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Chairperson: Kelly Myers Secretary: Traci Atkinson

Vice Chairperson: Jean Ann Blalock Treasurer: Jerrod Chester

Sergeant-at-Arms: Wes Pappan

November 12, 2017 

Jonodev Chaudhuri, Chairman 

National Indian Gaming Commission Via Electronic & U.S. Mail

1849 C Street Northwest 

Washington, D.C. 20240 

ATTN: 547.5_Comments@nigc.gov 

Re: Proposed Rule, 82 Fed. Reg. 45228-45233 (September 28, 2017) 

Amending 25 C.F.R. 547.5 

 2008 Class II Gaming Systems 

Dear Chairman Chaudhuri: 

The Oklahoma Tribal Gaming Regulators Association (OTGRA) is a professional association of Tribal 

gaming regulators in the state of Oklahoma. OTGRA’s mission is to support and promote knowledge and 

education in tribal gaming regulation, to share information among its members regarding important 

regulatory issues, and to provide technical support to its member regulators in order to ensure best 

regulatory practices under Tribal gaming laws and regulations, the Indian Gaming Regulatory Act, the 

National Indian Gaming Commission (NIGC) Regulations, and the Oklahoma Tribal Gaming Compacts. In 

this capacity, OTGRA has been closely engaged with member regulators and the NIGC regarding the 

status of Class II Gaming Systems that were in operation when the NIGC Technical Standards were 

implemented, and which have been grandfathered under 25 C.F.R. 547.5 until a sunset of November 10, 

2018 (Class II Systems). Specifically, this letter provides comments on the NIGC’s Proposed Rule 

published on September 28, 2017 (82 Fed. Reg. 187, Sept. 28, 2017) (the Proposed Rule) and follows up 

on and supplements OTGRA’s May 10, 2017 letter to you on this topic and its July 26, 2017 letter 

providing further comment on the Discussion Draft of proposed amendments to the Class II System 

technical standards that the NIGC issued on June 14, 2017. The NIGC requested that comments on the 

Proposed Rule be submitted by November 13, 2017. 

OTGRA thanks NIGC for the opportunity to comment on the Proposed Rule. The effective regulation of 

Indian Gaming, and the success of the Indian Gaming industry is best served by the kind of governmentto-government consultation that the NIGC has engaged in with the affected Tribes. In furtherance of 

that consultation, OTGRA offers the following substantive comments on the Proposed Rule. 
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First, OTGRA welcomes the consolidation of “grandfathering” provisions and the elimination of the 

sunset provision in Subsection (a) of the Proposed Rule. As the NIGC notes in addressing comments on 

the Discussion Draft (82 Fed. Reg. 45,229), “the technical standards are intended to ensure the integrity 

and security of Class II gaming and the accountability of Class II gaming revenues. OTGRA concurs, and 

observes that eliminating the sunset provision recognizes that, over the 10-year grandfather period, no

compliance issues or incidents have been reported. Further, many, if not all, of the Class II Systems in 

operation today have been subject to system modifications under the provisions of the Class II technical 

standards, which allow for modifications designed to maintain or to advance the overall compliance and 

integrity of these systems. So, under the rigorous oversight of our member regulators, the previouslygrandfathered Class II Systems have improved their performance and compliance over time. The 

Proposed Rule, therefore, achieves the intent of the technical standards of “providing a means for 

TGRA’s and operators to ensure that the integrity and security of Class II games played with technologic 

aides are maintained and that the games and aids are fully auditable.” 73 Fed. Reg. 60,508, 60,509 (Oct. 

10, 2008), while recognizing important role of our member regulators. 

The amendment to Subsection (a) also appropriately balances the regulatory performance of these 

systems and the rigorous regulatory oversight of our member regulators with the enormous potential 

economic impact of eliminating these systems, which total approximately 24,000 Class II Systems 

currently in operation, collectively comprising and estimated 41% of total units in play. The Proposed 

Rule achieves the NIGC’s goal of seeking a “potential alternative that minimizes both the economic 

impact of the sunset provision and the risk to the gaming operation and the public of systems that are 

not compliant with the full set of technical standards.” The NIGC states that it “understand[s]...concerns 

over removing non-compliant Class II Gaming Systems from the gaming floor.” 87 FR 45229. However, 

OTGRA observes that this response appears not to fully capture the potential adverse impact that would 

have resulted from removing what have indisputably been compliant Class II Gaming Systems from the 

gaming floor in the absence of any evidence of integrity or performance issues. 

With respect to annual audit requirements, OTGRA notes that the Proposed Rule subjects Class II 

Gaming Systems to compliance auditing that exceeds the industry standards for rolling compliance 

testing for all other gaming devices by a magnitude of 10. OTGRA believes that this treatment is 

inconsistent with the NIGC’s determination to remove the “grandfathered” label from Class II Systems 

and to eliminate the sunset provision, which is a recognition that these Systems are compliant. As our 

May 10, 2017 and July 26, 2017 comments indicate, OTGRA believes that audit requirements for these 

systems should be subject to, among other things, a minimum rolling compliance certification of 10% of 

the electronic layer interfaces in operation at each facility where a Tribe has Class II Gaming Systems in 

operation. The Proposed Rule’s annual testing and certification of pre-November 10, 2008 Class II 

Gaming Systems is a significant additional administrative burden imposed on TGRAs, and maintains 

547.5 as the only section of the technical standards in which TGRAs are not the primary regulatory of 

gaming. Nevertheless, OTGRA appreciates the clarification at 547.5(a)(3) that this audit requirement 

will not apply to Class II gaming systems that TGRAs have determined meet all of the requirements of 

547.5, and is confident that OTGRA members will meet this responsibility fully and completely, and will 

continue to regulate Indian Gaming in Oklahoma with the very highest level of professionalism. OTGRA 

will, in turn, fulfill its role to assist its member regulators in meeting these requirements through 

education and information sharing regarding best regulatory practices. 
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Finally, OTGRA observes that the Proposed Rule continues to hedge on a clear statement that sensitive, 

confidential and proprietary information should be made available to but not turned over to the NIGC. 

The NIGC comments that “the Commission agrees that sensitive testing and compliance records should 

not be disclosed” (82 Fed. Reg. 45230), and that “confidential commercial or financial information and 

law enforcement information exceptions to FOIA preclude the release of such information.” 82 Fed. 

Reg. 45231. But, these aspirational statements would be unnecessary if the Proposed Rule made clear 

that such records are subject to review but not submission to the NIGC. OTGRA hopes that the final rule 

will provide such clear and certain protection, because experience demonstrates at both the state and 

federal level that the recipients of such information cannot always protect that information from 

disclosure once it is included in an agency’s record, irrespective of the recipient’s stated intention to do 

so. 

OTGRA hopes that these comments are helpful to the NIGC and offers them with all due respect and, 

again, OTGRA offers its thanks to the NIGC for its engagement with Tribal regulators on this important 

issue. If you have any questions, please feel free to contact me at Kelly-Myers@Cherokee.org and/or 

(918) 207-4914 or OTGRA legal counsel, Joseph F. Halloran at jhalloran@thejacobsonlawgroup.com

and/or (651) 644-4710. 

Respectfully, 

Kelly Myers, Chairwoman 

cc. OTGRA Board Members 

 Joseph F. Halloran