notification requirements for licensing revocation decisions; specifying retention requirements of

information and documentation post termination; and changing the vesting of a right to a hearing to reflect Tribal law and policy.

I. Background and Development of the Rule

A. Background

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100–497, 25

U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act established the National Indian Gaming Commission 

(‘‘NIGC’’ or ‘‘Commission’’) and set out a comprehensive framework for the regulation of gaming on Indian lands. IGRA

requires that Tribal gaming ordinances provide ‘‘an adequate system which ensures that background investigations are

conducted on the primary management officials and key employees of the gaming enterprise and includes— 

(I) Tribal licenses for primary management officials and key employees of the gaming enterprise . . .;

(II) a standard whereby any person whose prior activities, criminal record, if any, or reputation, habits and associations pose

a threat to the public interest or to the effective regulation of gaming, or create or enhance the dangers of unsuitable, unfair,

or illegal practices and methods and activities in the conduct of gaming shall not be

eligible for employment; and

(III) notification by the Indian Tribe to the Commission of the results of such background check before the issuance of any of

such licenses.’’

The Commission first defined ‘‘key employee’’ and ‘‘primary management official’’ in April of 1992 (57 FR 123802–01). As

mandated by IGRA, applicants for key employee and primary management official positions are subject to a background

investigation as a condition of licensure. In 2009, the Commission expanded these definitions to permit Tribes to designate other

persons as key employees or primary management officials (74 FR 36926). The U.S. Department of Justice, Federal Bureau of

Investigation (FBI) took issue with this expansion, denying the processing of criminal history record information (CHRI) for the

expanded positions’ background investigations. This proposed rule rectifies that issue in part 502, limiting Tribal designations to

‘‘[a]ny other employee of the gaming enterprise designated by the Tribe as a key employee’’ and ‘‘[a]ny other employed

management official of the gaming enterprise designated by the Tribe as a primary management official.’’

Background investigation and

licensing regulations for key employees and primary management officials were initially issued by the Commission in January of

1993 (58 FR 5802–01) in

parts 556 and 558, respectively. The Commission updated these regulations in 2013 to streamline the submission of documents;

to ensure that two notifications are submitted to the Commission in compliance with IGRA; and to clarify the regulations regarding

the issuance of temporary and permanent gaming licenses (78 FR 5276–01). As for part 556, this proposed rule incorporates the

Gaming Enterprise definition, as needed, and modernizes the licensing application and background investigation retention 

requirements. And for part 558, the proposed rule emphasizes primary management official and key employee licensing rather

than their employment; adds notification requirements for licensing revocation decisions; details the retention requirements of

information and documentation related to key employees and primary management officials after their employment ceases; and

updates the vesting of a right to a hearing to include the requirements of Tribal law and policy.
B. Development of the Rule

On, June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to

consult on a number of topics, including proposed changes to the key employee and primary management definitions and the

backgrounding and licensing regulations. Prior to consultation, the Commission released proposed discussion drafts of the

regulations for review. The proposed amendments to these regulations were intended to: address FBI’s concerns regarding the 

key employee and primary management official definitions; include gaming operation employees with unescorted access to

secured areas as key employees; combine certain subsections of the key employee definition; add general managers and similar

positions to the primary management official definition; and update licensing application and background investigation retention

requirements.

The Commission held two virtual consultation sessions in July of 2021 to receive Tribal input on the possible changes.

The Commission reviewed all

comments received as part of the consultation process. Several comments were concerned that defining a key employee as a

‘‘Custodian of gambling device or system records’’ would make TGRA personnel key employees. To address this concern, the

Commission is proposing to limit the definition to persons who perform that function ‘‘for the gaming operation.’’ It is not the 

Commission’s intent to capture TGRA employees or non-gaming operation personnel in the definition. A similar comment sought

clarification as to whether ‘‘any person authorized by the gaming operation for unescorted access to secured areas’’ includes TGRA

personnel. Again, it does not as in most cases the TGRA, not the gaming operation, authorizes TGRA personnel’s access to

restricted areas.

However, under provision § 502.14(d) – “any other employee of the gaming enterprise designated by the Tribe as a key employee’’--A

Tribe may, at its discretion, designate TGRA personnel as key employees through its gaming ordinance, since the ‘‘Gaming

Enterprise’’ definition includes ‘‘the entities through which a Tribe conducts, regulates, and secures its gaming . . . .’’

Likewise, if it so chooses, a Tribe may deem TGRA supervisory personnel as primary management officials under

§ 502.19(e) - ‘‘any other employed management official of the gaming enterprise designated by the Tribe as a primary management

official.’’

The intent of both proposed provisions is to provide maximum flexibility to Tribes.

PART 502—DEFINITIONS

■ 2. Revise § 502.14 to read as follows:

§ 502.14 Key employee.

Key employee means:

(a) Any person who performs one or more of the following functions for the gaming operation:

(1) Bingo caller;

(2) Counting room supervisor;

(3) Chief of security;

(4) Floor manager;

(5) Pit boss;

(6) Dealer;

(7) Croupier;

(8) Approver of credit;

(9) Custodian of gaming systems as defined in 25 CFR 547.2 and similar class III systems, gaming cash or gaming cash

equivalents, or gaming system records;

(10) Custodian of surveillance systems or surveillance system records.

(b) Any person authorized by the gaming operation for unescorted access to restricted areas designated as restricted areas by

the TGRA;

(c) If not otherwise licensed as a key employee or primary management official, the four most highly compensated gaming 

operation(or enterprise depending on your intention) employees by the gaming operation.

(d) Any other employee of the gaming enterprise designated by the Tribe as a key employee in its gaming ordinance.

■ 3. Revise § 502.19 to read as follows:

§ 502.19 Primary management official.

Primary management official means:

(a) Any person having management responsibility for a management contract;

(b) Any gaming operation (or gaming enterprise depending on your intention) employee who has authority:

(1) To hire and fire employees of the gaming operation; or

(2) To establish policy for the gaming operation; or

(3) To supervise a key employee of the gaming operation.

(c) The chief financial officers or other positions with duties similar to a chief financial officer of the gaming operation

(or enterprise depending on your intention).

(d) The general manager or a position with duties similar to a general manager.

(e) Any other employed management official of the gaming enterprise designated by the Tribe as a primary management

official in its gaming ordinance.

■ 4. Add §§ 502.25 and 502.26 to read as follows:

§ 502.25 Gaming Enterprise.

Gaming Enterprise means the entities through which a Tribe conducts, regulates, and secures gaming on Indian lands

within such Tribe’s jurisdiction pursuant to the Indian Gaming Regulatory Act.
PART 556—BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT OFFICIALS AND KEY EMPLOYEES

■ 6. Amend § 556.4 by revising the first sentence of the introductory text to read as follows:

§ 556.4 Background investigations.

A Tribe shall perform a background investigation for each primary management official and for each key employee of the

gaming enterprise.

■ 7. Amend § 556.6 by revising the first sentence of paragraph (a) to read as follows:

§ 556.6 Report to the Commission.

(a) When a Tribe licenses a primary management official or a key employee, the Tribe shall maintain the information listed

under § 556.4(a)(1) through (14).

PART 558—GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS

■ 10. Revise § 558.3 to read as follows:

§ 558.3 Notification to NIGC of license decisions and retention obligations.

(a) After a Tribe has provided a notice of results of the background check to the Commission, a Tribe may license a primary

management official or key employee.

(b) Within 30 days after the issuance of the license, a Tribe shall notify the Commission of its issuance.

(c) A key employee or primary management official who does not have a license after ninety (90) days shall not be permitted

to perform the duties, functions, and/or responsibilities of a key employee or primary management official until so

licensed.

(d) If a Tribe does not license an applicant—

(1) The Tribe shall notify the Commission; and

(2) Shall forward copies of its eligibility determination and notice of results, under § 556.6(b)(2) of this chapter, to the

Commission for inclusion in the Indian Gaming Individuals Record System.

(e) If a Tribe revokes a key employee or primary management official’s license—

(1) The Tribe shall notify the Commission; and

(2) Shall forward copies of its license revocation decision and a summary of the evidence it relied upon to the

Commission for inclusion in the Indian Gaming Individuals Record System.

(f) A Tribe shall retain the following for inspection by the Chair or their designee for no less than three years from the date of

termination of employment:

(1) The information listed under § 556.4(a)(1) through (14) of this chapter;

(2) Investigative reports, as defined in § 556.6(b) of this chapter;

(3) Eligibility determinations, as defined in § 556.5 of this chapter;

(4) Privacy Act notice, as defined in § 556.2 of this chapter; and

(5) False Statement notice, as defined in § 556.3 of this chapter.