1 NATIONAL INDIAN GAMING COMMISSION MEETING

2 TAKEN ON SEPTEMBER 7, 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. NJ343901

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1 (Whereupon, Chairwoman Stevens

2 opened the meeting.)

3 MS. STEVENS: Good morning. We're

4 about ten after nine right now so I do want to go

5 ahead and get started, but before we do, I'd like

6 to turn the microphone or the floor, I should say,

7 over to vice chairman Mike Faith from Standing

8 Rock Sioux who's been kind enough to come here

9 today and open up our meeting. So thank you.

10 MR FAITH: Thank you. I probably

11 don't need a microphone but, you know, on behalf

12 of Standing Rock I want to thank everybody for

13 taking time to come out. You know, these meetings

14 are very important to tribes in that they need to

15 be here to get their concerns out. I suppose as

16 the day goes on you're probably gonna pick up a

17 lot more, but right now you got so many meetings

18 going on in Bismarck-Mandan. But on behalf of

19 chairman Murphy and the Standing Rock Sioux tribe,

20 which we're just south of here, want to welcome

21 everybody to Bismarck area from our tribe.

22 But again, you know, I've been on the

23 counsel before, tribal counsel 11 years -- 12

24 years I guess it was. Within that time I had an

25 opportunity to help break ground in the gaming

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1 industry. You know, chairman Murphy at that time

2 -- chairman Murphy's been on for quite a few years

3 with the -- as the chairman and also a counselman

4 down there. He created a task force and it was

5 seven of us. We had to meet with the governors of

6 North and South Dakota, and everything was new to

7 us, gaming. There was a lot of pros and cons out

8 there as far as the gaming industry, what -- you

9 know, what's it about, what's it going to bring

10 besides jobs. And we heard horror stories out

11 there as far as, well, you got this and that

12 coming in. We had to go and find a firm. The

13 Seven Circles Resort helped us out and get on our

14 feet down there.

15 We met with governor Sinner of North

16 Dakota, and at that time he said you gotta get a

17 five year compact. Well, when we met with

18 governor Sinner and he said why do you want a five

19 year compact? Why don't you take ten? Well, we

20 took ten. He opened the door for us as far as any

21 kind of gaming device. We didn't want the

22 roulette table and we didn't want a wheel there

23 and the few things, but he said we're gonna keep

24 them here anyway. In the future if you need them,

25 they're there.

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1 So it was a good start for us. The

2 learning experience was really, really difficult,

3 but I tell you what it created jobs, which was --

4 the intent was to create jobs, and not only for

5 the tribes, not with Standing Rock, but also the

6 state of North and South Dakota because when we

7 picked up nontribal they had to pay taxes. So all

8 in all, you know, the benefits of gaming helped

9 not only the Standing Rock Sioux tribe but it also

10 helped out the state of North Dakota and South

11 Dakota for taxes and employment.

12 You know, unfortunately, we don't have

13 a hundred percent natives down there right now.

14 We have a mixture. We have a lot of Indians

15 working for us. And again, they're from other

16 tribes plus Standing Rock, but the turn around --

17 the quick -- the quick growth of gaming back in

18 the day was a lot of people -- I guess how you

19 would say they weren't used to the work ethic at

20 the time, come into a place where it's 24/7, you

21 were expected to do certain things. A lot of

22 people going into the work force wasn't used to

23 that so the turn around was a lot. And to this

24 day unfortunately we still get a lot of people

25 going in and out of the casinos looking to get

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1 experience there and they'll go elsewhere. Helps

2 them with their work ethic. A lot of them will

3 work up in Bismarck-Mandan area now.

4 But again, getting into South Dakota

5 you had a governor down there that was really

6 different than Sinner up here in North Dakota.

7 Bill Janklow he was a -- he took a foot, gave up

8 two feet so it was really hard as far as the

9 jurisdiction issues at the time.

10 But to this day we're still going down

11 hill with Grand River. Casino's still going.

12 It's been renovated. Prairie Knights just

13 expanded. I think gaming is doing well on the

14 reservation. We have to look at other forms of

15 economics, but right now gaming is a big factor

16 there. It's one of the highest employers.

17 And again, if it gets you what you

18 want out of it I guess if you pursue more tables,

19 more gaming devices, you gotta make sure that

20 you're fit for that. You don't wanna go to the

21 point where you outdo yourself and don't have the

22 numbers to come in and have a bunch of empty

23 gaming devices sitting there.

24 So you gotta look at your surroundings

25 as far as your numbers in your area. If they're

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1 coming to your casino, fine. If they're not, you

2 know, as far as expansion, you know, I think

3 people need to really watch that. You know, if

4 somebody wants to keep up with the Jones and

5 expand too much, you make a big loan, you don't

6 get the numbers to pay your loan off, it could

7 come back and backfire on you too so.

8 Again, as far as gaming with Standing

9 Rock I just -- it's been really a trying

10 experience. Where we're at now we're out in an

11 isolated area. But I tell you what, with good

12 management skills, we had a good firm, Seven

13 Circles Resort, was an international firm that

14 came in. They knew how to get people, advertise

15 right, get them down there. So again, I think my

16 advice to anybody is gaming is good. It's there.

17 It could help the economy out not only in Indian

18 countries, but the states that actually allow

19 those.

20 But again, working hand in hand is

21 what the future needs to be here so. Once again,

22 I want to thank everybody for allowing me to say a

23 few words, and you have a nice rest of the week.

24 Thank you.

25 MS. STEVENS: Thank you, Vice

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1 Chairman. I'd like to take a moment to have

2 everybody introduce themselves who are here, and

3 also feel free to come sit at the table with us.

4 We're feeling kind of lonely up here. Al though

5 we understand you may be a little shy. I think

6 our regional director, John Guerber, has the

7 microphone so he can walk around, and if everybody

8 could say your name and who you're with, that

9 would be great.

10 MS. BROWN: Good morning. My name's

11 Collette Brown. I'm with the Spirit Lake Casino

12 and Resort and the Spirit Lake tribe.

13 MS. DAVIS: Good morning. My name is

14 Marty Davis. I work for the Turtle Mountain

15 tribe, Belcourt, North Dakota.

16 MR. BISTIS: My name is Jim Bistis.

17 I'm with the NIGC in St. Paul.

18 MR. FAITH: Good morning. Mike Faith,

19 Standing Rock Sioux tribe, vice chairman. You

20 gotta excuse me. I got two other meetings I gotta

21 head to too. So thank you.

22 MS. STEVENS: Thank you for joining us

23 this morning.

24 MR. PAYS: My name is Richard Pays.

25 I'm from Turtle Mountain. I'm a commissioner.

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1 MR. McKEE: My name is Jim McKee. I'm

2 a field investigator in the Rapid City NIGC

3 office.

4 MS. WOLFE: Good morning. I'm Marion

5 Wolfe with the Three Affiliated Tribes gaming

6 commission in New Town, North Dakota.

7 MR. PLATA: Good morning. I'm John

8 Plata with Hobbs, Straus, Dean & Walker on behalf

9 of Seminole tribe.

10 MS. DURBIN: Linda Durbin, field

11 investigator NIGC St. Paul.

12 MS. WARD: Jennifer Ward. I'm the

13 region attorney, and I work out of D.C., Portland

14 and D.C.

15 MR. GUERGER: And, Mr. Vice Chairman,

16 you missed the chance to invite everybody out to

17 the beautiful Prairie Knights.

18 MR. FAITH: Well, I tell you what

19 they've -- I won't get into that right now. We

20 have other casinos here too so --

21 MR. GUERBER: And I'm John Guerber.

22 I'm the regional director up here in St. Paul.

23 MS. STEVENS: Thank you, John.

24 So I do want to recognize our regional

25 staff that are here and also we have staff as

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1 Jennifer mentioned from D.C. Our regional

2 director many of you know John Guerber. Field

3 investigator over here Linda Durbin, also James

4 McKee in the back. Our field operator Jim Bistis,

5 who introduced himself. Jennifer Ward here to my

6 right who's out of our headquarters in D.C. She's

7 a staff attorney, works for this region. And then

8 our general counsel Larry Roberts.

9 My name is Tracie Stevens. I'm a

10 member of the Tulalip tribes out of Washington

11 state, and glad that you-all could make it. We

12 also realize there are a number of other meetings

13 that are going on. I think that with the powwow

14 drawing in so many people this agency and many

15 others try to take advantage of folks being in

16 Bismarck at this time. I hope that every one has

17 their packets. There's some information that was

18 out at the front that James and Jim were handing

19 out. Part of that is the agenda and then the

20 PowerPoint that we're going to walk through.

21 I know many of you are here not

22 necessarily to speak to specific parts or have

23 formal comments, either written or verbal, but you

24 are here listening on behalf of your tribe or your

25 commission so that you can bring that information

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1 back. We certainly would encourage questions as

2 we go through. If you do have formal written

3 statement for the tribe that you represent, you

4 can give those at any time. We realize that every

5 one has a very busy schedule. You'll notice in

6 our agenda we've made time for those opportunities

7 to, you know, bring your statement, and if you

8 need to make it on the record, then you can.

9 You know, in speaking with -- talking

10 about the agenda, we have broken it down into

11 certain parts and certain regulations and topics

12 that we'll be discussing rather than just leaving

13 it open. However, that doesn't mean that you

14 can't speak to another part that might be later on

15 in the agenda if your time does not allow you to

16 stay. So, you know, feel free to ask questions.

17 If you need to make a statement because of your

18 schedule before we get to a part, feel free to

19 just raise your hand.

20 We are transcribing these

21 consultations. We have a transcriptionist over

22 here to my left. This is Stephanie. And anytime

23 that we have anyone up to the microphone we need

24 everyone to state their name and where they're

25 from so that we're clear who's making what

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1 comments or asking questions for the record.

2 So in the absence of anyone, does

3 anyone have prepared statements that they need to

4 make on behalf of their tribe? This is the time

5 that we would do that. Okay. Again, feel free to

6 come join us. You're feeling a little shy back

7 there. With that what I'd like to do now is turn

8 over the meeting or at least the microphone over

9 to Larry Roberts our general counsel, and he's

10 gonna be going through this PowerPoint. We're

11 going to go through certain parts of the

12 regulations at this time, and you can certainly

13 follow along. Feel free to ask any questions if

14 you have any at the time. Once we're through

15 doing a quick summary, we'll open the floor to

16 questions and comments and talk a little more

17 about where we're at with each of those

18 regulations in Group 1.

19 So I'll just turn the microphone over

20 to Larry.

21 MR. ROBERTS: Good morning everyone.

22 As the Chairwoman mentioned my name is Larry

23 Roberts. I'm a member of the Oneida Nation of

24 Wisconsin. And we'll be going through the

25 PowerPoint materials that have been handed out

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1 this morning.

2 We're gonna start off this just by a

3 general statement that this is a government -- a

4 government consultation. This is not an open

5 meeting to the public and so only tribes or their

6 designees may attend these meetings.

7 The Commission is conducting this

8 meeting consistent with Executive Order 13, 175,

9 which directs agencies to encourage tribes to

10 participate, and in determining whether to

11 establish federal standards, that we consult with

12 tribal officials as to the need for Federal

13 standards and any alternatives that would limit

14 the scope of Federal standards or otherwise

15 preserve the sovreign authority of tribes.

16 The Commission has put forth five

17 regulatory groups. The regulatory groups did not

18 indicate priority for the Commission. They were

19 grouped according to subject matter, comments

20 received from the public on the notice of inquiry,

21 and the estimated time and resources it would take

22 for the Commission to review and act on these five

23 specific groups.

24 So as most of you are aware we've --

25 the Commission has moved forward in three phases.

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1 For a number of the parts the Commission has

2 circulated preliminary drafts for comment from

3 tribes. A lot of those comment periods have now

4 closed, but that doesn't mean that tribes cannot

5 submit comments and won't be able to influence

6 proposed rules as they are issued. When the

7 proposed rules are issued, tribes and the public

8 will have an opportunity to comment on those

9 proposed rules. And then, if the Commission

10 decides to go forward with a final rule, there

11 will be a public comment period after the final

12 rule is issued as well.

13 Our preliminary discussion drafts are

14 just that. They're initial working drafts. We've

15 received a lot of helpful comments from the public

16 on the discussion drafts that we've circulated.

17 One regulation that we will be talking about

18 tomorrow self-regulation for Class II. That

19 comment period is open until September 17. All of

20 our -- as the chairwoman mentioned all of these

21 consultations are transcribed. So if you want to

22 see what had transpired at other consultations,

23 what thoughts other tribes shared, those

24 consultations are on our website as well as

25 written comments received from the public.

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1 The Commission has been very clear

2 that they are in the process of reviewing and

3 considering every comment that we receive, that

4 our proposed and final rules will include a

5 summary of comments, and that the Commission is

6 dedicated and devoted to a clear and transparent

7 process in this ruling process. And so we've had

8 a number of consultations across the country,

9 various regions, reaching out to the tribes as

10 part of the government-to-government relationship

11 seeking input from all tribes across the country.

12 The consultation agenda as it stands

13 now we have as I mentioned five groups. We've

14 actually -- the Commission has scaled that to four

15 groups and has removed one of the groups in to a

16 tribal advisory committee process. So Group 1,

17 which we'll be talking about this morning, covers

18 fees collected by NIGC. It would cover Part 523,

19 which is review and approval of existing

20 ordinances; Part 559, facility license

21 notifications, and a potential Buy Indian

22 regulation.

23 This afternoon we will discuss Part

24 573 our enforcement regulations as well as a

25 number of parts that deal with appeals before the

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1 Commission. Part 4, which we'll also be covering

2 this afternoon, will be Part 556 and 558, which is

3 our pilot program for primary management officials

4 and key employees, monitoring investigations, our

5 regs relating to collateral agreements, our regs

6 relating to the background investigations for

7 persons or entities with financial interests or

8 management responsibility in a management

9 contract, and then definitions.

10 And finally, tomorrow morning in Group

11 5 we'll talk about the Commission's preliminary

12 draft self-reglation of Class II gaming and its

13 sole proprietary -- and potential regulation

14 involving sole proprietary interest.

15 So this morning in your packet of

16 materials we have a number of -- actually two

17 preliminary drafts that were circulated for

18 comment. One is part 514, fees, and the other is

19 559, facility license notifications.

20 And so at the onset we'll turn to Part

21 514, fees. And so you should have in your

22 material a redline draft of Part 514 that shows

23 the changes proposed to the regulation. This is a

24 preliminary draft the Commission has put forward

25 with a proposed rule at this point, but some of

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1 the changes in the draft regulation is a change in

2 the fee calculation based on a gaming operation's

3 particular fiscal year rather than our calendar

4 year, and that's proposed in Section 514(a)(1).

5 And we're hoping that that helps to clarify and

6 streamline the fees process so there aren't as

7 many issues relating to the calculation of fees.

8 Where also in this preliminary draft the fee rate

9 is published for March 1 for a more accurate

10 preliminary rate. And then, the draft proposes

11 removing amortization from Section 514(b)(2)(ii)

12 to reflect existing practices.

13 The discussion draft goes back to

14 quarterly payments as -- rather than biannual

15 payments. And it clarifies that the gaming

16 operation will utilize the 514(b) calculation to

17 determine addessable gross revenues. This isn't a

18 substantive change. It's a clarifying change.

19 And then, that we have a proposed section that if

20 the gaming operation changes its fiscal year that

21 it provides notice to the Commission of that

22 change.

23 One of the sections that we've

24 received quite a bit of comment on is a new

25 section involving late payments prior to a notice

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1 of violation and so Part 514 defines a late

2 payment. The proposed definition would be

3 payments made within 91 days of end of fiscal year

4 would be a late payment. A late payment results

5 in a fee assessment, and a failure to pay an

6 annual fee, which is any payments made after that

7 91 days of the end of the fiscal year, that would

8 result in a substantial violation.

9 So some of the things that we've heard

10 during the consultations from tribes is that for

11 one reason or another that the payment of fees to

12 NIGC may be a few weeks or months late due to,

13 say, flooding of their facility and their

14 operation and their inability to have an audit

15 prepared in a timely manner. What this proposal

16 would do in terms of a late payment fee basically.

17 Late payment assessment if it's paid within 91

18 days after which -- if the late assessment has

19 been paid after 91 days, it would turn into a

20 potential notice of violation.

21 We also have in the new section

22 fingerprint processing fees. NIGC, as many of you

23 know, has been collecting fingerprint processing

24 fees for quite some time. This clarifies through

25 regulation the collection of those fees, and we

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1 proposed publishing the amount biannually. We've

2 heard during the context of consultations some

3 tribes would prefer that we publish the fee amount

4 annually or less often than biannually. We'd like

5 to hear feedback from you on that.

6 And then, we have a couple of

7 questions in terms of should the term admission

8 fee be changed to entry fee? We've heard from

9 some folks that an entry fee may be more precise

10 than an admission fee. And should tournament fees

11 be included as examples of an entry fee.

12 The Commission has also asked whether

13 it should consider revising the definition of

14 gross gaming revenue be changed to a definition

15 consistent with GAAP. The preliminary draft does

16 not make this change. And the other question that

17 we've sought consultation on is whether the

18 commission should define wager and payout.

19 As I mentioned this written comment

20 period on the discussion draft closed at the end

21 of May of this year. If the Commission goes

22 forward with a notice of proposed rule making,

23 tribes will again have an opportunity to comment

24 on that notice of proposed rule making. Are there

25 any questions or comments on Part 514 in fees?

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1 Okay. I'm gonna move forward then to

2 Part 523, review and approval of existing

3 ordinances or resolutions. This part only impacts

4 -- or only implies to tribal ordinances enacted

5 before 1993 and have not been submitted yet to

6 NIGC for approval. So the question here is

7 whether this part should be repealed, whether it's

8 obsolete, whether there are any tribes out there

9 that have a tribal ordinance enacted before 1993

10 that has not been submitted yet to NIGC for

11 approval. We've heard during the consultations

12 held today that we haven't heard any tribes say

13 that they would be impacted by the repeal of Part

14 523. So if that is a concern for your tribe,

15 please, please let us know because the Commission

16 will be considering moving forward with a notice

17 of proposed rule making to repeal this part unless

18 it hears I think from tribes that they could be

19 impacted by such a repeal.

20 Okay. Part 559 is also a part that

21 we've circulated, the Commission has circulated as

22 a preliminary discussion draft that's in your

23 materials. As part of the notice of inquiry --

24 and I should back up for folks that maybe weren't

25 aware that the Commission issued a notice of

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1 inquiry. When the Chair and the Commission took

2 office last summer, they moved forward with a

3 notice of inquiry, which is sort of a step before

4 any sort of notice of proposed rule making. It

5 basically asked tribes and the public for comment

6 on which regulations as part of its regulatory

7 review process should the Commission be looking

8 at, what -- how -- what process should they use in

9 reviewing those regulations, and in what order.

10 So the comments in response to the

11 notice of inquiries supported Commission review of

12 Part 559, and in part -- and although the comments

13 stress that the part was adopted without adequate

14 tribal consultation. And so the Commission has

15 put forward a preliminary draft, and some comments

16 received from the public have questioned NIGC's

17 authority over environmental, public health, and

18 safety issues.

19 And so the discussion draft as you can

20 see in part 559.2 changes the timeframe for notice

21 of a new facility license and includes a provision

22 for expediting the process of NIGC's review when

23 the circumstances permit. So, for example, some

24 tribes have said we're sending in a facility

25 license. We know that we're supposed to submit

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1 this within 120 days of opening our facility. Can

2 you let us know if you have any concerns before

3 that time period on the opening of the facility.

4 And so in some instances the Commission has been

5 able to say thank you for submitting your

6 materials. We have everything we need and, you

7 know, go ahead and feel free to open the facility.

8 This would -- and so this discussion

9 draft basically incorporates an informal process

10 where some tribes will reach out to the Commission

11 and say we've submitted our materials. Do you

12 have everything that you need.

13 So the discussion draft in 559.3

14 provides that a copy of each newly issued facility

15 license be issued within 30 days. And then,

16 rather than -- what this draft changes is rather

17 than the tribe submitting a long list of materials

18 relating to environmental health and public safety

19 issues that the tribe submit to the Chair an

20 attestation from the tribe that it -- that the

21 tribe as sovereign as in terms that the

22 construction and maintenance of the facility and

23 operation is conducted in a manner that adequately

24 protects the environment and public health and

25 safety.

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1 We've heard through comments that a

2 lot of these issues are addressed already in

3 tribal state compacts. Their address is a matter

4 of tribal law. And so this proposed change would

5 have attestation from the tribe directly to the

6 Commission that these -- that their facility is

7 conducted and constructed in a matter that

8 adequately protects the environment. We also know

9 that many tribes have their own environmental

10 departments and health and safety departments that

11 provide regulatory oversight on these issues.

12 The discussion draft also requests

13 notice to NIGC within 30 days when a license is

14 terminated or expires or if a facility closes or

15 reopens. It provides the Chair with authority to

16 request additional information on a case-by-case

17 basis and that electronic submissions are

18 acceptable.

19 You'll notice that in terms of

20 notifying when a facility license is terminated or

21 expired in 559.5 the Commission has heard from

22 tribes that on some occasions there's -- the tribe

23 will close its facility seasonally or have a

24 temporary closure, and so we've left a blank.

25 We've left that there where we don't need

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1 notification of a seasonal closure or a temporary

2 closure. We'd like -- and we've received comment

3 from a number of tribes in terms of how many days

4 constitutes a temporary closure, what is

5 reasonable there. And so if there are any

6 comments on this particular section on temporary

7 closures, we'd certainly welcome those as well.

8 As I mentioned the written comment

9 period on this discussion draft closed in mid

10 June, and the Commission if it decides to move

11 forward with the notice of proposed rule making

12 the tribes and the public will have an opportunity

13 to comment on that proposed rule. Are there any

14 questions or comments on Part 559?

15 Okay. Well, the last section of Group

16 1 is part -- is a Buy Indian regulation. The

17 Commission asked in notice of inquiry should NIGC

18 adopt a regulation that would apply to itself, not

19 to tribes, that would require the Commission to

20 Buy Indian when purchasing goods, services, and

21 property. IGRA provides NIGC with authority to

22 contract with tribe, states, private entities.

23 And so the Commission has asked for comment on

24 whether it should move forward with the

25 regulation, whether it should move forward in

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1 terms of guidance, or some sort of internal agency

2 policy. Are there any comments or questions on

3 either the Buy -- potential Buy Indian regulation

4 or any other questions or comments on the other

5 parts we've just sort of run through in this

6 PowerPoint?

7 MS. STEVENS: Thank you, Larry. I

8 know many of you here are just here to listen and

9 see what's going on. A number of these

10 regulations we've been talking about for some

11 time. I think the first drafts were issued back

12 in May, April or May. I think the first one was

13 fees and so the comment period on that particular

14 discussion draft had closed and we've been

15 continuing to hear comments about it. We also

16 understand that it's usually the tribe's CFO or

17 the comptroller or the financial people that want

18 to talk about the changes that we've made in 514,

19 fees, the fee section. You know, how does moving

20 from biannual payments to quarterly payments work

21 for you. So far we've heard very favorable

22 comments about quarterly payments, because it

23 alines with other practices that the operations

24 had or the tribal government has. So we'll be,

25 you know, happy to hear about how this would

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1 affect you or have you take this back to your

2 financial people and ask, you know, how does this

3 affect us.

4 Also changing the reporting period

5 from a calendar year to the tribe's fiscal year.

6 And we actually have a breakdown of every single

7 tribe and when their fiscal year is. Not --

8 surprisingly tribes have different end fiscal

9 years. Many tribes are still working off of the

10 federal government's fiscal year end, which is

11 September 30 -- October 1 to September 30. Many

12 tribe calendar years even -- surprisingly there's

13 some tribes that have April 1 to March 30. So

14 different tribes based on their needs have

15 different fiscal years.

16 The trouble that we were running into

17 and the tribes were specifically running into,

18 which led to fee audits, was trying to make a

19 whole different calculation based on the calendar

20 year than what their fiscal year was and that

21 often led to errors, which caused the need for our

22 auditing to go out and to do a fee audit to make

23 sure that the fee was accurately calculated and

24 assessed. The -- the really ownest of changing to

25 the tribe's fiscal year will be a burden on the

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1 NIGC, which we think is not really that -- our

2 comptroller does not feel that it's an issue at

3 all. It's not even a burden. It would actually

4 be helpful so that we can reduce the number of

5 errors that were being made because of the

6 calendar cycle. So we'd love to hear -- so far

7 we've been hearing really good things about doing

8 it that way. That reduces the amount of work that

9 the people have to do, because they're just doing

10 the one calculation on a separate calculation or

11 better yet is based off of your financial audited

12 statements, which is based off your fiscal year,

13 helpful for tribes and that's why we wanted to

14 suggest that.

15 Also the late system, we know -- I did

16 a quick calculation back in -- our staff did at

17 our request the number of NOV's that were issued

18 for fees, and the total number of NOV's

19 historically and about 66 percent of NOV's were

20 for late fees depending on whether that was one

21 day late, two, several months late, and what we in

22 our initial discussions talked to tribes about are

23 -- was the concept of a late payment system. And

24 that's what you'll see in this draft, and we'd

25 like to know how you feel about that. Many tribes

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1 are saying that's a fair way to address

2 circumstances that might be outside of their

3 control. As Larry suggested what we're hearing is

4 there may be things like natural disasters, other

5 types of issues that may cause a tribe to be

6 delayed in their payment.

7 You know, I asked our comptroller,

8 Chris White, about this. He's on the phone a lot

9 with tribes trying to calculate fees with them and

10 walking them through the worksheets. Many times

11 he's said it's -- it's never willful

12 noncompliance. It's changing of staff at tribes

13 or a circumstance where a staff person who

14 normally does this might not be available. They

15 may be ill, but usually the turn over, may be some

16 miscommunications between certain people within

17 the tribe, the regulators, the outside auditors,

18 and us, but he says he's always been able to

19 successfully walk, you know, a new person who

20 works for the tribe through the process and get

21 them going on their fees. And just a little

22 information there about what we see and why tribes

23 are late and given the history for the NOV's that

24 were issued, you know, that is a big hammer for

25 being late.

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1 We had heard when we first came into

2 our positions that there were fines that were

3 greater than the fee itself, because of the late

4 -- the nature of the late payment, which certainly

5 could encourage tribes not to be late but, you

6 know, we thought it would be fair that it be

7 proportinate to how late you were, and that's why

8 you'll see in this draft, you know, 30, 60, 90

9 days, and that's very similar to other things that

10 go on in operations in businesses or any of your

11 person lives when you're late on your payment 30,

12 60, 90 your penalty increases the later you are.

13 And also in this draft you'll see that

14 the Chair has discretion to take action or not

15 depending on the severity of circumstances of the

16 tribe, you know, the nature of their late payment.

17 Again, we hear some things that, you know, we

18 don't -- you know, nobody expects. We had heard

19 that, you know, their financial person had become

20 gravely ill, and their lake overflooded, may be

21 had to close the facility and we're gonna be late.

22 So, you know, the -- preserve the right of the

23 Chair to take a look at individual circumstances,

24 but the design here is to have the penalty be

25 increased as the payment is later, but hopefully

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1 that the way we sructured the quarterly payments

2 based on tribe's fiscal year, how we define

3 certain definitions in here, admission fees,

4 tournament fees, entry fees would be helpful to

5 tribes so that we can avoid some of the issues

6 we've had with late payments and thus not get to

7 that point of penalty. So we'd love to hear about

8 those concepts that we have in the fee regulation.

9 One last thing that's in there is what

10 should the penalty be? Should it be a hard dollar

11 amount or should it be a percentage based on

12 interest and percentage applied? What we've heard

13 so far many tribe's percentage would be fair based

14 on the size. So if you're a small operation, a

15 percentage would be a good ratio to on how much

16 gross, you know, how much your payment is as

17 opposed to a hard dollar amount. Where a larger

18 facility if they're late, you know, hard dollar

19 amounts might not mean that much, but it would

20 mean quite a bit to a very small operation, so the

21 percentage is gonna be fair. So we'd like to hear

22 your views on that as well. So far that's what

23 we're hearing is the percentage based.

24 I'm not sure that I'm missing anything

25 else. Those are the major sort of high points and

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1 what we've heard so far and what our thinking was

2 in developing this draft that's out there now.

3 Some things to consider if you have to bring this

4 back to your counsel or other commission members,

5 again, all the comments that we've received on

6 these are posted on our website, and the drafts

7 are also on our website.

8 Okay. What's the next fun one? 523

9 is just a repeal of old ordinances, and I don't

10 believe -- I think our staff has done the research

11 to indicate there are no ordinances out there that

12 meet that criteria. So it's just a regulation

13 that didn't need to be there anymore.

14 What's the next one? 559, facility

15 licensing, many of you know the previous

16 Commission had issued facility license regulations

17 a number of years ago, and we've heard a lot about

18 this when we first came into office, and the

19 requirements that were laid out for tribes in

20 licensing and the time periods required in the

21 regulation relicensing every three years, certain

22 things that you have to submit when sending in

23 your licensing.

24 I have a couple of different drafts

25 here. I'm looking to make sure I have the right

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1 one. It's the same one. So you'll see in this

2 particular draft as Larry had mentioned there were

3 a number of things that we had taken out that were

4 required previously that we've heard tribes say

5 it's either in their compacts, they use other

6 federal agencies, like Indian Health Services.

7 They have it in their own tribal law, and they

8 have other parts of their government that

9 oversee -- and who oversee certain parts of public

10 health. And that the requirements of the facility

11 licensing regulation as is now -- it's duplicative

12 and actually can be a burden putting this

13 information together.

14 So again, we're asking for attestation

15 from the tribal government that there is in place

16 public, health and safety -- environmental, public

17 health, and safety issues are taken care of by the

18 tribe however that maybe. It varies from tribe to

19 tribe. And we certainly would love to hear

20 comments on how that's structured for your

21 particular tribe. As I said some tribe's compacts

22 require that they follow state guidelines or state

23 laws. Other tribes are using federal agencies to

24 do that. We'd love to hear more about how that

25 works for tribes throughout the country for the

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1 record so that we can see how it varies and how

2 what we proposed would be work -- how it would

3 work for the variety of tribes and their

4 situations.

5 The last thing to consider on facility

6 licensing is temporary closures. Do we have any

7 tribes that do temporary closures for seasonal?

8 There's a surprising number of those tribes who do

9 seasonal closures out from -- I'm from Washington

10 state, and we have some tribes out there that

11 close for a certain numbers of months because, you

12 know, of the winter and the roads are not

13 passible. How long is too long or how long is

14 enough for those type of temporary closures?

15 Whether it's a rebuild, whether you've had a

16 natrual disaster like a flood where we don't need

17 to be notified that you're closed. Is it 30 days,

18 60 days, 90 days, 180 days? How many days is

19 temporary for seasonal or closures that are

20 remodels or because of disasters? That's

21 something we'd like to hear about.

22 Temporary doesn't need to be

23 temporary. I think it would be maybe too much to

24 ask for a year or more. Although especially if

25 you're doing construction, you know, how that can

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1 go. What you thought was gonna take two months

2 takes four months and what you thought was gonna

3 take four months takes eight months. And so we do

4 want to draw a line in the sand there that says,

5 okay, this is an amount of time that's acceptable

6 to be determined to be temporary so that you don't

7 have to keep telling us, you know, the license has

8 been terminated for now, the facility's closed,

9 where we don't have to note that you're going to

10 reopen. So those are major parts of facility

11 licensing we'd love to hear from tribes on how

12 these will work for them.

13 The Buy Indian, there are parts in the

14 statute that give the Chair the authority to

15 contract under 2706(a)(6) and (7), but also just

16 the Buy Indian Act, and the secretary holds that

17 authority, the Secretary of the Interior. And,

18 you know, again, we want to reiterate because

19 there has been some misunderstanding that we're

20 not trying to apply this to the tribes, we're

21 applying it to us. So when we contract as a

22 federal agency, that we look to Indian vendors and

23 Indian businesses first if we can and the price is

24 competitive.

25 Do we do a lot of that? Mostly it's

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1 gonna be in these situations but, you know, there

2 might be copy machine people or people who are

3 tribes that have paper companies, or if we have to

4 move, are there tribes that do that, but mostly

5 it's gonna be when we're out on the road like this

6 and we need a facility. We try to go to Indian

7 facilities when we can and when the price is

8 appropriate, but we were considering how do we

9 formalize this process.

10 We've heard some feedback even from

11 some former commissioners that why on earth would

12 you wanna do that, make it a reg, and why would

13 you want to solitify it and, you know, box it in

14 the next commission to do that when you could just

15 do an internal policy. Would an internal policy

16 be adequate? Again, this is part of the NIGC's

17 business and because we're funded by these, paid

18 by tribes, by you, you know, we wanna get your

19 views on how we can encourage economic development

20 and policies that are under IGRA so that we're

21 encouraging that economic development as a federal

22 agency.

23 So a little repetitive on my part but

24 I wanted to put a little more information out

25 there about what we've heard so far, getting a

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1 variety like on Buy Indian, doing internal

2 policies, understanding the reg. But certainly,

3 again, we want to give everyone the opportunity to

4 at least think about it when you go back and brief

5 your commission or your counsel on what you've

6 heard here today. I think that's it on this

7 section. Do we have anyone that has any questions

8 or comments? Do we need to clarify any of the

9 parts here, anything that we've said.

10 If not, then why don't we get up and

11 stretch and we'll take a break, and we'll come

12 back in about 15 minutes. And we may move on to

13 some other sections as well. Okay. We'll take

14 15.

15 (At this time a break was taken.)

16 MS. STEVENS: Okay. I'd like to

17 resume the meeting. For those who were following

18 what we've been doing, you'll notice that Class

19 III -- there's a number of things that were taken

20 off the schedule and I'll explain why. Class III

21 minimum internal control standards were a part of

22 Group 1 originally. That was meant to discuss

23 options on how we can address Class III internal

24 control -- minimum internal control, and we heard

25 a lot of feedback in the notice of inquiry earlier

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1 in the year and the meetings up to I think about

2 ten meetings I think that we had through

3 Washington D.C. in July.

4 What we originally -- I was thinking

5 back. We were gonna discuss how to approach Class

6 III in Group 1, and in Group 5 we were going to

7 implement whatever suggestions or whatever plan

8 that we had put into place after our discussions

9 in Group 1 on how to approach it, so hear our

10 plans and ideas and then implement. And also the

11 other thing that you won't see us talking about

12 here today is Class II minimum internal control

13 standards and Part 547, technical standards for

14 machine play for Class II bingo.

15 What we've heard up to this point and

16 through the, you know, as I was saying with the

17 notice of inquiries that there was a strong

18 interest and a lot of comments from tribes that we

19 reestablish a tribal advisory committee. So

20 recently in the beginning of August we issued a

21 nomination, a call for nominations, so that we can

22 address Class II and Class III minimum internal

23 control standards and technical standards for

24 Class II games under Part 547.

25 We recently extended the day to come

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1 in compliance, the deadline to come into

2 compliance for Class II minimum internal control

3 standards until October of 2012 so that we can get

4 through the products that tribal advisory

5 committee will produce. So we have nominations

6 out there until September 16. That is all on our

7 website, the letter that went out to tribes

8 explaining why we're requesting nominations, what

9 kind of nominees we're looking for, dates that

10 we're looking to have tribal advisory committee

11 meetings so that we can adress Class II, Class III

12 minimum internal control standards and technical

13 standards.

14 So you won't see that on this agenda.

15 We originally, as I said, started out with these

16 subject committee's topics on our agenda, but,

17 again, we were remaining flexible enough to hear

18 how tribes want to proceed. So what we've done is

19 move those three issues on to a parallel track

20 that we'll deal with alongside these other

21 regulations that we're talking about today and

22 tomorrow. These particular regs are not as

23 cumbersome and specific, so we wanted to free

24 these up and the time that we're using here to

25 make progress on these regulations and not have

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1 our consultations taking up these -- these

2 particular consulations taken up with minimum

3 internal control standards and technical

4 standards.

5 So if you have any questions about the

6 tribal advisory committee nominations, letters,

7 information, that's all available on our website

8 or you can talk to any of us here. Again, the

9 deadline to submit names for that advisory

10 commitee will be September 16. The objective for

11 that particular committee will be to have -- put

12 forward suggestions on how we can improve and what

13 we can do with minimum internal control standards

14 and suggest to changes in technical standards, and

15 that will go on for about a year.

16 So we won't be talking about those two

17 things today, but we certainly would, you know, if

18 there are any comments or questions about them,

19 we'll welcome comments and questions about that

20 process. With that out of the way, what I decided

21 that we should probably do at this point, because

22 we've talked most of the morning about the Group 1

23 regulations, is to jump on the agenda to the

24 afternoon section. In absence of any comments on

25 Group 1, we would just go ahead and move to Group

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1 2 regulations, summary, and tribal comments, which

2 is on your agenda, the 1:30 to 3 p.m. section, as

3 it's going to be on enforcement and proceedings

4 before the Commission.

5 And if you look in your book, that

6 will cover -- hold on. I want to make sure it's

7 573. I think Larry -- page 9 on your PowerPoint,

8 but you do have that book in here that goes into

9 -- it'll list what we're gonna talk about first in

10 appeals 573, 519, 524, 539, 577. So we'll be

11 going over that in I moment. Just so you can

12 follow along, we're gonna jump ahead on the agenda

13 and talk about those parts. So with that I'll

14 turn it over to Larry, and we'll go ahead and talk

15 about these sections.

16 MR. ROBERTS: Okay. So we're gonna

17 start off with Part 573 dealing with enforcement.

18 Earlier this year the Commission circulated a

19 preliminary draft and discussion draft making

20 various changes to this part. One is that it

21 embodies this Commission's goal of voluntary

22 compliance for tribes rather than going directly

23 to an enforcement action fostering tribal

24 governments working with NIGC to achieve

25 compliance with the Act, and so 573 adds that that

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1 is the goal of the Commission.

2 573.2 lays out a process where -- what

3 we've -- what we've heard in response to

4 consultations and in responsive notice of

5 inquiries that sometimes tribes would receive an

6 NOV and they had little or no idea that an NOV was

7 actually about to be issued. And so what this

8 does is this lays out a process, sort of a stepped

9 process, that the Commission may take, that the

10 Chair may take, leading up to the issueance of an

11 NOV. And so it lays out a letter of concern and

12 then a more semiformal non-compliance notice, and

13 then if it's still not corrected an NOV..

14 The discussion draft does retain the

15 chair's authority to issue an NOV at any time. So

16 there might be circumstances under which this

17 stepped approach is not appropriate. Neither the

18 letter of concern or the non-compliance notice is

19 a final agency action. Either a non-compliance

20 notice or a letter of concern may provide a time

21 period for the tribe to come into voluntary

22 compliance.

23 Let's see. We sought comment on this

24 and the comment period closed August 9. And so

25 there's been questions in terms of what is the

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1 Commission's time frame on some of these

2 preliminary drafts that have been circulated when

3 the comment period is closed. The Commission is

4 in the process of reviewing those comments and

5 deciding whether it wants to move forward with a

6 notice of proposed rule making for each of these

7 preliminary drafts. Are there any questions with

8 Part 573 or the changes embodied in the

9 preliminary draft?

10 Okay. Well, we're gonna move forward

11 with proceedings before the Commission. Probably

12 a section that only an attorney could love.

13 Basically for those of you that are familiar with

14 proceedings before the Commission, the appeals

15 process is laid out in a number of different

16 parts, Part 519, Part 524, 539, 577. What we've

17 heard from folks is that it may make sense to

18 streamline the process and clarify the process and

19 have -- just create a whole new subchapter in

20 moving these various parts into one part on the

21 regulations so you're not -- attorneys and tribes

22 are not constantly trying to figure out which part

23 applies to them for the appeal and how to move

24 forward. So this preliminary draft was circulated

25 for discussion purposes. And it's our attempt,

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1 Commission's attempt, to try to combine all these

2 parts into one subchapter.

3 So if you turn to your materials, Part

4 580 of this new preliminary draft basically lays

5 out the rules of general application in

6 proceedings before the Commission.

7 And then, Part 581 covers motions.

8 Part 582 covers appeals for

9 disapproval of gaming ordinances, resolutions, and

10 amendments.

11 Part 583 covers appeals for approvals

12 or disapprovals of management contracts.

13 Part 584 covers appeals for before a

14 presiding official for notices of violation,

15 proposed civil fine assessments, orders of

16 temporary closure, the Chair's decision to void or

17 modify a management contract, and notices of late

18 fees and late fee assessments.

19 And then, Part 585 covers appeals not

20 before a presiding official but appeals to the

21 Commission just based on written submissions on

22 all of those issues covered in Part 584.

23 So turning to our booklet in Part 580

24 it covers a number of general issues. It covers

25 definitions, and it covers when may a Commission

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1 suspend or waive its rules governing the

2 proceedings, who may appear before the Commission,

3 how do you actuate service in proceedings before

4 the Commission, and then a section on ex parte

5 communications and what are prohibited and what's

6 allowed.

7 Part 581 is motions in appellate

8 proceedings before the Commission. So, for

9 example, in an ordinance appeal there's motions

10 for limited participation, motions to intervene in

11 appeals before a presiding official, motions in

12 appeal on written submissions, filing a motion

13 before a presiding official, filing a motion to

14 supplement the record, filing a motion for

15 reconsideration. All of these issues are

16 relatively general issues, but they are in some

17 way shape or form issues that the Commission

18 thought could be better clarified in Part 581.

19 Part 582 lays out appeals of

20 disapprovals of gaming ordinances, resolutions,

21 and amendments. This picks up on part of the

22 section -- part of the -- the part that currently

23 covers these appeals. Who may appeal, how to

24 appeal, a late filing or failure to file an

25 appeal, motion practice, motions for limited

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1 participation, setting forth the standard of

2 review on these appeals, and then laying forth

3 sort of the the timing of a decision, content and

4 effective date, and that it is for purposes of the

5 agency, final agency action for purposes of

6 judicial review. Again, sort of flushing out some

7 areas that we've heard from the public that could

8 be clarified.

9 Part 583 appeals for approvals or

10 disapprovals of management contracts. Again,

11 covering the same general topics who may appeal,

12 how you appeal, what covers the late filing or

13 failure to file, how motions are handled, how

14 motion for limited participation are handled,

15 again the standard of review, and again laying out

16 that it is for purposes of judicial review final

17 agency action.

18 Appeals before a presiding official,

19 for example, when the Chair issues an NOV, Part

20 584 is where you would go to if the appeal is

21 directed to a presiding official. So again, who

22 may appeal that NOV or that proposed civil fine

23 assessment, how to go about appealing that, again

24 motions for limited participation, motion practice

25 in general, the burden of proof, standard of

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1 review, when the hearing will be held, just the

2 basics of appeals process before a presiding

3 official.

4 And Part 585 for appeals to the

5 Commission just on written submissions where

6 you're not going to have any testimony presented,

7 Part 585 lays out that process for appeals to the

8 Commission. Again, the standard subjects are

9 covered in the other parts who may appeal, how to

10 appeal, late filing, standard of review, motions,

11 and then that obviously the decision by the

12 Commission will constitute final agency action.

13 The written comment period on this

14 preliminary draft closed August 22, and we are in

15 the process right now of going through all those

16 comments and briefing the Commission on those in

17 terms of moving forward with a notice of proposed

18 rule making. Does anyone have any questions or

19 comments on this section?

20 What we've tried to do is --

21 Commission's tried to do is clarify it so that

22 it's more transparent to the effective parties,

23 that it's a simple process, that the rules of the

24 road are basically clear to everyone. So if there

25 are -- greatly appreciate any comments on this

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1 part. Whether there are improvements that could

2 be made, any sort of feedback would be

3 appreciated.

4 Part of these -- the preliminary draft

5 clarifies who may appeal, for example, disapproval

6 of a gaming ordinance. There's -- in the past the

7 Commission and the public have asked whether they

8 could -- whether appeal is limited to just a tribe

9 that who's gaming ordinance was denied or whether

10 other parties could appeal that. And the

11 regulations here what we're trying to make clear

12 is that only the tribe may appeal that action.

13 I think the intent of a lot of these

14 changes are in at least a lot of these changes are

15 embodying the Commission's current practice. So

16 it might be something that you would see in

17 previous decisions of the Commission or how the

18 Commission has attempted to resolve certain

19 process issues or how they've handled certain

20 process issues in the past that may not actually

21 be in the regulations, and so this is an attempt

22 to basically embody those processes and get more

23 clarity.

24 MS. STEVENS: I think we only have one

25 attorney in the room. It's unusual. And I think

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1 they've already given comments on this particular

2 section. But, again, these are I think processed

3 issues that we are -- as Larry said we're

4 attempting to create some consistencies and

5 clarity in having them located in similar sections

6 rather than disbursed throughout various

7 regulations.

8 We've heard some concern about the

9 confusing nature about how they're currently

10 written and where they're located, so this is

11 mostly clean up and clarification for those who

12 are engaged in processes before the Commission,

13 appeals before the Commission. And keeping in

14 mind as well that not all tribes are going to

15 engage specialists, legal specialists, to do this.

16 We're trying to make them as clear as possible for

17 those who might not be as familiar with our

18 processes or have outside counsel or specific

19 specialized counsel who would be getting them

20 through this process so that when reading this,

21 you know, commissioners, counsel members can get a

22 sense of what they're supposed to be doing and

23 where they can find this information more

24 importantly. It may not be the sexiest stuff on

25 the planet, but it's important that we're clear

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1 about what steps tribes need to take when they're

2 going through these proceedings.

3 MR. PLATA: Tracie?

4 MS. STEVENS: Yes.

5 MR. PLATA: I have a comment.

6 MS. STEVENS: Can you state your name,

7 please.

8 MR. PLATA: Yeah. I'm sorry. John

9 Plata.

10 MS. STEVENS: If you might just, you

11 know, step up to this microphone.

12 MR. PLATA: I just had a question --

13 or just actually I want to get some feedback from

14 you, kind of some discussion going here on Part

15 580 where it discusses ex parte communications. I

16 wanna get your thoughts on a situation where the

17 issue being appealed is between the tribe and NIGC

18 and what kind of communication would be ex parte

19 if we're trying to -- if the overall goal of

20 communication of the tribe is to have an open and

21 transparent relationship and government

22 consultation. In this situation, you know, where

23 a tribe is -- reaches out to a member of your

24 staff or someone who they feel comfortable with in

25 resolving some of these issues, you know, I -- the

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1 concern that I express in the comments that were

2 submitted for the Seminole tribe was that it might

3 put a damper on that communication, the open

4 communication that had previously occurred, but in

5 this scenario there might be a restriction against

6 sharing their concerns on particular appeal issue.

7 Can you share your thoughts on how if

8 you think what's been drafted might harm that

9 relationship or harm that communication back and

10 forth by the tribe and NIGC?

11 MR. ROBERTS: Thank you for the

12 comment. And I think it's a good observation that

13 the Commission will have to consider. I think

14 that they -- some of the underlying policies

15 behind laying out what ex parte communications are

16 prohibited isn't necessarily to prohibit, for

17 example, settlement while it's pending on appeal

18 or that sort of thing, but I think it is to make

19 clear that if there are communications on lower

20 facts involving the appeal that either they don't

21 occur or that if they do occur under 58.5(d) that

22 there's a record of that placement proceeding of

23 what occurred. So I think if it's in the context

24 of settlement I think that's sort of a different

25 discussion and a different thing that the

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1 Commission will have to consider.

2 But I think the idea is in situations

3 where, for example, you have an NOV with multiple

4 parties, let's say it's a tribe and contractor,

5 and that's leading the second party pretty clearly

6 what communications are prohibited and if they do

7 occur that all parties to the action receive

8 notice of what those communications were.

9 MS. STEVENS: I know we have here

10 mostly commissioners or people who work for or are

11 on their gaming commission. I'd be interested in

12 knowing your thoughts on the proposed 573 where

13 we've designed and have suggested a step sort of

14 incremental process before we get to more

15 egregious actions like NOV's and closures.

16 Again, as Larry stated and actually

17 what I've heard when I was in South Dakota in

18 February there were a number of tribes who said I

19 came to the Commission and asked for help and what

20 I got in return was an NOV. Didn't expect it,

21 didn't see it coming. And I've said before, I

22 mean, if we're -- our philosophy at this NIGC is

23 that we take an approach of ACE, assitance,

24 compliance, and then enforcement, then an NOV

25 unless under, you know, some very unique

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1 circumstances the tribe should not be surprised

2 that an NOV's coming. We should be making an

3 effort to assist the tribe, help the tribe come to

4 compliance, maintain compliance, and when all else

5 fails an, you know, NOV.

6 And so you'll see we've drafted in 573

7 the enforcement section under 572 -- 573.2, you

8 know, what steps can we put in place that sort of

9 ramp up to, you know, the most severe action or

10 one of the most severe actions that we can take so

11 that we can let the tribes know, hey, you know,

12 even before we get to a point of a letter of

13 concern of the 572 -- 573(2)(b)(i).

14 You know, I know that our field staff,

15 our region people, our field investigators, our

16 auditors, our general counsel of office in D.C.

17 take several unofficial steps to discuss issues

18 with tribes, from informal discussions here,

19 asking questions over the phone, getting guidance,

20 getting onsite technical assistance to remedy

21 issues that a tribe may have. At some point we

22 would engage, as you'll see under 573.2, some sort

23 of formalized process that would be progressive.

24 And we'd love to hear from tribes about, you know,

25 their views on this suggestion of taking an

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1 incremental approach.

2 And again, you know, recognizing that

3 our field staff does a lot to work with tribes

4 beforehand, this memorilizes, you know, a more

5 formalized step process when we're informally

6 working with tribes, you know, engaging the

7 increments in a more formalized process when those

8 efforts may not be solving the issue.

9 So for those of you who are reporting

10 back to your commission or your counsel, you know,

11 something to consider I think some tribes already

12 do this in their own ordinances and take actions

13 themselves and, you know, may not be unfamiliar to

14 many of you. Any other comments on enforcement or

15 proceedings before the Commission?

16 MR. PLATA: I have another comment.

17 MS. STEVENS: Yes, certainly.

18 MR. PLATA: John Plata. I had a

19 question about the confidential information being

20 submitted under Part 584. There's a provision I

21 think it's 584.10 that provides that although a

22 party may have said something confidential, the

23 other parties deemed that is was, that NIGC share

24 that information if they attest that, you know,

25 they're not going to use that information or

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1 disclose any further proceedings. And I want to

2 get your feedback if you thought that was adequate

3 protection against disclosure information that a

4 party might deem as confidential.

5 MR. ROBERTS: In your -- have you

6 provided written comments on this already?

7 MR. PLATA: I did provide a comment

8 that was a concern. I just wanted to know if you

9 can share some feedback on the -- and the thought

10 process behind that procedure that's laid out in

11 584.10.

12 MR. ROBERTS: I can't speak to the

13 specifics of 584.10.

14 MR. PLATA: Okay.

15 MR. ROBERTS: My understanding is that

16 for sections that are addressing issues like this

17 we've tried to look to see what other federal

18 commissions how they handle that information, and

19 so we would be -- again, it's a preliminary draft

20 for discussion purposes. This was like an initial

21 cut. So if there are concerns about it not

22 providing adequate protection for confidential

23 information, I think that that's something that

24 the Commission would be open to considering.

25 MS. STEVENS: Okay. Absent comments

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1 further on Group 2, what I'd like to do while I

2 have a few people here is to jump to Group 4 in

3 case there's anyone that has to leave after lunch.

4 You know, I'm certainly willing to go over this

5 again this afternoon, but for the benefit of the

6 people that are attending now and if there's a

7 scheduling issue, let's start talking about Group

8 4, which is on the second page of your agenda, day

9 1, Wednesday, from 3:15 to 5.

10 And we'll start talking about Group 4,

11 Part 556, 558, 571 and 537. And again, that

12 doesn't -- not necessarily mean that we won't

13 cover some of this after lunch, but for the

14 benefit of those who may have to leave after the

15 morning session, I want to give the opportunity to

16 have you-all listen to what we were thinking on

17 Group 4, how we got to where we are, and give

18 those who are here the opportunity to ask

19 questions or get clarification or make statements.

20 So if you go to the second page of

21 your agenda, we'll go to Group 4, and I'll turn it

22 back over to Larry and we'll talk about Group 4.

23 MR. ROBERTS: Great. So for Group 4

24 we're gonna start with Parts 556 and 558, and

25 basically as many of you know NIGC has run a pilot

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1 program for some time involving background

2 investigations for management officials and gaming

3 licenses for key employees and primary management

4 officials. --

5 And so when the Commission started

6 last summer, in the notice of inquiry, we

7 requested a comment from tribes and the public on

8 priority of amending our regulations to actually

9 formalize the pilot program. Commission's

10 understanding is that there may be more tribes out

11 there that are operating under the pilot program

12 than the actual regulations and so, you know,

13 should we move forward with formalizing the pilot

14 program through regulation.

15 For those tribes that do not

16 participate in the pilot program, it basically

17 provides for tribes to submit simply a notice of

18 results to NIGC on background investigations and

19 then maintain those applications or investigative

20 reports with the tribe. All comments received in

21 response to notice of inquiry supported

22 formalizing this program either through regulation

23 or policy.

24 And so Part 556 and 558 basically

25 formalize the pilot program. 556 includes all the

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1 procedures before a gaming license is issued, and

2 558 is the procedures after a gaming license is

3 issued. So tribes that are seeking a license, the

4 key employee or primary management official, are

5 required to notify the Agency of the applicant's

6 background results no later than 60 days after the

7 applicant begins work. This is in proposed

8 section 556.6(b)(2).

9 It provides for a tribe with access to

10 provide investigative materials from other tribes

11 to update those materials 556.4(b). And you'll

12 see a number of red lines here. Some of this is

13 actually embodying the pilot program. Some of it

14 is streamlining 556 and 558 so that it's clear 556

15 is the procedures before a gaming license is

16 issued and 558 is after.

17 And so in 558 this includes basically

18 all the procedures after this gaming license is

19 issue, and so after providing a notice of results,

20 the tribe may list license the key employee or

21 primary management official. Tribe must notify

22 the Commission within 30 days of the license

23 issuance. And upon receipt of this complete

24 notice of results, NIGC then has 30 days to

25 request additional information from a tribe.

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1 NIGC shall notify the tribe if it

2 needs additional information or the results within

3 30 days. And if the license is issued prior to an

4 NIGC objection, then the licensee will have a

5 right to notice a hearing. The tribe must then

6 suspend that license until a hearing is held. And

7 then, following that hearing the tribe must notify

8 NIGC of the decision, of the tribe's decision,

9 after that revocation hearing.

10 This basically in the discussion draft

11 provides for the availability of electronic

12 submissions and also provides that future

13 ordinance submissions so when a tribe is

14 submitting their amendments, their gaming

15 ordinance, they must comply with this discussion

16 draft. If the Commission were to move forward

17 with the discussion draft as a final rule, then

18 when a tribal gaming ordinance or an amendment

19 were submitted, then they must incorporate these

20 parts of it.

21 The written comment period on

22 discusion draft closed August 10, 2011. So we're

23 in the process of looking through those comments,

24 the written comments, as well as reviewing the

25 transcripts from the consultations that we've had

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1 on the pilot program.

2 Part 537, background investigations

3 for persons or entities with a financial interest

4 in, or having management responsibility for, a

5 management contract as part of the notice of

6 inquiry the Commission asked whether it should

7 clarify that management contractors of both Class

8 II and Class III facilities that they must have

9 completed background investigation.

10 The comments we received from the

11 public majority supported some clarification on

12 this. Some expressed their opinion that NIGC has

13 no authority to approve Class III management

14 contracts, and some commoners stated that this

15 issue is covered by existing compacts, tribal

16 state compacts.

17 And so this discussion draft in Part

18 537 flipping through in your materials basically

19 clarifies that management contract for any class

20 II gaming, including management of both class II

21 and class III gaming, that the Chair shall conduct

22 or cause to be conducted a background

23 investigation. I think some of the questions that

24 the Commission has been asking the public about

25 what we would like feedback on tribes is how can

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1 the process for background investigations for

2 those entities with the financial interest in, or

3 have management responsibility for, a management

4 contractor, how could this process be streamlined

5 while still maintaining the current integrity of

6 the process. And are there issues out there as to

7 who could qualify for a streamline process? So

8 someone that's basically maybe already has an

9 approved management contract would it be

10 appropriate for them to have a streamline process

11 for, say, a different tribe.

12 The discussion draft does provide the

13 Chair in Section 537.1(d) provide the Chair to

14 exercise her discretion and reduce the background

15 investigation and the scope of the information to

16 be furnished for a tribe, a tribally owned entity,

17 or another financially regulated institution, like

18 a national bank or institutional investor, that is

19 already required to undergo background

20 investigation and licensure by a state or tribe

21 pursuant to a tribal-state compact. So it would

22 basically incorporate some of those suggestions

23 that we received where an entity may already have

24 to complete a background investigation pursuant to

25 a tribal-state compact, for example.

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1 And the written comment period on this

2 discussion draft closed in early August, and we're

3 in the process of compiling those comments on this

4 discussion draft, and the Commission is in the

5 process of determining whether to move forward

6 with a notice of proposed rule making.

7 Part 531, collateral agreements. The

8 notice of inquiry asked the question whether the

9 Commission should require a submission of approval

10 of collateral agreements.

11 The majority of comments received

12 supported requiring the submission of collateral

13 agreements. There was disagreement over whether

14 collateral agreements could be or should be

15 approved by the Commission. Some questioned the

16 authority of NIGC to approve collateral agreements

17 if they don't provide for management. Some said

18 basically requiring approval could discourage

19 private investment given the time it takes to

20 review management contracts.

21 Some other comments that we've

22 received is NIGC shouldn't be second-guessing

23 tribal business decisions. And that if an

24 agreement doesn't actually provide for management

25 or isn't actually a management agreement, that it

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1 should be left to the discretion of the tribe.

2 On the other side of the scale some

3 comments suggested that the United States and NIGC

4 has a trust responsibility to require review of

5 approval of collateral agreements, that such a

6 process could protect the Tribe's sole propriatery

7 interest, that it could discourage some businesses

8 or entities from trying to take advantage of a

9 tribe, and that an approval process would actually

10 reduce the risks to both parties.

11 Part 571, monitoring and

12 investigations. The notice of inquiry asked

13 whether the Commission should -- needed to clarify

14 that it had access to books and records held at

15 sites maintained by third parties.

16 Some of the comments that the

17 commission received was that really doesn't need

18 to be clarified, that the commission has that

19 authority, some said that you could clarify but

20 only clarify that NIGC can access the off-site

21 locations. Some comments suggested that the

22 Commission consider requiring tribes to maintain

23 all records on site, but that NIGC's authority to

24 request records should be limited to its authority

25 under IGRA, and that there was a view expressed

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1 that NIGC's authority is limited to Class II and

2 that they couldn't access Class III records.

3 The Commission did circulate a

4 discussion draft on monitoring and investigations,

5 and it's Part 571 of your materials. The one

6 change is an investigation closure letter. Some

7 tribes have asked -- would understand that NIGC

8 has opened an investigation. It's sort of being

9 held over us. We don't know if the

10 investigation's been closed. Can you please send

11 us a letter letting us know one way or another

12 whether the investigation has been closed.

13 This discussion draft would clarify

14 that the Commission may advise a party that the

15 investigation has been concluded, but also making

16 very clear that if such a notification is issued

17 that doesn't mean necessarily that there's -- no

18 violation has occurred, and it wouldn't proclude

19 further action by NIGC, but it is similar to

20 processes that other regulatory agencies use if

21 they are closing an investigation.

22 And the discussion draft also includes

23 the change to access papers, records, and books

24 held by a person other than a gaming operation,

25 and so it would basically clarify access to third

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1 parties as well. And that is also clarified in

2 571.5(b) for the gaming operation or other

3 facility and also 571.6(d).

4 The written comment period on this

5 discussion draft also closed on August 9, and so

6 we're reviewing the comments received in response

7 to that discussion draft.

8 Finally, in Group 4 the Commission

9 asked in the notice of inquiry whether any

10 definitions should be changed, whether the

11 definition of net revenues for management fees

12 should be consistent with GAAP.

13 We received a variety of comments in

14 response to the notice of inquiry. Some

15 supportive of the revision consistent with GAAP,

16 but they noted that it would -- any revision would

17 need to be consistent with IGRA's statutory

18 language. And if the intent was to change somehow

19 the calculation of management fees, that maybe we

20 don't change the definition of net revenues but

21 rather some sort of different approach. And that

22 the Commission should consider repealing the most

23 recent change to the definition on net revenues to

24 be consistent with IGRA's definition.

25 So what we -- what the Commission has

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1 asked tribes during this consultation process is

2 does the definition need to be clarified? Would

3 an approach with GAAP provide that clarification,

4 and how do we clarify that definition while

5 remaining consistent with IGRA's statutory

6 language?

7 MS. STEVENS: Okay. Just reiterate

8 what Larry said on Part 556 going back to the

9 beginning of this particular discussion on Group

10 4, Part 556 and 558. Again, these are efforts to

11 clarify what happens before licensing and

12 memorializing our pilot program and what happens

13 after with 556 and 558. So 556 is sort of the

14 before, 558 is the after. It's my understanding

15 is how it was designed. And I'm looking at

16 Jennifer because Jennifer helped put these --

17 separate these and clarify these.

18 What we've heard from tribes is that

19 they don't want their process changed. And what

20 we found is while the regulations are out there

21 that this sort of process each region went through

22 to meet those in terms of paperwork was slightly

23 different, but we're asking for the same

24 information. And I just want to make sure that

25 that's understood. That we're not changing.

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1 We're actually trying to create some consistency

2 across each of the regions so the information, you

3 know, the tribes are submitting, the method by

4 which they're submitting it is consistent, and

5 also that would help us in case that's more --

6 this is more an inside baseball in how we can

7 implement these suggested regulations.

8 And though it may appear as though we

9 are changing something in terms of the method by

10 which you submit your information, we're trying to

11 make a consistent process across all of our

12 regions. But the regulation is, again, to -- to

13 make clear what happens before and after, and then

14 our processes across the regions will make sure

15 that they're consistent that way. If one region

16 gets overloaded, they can ask the help of another

17 region to process some of these, and then the

18 process would be the same.

19 One thing to consider on 556 and 558,

20 and we've heard this from tribal comments and

21 Larry went over this briefly, is many tribes issue

22 temporary licenses and certainly you can do that.

23 If within the 30 days that NIGC has to, you know,

24 object to a licensee, if you've already issued a

25 temporary license, then that licensee will be

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1 granted the rights if their license is revoked or

2 if it's pulled for any reason that's just, you

3 know, something the tribe said that they do.

4 Some tribes wait. They wait until

5 they get past the 30 days after we received a

6 complete application and check with us and say are

7 there any objections before they issue the

8 license. That way tribes don't have to go through

9 a process if they have to pull somebody's license

10 if there's a problem that NIGC has or something

11 that didin't come up initially in application. So

12 we'd like to hear your comments about, you know,

13 how your tribe manages your key employees in

14 primary management officials should they -- should

15 you issue them a temporary license. If you don't

16 issue the temporary license, again, it varies

17 across the country from tribe to tribe on whether

18 they issue those or not and the decision for the

19 tribe itself as to whether they want to. If they

20 need that person sooner than later, that's a

21 process should they be -- something come up with

22 their license, they would be willing to go

23 through, you know, or just wait. So something to

24 think about.

25 And 571 was monitoring and

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1 investigations. The other thing we've heard about

2 investigations, and as I said earlier in a

3 previous -- in a previous section, it shouldn't be

4 a surprise that a tribe is getting an NOV. We

5 have suggested some options to ramp up penalty or

6 notices that there's a problem, but also

7 afterwards.

8 We've heard, especially from this

9 region, I think the last time we were here they

10 didn't know what had happened. They knew that

11 there was something going on and were getting

12 asked for information, but they didn't know if

13 there was going to be action taken, you know, from

14 the agency generally, not specific to the region

15 or the field officers but, you know, what

16 happened? Is this an ongoing investigation? Is

17 it -- you know, can we expect a notice of

18 violation? What's gonna happen? They were sort

19 of left hanging.

20 And so in 571 one of the things we

21 suggested here is that, you know, we advise the

22 tribe that, hey, we're done looking into this

23 matter and certainly we'll preserve our right to

24 reopen it should something else come up that would

25 indicate an ongoing problem in that subject or

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1 that particular issue.

2 One thing we did notice and we're

3 probably going to have to change if we move

4 forward is under 571.4 investigation closure

5 letter. The word closure can be misleading. We

6 don't want tribes to think, hey, we're issuing you

7 a letter that we're gonna close your facility.

8 We're going to find another word and another way

9 to say this so you don't think we're closing your

10 facility when merely what we're doing is we're

11 closing out an investigation. So we caught that,

12 we've heard about it.

13 Some other sections on entry of

14 premises we're gonna change some of the verbiage

15 in there. We brought forth the intentions are

16 grammatically under 571.5 how we can change that

17 to make clear, you know, we want those people to

18 cooperate with our search for records and entry of

19 premises.

20 Oh, yeah. Jumping back to 558 on the

21 post licensing. On the last page on the

22 preliminary draft under 558.2(c)(2), the question

23 that we have specifically to that is whether we

24 require the tribe to send us copies of eligibility

25 determinations if they do not license an applicant

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1 so that we're not left hanging. You go ahead and

2 submit all the information to us and you don't

3 license them for -- I'm sure for a variety of

4 reasons, maybe they found another job, and to let

5 us know if anything has happened with that

6 applicant do we require it or leave it as an

7 option for the tribe to let us know they did not

8 issue a license to an individual that they had in

9 556 had appled to have licensed.

10 I'm just going over -- we've done so

11 many of these. There's some questions that come

12 to my mind in some of these sections, and I've got

13 four different versions of each part. 537

14 background investigations, financial interests or

15 management responsibilities, we'd like to hear

16 comments from tribes about the changes that we

17 have in there for Class II, Class III. I'm

18 looking at a different version. Yep, that's what

19 I'm looking at.

20 And also the Chair's ability of

21 exercising discretion to reduce background

22 investigations or the scope of information that

23 should be submitted. That would be helpful to

24 hear some comments on that. Many tribes may

25 already have to do this through their compacts.

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1 And do we need to reinvent the wheel basically in

2 that section if they've already done that.

3 There's some other things that we

4 talked about that were not on your agenda in

5 definitions. We've heard some different things

6 about GAAP. The definitions in INGRA are very

7 clear. We're not certain that we can deviate from

8 that. And then GAAP doesn't match that particular

9 definition and that definition can change. The

10 GAAP definition can be changed in how it's

11 applied, may be varied.

12 We also recognize that there's some

13 different definitions of net revenue in compacts

14 that don't align to IGRA's definition or GAAP

15 definitions. So we'd like some thoughts on that.

16 And again, it may be an issue for your financial

17 person or your comptroller, your CFO, in how

18 different varying definitions of net revenue may

19 appear and how they're applied for your particular

20 tribe.

21 Is that all of them? Again, all of

22 this information is on our website. You have

23 copies of everything that we have currently that

24 was given when you came into the room initially

25 this morning. Feel free to go to our website and

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1 see what kind of comments we are receiving. As

2 soon as we get them, we put them on the website.

3 Other thing I'd like to note is that

4 we have posted in the Federal Register a link to

5 the tribal gaming work groups proposed Class II

6 alternative standards for minimal control

7 standards. We're seeking comments especially for

8 those tribes with Class II gaming. We'd like

9 to hear your suggestions. That's gonna be part of

10 what the tribal advisory committee will looking at

11 are comments that tribes have put forward with

12 regard to the independent ad hoc working group

13 that have proposed the Class II alternative

14 standards.

15 So please visit our website. It is on

16 our website under tribal consultation comments.

17 We do need your comments on how -- you know, what

18 your thoughts are on what's been proposed from a

19 number of tribes and representatives and other

20 stakeholders in the industry as they've put

21 forward in this standard this alternative that's

22 been suggested. That's gonna be important, again,

23 as I said for the tribal advisory committee that

24 we're putting together to see in the real world

25 how would that particular -- that those types --

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1 the way those standards are structured would work

2 for your facility.

3 Again, that's on NIGC dot gov, tribal

4 consultation under comments, and I think that was

5 a 60-day open period that we had on comments on

6 that proposed standard. So absent anything else,

7 we're getting close to the lunch hour here. We

8 will stay here through the afternoon. Although

9 we've gone through the whole day's agenda, we may

10 pick up on some other information that we'll be

11 covering tomorrow. And again, we will revisit any

12 of this if we get new attendees to this meeting

13 today. We're trying to accommodate schedules

14 here. If anyone may have to leave after this

15 session this morning, we'll pick up again at 1:30.

16 So we'll be back here in this room at 1:30.

17 I appreciate you-all attending and

18 hope to see you back at 1:30 or tomorrow morning.

19 If not, please feel free to look at our website or

20 submit your comments on behalf of your tribe. If

21 you have any questions, we'll be here or you can

22 contact our regional or our headquarters office in

23 D.C. So thank you and have a good lunch, and

24 we'll be back here at 1:30. Thank you.

25 (At this time lunch was taken from

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1 11:42 until 1:30.)

2 MS. STEVENS: Okay. Let's resume, and

3 it may be pretty short. We've gone through all

4 today's agenda. We've lost some folks here. But

5 what we can do for the benefit of those folks that

6 are here right now that we can go over some of

7 what we're gonna talk about tomorrow, which is

8 Part 518, self-regulation of Class II gaming and

9 sole proprietary interest. And again, we will

10 revisit these topics tomorrow. We have just a

11 morning session tomorrow so we'll likely go over

12 this again for those who may be coming tomorrow

13 and not today.

14 So we were looking to make sure that

15 we understood why you have two different drafts of

16 518, and it's just the way that the edits are

17 placed, how they're laid out here. The deletions

18 on the first twelve pages are in bubbles, and in

19 the second half of the packet 518, is insertions

20 and deletions and no bubles, which, frankly, is

21 easier to read, but our technology in our office

22 is -- we were operating on an older version of

23 Word that doen't allow you to get rid of bubbles.

24 So sorry about that. There's two versions. One

25 might be your preferred way to read this.

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1 So let's talk about self-regulation in

2 Part 518, and then we'll also talk about sole

3 proprietary interest. I'll hand over the

4 microphone to Larry and we'll talk about these two

5 subjects.

6 MR. ROBERTS: Okay. Brief overview of

7 Part 518. The Commission in the notice of inquiry

8 request a comment on whether they should review

9 the process for obtaining a Class II

10 self-regulation certification. I believe only two

11 tribes -- is it two? Two tribes have a

12 certificate of self-regulation. The comments that

13 we've received in response to NOI is that the

14 administrative burden of going through the process

15 outweighed the benefits, that the requirements,

16 submission requirements, were burdensome and

17 duplicative, that the petition and annual

18 reporting requirements undermine the purposes of

19 the certification.

20 Some tribes suggested that there

21 should be changes to Part 518, and some tribes

22 basically said that self-regulation is a hallmark

23 of tribal sovereignty. So what the discussion

24 draft before you attempts to do is shift the focus

25 from the operation to the capabilities of the

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1 gaming regulatory agency, reduce the submission of

2 duplicative information, and hopefully facilitate

3 it so that more tribes receive certificates of

4 self-regulation for Class II gaming.

5 So we'll just sort of walk through

6 some of the changes in the various -- set forth in

7 the discussion draft. Part 518.3 has the history

8 of the gaming operations, the TGRA organizational

9 chart, employment criteria for the regulators,

10 TGRA funding description, list of the current

11 regulators, and description of the operations

12 accounting system.

13 It also includes a list of the gaming

14 operations internal controls, description of the

15 record keeping requirements for investigations,

16 enforcement actions, and prosecutions, copy of the

17 facility license, and tribal gaming regulations,

18 if they're not included in the ordinance.

19 518.3 also includes a description of

20 the recordkeeping system for investigations. I'm

21 sorry. 518.4 for the criteria that must be met to

22 receive a certficate of self-regulation, tribe has

23 to show they conduct gaming with an effective and

24 honest accounting of all revenues, reputation for

25 safe, fair, and honest operation, fiscally and

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1 economically sound basis, and generally free of

2 criminal or dishonest activity. That the activity

3 has been conducted in compliance with basically

4 Federal law and NIGC regulations and tribal law.

5 And that it has an adequate systems

6 for accounting off all revenues; investigation,

7 licensing, and monitoring of all employees;

8 investigation, enforcement and prosecution of

9 violations of the tribe's gaming ordinance and

10 regulations.

11 And 518.4(b) walks through how a tribe

12 may illistrate that it's met this criteria by

13 addressing factors such as the adoption and

14 implementation of MICS at least as stringent as

15 NIGC's Class II MICS; that the tribe uses an

16 adequate system for accounting of all gaming

17 revenues; and that the tribe has adequate dispute

18 resolution processes for employees and customers.

19 Tribe will also show that it satisfies

20 the criteria for self-regulation by showing that

21 the regulatory body monitors compliance with all

22 of the applicable laws and regulations; that it

23 monitors the effectiveness of gaming revenues

24 accounting system; that it audits the Class II

25 gaming activities; and that it receives and

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1 reviews the revenue accounting information from

2 the gaming operation itself.

3 The tribal gaming regulatory body

4 should also show that it inspects and audits

5 papers and has access to -- audit access to

6 papers, books, and records; that it has adopted

7 and is implementing adequate investigating

8 licensing and monitoring system; that it has

9 adequate licensing record system; and that it has

10 established standards for vendors.

11 We also have set forth that

12 establishes and posts Class II game rules. That

13 the regulatory body does this. And the regulatory

14 body also has an adequate system for violation

15 investigations, that it takes appropriate

16 enforcement action, and that it takes testimony

17 and conducts hearing on regulatory matters, and

18 that the tribe adequately funds the regulatory

19 body.

20 So through 518.4(b) also lists factors

21 that a tribe can address such as demonstrating

22 that the operation is financially stable, has

23 adopted and implemented a system for adequate

24 prosecution, and that the operation is conducted

25 in a manner that protects the environment, public

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1 health, and safety.

2 So 518.5 sets forth the process --

3 changes to the process of how the Commission will

4 review petitions. Basically within 120 of receipt

5 the Office of Self Regulation will make an initial

6 determination, it will issue a report of its

7 findings, and it will either -- the Commission

8 will either issue a certificate of self-regulation

9 or advise the tribe that it does not meet the

10 criteria, and if the tribe does not meet the

11 criteria, it may respond to the report, it may

12 request a hearing before the Office of Self

13 Regulation, and a decision to deny a certifcate of

14 self-regulation is appealable to the full

15 Commission.

16 In 518.7 on the annual reporting

17 requirements, this has been streamlined to be more

18 -- I guess more consistent with just the statutory

19 language itself, which is providing an independent

20 audit and a complete resume of all PMO's and key

21 employees hired and licensed by the tribe, and

22 that the tribe has under 518.8 a continuing duty

23 to inform the Commission of a change in

24 circumstance material to the approval criteria.

25 518.9 is more clarifying than anything

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1 else. It's consistent with the statutory

2 language. It's consistent with the current

3 language. It just clarifies that once a

4 certificate of self-regulation is issued that

5 consistent with IGRA the Commission's powers to

6 monitor Class II gaming to inspect and examine

7 premises. Those are the powers that are

8 undertaken by the tribe that has the certificate

9 of self-regulation.

10 The Commission under certificate of

11 self-regulation does retain other investigative

12 and enforcement powers over Class II gaming

13 activities, and also retains the powers to

14 investigate and bring enforcement actions for

15 violations to IGRA, NIGC regulations and tribal

16 gaming ordinances, and that's made clear in 518.9.

17 This is I believe the only discussion

18 draft that we are still seeking written comments

19 on, and that comment period closes at the end of

20 next week. So if folks haven't submitted comments

21 yet, we would encourage you to do so. Does anyone

22 have questions on 518?

23 MS. STEVENS: One of the things that

24 I'd like to just to be clear and we've noticed

25 this in our discussions, our preliminary

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1 discussions with tribes, is that self-regulation

2 for Class II we've had a number of tribes ask us

3 about self-regulation for Class III, and that's

4 not what we're addressing. We're addressing Class

5 II self-regulation.

6 And up to this point and prior to

7 having this draft, as Larry mentioned, there were

8 a number of comments from tribes that said the

9 process in getting a self-regulation certificate

10 was so burdensome that it was not worth the

11 effort, that it was more costly to get it, and the

12 benefits really pushes to half, and so I think you

13 pay half of your -- or just a percentage of your

14 fees to the NIGC. And so, you know, the cost

15 benefit ratio wasn't working out for most tribes.

16 Considering the amount of information

17 that we were asking for and the process that we

18 were asking tribes to go through, we didn't get

19 specific ideas on how to -- in some instances we

20 did -- on how to adjust this, but there just did

21 not seem to be interest in becoming a

22 self-regulated tribe.

23 And then we have a number of tribes

24 that have hybrid facilities. I think one of the

25 -- I think both of them -- they may have

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1 stand-alone Class II. Grand Ronde and is it

2 Menominee? are self-regulating tribes that have

3 self-regulation certficates. We get their reports

4 every year, but they have stand-alone Class II

5 facilities and -- that, you know, we haven't

6 really talked about how this would work for tribes

7 who have hybrid facilities where they have a mix

8 of Class II and Class III on their gaming floor

9 rather than the stand-alone Class II facility.

10 Something to think about with regard

11 to your tribes make up of their gaming operations

12 on how or if self-regulation would work for your

13 tribe or if there's an interest. And now that we

14 have this draft, we certainly wanna take a look at

15 your comments. Now there's something tribes can

16 take a look at and see if this would work for them

17 or if there's any interest. For some tribes

18 there's not a lot of interest. And did we in this

19 draft address some of the burdensome processes or

20 steps that are in place to become and maintain a

21 self-regulation certificate. So we know that this

22 has recently come out and we're looking forward

23 actually to comments on this particular

24 regulation.

25 MR. ROBERTS: Okay. Sole proprietary

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1 interest, I think that this has been a question

2 before the Commission since almost its inception,

3 and the Commission has issued some guidance on it.

4 The notice of inquiry asked whether the Commission

5 should consider a regulation that would define

6 sole proprietary interest in the statute and

7 provide a process by which a tribe may request

8 review of agreements whether they are consistent

9 with sole proprietary interests requirement of

10 IGRA.

11 Some of the comments received in

12 response to the notice of inquiry were that the

13 Commission should promulgate a regulation that

14 would provide for review only if requested by the

15 tribe. Some suggested that the percentages

16 contained in IGRA under both management,

17 contracts, and/or independently owned facilities

18 that they would define the percentages there would

19 give some insight into what might violate the

20 Act's sole proprietary interest requirement.

21 Some comments suggested that if the

22 Commission is going to define sole proprietary

23 interest that it should also define primary

24 beneficiary, which is contained in the purposes of

25 the Act. Some comments suggested that the

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1 Commission should define sole proprietary just

2 because if there is a clear definition out there

3 that this would provide stability and with

4 contracts and access to financing if the

5 Commission were to layout a regulation on the

6 issue. Some thought that depending on how the

7 Commission defined it sole proprietary interest

8 could limit tribal access to capital, and some

9 comments suggested that the Commission should

10 simply let the courts define it and not define it

11 by regulation.

12 We do not have a draft sole

13 proprietary interest definition for preliminary --

14 like a preliminary draft. It's as some of you

15 know, it's been addressed through a handful of

16 NOV's and a number of general counsel opinions.

17 So while we don't have a specific comment period

18 on whether the Commission should take this up, we

19 would encourage tribes and the public to submit

20 comments and suggestions on this particular issue.

21 Does anyone have any comments or questions about

22 sole proprietary interest?

23 MS. STEVENS: Just for your

24 consideration, we've heard a lot about this and

25 actually became more of a discussion especially

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1 amongst the attorneys trying to -- I'm sure

2 there's something more here. Hang on.

3 MR. ROBERTS: Off the record for a

4 second.

5 (Discussion off the record.)

6 MS. STEVENS: We've received a number

7 of comments during our last 12 consultations and,

8 you know, we'd be interested in -- as you saw we

9 have different views on this particular subject

10 and some number of opinions from the general

11 counsel's office and how do we encapsulate that in

12 a reg, if at all, with a reg. So something to

13 consider.

14 I know that the few folks that are

15 here now may not have anything prepared to say,

16 but certainly would be interested in your tribes

17 or the tribes that you represent some of the

18 questions that we posed in our notice of inquiry

19 and here would be helpful to inform us on how to

20 proceed.

21 If there's barring any additional

22 comments from the folks that are left here, we'll

23 probably just hang out here, but we've just gone

24 through the whole two days agenda today.

25 We understand that there's a lot of

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1 other activities going on today and tomorrow while

2 tribes are in town. We will continue to be here

3 through part of the afternoon, and we'll, of

4 course, be here tomorrow morning. In case there

5 are some other folks that show up here today,

6 we'll be here.

7 If you have any questions, please let

8 us know. But, you know, absent any additional

9 comments, I think we'll probably just recess for

10 the time being. Make ourselves available for a

11 bit this afternoon, and we may or may not see

12 either of you here tomorrow. Understandably if

13 you're not able to make it, please visit our

14 website. We're posting as much information that

15 comes in to us. We're sharing these drafts as we

16 have them and are interested in your tribe's

17 comments.

18 So thank you for attending and I

19 appreciate your attention. Thank you.

20 (Whereupon, at 2:03 p.m. the

21 proceedings were concluded for the day.)

22

23

24

25

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1 REPORTER'S CERTIFICATE

2

3 CERTIFIED that the foregoing

4 eighty-six (86) pages constitutes a true and

5 correct copy of all proceedings which it purports

6 to contain.

7

8

9

10

11 ___________________________

 Stephanie L. Marjamaa

12 Court Reporter

13

14

15

 My Commission expires

16 1-31-2016.

17

18

19 Dated this 28th day of September, 2011.

20

21

22

23

24

25

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changes 15:23 16:1

16:20 20:20 21:16

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changing 25:4,24

27:12 64:25 65:9

chart 75:9

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circumstance 27:13

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circumstances

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[aware - clarification] Page 3

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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39:21 41:1 42:1

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79:5

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consistencies 47:4

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consistent 12:8

18:15 63:12,15,17

63:24 64:5 65:4,11

[clarified - consistent] Page 4

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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day 2:16 4:18,24

5:10 26:21 36:25

54:8 72:5 85:21

86:19

day's 72:9

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21:1,15 22:13 23:3

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84:24

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25:14,15,19 30:24

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[consistent - different] Page 5

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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e

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67:2

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[different - facilitate] Page 6

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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[facilities - go] Page 7

Veritext/NJ Reporting Company

800-227-8440 973-410-4040
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51:24 66:12 69:15

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74:13 79:24 80:2

83:24 84:6,23

website 13:24 30:6,7

37:7 38:7 70:22,25

71:2,15,16 72:19

85:14

wednesday 54:9

week 6:23 79:20

weeks 17:12

welcome 2:20 23:7

38:19

went 37:7 64:21

65:21

wheel 3:22 70:1

white 27:8

willful 27:11

willing 54:4 66:22

winter 32:12

wisconsin 11:24

wolfe 8:4,5

word 68:5,8 73:23

words 6:23

work 4:19,22 5:2,3

7:14 8:13 24:20

26:8 32:2,3 33:12

50:10 52:3 56:7

71:5 72:1 81:6,12

81:16

working 4:15 6:20

13:14 25:9 39:24

52:6 71:12 80:15

works 9:7 27:20

31:25

worksheets 27:10

world 71:24

worth 80:10

written 9:23 10:2

13:25 18:19 23:8

42:21 43:12 45:5,13

47:10 53:6 57:21,24

60:1 63:4 79:18

[tribes - written] Page 18

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y

yeah 48:8 68:20

year 3:17,19 16:3,4

16:20 17:3,7 18:21

25:5,5,7,10,20,20,25

26:12 29:2 32:24

36:1 38:15 39:18

81:4

years 2:23,24 3:2

25:9,12,15 30:17,21

yep 69:18

[yeah - yep] Page 19

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