1 NATIONAL INDIAN GAMING COMMISSION MEETING

2 TAKEN ON SEPTEMBER 8, 2011

3 IN BISMARCK, NORTH DAKOTA

4

5

6

7 APPEARANCES

8 Tracie Stevens

Chairwoman

9 1441 L Street Northwest

Suite 9100

10 Washington, DC 20005

(202) 632-7003

11 tracie_stevens@nigc.gov

12 Larry Roberts

General Counsel

13 1441 L Street Northwest

Suite 9100

14 Washington, DC 20005

(202) 632-7003

15 larry_roberts@nigc.gov

16 Jennifer Ward

Attorney

17 1441 L Street Northwest

Suite 9100

18 Washington, DC 20005

(202) 632-7003

19 jennifer_ward@nigc.gov

20

21

22

23

24 REPORTED BY: Stephanie L. Marjamaa

25 Job No. NJ343902

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1 (Whereupon, Chairwoman Stevens opened

2 the meeting.)

3 MS. STEVENS: Good morning. We still

4 have some people here from yesterday, one new

5 person. What we'll do is stick to our agenda for

6 today on day two where we'll talk about

7 self-regulation for Class II and also sole

8 proprietary interest again. And then, for the

9 benefit of anyone who's new to the meeting today,

10 we can backtrack later this morning about some of

11 the issues we talked about yesterday in Groups 1,

12 2, and 4.

13 So let's go ahead and start on day

14 two's agenda. I'll go ahead and turn the

15 microphone over to Larry and we can talk about

16 where we're at with Part 518, which is this

17 loose-leaf handout that was given to you, the

18 redline. There's actually two of the same

19 document in here. After the first 12 pages,

20 there's another 12, well, might be more pages or

21 less, 17 pages. It's just different formatting to

22 indicate the changes. One shows the deletion in

23 bubbles. That's the first 12 pages. The next 17

24 pages show the deletions and strikeouts, so your

25 reading preference. It's the same document,

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1 different redline format. So that's what we'll be

2 talking about first. And we don't have any

3 handouts on sole proprietary interest at this

4 time, but we'll go ahead and talk about those two

5 things.

6 One thing to note is our original

7 Group 5 was going to address Class III minimum

8 internal control standards, and how we were

9 intending to address them based on input that we

10 received from tribes. We've now taken that off

11 our agenda. We'll be addressing that through the

12 Tribal Advisory Committee, which we can talk about

13 more later, but we won't be talking about that

14 today as we originally planned back in I want to

15 say April. So with that let's go ahead and start

16 talking about Group 5, Larry.

17 MR. ROBERTS: Good morning, everyone.

18 Please feel free to interrupt me if you have any

19 questions. As the chairwoman mentioned we covered

20 some of this material yesterday, and I'm happy to

21 entertain questions as we're going through the

22 PowerPoint.

23 As I mentioned yesterday my name is

24 Larry Roberts. I'm the general counsel of the

25 National Indian Gaming Commission. I'm a member

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1 of the Oneida Nation of Wisconsin, and I started

2 with the Commission about a year ago.

3 So when Commission issued a notice of

4 inquiry, they asked the public and tribes whether

5 they should review the process for obtaining a

6 Class II self-regulation certification and we

7 received a number of comments from the public in

8 response to that NOI. Basically there are only

9 two tribes out of the 200 plus gaming tribes

10 across the country that have a certificate of

11 Class II self-regulation, and some tribes

12 commented basically saying that the administrative

13 burden of completing the process outweighed the

14 benefits of doing so, that a lot of the

15 requirements of submissions were duplicative and

16 that it could be streamlined, that the annual

17 reporting requirements were so voluminous that it

18 undermined the whole purpose of certification

19 itself.

20 But the tribes also and the public

21 also commented that while the process could be

22 more efficient obviously the high standards of the

23 process should be maintained. And tribes

24 commented basically saying that self-regulation

25 certification's a hallmark of tribal sovereignty.

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1 Self-regulation certification is important and

2 encouraged the Commission to take up this partner

3 in its regulatory review process.

4 So the discussion draft that the

5 chairwoman mentioned attempts to do a handful of

6 things. First of all, it intends to make the

7 certification process more efficient and

8 streamline while maintaining high standards so

9 that all tribes can make use of this process, that

10 it's intended to reduce some of the submission

11 requirements of duplicative information, and its

12 focus is more toward the regulatory side as

13 opposed to the operation side of tribal gaming.

14 So I'm gonna walk through the

15 submission requirements in the redline draft here,

16 some of the changes. And they start with 518.3,

17 the requirement for tribes in terms of seeking a

18 Class II self-regulation certification. The tribe

19 needs to provide information about a brief history

20 over the last three years of the tribe's gaming

21 operations, the tribe's regulatory organizational

22 chart, the employment criteria for tribal gaming

23 regulators, a description of the tribal gaming

24 authorities funding, current list of those

25 regulators, and a description of the gaming

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1 operation accounting system.

2 MS. SIERS: I have a question.

3 MR. ROBERTS: Sure.

4 MS. SIERS: When you say -- well, I

5 know we did this -- when you say employment

6 criteria --

7 MR. ROBERTS: Yeah. Let me just back

8 up for a second and let you know that everything

9 on the -- in the consultation's being transcribed,

10 and so we have to my left here Stephanie is

11 transcribing everyone. So what we'd like to do

12 --and the reason that we're having these

13 consultations transcribed is that obviously not

14 all tribes can attend every consultation, but

15 we're putting these transcripts up on the website

16 so they're made available so you can -- everyone

17 can see what other tribes are -- their comments

18 are during the consultation period. Because what

19 we're learning through the consultation is that a

20 number of tribes share similar issues and can

21 share solutions as well.

22 So what we ask in terms of the

23 consultation is that if you have questions or

24 comments that you introduce yourself, that you

25 state your name, which tribe you're speaking on

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1 behalf of, then your comment.

2 MS. SIERS: Okay. My name is Kim

3 Siers. I'm a tribal gaming commissioner from

4 Rosebud Sioux tribe, Rosebud, South Dakota. And

5 my question was -- well, I'm just curious on the

6 employment criteria for the regulators. Why is

7 that an issue?

8 MR. ROBERTS: This is for -- this is

9 for certification for Class II self-regulation,

10 and so under that process what we're asking for is

11 the criteria for the regulators so that we have

12 that information. Because under IGRA the

13 Commission has to make certain determinations

14 before issuing a certificate of self-regulation,

15 and so one of those is just having that

16 information in terms of what criteria does the

17 tribe use in appointing regulators. It's not

18 necessarily an approval process. It's just

19 informational.

20 MS. SIERS: Okay.

21 MR. ROBERTS: So it's a current list

22 of the regulator -- tribal gaming regulators.

23 It's a description of the operations accounting

24 system. It's a list of the gaming operation's

25 internal controls, description of the

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1 recordkeeping system for the TGRA for

2 investigations, enforcement actions, any

3 prosecutions of the gaming ordinance or the

4 tribe's regulations, a copy of the facility

5 license for the Class II facility, and any tribal

6 gaming regulations, if they're not already

7 included in an approved tribal gaming ordinance.

8 We also ask tribes to submit a

9 description of the recordkeeping system that the

10 TGRA utilizes for tracking investigations,

11 enforcement actions.

12 And then 518.4(a) in that section we

13 -- the regs talk about the criteria that must be

14 met to receive a certificate of self-regulation.

15 So we use the information that was required to be

16 submitted to make determinations in terms of the

17 tribe conducting the gaming in an effective and

18 honest accounting of all revenues; reputation for

19 a safe, fair, and honest operation. These

20 criteria are right from IGRA. On a fiscally and

21 economically sound basis, and generally free of

22 criminal or dishonest activity.

23 And also in order to receive a

24 certificate of self-regulation we have to

25 determine that the gaming activity has been

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1 conducted in compliance with IGRA, NIGC

2 regulations, and the tribe's gaming ordinance and

3 tribal gaming regulations.

4 In terms of criteria that must be met

5 to receive a certificate, we look at whether the

6 tribe has adequate systems for accounting of all

7 revenues; adequate systems for investigation,

8 licensing and monitoring of gaming of all

9 employees; investigation, enforcement and

10 prosecution of violations of its gaming ordinance

11 and regulations.

12 And in 518.4(b) the tribe may

13 illustrate that it's met this criteria by

14 addressing factors, and this is not an exclusive

15 list of factors, but it's suggestions, you know,

16 the tribe can show that it has met the criteria by

17 showing that it has adopted and implemented MICS

18 at least as stringent as NIGC MICS; that the tribe

19 utilizes an adequate system for accounting of all

20 gaming revenues; that has adequate dispute

21 resolution processes in place for not only the

22 tribal gaming operation employees but also

23 customers and has taken steps to ensure that that

24 process is implemented; that the regulatory body

25 monitors compliance with all applicable laws and

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1 regulations; and it monitors effectiveness of

2 gaming revenues accounting system; that it audits

3 the Class II gaming activities; and that it

4 routinely receives and reviews the gaming revenue

5 accounting information from the gaming operation

6 itself.

7 Also the tribe can illustrate that

8 it's met the criteria by describing that the

9 gaming regulatory body has inspection and audit

10 access to all papers, books, and records of the

11 operation; that it's adopted and implemented an

12 adequate investigation, licensing and monitoring

13 system of all gaming employees; adequate licensing

14 records system; and established standards for

15 vendors.

16 Also that it establishes and posts

17 Class II game rules; adequate system for gaming

18 ordinance and regulation violation investigations;

19 that it takes enforcement action; and that it

20 takes testimony and conducts hearing on regulatory

21 matters. And also it should show that the tribe

22 adequately funds the tribal regulatory body.

23 The tribe can also satisfy the

24 criteria by addressing factors demonstrating that

25 the operation is financially stable; that it has

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1 adopted a system for adequate prosecution of the

2 ordinance and regulations of the tribe; that the

3 operation itself is being conducted in the matter

4 that adequately protects the environment, public

5 health and safety.

6 So this is all in the petitioning

7 process, and once the petition is received by the

8 Commission within 120 days of receipt of that

9 petition then the Office of Self Regulation makes

10 an initial determination. And that Office of Self

11 Regulation is one of the commissioners on the

12 Commission. And if it's a complete petition, that

13 Office of Self Regulation will issue a report of

14 its finding and it will issue a certificate of

15 self-regulation or advise the tribe that it has

16 not met the criteria for self-regulation.

17 And if the Office of Self Regulation

18 finds that a tribe doesn't meet one of the

19 criteria, the tribe can respond to the report and

20 include the additional information; it can request

21 a hearing; and after the hearing, the

22 commissioner, the Office of Self Regulation, will

23 issue a decision on the petition; and if that

24 decision is to deny the certificate of

25 self-regulation, then that is appealable to the

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1 full Commission.

2 In terms of once the tribe receives a

3 certificate of self-regulation, there are annual

4 reporting requirements, and these come basically

5 right from the text of IGRA itself. And one is an

6 independent audit and the other is a complete

7 resume of all primary management officials and key

8 employees hired and licensed by the tribe after

9 receiving that certificate.

10 And then 518.8 provides for the tribe

11 to have a continuing duty to provide information

12 to the Commission. If there's any material change

13 in circumstance involving the approval criteria

14 set out under Part 518.

15 So following -- and this 518.9 is not

16 a substantive change. It's a clarifying change

17 sort of right from the text of IGRA itself. So

18 once a tribe receives a certificate of

19 self-regulation, the Commission doesn't -- there

20 are -- there are certain responsibilities of the

21 Commission that are taken on by the tribe and that

22 is power to monitor Class II gaming; inspect and

23 examine all premises where solely Class II gaming

24 activities are conducted; the power to conduct

25 background investigations; and the power to demand

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1 access and to inspect all books, records

2 respecting Class II gross gaming revenues.

3 So that list of powers is basically

4 removed from the Commission. That doesn't mean

5 that the Commission loses all -- the Commission

6 retains all other investigative and enforcement

7 powers under IGRA and retains the powers to

8 investigate and bring enforcement actions for

9 other violations of IGRA.

10 This discussion draft, which

11 chairwoman mentioned was circulated, is just a

12 preliminary discussion draft, and so the process

13 on these preliminary discussion drafts we're

14 asking for written comments by September 17. At

15 that point what the Commission will do is they'll

16 look at the comments, they'll look at the

17 discussion draft, they'll consider whether to move

18 forward with whether to propose any changes to the

19 existing regulations.

20 And if the Commission decides to do

21 that, what they'll do is they'll issue a notice of

22 proposed rule making. At that point what happens

23 is it will be published in a Federal Register.

24 The tribes and the public will have an additional

25 opportunity to comment on that proposed rule

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1 making. The one -- and typically it will be a

2 60-day comment period on that proposed rule. And

3 after that comment period closes, the Commission

4 will then consider those comments on the proposed

5 rule and decide whether to move forward with the

6 final rule. And after the final rule is issued,

7 there will be a comment period typically I believe

8 it's 30 to 45 days. Does anyone have any

9 questions at this point?

10 MS DAVIS: My name is Marty Davis and

11 I work for the Turtle Mountain tribe in Belcourt.

12 One of the questions I have in far -- as far as

13 self-regulation is that we addressed the needs of

14 the employment criteria of the regulators;

15 however, one of the things that isn't addressed is

16 there is no requirement for a regulator to be

17 licensed either under the facility, under the

18 Commission, or under NIGC. And I believe that

19 this may be something that should be looked at is

20 the licensing of the regulators.

21 Also another issue that isn't

22 addressed is as regulators it is our duty to

23 uphold the enforcement powers or the regulations

24 that NIGC puts out. It's also our duties to

25 protect the assets of the tribe, but there is no

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1 where in any regulation that protects the

2 regulator from any tribal, and we all deal with

3 it, tribal retaliation for us to protect the

4 regulations of IGRA. We've all dealt with it, but

5 we don't have any due process other than going

6 through our tribal grievance policies or

7 procedures. So these are issues that I think

8 regulators should be protected somewhere, somehow.

9 Thank you.

10 MR. ROBERTS: Thank you for your

11 comment.

12 MS. STEVENS: I appreciate you

13 bringing that to our attention. I certainly know

14 what you're referencing. We'll certainly take

15 your comments into consideration and examine, you

16 know, what our authorities are under the Act and,

17 you know, certainly give some thought to your

18 comments and this particular draft or anything

19 that we're looking at.

20 So are there any other questions about

21 self reg? I just wanna make clear that the

22 self-regulation is for Class II and Class II only.

23 As Larry did mention I was looking back in the

24 PowerPoint, when we initially started talking

25 about self-regulation, which we started last --

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1 last year sometime during the notice of inquiry

2 phase, there was a lot of interest from tribes who

3 look at this, but really the comments as we

4 pointed out in the PowerPoint were sort of general

5 comments about, you know, the burdensome nature of

6 the regulation, the cost benefit ratio in

7 complying with the regulation, you know, what was

8 the benefit to the tribe when they become

9 self-regulation.

10 We only have two. We only have two

11 tribes that are certified as self-regulated tribes

12 for Class II, and that's Menominee and Grand

13 Ronde, and they follow the process every year in

14 turning the compete information that is in the

15 current regulation, which was established I think

16 in 1998. So not only is it a good time for us to

17 reexamine that and see how it's working, but also

18 get feedback from tribes. Because the nature of

19 some of the comments we received were general,

20 with this discussion draft now out, we really look

21 forward to more specific comments regarding what's

22 been put out in draft discussion draft form.

23 We really tried to stay within our

24 authorities and of IGRA and what IGRA specifies

25 with regard to self-regulation. What we believe

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1 would be helpful to us to assure that the

2 regulatory body is stable enough and

3 well-established enough and has adequate controls

4 in place to regulate themselves. So we certainly

5 look for your comments, and we know this just came

6 out recently and the comment period closes on

7 September 17. So we look forward to your

8 comments. Are there any other questions regarding

9 self-regulation? Any clarification.

10 Again, I just wanna make clear that

11 it's only for Class II. We had had some tribes

12 ask about Class III, which is not something that

13 we're able under our authority to do for Class

14 III, but for Class II. And, you know, certainly

15 want to make sure that that's understood when

16 looking at this that it is only for Class II. Any

17 other comments? Otherwise we can move on to sole

18 proprietary interest, which is the next part of

19 our discussion.

20 MR. ROBERTS: So I'll run through the

21 discussion on sole proprietary interest. In the

22 notice of inquiry that was issued by the

23 Commission sometime ago the Commission asked

24 whether they should consider issuing a regulation

25 that would define sole proprietary interest and

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1 whether a regulation should provide a process for

2 under which a tribe could request review of

3 whether particular contracts violate IGRA's

4 requirement that the tribe maintain the sole

5 proprietary interest in the gaming facility.

6 And so there was a mix of comments

7 received in response to the notice of inquiry.

8 One -- and some comments suggested that the

9 Commission should promulgate a regulation and that

10 it should limit the request for review only to

11 tribes that if a tribe had contracts with a third

12 party, that the Commission should not provide a

13 process where third parties could request that

14 review. It would be at the discretion of the

15 tribe.

16 Some comments suggested that while

17 IGRA doesn't define sole proprietary interests

18 other provisions in IGRA might help to inform what

19 constitutes a sole proprietary interest and

20 specifically the percentages that a management

21 contractor can receive under a management contract

22 and also percentages that must be provided to a

23 tribe for independent gaming operations licensed

24 by the tribe.

25 Some comments suggested that if the

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1 Commission were going to define the sole

2 proprietary interest requirement through

3 regulation then it should also define what primary

4 beneficiary means in the purposes of the Act;

5 that a clear -- because sole proprietary interest

6 has not been clearly defined by a regulation, that

7 such a regulation may provide stability and access

8 to financing for tribes. Other comments suggested

9 the opposite. That by clearly defining it, it

10 might actually limit tribal access to capital.

11 Because it may be too restrictive in

12 the definition, it's hard to, because some of

13 these determinations are so fact specific is it

14 possible to define it through regulation. And

15 some comments suggested that the Commission should

16 not define it through regulation. That this

17 should be left for the courts to decide.

18 So as the Chair mentioned we have not

19 put forward a preliminary draft discussion on sole

20 proprietary interest. In the past the Commission

21 has addressed sole proprietary interest through

22 early on in guidance, through a handful of notices

23 of violation issued by the Chair, and through

24 opinions from the office of general counsel, legal

25 opinions.

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1 And so in this consultation we would

2 like to know or we'd like to hear from tribes as

3 to whether they have any comments on whether the

4 Commission should take on a regulation and, if so,

5 what would that regulation look like? Are there

6 suggestions in terms of how to define sole

7 proprietary interest? And are there additional

8 considerations that the Commission should take on

9 or take on in their deliberations of whether to

10 move forward with such a vague definition?

11 MS. STEVENS: This generally is

12 something that will come up with -- I mean, it's

13 -- it comes through our management contracts

14 sometimes it comes through our financial -- some

15 financial collateral documents that come through.

16 And generally, you know, looking at the audience

17 here, you know, usually the folks that are

18 interested in that are the attorneys that

19 represent the tribes and the tribal leaders

20 themselves.

21 And we have received some comments

22 back as Larry had mentioned. And, you know,

23 certainly would hope that folks -- for those of

24 you who are sitting and listening, will be

25 bringing information back to your tribe. You can

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1 always go to our website. Because we don't have a

2 draft, go to our website NIGC dot gov under the

3 tribal consultations, the comment section, and all

4 the transcripts are there so you can look back and

5 see what tribes have -- and their representatives

6 have sent in and conveyed to us about sole

7 proprietary interest.

8 So with that if we don't have any

9 comments or any other questions about sole

10 proprietary interest, then we can for the benefit

11 of folks that were not able to be here in

12 afternoon session yesterday and in the morning

13 we're just gonna briefly run back over some of the

14 issues that we talked about.

15 And yesterday if you look at your

16 agenda in Group 1, 2, and 4, again, want to note

17 that Group 3 involved Class II minimal internal

18 control standards and Part 547 machine gaming

19 technical standards for machine gaming play for

20 Class II bingo play, those again were taken off

21 the agenda, and we're moving that Class III MICS,

22 Class II MICS, and then Class II technical

23 standards into a Tribal Advisory Committee that we

24 are now in the process of soliciting nominations

25 for that committee.

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1 So that's why you don't see Group 3 on

2 here. We didn't miss a group, but we now moved it

3 to a parallel track. So why don't we go back over

4 Group 1. Again, all of these draft discussion

5 drafts are in your packet here, and they're noted

6 on the tabs which section of the regs they are.

7 So for fees, and this is fees that NIGC charges to

8 tribes for our regulation of their facilities. No

9 other fees outside of that, just concerning our

10 fees. Part 514 for fees.

11 We'll go over 523, which is just

12 really a repeal question for existing ordinances

13 prior to 1993. It's our understanding we don't

14 have any other -- there are no existing ordinances

15 that were approved prior to 1993. So that's just

16 a repeal question.

17 And Part 559 is facility licensing.

18 And some changes that we've made there and

19 requirements that we're asking tribes. There's

20 some open questions that we have.

21 And then, we'll also talk about Buy

22 Indian for the NIGC, not for tribes, but for the

23 NIGC as an agency when contracting services and

24 supplies for the agency.

25 (Discussion off the record.)

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1 MS. STEVENS: We'll, you know, for the

2 sake of time just highlight the general changes in

3 these regulations for 514. To note, again, those

4 copies are in your handouts. Okay. We'll just

5 quickly go over the highlights of what has been

6 changed in each of these regulations.

7 MR. ROBERTS: Okay. I'll quickly go

8 over Part 514, and I guess if there are other

9 parts or groups listed in the agenda that are of

10 particular interest I think we're a small enough

11 group that if after we run through some of the

12 fees and facility licensing if there are other

13 parts you would like to focus on, we'd be happy to

14 do that as well.

15 So on Part 514 fees, one of the

16 changes, proposed changes, in the preliminary

17 draft is to change the fee calculation from --

18 right now it's based on a calendar year. What

19 we're proposing is to change it to each individual

20 gaming operation's fiscal year. And the reason

21 for this proposed change is to hopefully make it

22 more efficient for tribal operations to calculate

23 their fees since they'll be based on the fiscal

24 year of the tribe's choosing rather than a

25 calendar year, and hopefully this will cut back in

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1 the number of fee audits that are necessary and

2 hopefully it streamlines it and makes it a more

3 efficient approach.

4 We've also proposed changing the fee

5 rate to be published on March 1 so that it's a

6 more accurate preliminary fee rate. We've also

7 proposed changing it back to quarterly payments as

8 opposed to biannual payments. We've heard from a

9 number of tribes and the public through the

10 consultations that quarterly payments actually

11 worked better for tribes, and in talking with our

12 staff internally, the quarterly payments make it

13 also easier on the Commission in that there's not

14 as much of an overlap that we have to have because

15 we're receiving payments quarterly as opposed to

16 biannually.

17 Because the proposal is to change the

18 calculation to a particular tribe's fiscal year,

19 we're gonna have a notification period in there so

20 that the tribe does for whatever reason in the

21 future change its fiscal year provides notice to

22 us that we're aware of that change.

23 And then I would say another new major

24 component in this preliminary discussion draft is

25 the idea of a late payment. We've heard from a

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1 number of tribes and the public that in the past

2 the number of NOV's were issued simply because the

3 tribe paid its fee 10 days late, 15 days late, 30

4 days late. What this preliminary discussion draft

5 attempts to set out is a situation where that if a

6 tribe pays its fee anywhere between one and 90

7 days late, that it's assessed just a fee.

8 And we've left that open right now and

9 asked for comment on whether that should be just a

10 set dollar amount or a percentage of the fees to

11 be paid to NIGC. We've heard through the

12 consultations that a number of tribes have

13 expressed a preference for a percentage of fees so

14 that a operation with smaller gaming revenues if

15 it's just a flat amount that may be more

16 detrimental to that operation as opposed to a

17 percentage of the fee owed itself.

18 And then if a late payment is -- or if

19 a payment of fees does not occur within 91 days,

20 then that late payment turns into a failure to pay

21 the annual fee, which could then result in a

22 notice of violation, and so it would -- this

23 proposed process is to make clear to tribes that

24 there's this period and here are the percentages,

25 sort of like what happens with your credit card

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1 payments basically or any other bill there's 30,

2 60, 90 day late here are the assessments.

3 As most of you know that the

4 Commission has been collecting fingerprint

5 processing fees for quite some time, but we have

6 not clarified that through regulation. And so if

7 a tribe asked NIGC to process fingerprints, what

8 we've done is we've laid out the assessment in

9 these regulations so that it's clear, and it

10 clarifies that we're gonna -- that these are

11 collection of fees and that we will publish the

12 fee amount, which is based on -- the fee amount is

13 based on the cost that FBI charges us and our

14 overhead. It's not -- it's not a revenue. It's a

15 revenue controlled function for the Commission.

16 And we suggested publishing this fee amount

17 biannually.

18 We'd like comments from tribe. We --

19 some of the comments we've already received from

20 tribes is that that publishing the fee amount

21 biannually is actually too often, that it should

22 be annually, that there's not really that much of

23 a change in the fee amount, and that tribes

24 generally budget this amount annually, and so

25 changing it biannually could have unintended

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1 consequences. So those are the primary changes in

2 this Part 514.

3 The written comment period on the

4 discussion draft closed May 31, so we've been

5 looking at all those comments and briefing the

6 Commission on that and whether the Commission is

7 now deciding whether to move forward with the

8 notice of proposed rule making as I explained

9 earlier. If the Commission does issue a notice of

10 proposed rule making, then we will continue to

11 consult with tribes. We will also -- they'll be

12 probably be succeeding comment period on that

13 proposed rule itself. Are there any questions?

14 Okay. Very quickly Part 523 the

15 Commission has been consulting with tribes asking

16 if this Part 523 should be repealed. As far as

17 we're aware this doesn't impact any tribes. We

18 think it's obsolete. It was a part that was put

19 in when IGRA -- shortly after IGRA was passed.

20 It's a provision to IGRA that basically says for

21 those ordinances that were inactive prior to IGRA,

22 they need to be submitted to the Chair for

23 approval.

24 NIGC issued a regulation that

25 basically said any tribal ordinances enacted

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1 before 1993 and have not been submitted for

2 approval, this is the part that applies to those

3 ordinances. So the Commission is considering

4 repealing this part because we don't believe there

5 are any tribal ordinances in effect that have been

6 passed before 1993 that have not yet been

7 submitted for approval. If this is not the case

8 for your tribe, we would like to know that.

9 Part 559, facility licensing

10 notifications, renewals, and submissions. This is

11 something that the Commission has heard from the

12 public and tribes about tribes have expressed

13 concerns about how this part -- the process on how

14 this part was adopted. Specifically that there

15 are concerns about whether there was enough tribal

16 input as this rule was being promulgated. There

17 were concerns about whether this extended --

18 overextended NIGC's authority over environmental,

19 public health and safety issues.

20 What we've done -- the high points for

21 this discussion draft that's in your materials is

22 from time to time we'll have tribes that are

23 opening up their gaming facility. They're

24 considering issuing a license. They've provided

25 materials, and they say, okay, we know the

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1 Commission has a period of review for this

2 license. Have we submitted all our materials?

3 Have you -- do you mind if you send us a letter

4 letting us know that everything that we've

5 provided is sufficient? And in certain

6 circumstances the Commission has done that. So

7 what this discussion draft does is it basically

8 provides for a process getting back to tribes

9 quickly in those situations where it's

10 appropriate.

11 Let's see. I guess the other -- one

12 of the other primary changes in the discussion

13 draft is that the current regulation provides for

14 tribes to submit a list of all of the tribal laws,

15 ordinances, compacts, what have you, showing that

16 the facilities constructed and maintained and

17 operated in a matter that adequately protects the

18 environment, public health and safety.

19 We've heard from tribes that preparing

20 this list and providing these materials is

21 duplicative and exhaust -- basically duplicative

22 and unnecessary; that a number of these

23 environmental, public health and safety issues are

24 either covered by the compacts, they're covered by

25 tribal law, they're covered by EPA, or the tribe's

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1 environmental program itself. And so what this

2 section does is it provides for the tribe to

3 basically just provide an attestation to NIGC that

4 the tribal government has determined that the

5 maintenance and operation of the facility is

6 conducted in a manner that adequately protects the

7 environment.

8 The other issue is in the existing

9 regulations tribes are required to provide us

10 notices of their licenses every three years. This

11 draft provides for notice to be given to NIGC

12 within 30 days when a license for a particular

13 facility is terminated or expires or a facility

14 closes or reopens. And also we've heard from

15 tribes some tribes have seasonal closures for

16 their facilities. That would impact this.

17 There's a provision in I think it's

18 559.5 that basically provides that notices not

19 have to be sent to us for seasonal closures or for

20 temporary closures. And we've left that period of

21 temporary closures open. We haven't set a

22 specific date or time period on what constitutes a

23 temporary closure. We've been consulting with

24 tribes on that. You know, temporary closures

25 could range from anything from repairs or

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1 refurbishing casino operation to issues such as

2 flooding and other things that would cause a

3 temporary closure itself.

4 559.6 does provide that if --

5 continues to provide that if the Chair needs

6 additional information with regard to license and

7 notification, that the Chair can request that

8 information. And as we discussed yesterday this

9 comment period closed on June 17. And again, this

10 was just a preliminary discussion draft to get

11 comments from the public and from tribes. And the

12 Commission is concerning whether to move forward

13 with a notice of proposed rule making on this

14 part.

15 As the chairwoman mentioned very

16 briefly, we're seeking input from tribes as to

17 whether the Commission should adopt a Buy Indian

18 regulation. We've heard a number of supportive

19 comments from tribes on this. This would

20 obviously only apply to NIGC and whether they

21 should buy from Indian entities when purchasing

22 goods, services, and property.

23 Some comments have questioned whether

24 we should do this through regulation, whether we

25 should do it through a policy or internal

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1 guidance. And so we would like comment from

2 tribes in terms of whether it should -- how to --

3 A, should the Commission Buy Indian regulation

4 and, B, or Buy Indian preference and, if so, how

5 should they do that.

6 And so I think some of the

7 ramifications obviously a regulation is more

8 permanent. You know, obviously it can be changed

9 in the future, but there's notice in common while

10 making processes that go through with that, and

11 internal guidance is more easily changed in the

12 future. And so we would like comment from tribes

13 on that. Are there any questions or comments on

14 facility licensing or the Buy Indian regulation?

15 Are there any other particular parts

16 that folks in the audience would like to discuss

17 that we covered yesterday? Perhaps the background

18 investigations for primary management officials

19 and key employees, the pilot program. We also

20 have the enforcement section. We have the

21 proceedings before the Commission, which is

22 basically procedural parts in terms of how appeals

23 before the Commission will be handled. Is there

24 any?

25 MS. SIERS: I would like to go over

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1 the background for PMO's.

2 MR. ROBERTS: Okay. Just one second.

3 Okay. So this is Part 556 and Part 558 for

4 background investigations for primary management

5 officials and key employees. And then Part 558

6 covers when those gaming licenses are already

7 issued for key employees and primary management

8 officials. And so as many of you know the

9 Commission sometime ago incorporated a pilot

10 program, which basically provided for tribes to

11 submit a notice of results to NIGC in -- for the

12 background investigations and to maintain those

13 applications and investigative reports at the

14 tribe.

15 And so all comments that we received

16 said this pilot program is working well and that

17 it should be formalized through regulation. Most

18 tribes already participate in the pilot program.

19 And so this -- these drafts, these preliminary

20 drafts, intend to basically encapsule the pilot

21 program as it's working. One of the things we

22 found is each region may incorporate the pilot

23 program a little bit differently, but we've tried

24 to make the changes in 556 cover substantively the

25 pilot program as it's been incorporated for all

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1 regions.

2 So basically 556 -- what we've also

3 done for 556 and 558 -- what we found in looking

4 at the rules is that they sometimes overlap into

5 sections of what was occurring before a gaming

6 license was issued and after. And so what we've

7 tried to do is make the parts more clear, to make

8 clear that 556 applies to those procedures before

9 the gaming license is actually issued, and 558

10 applying to after the license is issued.

11 And so couple of the changes is

12 basically tribes seeking to license a key employee

13 or primary management official have to notify NIGC

14 of the results of the background investigation no

15 later than 60 days after that applicant begins

16 work. This isn't -- this isn't a substantive

17 change from the pilot program. It's actually

18 incorporated into the pilot program. And also

19 provides for a tribe with access to prior

20 investigative materials from another tribe is

21 simply update those materials that that other

22 tribe prepared.

23 One of the questions that we had was

24 in 558 we have the procedures for after a gaming

25 license is actually issued. After providing the

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1 notice of results, the tribe may issue that

2 license. They have to notify the Commission

3 within 30 days of issuing that license. And

4 within that 30 days of receipt of the notice of

5 results, NIGC has 30 days to request additional

6 information from a tribe.

7 You'll see if you turn to Part 558, we

8 have current situations in 558.2, which is on page

9 2 of the draft, for those situations where a

10 gaming operation decides not to license a

11 particular applicant. We've been asking for

12 comment from tribes as to whether we should

13 require or ask tribes to forward copies of its

14 eligibility determination to NIGC.

15 And one of the purposes behind that

16 could be, you know, if a tribe has determined that

17 someone is not eligible for a gaming license and

18 that individual then goes to another tribe and

19 tries to get employed, that second tribe it may be

20 helpful for that second tribe to have access to

21 that information.

22 Some tribes we've heard through the

23 comment process have basically said, you know,

24 we -- that is our information and we may -- it's

25 for us to decide whether we want to share those

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1 investigative reports. So that's why we have

2 highlighted this shall or may and want to hear

3 from tribes as to their thoughts on that.

4 MS. SIERS: Question.

5 MR. ROBERTS: Yes.

6 MS. SIERS: My name's Kim Siers. I'm

7 from Rosebud tribal gaming commission. I just

8 have a question. Has the discussion period for

9 this ended also?

10 MR. ROBERTS: It has. But like the

11 other discussion drafts, if the Commission goes

12 forward with a proposed rule making, there'll be a

13 60-day comment period on that. There'll be

14 consultations on that. So there's -- there will

15 be more opportunities for tribal input and comment

16 on that before any sort of final changes will be

17 made to the regulation.

18 So after -- if -- Part 558 provides

19 that if a license is issued prior to NIGC voicing

20 an objection to that license, that the licensee

21 then has to have a right to a notice of a hearing

22 by the tribe. The tribe has to suspend that

23 license until the tribe holds that hearing. And

24 then, following the revocation hearing, the tribe

25 has to notify NIGC of its decision whether it

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1 decided to move forward and license that

2 individual or not license that individual.

3 Couple of minor points, we're just

4 making clear that we will accept electronic

5 submissions from tribes on these notice of

6 results. And that, you know, some tribal gaming

7 ordinances may not be consistent with this rule,

8 if these changes were made and made a final rule.

9 And so this would provide that once a tribe

10 decides to amend its gaming ordinance it would

11 then -- at the time that it amends its ordinance

12 sometime in the future, it would then also need to

13 address this issue through those future

14 amendments.

15 So we wouldn't require tribes, for

16 example, to say you must change your gaming

17 ordinance within 60 days. It would be, you know,

18 whenever the tribe next submits its amendments to

19 its gaming ordinance it would address this issue

20 as well. The discussion period on these drafts

21 closed August 10, 2011.

22 And I don't think we noted this

23 morning, but just so you do know on our website

24 all comments received on the discussion drafts are

25 posted on our website and so it may be that some

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1 of the comments that you may have in mind may have

2 been put forward by the public and by tribes

3 already. That's not to say that the -- your tribe

4 shouldn't make those comments on a proposed reg if

5 the Commission moves forward with that, but you

6 can see what other tribes are saying, how -- what

7 approaches and comments they've had in terms of

8 the preliminary discussion drafts.

9 MS. STEVENS: Again, 556 is before

10 what happens and what steps you need to take

11 before. 558 is after the submissions. Again,

12 want to make clear, you know, different tribes do

13 different things when it comes to licensing.

14 And with while waiting for NIGC,

15 should we have an objection to 30 days to your

16 applicant? Some tribes issue temporary licenses,

17 some don't. Some wait the whole 30 days so

18 they're not giving a license to somebody that may

19 have an objection from NIGC. Because once that

20 happens as you know, once they've started working

21 and have a temporary license, they are now -- they

22 now have -- you have to go through the procedure

23 of taking that license back and their rights to

24 due process under that. So I think that's why

25 some tribes wait 30 days and, you know, if there's

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1 an issue and if NIGC objects and there's an issue

2 with services, you don't have to go through that.

3 But again, different tribes do it

4 differently based on their staffing needs, because

5 sometimes they're not able to wait 30 days and

6 have an adequate process in place that, you know,

7 deals with those kinds of instances.

8 And then the other thing to think

9 about in 558 on the last page of the draft or

10 almost the last page -- what page is that? Page 2

11 558.2(c)(2), just so you know we're asking whether

12 or not we should require or tribes voluntarily

13 submit when they don't license somebody. The

14 application may have come through, but you may not

15 end up hiring them. You may not end up issuing

16 the license, and we won't know that unless you

17 tell us that. And so if you choose not to issue

18 the license for whatever reason, and I'm sure you

19 all realize you have experiences that sometimes

20 people go off and find another job. They go

21 through the process, you know, and they end up not

22 working for you. And so it would be helpful to

23 know whether that should be a requirement that the

24 tribe let us know when they don't issue so we're

25 not left wondering if that licensee is working

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1 there, so what happened to that licensee.

2 Pilot program this is an effort to

3 streamline and make clear to every tribe what

4 happens before and after. However, what we've

5 discovered is the process that each of the regions

6 use to meet the same end objectives in our

7 fingerprinting and our licensing program is a

8 little different. In term of forms and processes

9 and how each region is, like I said, processing

10 these.

11 We're not only, you know, proposing

12 these regulation, but we're also -- we'll be

13 making a consistent process across all our region

14 so there might be some slight changes. It's hard

15 to say which regions that might be. In terms of

16 process and what the paperwork looks like, but the

17 end objectives and the requirements will be the

18 same. That way it's consistent, one, all the way

19 across the country but, two, for our purposes, you

20 know, one region may be overloaded with a number

21 of these, and that if we need to transfer some of

22 these processes to another region to move them

23 forward, then they can and pick up and help

24 another region. Because that can happen

25 sometimes. Especially, for example, when there's

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1 a new facility and, you know, as regulators you

2 have the same, you know, this cascade of people

3 coming in and applying and, you know, not only

4 does that affect the tribal regulators, but it

5 does affect us. So we want to be able to be

6 responsive, and in order to do that, we want to

7 make sure internally the process will be

8 consistent.

9 Again, this is just about how the

10 paperwork may look. The process that the

11 requirements will -- requirements and submissions

12 will still be the same, but we want to make sure

13 the paperwork and the process is consistent. I

14 bring that up because some -- there have been some

15 tribes who have expressed concerns that, you know,

16 the process doesn't change, but the requirements

17 will be the same but the -- it might look a little

18 different, if we need to change some of the

19 regions to align to a standardize processes

20 throughout the country.

21 What else is there? We have -- we've

22 gone through Group 1, some of Group 4 on

23 backgrounds. You know, there's some other issues

24 that we can talk about that we went over

25 yesterday, but why don't we take a quick break and

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1 then when we come back if there are issues anyone

2 wants to talk about or anything that you see in

3 these agendas, we'll be happy to talk about them.

4 This meeting goes until twelve or unless, you

5 know, we run shorter, but that's the schedule for

6 today as we'll go until twelve. So 15 minutes,

7 we'll be back here about 10:30. Thanks.

8 (At this time a break was taken.)

9 MS. STEVENS: Okay. We'll go ahead

10 and resume. We're looking over some of the groups

11 that we went over yesterday that might be

12 beneficial for those who were not able to attend

13 yesterday morning.

14 In you packet let's take a look at

15 Part 573, enforcement, what the discussion draft

16 had suggested. So I'll have Larry go over 573

17 enforcement. If you look in your packet under

18 573.

19 MR. ROBERTS: Okay. So the Commission

20 circulated a preliminary draft for discussion

21 purposes and asked for comment. That comment

22 period closed on August 9, but the primary changes

23 in Part 573 that were closed in the discussion

24 draft relate to -- we've heard from tribes, some

25 tribes, that NOV's that were issued in the past

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1 came as a surprise to them. And this Commission

2 and this Chair has been clear from day one that an

3 NOV should never be a surprise and compliance,

4 voluntary compliance, is always the goal in

5 working with our co-regulators.

6 And so what this section does with

7 these changes in this section provide basically is

8 a process, a stepped process, by which the Chair

9 before issuing a notice of violation could issue a

10 letter of concern or a noncompliance notice that

11 be provided the tribe basically indicating what is

12 that concern and how it could be remedied, asking

13 the tribe or tribal regulator to come into

14 compliance within a specified time period.

15 This letter of concern or the next

16 letter of noncompliance notice, neither of these

17 are Agency action. They're basically informal to

18 start that conversation with tribal regulators and

19 the tribe to take action to come into voluntary

20 compliance. And if the corrective action is not

21 completed within a time period, then the Chair

22 could pursue an enforcement action. So in the

23 general day-to-day world of incidents where

24 there's an issue of concern, this basically

25 embodies the Commission's desire to work

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1 cooperatively with tribal regulators to come into

2 compliance.

3 It's important to note though that

4 there may be situations where this process is not

5 appropriate, where there's some sort of issue

6 going on that is immediate and it's necessary for

7 the Chair to move forward with an NOV immediately.

8 This provides for that sort of extenuating

9 circumstances. So we would like comments from

10 tribes on this. If you have any comments today,

11 we'd also -- we've heard that this is a process

12 that is used by tribal regulators. If there are

13 other processes that tribal regulators use in

14 terms of an approach where there are issues of

15 concern, how you approach those, we would like to

16 hear those as well as to whether that might be

17 something the Commission could consider.

18 MS. STEVENS: So if you have any

19 questions or comments about the draft language

20 that's in there now under 573.2, this is a

21 completely new section as Larry has explained sort

22 of a incremental ramping up progressive -- it's a

23 progressive process that is focused on making

24 efforts to keep tribes in compliance. You know,

25 we've -- as Larry said as we've gone through our

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1 travels and we have talked to tribes, NOV's have

2 come as a surprise, and when tribes are

3 approaching the NIGC about concerns that they have

4 in seeking technical assistance and guidance to

5 remedy it and then having it turning into an NOV,

6 we heard that when we were in South Dakota in

7 February.

8 What -- you know, what we want to do

9 is have a close enough relationship with tribes

10 and the regulatory bodies so that we can keep

11 tribes in compliance by providing technical

12 assistance and training. There are as you-all

13 know we work with our field staff. There's a lot

14 of informal guidance and assistance that we

15 provide, a lot of conversations with whether it's

16 our field investigators or region auditors or

17 general counsel's office in an effort to protect

18 the integrity of any particular gaming facility so

19 you-all have access to that.

20 That's what we want to do, but in the

21 instance where the informal is not working, we

22 wanted to create a progressive process. And you

23 may be familiar with this, you may do this

24 yourself in your own regulatory bodies, but that

25 it's progressive. It says here's step one a

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1 letter of concern, and when that is not remedied,

2 then a letter of noncompliance, and then we can

3 move to an NOV. And we have a record that

4 establishes the steps that we've taken.

5 We do do this informally now, and I'm

6 thinking of an instance where the tribe had a lot

7 of turnover, a lot of turnover, and there just has

8 to be a point where we say, okay, this has to be

9 remedied before we just hit them with an NOV. So,

10 you know, this again is an effort to keep tribes

11 in compliance, provide the technical assistance in

12 training that under the statute we're required to

13 provide to tribes.

14 We understand and are aware of the

15 weight of an NOV and how it affects a tribe, so

16 our desire is to provide the tribes what they

17 need, guidance, training, and keep them in

18 compliance and maintain the compliance.

19 So absent any questions or concerns

20 about Part 573 on enforcement, we can talk about

21 Part 571, which is also under Group 4. Did I miss

22 something? Oh, yeah. 571, background

23 investigations -- or I'm sorry -- monitoring and

24 investigation. Sorry. I read that wrong. In

25 Part 571 monitoring and investigation. I'll have

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1 Larry go over that, and we'll point to the areas

2 that we're looking for comment.

3 MR. ROBERTS: For Part 571 there are

4 primarily two proposed changes in this discussion

5 draft. The first proposed change is something

6 that the Agency already does from time to time,

7 but we're again basically codifying that

8 regulation, and that is an investigation closure

9 letter. What we've heard is that, you know, at

10 some points NIGC may open an investigation and the

11 tribe will come to NIGC months or years later and

12 say what's -- can you tell us what's going on with

13 that investigation? Is it still open? Has it

14 been concluded? What's the status of that? And

15 in certain circumstances NIGC has issued a letter

16 basically saying we're closing this investigation

17 at this point in time. We're not recommending

18 that enforcement action be taken. And so this

19 section will provide for that.

20 It's important to note that just like

21 in the Agency's past practice that just because we

22 may not be commencing an enforcement action, it

23 doesn't mean that there was -- it doesn't

24 constitute a finding of no violation and it

25 doesn't preclude NIGC in the future from reopening

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1 that investigation or taking appropriate action,

2 but it's something that the Commission in a

3 investigation closure letter could move forward

4 and provide the tribe some status as to here's the

5 current status of this investigation, here's --

6 you know, we've decided that at this point in time

7 we're not going to recommend an enforcement

8 action.

9 The other change is more clarified.

10 In the past when we have done investigations or

11 issued NOV's questions have been raised about the

12 Commission's authority to access gaming records

13 that are located off site. So this is a

14 relatively minor change to make clear of NIGC's

15 authority to access those records.

16 The written comment period on this

17 discussion draft closed August 9, and the

18 Commission will be deciding in the near future

19 whether to move forward with the notice of

20 proposed rule making.

21 MS. STEVENS: So that's a review on

22 Part 571. Again, we were talking about the front

23 end in Part 573 on investigate -- or enforcement

24 and making sure the tribes are aware of issues

25 that we have and putting into our reg some

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1 formalized progressive process that indicate to

2 the tribe that there are concerns that we have

3 prior to arriving at an NOV.

4 On the other end of this, which is

5 under 571.4, investigations, right now it says

6 investigation closure letter. I think Larry

7 mentioned we're gonna change the word closure

8 letter because there may be some confusion that we

9 mean we're gonna close the facility. It's the

10 same language that's used for closure of a

11 facility. So we'll find another way to say, hey,

12 we're -- there's an end to this investigation.

13 You know, this came up because tribes mentioned to

14 us where's this at or they -- tribes perceived --

15 what they've told us some tribes have perceived

16 this sort of looming, hanging over their head, you

17 know, there's no closure. There's no end to this

18 investigation. It just kind of looms over them,

19 and they just sort of wait for the ax to drop on.

20 We looked at some of the other federal

21 regulatory agencies and I think we were looking at

22 FCC and they do something similar to this. They

23 -- they -- when they're opening investigations

24 let, you know, the stakeholder know. When they

25 close an investigation, they let the stakeholder

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1 know. And so that's what we're looking to do on

2 the back end of investigation so there's some

3 awareness of the tribe about whether we're

4 continuing down this road or not or what

5 resolution was there at the end of this

6 investigation, what did we find.

7 I think the other things that are in

8 there are access to records that Larry had

9 mentioned making clear that even off premise

10 records we have access to. And people who work

11 for those who are off premise, whether that's a

12 vendor holding something, a management company

13 holding records or information, we just wanna make

14 clear that our authority access those records and

15 premise. We still have the authority to do that.

16 Are there any questions on enforcement or

17 monitoring and investigations?

18 Please do consider these especially

19 I'm looking at three ladies who are at the tip

20 because I know you're all regulators. Especially

21 would be fair just to -- may effect you in your

22 day-to-day work when it comes to enforcement and

23 how we monitor and investigate.

24 We do have a few new people in the

25 audience. We did go over earlier today just for

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1 your -- get you up to speed. We did go over

2 today's agenda, which is Group 5, already, which

3 is self-regulation of Class II gaming and the

4 proposed draft that is currently posted on the

5 website. We talked about sole proprietary

6 interest already. And for review we did go back

7 over yesterday's agenda for fees, Part 514; review

8 and approval of existing ordinances, Part 532;

9 facility licensing, Part 559; Buy Indian. We just

10 went over enforcement and monitoring

11 investigations and as well we went over Part 556,

12 Part 558 regarding the pilot program, what happens

13 before and after applications are submitted. And

14 that's where we're at for those who have just

15 arrived or new to the meeting.

16 Please note that we have recently put

17 up a discussion draft of Part 518,

18 self-regulation. That regulation was -- became

19 final in 1998 and we're revisiting that. For

20 those of you who just arrived, if there's any

21 comments that you want to make, if you have any

22 statements to make for the record, we'd certainly

23 open the floor at any time for attendees and

24 tribal representatives, regulators, leaders to

25 make comment at any time on any of these parts

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1 should you need to. Do you have any comments,

2 questions about any of these parts about this

3 process that were undergoing?

4 We'd be happy to field any suggestions

5 about how we're going about this. Just make clear

6 we are -- and we started this process last

7 November when we did our notice of inquiry, got a

8 sense of the priority regulations that tribes

9 wanted us to address, incorporated those with our

10 priorities, and came out with this regulatory

11 review, which ended in April.

12 We put out a number of consultation

13 dates in the beginning in an effort to talk to

14 tribes according to the Executive Order on

15 consultation and coordination with tribal

16 governments 13, 175 to talk to tribes first before

17 we started drafting to get their sense of what

18 issues came up with particular regulations.

19 As you've seen, we've developed and

20 drafted discussion drafts prior to entering into

21 the official notice of proposed rule making

22 process and Federal Register. That's the state

23 where we're at on most of these drafts. The

24 drafts -- many of the drafts have been -- we've

25 sequenced them based on the groupings and the what

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1 we -- in timing them so they're not all out at

2 once.

3 One that's still open again is the

4 self-regulation for Class II the comment period is

5 still open. Although we still welcome some

6 comment periods on the discussion drafts. Once we

7 enter those proposed rule making, if we do on some

8 of these regulations, there will be a 60-day

9 comment period again for tribes. That draft will

10 be informed by all these consultation we've been

11 having and discussion and comment received on the

12 discussion drafts.

13 So we wanna make -- what we're -- our

14 effort here is to make sure that tribes as I said

15 according to Executive Order 13, 175 have adequate

16 notice, have opportunity to weigh in before we

17 start drafting, before we start changing policies,

18 and are included throughout the process. Recently

19 we originally started with 33 consultations. I

20 think last week we just put out a notice in the

21 Federal Register that we cut down the number of

22 consultations. We're making every effort to be

23 responsive to tribe's concerns in this process.

24 Also to be mindful of not just our time and our

25 resources but yours as well.

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1 There is an unprecedented amount of

2 consultation happening between the federal

3 government and tribal government, which is a good

4 thing. It's exactly what tribes wanted and asked

5 for and are getting, but we also understand that

6 creates conflict for tribes and where they need to

7 be, what their priorities are. And so in being

8 responsive to tribal resources and the time

9 especially, you know, how much travel, you know,

10 most tribes are able to do and how they budget

11 both their time and money, we did cut down on

12 consultations, which is in the Federal Register

13 the new schedule, but it's also been posted on our

14 website at NIGC dot gov.

15 I can't think of the number that we

16 cancelled. Were there like twelve of them? There

17 were a number of them that we cancelled just in

18 order to be responsive to tribal needs. Tribes

19 are taking the opportunity to attend a few of

20 these, but are mostly giving their comments,

21 written comments, as we put up discussion drafts,

22 and I'm sure that we'll receive more comments as

23 we go through the notice of proposed rule making.

24 So that is also -- our new schedule is

25 posted on our website. We've gone from two days

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1 down to one day. And as I've noted throughout

2 yesterday and this morning we are moving some of

3 what we originally began discussing back in April

4 Class II, Class III minimum internal control

5 standards and technical standards for Class II

6 machine play for bingo. We're putting them on a

7 parallel track with the Tribal Advisory Committee.

8 So we'll continue with the regulations that we've

9 outlined here today.

10 Those other three topics we'll run on

11 a parallel track with the Tribal Advisory

12 Committee. That's all outlined on our notice that

13 we issued last week and that's on the website. We

14 are currently in the process of taking nominations

15 from tribes for Tribal Advisory Committee members.

16 We do want to make sure that it is -- that

17 individuals that are put forward are authorized by

18 the government body of the tribe however or

19 whoever or whatever that might look like, probably

20 the tribal chairman. Whatever process each tribe

21 goes through to say this person speaks for this

22 tribe and this tribe only.

23 We understand that the Tribal Advisory

24 Committee is not a substitution for consultation.

25 The intent of the Tribal Advisory Committee is to

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1 give us suggestions on how to revise change or

2 improve Class II MICS, Class III MICS, and

3 technical standards for Class II play, Part 547,

4 and then be able to take that information and

5 develop some drafts that we will then share with

6 tribes and consult on. So we're very aware that

7 the working group is just that. They're working

8 to provide some comments so we can put together

9 something that we can share with all tribes.

10 The nominations for the Tribal

11 Advisory Committee closes on September 16, which

12 is next Friday. Again, all of that is on our

13 website, and those can be sent in by e-mail or

14 faxed. There's a nomination form. We ask for the

15 resumes. And what we're trying to do for the

16 Tribal Advisory Committee is have a diverse group

17 that's balanced in terms of Class II, Class III

18 experience, regulators, operators, tribal leaders

19 who can speak directly to very technical in nature

20 minimum internal control standards and technical

21 standards.

22 We've had a lot of questions on will

23 these meetings be open. We'll be deferring to the

24 group once they're chosen. Again, diverse group

25 that represents not just expertise, operations,

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1 regulation -- or regulators, but also regions in

2 tiers, small facilities, large facilities, Class

3 II facilities, Class III facilities, hybrid

4 facilities. We will defer to that group that will

5 be demised to come up with a plan to incorporate

6 subject matter, experts, and how others may

7 participate in the work groups products. We're

8 still considering them and we certainly will take

9 that appropriate finding to the committee when

10 they're formed.

11 Our goals at the end of the Tribal

12 Advisory Committee will have solid suggestions for

13 and perhaps even a draft that we will work from

14 their suggestion on minimum internal control

15 standards and also technical standards so that we

16 can do more consulting on that and get some of

17 these out of the way. The priority of this

18 Commission is to deal with those, and that's why

19 we set them apart on this parallel track so that

20 we can move forward with some of these other

21 regulations that are not quite as onerous in terms

22 of the specificity in technical nature of those

23 MICS. So that we didn't get weighed down -- these

24 didn't get weighed down in the back and just set

25 it on a parallel track. And that was really in

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1 response to tribes desire to do an advisory

2 committee with this new Commission in a way that

3 they can -- that tribes can weigh in, that we get

4 practical, hands-on suggestions on how to approach

5 internal controls and technical standards. And so

6 again, evidence of our flexibility, our

7 responsiveness to tribes and what they would like

8 to see us do or what works so that we can keep

9 these transparent reviews moving.

10 So those are basically the updates on

11 where we're at. Please visit our website NIGC dot

12 gov. You'll see our new schedule, which meetings

13 have been cancelled, which ones will move forward.

14 Those, again, will go from two days to one day.

15 There's one that will have a location change.

16 We'll be back in Great Plains in November.

17 Continue to watch our website as we move forward

18 with producing drafts or notices of proposed rule.

19 Are there any comments that anyone

20 needs to make? Any questions for the record? One

21 last call? Last call any comments, questions?

22 The floor is open. Absent that, what I'd like to

23 do then is close the meeting. Encourage everybody

24 to visit our website. If there's anything that's

25 unclear -- can you go to the last page that gives

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1 out the -- there we go. Our contact information.

2 If you have any questions at all, the

3 staff person that is really charged with

4 coordinating and handling all of this, who's not

5 here today, is Lael Echo-Hawk. That e-mail is the

6 e-mail she checks. You can contact her if you

7 have any questions about the drafts, about the

8 nomination process, anything at all, if there's

9 not anything -- if there's, you know, anything

10 that's unclear, please give us a call, send us an

11 e-mail. Please visit our website for more

12 information.

13 I thank everybody that attended these

14 two days. We will be considering your comments

15 and questions and look forward to additional

16 interactions with tribes as we move forward. So

17 thank you-all and hope you-all have a good weekend

18 and safe travels back to wherever you might head,

19 wherever home might be. So thank you-all.

20 (Whereupon, at 11:07 a.m. the

21 proceedings were duly ended.)

22

23

24

25

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1 REPORTER'S CERTIFICATE

2

3 CERTIFIED that the foregoing sixty

4 (60) pages constitutes a true and correct copy of

5 all proceedings which it purports to contain.

6

7

8

9

10 ___________________________

 Stephanie L. Marjamaa

11 Court Reporter

12

13

14

 My Commission expires

15 1-31-2016.

16

17

18 Dated this 28th day of September, 2011.

19

20

21

22

23

24

25

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1

1 2:11 21:16 22:4

24:5 41:22

1-31-2016 60:15

10 25:3 37:21

10:30 42:7

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120 11:8

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15 25:3 42:6

16 56:11

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1993 22:13,15 28:1

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2

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3 21:17 22:1

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518.8 12:10

518.9 12:15

523 22:11 27:14,16

532 51:8

547 21:18 56:3

556 33:3,24 34:2,3,8

38:9 51:11

558 33:3,5 34:3,9,24

35:7 36:18 38:11

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559 22:17 28:9 51:9

559.5 30:18

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6

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39:5 41:5 42:12

54:10 56:4

absent 46:19 58:22

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45:19 48:12,15 50:8

50:10,14

accounting 6:1 7:23

8:18 9:6,19 10:2,5

accurate 24:6

act 15:16 19:4

action 10:19 43:17

43:19,20,22 47:18

47:22 48:1,8

actions 8:2,11 13:8

activities 10:3 12:24

activity 8:22,25

additional 11:20

13:24 20:7 31:6

35:5 59:15

address 3:7,9 37:13

37:19 52:9

addressed 14:13,15

14:22 19:21

addressing 3:11

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adequate 9:6,7,19

9:20 10:12,13,17

11:1 17:3 39:6

53:15

adequately 10:22

11:4 29:17 30:6

administrative 4:12

adopt 31:17

adopted 9:17 10:11

11:1 28:14

advise 11:15

advisory 3:12 21:23

55:7,11,15,23,25

56:11,16 57:12 58:1

affect 41:4,5

afternoon 21:12

agencies 49:21

agency 22:23,24

43:17 47:6

agency's 47:21

agenda 2:5,14 3:11

21:16,21 23:9 51:2

51:7

agendas 42:3

ago 4:2 17:23 33:9

ahead 2:13,14 3:4

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amend 37:10

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37:18

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amount 25:10,15

26:12,12,16,20,23

26:24 54:1

annual 4:16 12:3

25:21

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apart 57:19

appealable 11:25

appeals 32:22

appearances 1:7

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applicant 34:15

35:11 38:16

application 39:14

applications 33:13

51:13

applies 28:2 34:8

apply 31:20

applying 34:10 41:3

appointing 7:17

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44:14,15 58:4

approaches 38:7

approaching 45:3

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44:5 48:1 57:9

approval 7:18 12:13

27:23 28:2,7 51:8

approved 8:7 22:15

april 3:15 52:11

55:3

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areas 47:1

arrived 51:15,20

arriving 49:3

asked 4:4 17:23

25:9 26:7 42:21

54:4

asking 7:10 13:14

22:19 27:15 35:11

39:11 43:12

assessed 25:7

assessment 26:8

assessments 26:2

assets 14:25

assistance 45:4,12

45:14 46:11

assure 17:1

attempts 5:5 25:5

attend 6:14 42:12

54:19

attended 59:13

attendees 51:23

attention 15:13

attestation 30:3

attorney 1:16

attorneys 20:18

audience 20:16

32:16 50:25

audit 10:9 12:6

auditors 45:16

audits 10:2 24:1

august 37:21 42:22

48:17

authorities 5:24

15:16 16:24

authority 17:13

28:18 48:12,15

50:14,15

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available 6:16

aware 24:22 27:17

46:14 48:24 56:6

awareness 50:3

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b

b 9:12 32:4

back 3:14 6:7 15:23

20:22,25 21:4,13

22:3 23:25 24:7

29:8 38:23 42:1,7

50:2 51:6 55:3

57:24 58:16 59:18

background 12:25

32:17 33:1,4,12

34:14 46:22

backgrounds 41:23

backtrack 2:10

balanced 56:17

based 3:9 23:18,23

26:12,13 39:4 52:25

basically 4:8,12,24

12:4 13:3 26:1

27:20,25 29:7,21

30:3,18 32:22 33:10

33:20 34:2,12 35:23

43:7,11,17,24 47:7

47:16 58:10

basis 8:21

began 55:3

beginning 52:13

begins 34:15

behalf 7:1

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believe 14:7,18

16:25 28:4

beneficial 42:12

beneficiary 19:4

benefit 2:9 16:6,8

21:10

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better 24:11

biannual 24:8

biannually 24:16

26:17,21,25

bill 26:1

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bismarck 1:3

bit 33:23

bodies 45:10,24

body 9:24 10:9,22

17:2 55:18

books 10:10 13:1

break 41:25 42:8

brief 5:19

briefing 27:5

briefly 21:13 31:16

bring 13:8 41:14

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20:25

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burden 4:13

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24:18

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call 58:21,21 59:10

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58:13

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51:22 57:8

certificate 4:10 7:14

8:14,24 9:5 11:14

11:24 12:3,9,18

60:1

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chair 19:18,23 27:22

31:5,7 43:2,8,21

44:7

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chairwoman 1:8 2:1

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31:15

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23:17,19,21 24:17

24:21,22 26:23

34:17 37:16 41:16

41:18 47:5 48:9,14

49:7 56:1 58:15

changed 23:6 32:8

32:11

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13:18 22:18 23:2,16

23:16 27:1 29:12

33:24 34:11 36:16

37:8 40:14 42:22

43:7 47:4

changing 24:4,7

26:25 53:17

charged 59:3

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chart 5:22

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choosing 23:24

chosen 56:24

circulated 13:11

42:20

circumstance 12:13

circumstances 29:6

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clarifies 26:10

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class 2:7 3:7 4:6,11

5:18 7:9 8:5 10:3,17

12:22,23 13:2 15:22

15:22 16:12 17:11

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17:12,13,14,16

21:17,20,21,22,22

51:3 53:4 55:4,4,5

56:2,2,3,17,17 57:2

57:3

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58:23

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48:17

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closing 47:16

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47:8 48:3 49:6,7,10

49:17

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30:21,24

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come 12:4 20:12,15

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31:9 32:1,12 35:12

35:23 36:13,15

42:21,21 47:2 48:16

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commented 4:12,21

4:24

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15:15,18 16:3,5,19

16:21 17:5,8,17

18:6,8,16,25 19:8

19:15 20:3,21 21:9

26:18,19 27:5 31:11

31:19,23 32:13

33:15 37:24 38:1,4

38:7 44:9,10,19

51:21 52:1 54:20,21

54:22 56:8 58:19,21

59:14

commission 1:1

3:25 4:2,3 5:2 7:13

11:8,12 12:1,12,19

12:21 13:4,5,5,15

13:20 14:3,18 17:23

17:23 18:9,12 19:1

19:15,20 20:4,8

24:13 26:4,15 27:6

27:6,9,15 28:3,11

29:1,6 31:12,17

32:3,21,23 33:9

35:2 36:7,11 38:5

42:19 43:1 44:17

48:2,18 57:18 58:2

60:14

commission's 43:25

48:12

commissioner 7:3

11:22

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11:11

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21:23,25 55:7,12,15

55:24,25 56:11,16

57:9,12 58:2

common 32:9

compacts 29:15,24

company 50:12

compete 16:14

complete 11:12 12:6

completed 43:21

completely 44:21

completing 4:13

compliance 9:1,25

43:3,4,14,20 44:2

44:24 45:11 46:11

46:18,18

complying 16:7

component 24:24

concern 43:10,12,15

43:24 44:15 46:1

concerning 22:9

31:12

concerns 28:13,15

28:17 41:15 45:3

46:19 49:2 53:23

concluded 47:14

conduct 12:24

conducted 9:1 11:3

12:24 30:6

conducting 8:17

conducts 10:20

conflict 54:6

confusion 49:8

consequences 27:1

consider 13:17 14:4

17:24 44:17 50:18

consideration 15:15

considerations 20:8

considering 28:3,24

57:8 59:14

consistent 37:7

40:13,18 41:8,13

constitute 47:24

constitutes 18:19

30:22 60:4

constructed 29:16

consult 27:11 56:6

consultation 6:14,18

6:19,23 20:1 52:12

52:15 53:10 54:2

55:24

consultation's 6:9

consultations 6:13

21:3 24:10 25:12

36:14 53:19,22

54:12

consulting 27:15

30:23 57:16

contact 59:1,6

contain 60:5

continue 27:10 55:8

58:17

continues 31:5

continuing 12:11

50:4

contract 18:21

contracting 22:23

contractor 18:21

contracts 18:3,11

20:13

control 3:8 21:18

55:4 56:20 57:14

controlled 26:15

controls 7:25 17:3

58:5

conversation 43:18

conversations 45:15

conveyed 21:6

cooperatively 44:1

coordinating 59:4

coordination 52:15

copies 23:4 35:13

copy 8:4 60:4

correct 60:4

corrective 43:20

cost 16:6 26:13

counsel 1:12 3:24

19:24

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country 4:10 40:19

41:20

couple 34:11 37:3

court 60:11

courts 19:17

cover 33:24

covered 3:19 29:24

29:24,25 32:17

covers 33:6

create 45:22

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creates 54:6

credit 25:25

criminal 8:22

criteria 5:22 6:6 7:6

7:11,16 8:13,20 9:4

9:13,16 10:8,24

11:16,19 12:13

14:14

curious 7:5

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16:15 29:13 35:8

48:5

currently 51:4

55:14

customers 9:23

cut 23:25 53:21

54:11

d

dakota 1:3 7:4 45:6

date 30:22

dated 60:18

dates 52:13

davis 14:10,10

day 2:6,13 14:2 26:2

36:13 43:2,23,23

50:22,22 53:8 55:1

58:14 60:18

days 11:8 14:8 25:3

25:3,4,7,19 30:12

34:15 35:3,4,5

37:17 38:15,17,25

39:5 54:25 58:14

59:14

dc 1:10,14,18

deal 15:2 57:18

deals 39:7

dealt 15:4

decide 14:5 19:17

35:25

decided 37:1 48:6

decides 13:20 35:10

37:10

deciding 27:7 48:18

decision 11:23,24

36:25

defer 57:4

deferring 56:23

define 17:25 18:17

19:1,3,14,16 20:6

defined 19:6

defining 19:9

definition 19:12

20:10

deletion 2:22

deletions 2:24

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