Moreover, we note that operational security, and control of servers and routers,
becomes challenging when vendor servers and routers operate many states away from the
Tribe. Strategies for implementation and enforcement could be an important discussion topic
in a tribal workgroup. Additionally, we note that the guidance provides requirements for
progressive slots, but it fails to address progressives in keno or table games. We invite NIGC
to consider this addition.

As an aside, we also note that NIGC offered a new draft regulation for 25 CFR § 547.18
for mobile gaming. We understand this does not condone or regulate internet gaming, but only
addresses handheld devices that connect to a gaming machine inside the operation. These devices
could be used anywhere that meets IGRA’s requirements for land that is eligible for gaming.
Specifically, devices could be used in hotels, restaurants, and resort areas connected to a casino
without turning those areas into additional gaming operations or gaming floors. That said, we
question the need for a regulation when 25 CFR § 547.15 already details wireless security and
communication. Any clarification for mobile gaming under 25 CFR § 547.18 could be
duplicative. Further, technology changes occur so rapidly that ensconcing one format of
regulation for one model of technology into 25 CFR Part 547 seems futile. When the technology
changes, the rule will already be obsolete. We recommend, instead, an NIGC Bulletin that can
undergo repeated updates as technology changes.

Finally, it remains unclear from the submitted guidance whether 25 CFR § 542.4 will
remain in some format as part of the guidance. This section compares the NIGC MICS against
standards in Compacts. As the guidance cannot be binding, we recommend that this section not
remain. Please give consideration to our comments and I look forward to working with you on
future endeavors.

Sincerely,

Liboy Of ive

Rodney Pierce
SGA Chairman

ce: SGA Commissioners
Marie Williams, SGA Executive Director
Rebecca Chapman, SGA Chief Counsel
Luther Anderson, SGC Director of Compliance


Seneca Gaming Authority

345 THIRD STREET - SUITE 404 - NIAGARA FALLS, NEW YORK 14303
TELEPHONE: 716-299-1246 * FAX: 716-299-1247

Via Mail and E-Mail

June 29, 2017

Mr. Jonodev Chaudhuri, Chairman
National Indian Gaming Commission
1849 C Street NW

Mailstop #1621

Washington, DC 20240

Re: — Class III Guidance related to the Draft Class III MICS

Dear Chairman Chaudhuri:

As requested, enclosed please find the discussion related to the Draft Class III MICS
Guidance.

If you have any questions regarding this document, please contact me. Thank you.

“Zhe DO fcver

Rodney Pierce
SGA Chairman

ce; SGA Commissioners
Marie Williams, SGA Executive Director
Rebecca Chapman, SGA Chief Counsel
Luther Anderson, SGC Director of Compliance


Seneca Gaming Authority

345 THIRD STREET - SUITE 404 - NIAGARA FALLS, NEW YORK 14303
TELEPHONE: 716-299-1246 * FAX: 716-299-1247

Via Mail and E-Mail

June 29, 2017

Mr. Jonodev Chaudhuri, Chairman
National Indian Gaming Commission
1849 C Street NW

Mailstop #1621

Washington, DC 20240

Re: — Class III Guidance related to the Draft Class III MICS

Dear Chairman Chaudhuri:

On behalf of the Seneca Gaming Authority (SGA), thank you for your May 4, 2017,
Comment Submission Notice related to the Draft Class III MICS Guidance. Based on the
previous Dear Tribal leader letter of December 22, 2016, the National Indian Gaming
Commission (NIGC) proposes to suspend current 25 CFR Part 542 standards and replace them
with the proffered draft that specifies its status as guidance, and nothing binding or enforceable.

On August 24, 2005, the District Court in the District of Columbia ruled against the
National Indian Gaming Commission and in favor of the Colorado River Indian Tribe. See CRIT
v. NIGC, 04-0010 (D.C. 2005). In that case, the Court agreed that NIGC lacked authority to
promulgate and enforce Class III gaming regulations (MICS) and such matters remained part of
the Tribal-State compacting process. /d. The Appeals Court upheld the decision on October 20,
2006. See CRIT v. NIGC, 05-5402 (CRIT D.C. Cir 2006).

We appreciate that NIGC acknowledges the decisions and offers the draft Class III
MICS as guidance and not a binding or enforceable set of rules in contravention of CRIT.
Further, we understand your position that guidance, unlike formal regulations, does not require a
formal Notice and Comment period under the Administrative Procedures Act (APA). Moreover,
we understand your position that prior regional meetings and submission notices to suffice as
consultation in lieu of a formal Notice and Comment period.


That said, we still recommend more formality akin to the Notice and Comment rules of
the Administrative Procedures Act. We see the benefit of guidance, and creating a more
malleable and fluid set of rules that are open to change. But a series of timelines to provide
feedback on specific components of the Class III MICS guidance might prove beneficial to both
sides. It would increase communication and help address practical issues after further
consideration. We would also suggest a tribal workgroup to consider the impact of Class III
MICS guidance on Tribal-State Compact Standards.

Generally, New York State Compacts contain their own set of Minimum Internal Control
Standards, separate and distinct from those passed by NIGC. NIGC’s guidance would create
standards similar to, or the same as, Class II MICS. But there may be instances where the
guidance conflicts with the Compact or with Internal Control Standards (SICS) created in
compliance with a Compact. This can create confusion from a regulatory perspective and real
communication is necessary to avoid practical conflicts.

Previously, the Nation attempted to create a universal system of controls to incorporate
Class II standards, Class III standards and the Compact. That effort failed to produce a
document that avoided clear conflicts and inconsistencies. This guidance is meant to aid mixed-
use facilities by creating same or similar standards for Class II and Class III. But for New York
tribal operations working under their own set of Compact controls, it does little to aid them in
avoiding conflicts.

Another possible area of conflict or concern are Agreed-Upon Procedures (AUP’s) and
Annual Audits. Despite the classification as guidance, it remains unclear whether NIGC will
require and conduct Class III AUP checks and Annual Audit checks. Checklists and forms will
require revision, but it remains possible that a gaming operation could be held accountable for
non-compliance with purportedly non-binding guidance. This could happen in any mixed-use
facility and lead to confusion. Further, any mixed-use facility in New York might see confusion in
attempting to comply with Class II and Class III standards for the player tracking, promotions,
comps, patron deposit, kiosk, keno, cage, vault, and other areas while maintaining its Compact
Standard and Controls. For these general reasons, we would suggest a tribal workshop to look at
each section of the proffered guidance and its impact on Indian Country Compacts.

As for more detailed comments, we note that the guidance lacks a specific requirement
for the tribal regulator to approve all downloads. The language that would complement
standards under 25 CFR § 547.12, should contain the specific requirement enabling a Tribal
Gaming Regulatory Authority (TGRA) to approve downloads in a way that promotes integrity
and strengthens operational security.