§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 1 of 6 12/29/2011 

NIGC VERSION 

In 2010, the NIGC posted on its web-site draft Class II MICS. Because the NIGC has not promulgated an 

equivalent provision to 542.18, the TGWG worked from the Class III MICS to create a proposed provision 

for Class II.  

Editing convention: The words in blue (underlined) and red (struck-through) are the additions and deletions 

made by the TGWG.  

July 2010 Draft MICS TGWG Version 

No equivalent provision. Due to the fact that there 

is no 2010 draft regulation corresponding to 543.18, 

the TGWG proposed text is compared to the 

existing 542.18 text (which the TGWG edited for 

purposes of its recommendation).  

§ 542.18 How does a gaming operation apply for 

a variance from the standards of this part? 

 (a) Tribal gaming regulatory authority approval.  

(Revised May 4, 2005) 

(1) A Tribal gaming regulatory authority may 

approve a variance for a gaming operation if it has 

determined that the variance will achieve a level of 

control sufficient to accomplish the purpose of the 

standard it is to replace. 

(2) For each enumerated standard for which the 

Tribal gaming regulatory authority approves a 

variance, it shall submit to the Chairman of the 

NIGC, within thirty (30) days, a detailed report, 

which shall include the following: 

(i) A detailed description of the variance; 

(ii) An explanation of how the variance achieves a 

level of control sufficient to accomplish the purpose 

of the standard it is to replace; and 

(iii) Evidence that the Tribal gaming regulatory 

authority has approved the variance. 

(3) In the event that the Tribal gaming regulatory 

authority or the Tribe chooses to submit a variance 

request directly to the Chairman, it may do so 

without the approval requirement set forth in 

paragraph (a)(2)(iii) of this section and such request 

shall be deemed as having been approved by the 

Tribal gaming regulatory authority.  

(b) Review by the Chairman. (Revised May 4, 

2005) 

(1) Following receipt of the variance approval, the 

Chairman or his or her designee shall have sixty 

(60) days to concur with or object to the approval of 

the variance. 

(2) Any objection raised by the Chairman shall be in 

the form of a written explanation based upon the 

following criteria: 

§542.18 543.18 How does a gaming operation 

apply for a variance from the standards of this 

part? 

(a) Tribal gaming regulatory authority approval.  

(Revised May 4, 2005)Variance. 

(1) A Tribal gaming regulatory authority 

may approve a variance for a gaming 

operation if it has determined that the 

variance will achieve a level of control 

sufficient to accomplish the purpose of the 

standard it is to replace.Should a TGRA 

grant a variance to any provision of these 

MICS, the TGRA shall deliver a notice of 

the same to the Commission within ten 

(10) days of such approval. 

(2) For each enumerated standard for which the 

Tribal gaming regulatory authority approves a 

variance, it shall submit to the Chairman of the 

NIGC, within thirty (30) days, a detailed report, 

which shall include the following: 

(i) A detailed description of the variance; 

(ii) An explanation of how the variance achieves a 

level of control sufficient to accomplish the purpose 

of the standard it is to replace; and 

(iii) Evidence that the Tribal gaming regulatory 

authority has approved the variance. 

(3) In the event that the Tribal gaming regulatory 

authority or the Tribe chooses to submit a variance 

request directly to the Chairman, it may do so 

without the approval requirement set forth in 

paragraph (a)(2)(iii) of this section and such request 

shall be deemed as having been approved by the 

Tribal gaming regulatory authority.  

(b) Review by the Chairman. (Revised May 4, 

2005) 

(1) Following receipt of the variance approval, the 

Chairman or his or her designee shall have sixty 

(60) days to concur with or object to the approval of 

the variance.  

(2) Any objection raised by the Chairman shall be in 

the form of a written explanation based upon the 

following criteria: 

§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 2 of 6 12/29/2011 

NIGC VERSION 

(i) There is no valid explanation of why the gaming 

operation should have received a variance approval 

from the Tribal gaming regulatory authority on the 

enumerated standard; or 

(ii) The variance as approved by the Tribal gaming 

regulatory authority does not provide a level of 

control sufficient to accomplish the purpose of the 

standard it is to replace. 

(3) If the Chairman fails to object in writing within 

sixty (60) days after the date of receipt of a 

complete submission, the variance shall be 

considered concurred with by the Chairman. 

(4) The 60-day deadline may be extended, provided 

such extension is mutually agreed upon by the 

Tribal gaming regulatory authority and the 

Chairman.  

(c) Curing Chairman's objections. (Revised May 4, 

2005) 

(1) Following an objection by the Chairman to the 

issuance of a variance, the Tribal gaming regulatory 

authority shall have the opportunity to cure any 

objections noted by the Chairman. 

(2) A Tribal gaming regulatory authority may cure 

the objections raised by the Chairman by: 

(i) Rescinding its initial approval of the variance; or 

(ii) Rescinding its initial approval, revising the 

variance, approving it, and re-submitting it to the 

Chairman. 

(3) Upon any re-submission of a variance approval, 

the Chairman shall have thirty (30) days to concur 

with or object to the re-submitted variance. 

(4) If the Chairman fails to object in writing within 

thirty (30) days after the date of receipt of the re-

submitted variance, the re-submitted variance shall 

be considered concurred with by the Chairman. 

(5) The thirty (30) day deadline may be extended, 

provided such extension is mutually agreed upon by 

the Tribal gaming regulatory authority and the 

Chairman.  

(d) Appeals. (Revised May 4, 2005) 

(1) Upon receipt of objections to a re-submission of 

a variance, the Tribal gaming regulatory authority 

shall be entitled to an appeal to the full Commission 

in accordance with the following process: 

(i) Within thirty (30) days of receiving an objection 

to a re-submission, the Tribal gaming regulatory 

authority shall file its notice of appeal. 

(ii) Failure to file an appeal within the time 

provided by this section shall result in a waiver of 

the opportunity for an appeal. 

(iii) An appeal under this section shall specify the 

reasons why the Tribal gaming regulatory authority 

(i) There is no valid explanation 

of why the gaming operation 

should have received a variance 

approval from the Tribal gaming 

regulatory authority on the 

enumerated standard; orThe 

notice shall contain a complete 

copy of the information presented 

to the TGRA and the variance as 

granted. 

(ii) The variance as approved by 

the Tribal gaming regulatory 

authority does not provide a level 

of control sufficient to accomplish 

the purpose of the standard it is to 

replace. 

(3) If the Chairman fails to object in writing within 

sixty (60) days after the date of receipt of a 

complete submission, the variance shall be 

considered concurred with by the Chairman. 

(4) The 60-day deadline may be extended, provided 

such extension is mutually agreed upon by the 

Tribal gaming regulatory authority and the 

Chairman.  

(c) Curing Chairman's objections. (Revised May 4, 

2005)notice shall be forwarded to the Commission 

within ten (10) days of the granting of the Variance. 

(2) During a thirty (30) day period when 

the Commission first receives the notice 

required by this subpart, the Chairman may 

request additional information from the 

TGRA concerning the subject of variance. 

Such request shall suspend the thirty (30) 

day period until the Chairman receives the 

TGRA response. 

(b) Commission Review. 

(1) Following an objection by the 

Chairman to the issuance of a variance, the 

Tribal gaming regulatory authority shall 

have the opportunity to cure any objections 

noted by the Chairman. Within the thirty 

(30) day review period, the Commission 

may: 

(2) A Tribal gaming regulatory authority may cure 

the objections raised by the Chairman by: 

(i) Rescinding its initial approval 

of the variance; or 

(ii) Rescinding its initial approval, revising the 

variance, approving it, and re-submitting it to the 

Chairman. 

§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 3 of 6 12/29/2011 

NIGC VERSION 

believes the Chairman's objections should be 

reviewed, and shall include supporting 

documentation, if any. 

(iv) The Tribal gaming regulatory authority shall be 

provided with any comments offered by the 

Chairman to the Commission on the substance of 

the appeal by the Tribal gaming regulatory authority 

and shall be offered the opportunity to respond to 

any such comments. 

(v) Within thirty (30) days after receipt of the 

appeal, the Commission shall render a decision 

based upon the criteria contained within paragraph 

(b)(2) of this section unless the Tribal gaming 

regulatory authority elects to wave the thirty (30) 

day requirement and to provide the Commission 

additional time, not to exceed an additional thirty 

(30) days, to render a decision. 

(vi) In the absence of a decision within the time 

provided, the Tribal gaming regulatory authority's 

resubmission shall be considered concurred with by 

the Commission and become effective. 

(2) The Tribal gaming regulatory authority may 

appeal the Chairman's objection to the approval of a 

variance to the full Commission without 

resubmitting the variance by filling a notice of 

appeal with the full Commission within thirty (30) 

days of the Chairman's objection and complying 

with the procedures described in paragraph (d)(1) of 

this section.  

(e) Effective date of variance. The gaming operation 

shall comply with standards that achieve a level of 

control sufficient to accomplish the purpose of the 

standard it is to replace until such time as the 

Commission objects to the Tribal gaming regulatory 

authority's approval of a variance as provided in 

paragraph (b) of this section. Concurrence in a 

variance by the Chairman or Commission is 

discretionary and variances will not be granted 

routinely. The gaming operation shall comply with 

standards at least as stringent as those set forth in 

this part until such time as the Chairman or 

Commission concurs with the Tribal gaming 

regulatory authority's approval of a variance. 

(Revised May 4, 2005) 

(3) Upon any re-submission of a variance approval, 

the Chairman shall have thirty (30) days to concur 

with or object to the re-submitted variance. 

(4) If the Chairman fails to object in writing within 

thirty (30) days after the date of receipt of the re-

submitted variance, the re-submitted variance shall 

be considered concurred with by the Chairman. 

(5) The thirty (30) day deadline may be extended, 

provided such extension is mutually agreed upon by 

the Tribal gaming regulatory authority and the 

Chairman.  

(d) Appeals. (Revised May 4, 2005) 

(1) Upon receipt of objections to a re-submission of 

a variance, the Tribal gaming regulatory authority 

shall be entitled to an appeal to the full Commission 

in accordance with the following process: Comment 

– Jess to revise to mirror licensing language in 

IGRA. 

(i) Within thirty (30) days of receiving an objection 

to a re-submission, the Tribal gaming regulatory 

authority shall file its notice of appeal. 

(ii) Failure to file an appeal within the time 

provided by this section shall result in a waiver of 

the opportunity for an appeal. 

(iii) An appeal under this section shall specify the 

reasons why the Tribal gaming regulatory authority 

believes the Chairman's objections should be 

reviewed, and shall include supporting 

documentation, if any. 

(iv) The Tribal gaming regulatory authority shall be 

provided with any comments offered by the 

Chairman to the Commission on the substance of 

the appeal by the Tribal gaming regulatory authority 

and shall be offered the opportunity to respond to 

any such comments. 

(v) Within thirty (30) days after receipt of the 

appeal, the Commission shall render a decision 

based upon the criteria contained within paragraph 

(b)(2) of this section unless the Tribal gaming 

regulatory authority elects to wave the thirty (30) 

day requirement and to provide the Commission 

additional time, not to exceed an additional thirty 

(30) days, to render a decision. 

(vi) In the absence of a decision within the time 

provided, the Tribal gaming regulatory authority's 

resubmission shall be considered concurred with by 

the Commission and become effective. 

(2) The Tribal gaming regulatory authority may 

appeal the Chairman's objection to the approval of a 

variance to the full Commission without 

resubmitting the variance by filling a notice of 

appeal with the full Commission within thirty (30) 

§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 4 of 6 12/29/2011 

NIGC VERSION 

days of the Chairman's objection and complying 

with the procedures described in paragraph (d)(1) of 

this section.  

(e) Effective date of variance. The gaming operation 

shall comply with standards that achieve a level of 

control sufficient to accomplish the purpose of the 

standard it is to replace until such time as the 

Commission objects to the Tribal gaming regulatory 

authority's approval of a variance as provided in 

paragraph (b) of this section. Concurrence in a 

variance by the Chairman or Commission is 

discretionary and variances will not be granted 

routinely. The gaming operation shall comply with 

standards at least as stringent as those set forth in 

this part until such time as the Chairman or 

Commission concurs with the Tribal gaming 

regulatory authority's approval of a variance. 

(Revised May 4, 2005)Advise the TGRA, in 

writing, that it has no objection. 

(ii) Provide the TGRA a written 

statement itemizing its objections.  

(iii) Take no action, in which 

case, the TGRA’s variance shall 

be final.  

(2) If the Commission has provided the 

TGRA a statement itemizing objections to 

the variance:  

(i) The TGRA shall reconsider the 

variance taking into account the 

objections itemized by the 

Commission. 

(ii) The TGRA may seek 

reconsideration by submitting a 

request to the Chairman and 

members of the Commission. 

(iii) Upon receipt of a request for 

reconsideration, the Commission 

shall conduct an informal hearing 

with the TGRA within 30 days, 

which may be conducted in 

person or through the exchange of 

documents, as requested by the 

TGRA. 

(iv) After the informal hearing, 

the Commission must issue a 

written decision within 14 days. If 

the Commission disapproves the 

variance, such written decision 

must include an explanation of 

why the requested variance 

creates an imminent threat to the 

integrity of the tribal gaming 

§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 5 of 6 12/29/2011 

NIGC VERSION 

operation. 

NIGC Comments and Questions regarding the TGWG Proposed Regulation (questions in blue). 

Overall Comment 

The development of a separate section for Class II gaming variances (543.18) rather than referring to 

542.18 is an improvement over the Draft Proposal. However, the TGWG proposed § 543.18 does not 

provide the Commission with a process for meaningful review and assessment of variances approved by the 

individual TGRAs. How could this be addressed? 

Tribal Gaming Regulatory Approval 

Effect of §542.18: The existing text contains a clear criterion against which the TGRA is to evaluate the 

proposed variance to determine whether it is acceptable and warrants approval i.e. whether “the variance 

will achieve a level of control sufficient to accomplish the purpose of the standard it is to replace.” 

Effect of TGWG Proposal: Does deleting the criterion against which the TGRA is to evaluate the proposed 

variance increase the risk that the TGRA decision to approve or disapprove a given variance will be 

arbitrary and capricious? 

Reporting 

Effect of §542.18: The existing text defines the content requirement of the submission. The required 

information is necessary for the Commission to determine whether the TGRA-approved variance satisfies 

the criterion for approval. For example, whether “the variance will achieve a level of control sufficient to 

accomplish the purpose of the standard it is to replace.” 

Effect of TGWG Proposal: The TGWG version deletes the submission requirements, mandating instead 

only that the TGRA “deliver a notice” to the Commission within ten days. What information should this 

“notice” include? Failure to specify what documents are to be submitted to the TGRA in the application for 

approval of a variance increases the risk of inconsistency in the approval decisions due to each decision 

being supported by different information. Does the TAC foresee a problem stemming from the fact that 

there is no required uniformity in information or documentation submitted to the TGRA?  Could this lead 

to a lack of uniformity in what is then submitted to the Commission?  

Review by Chairman 

Effect of §542.18: The existing text defines the circumstances under which the Chairman may object to the 

TGRA-approved variance and the relevant deadlines  

Effect of TGWG Proposal: The amendment substitutes “the Commission” for “the Chairman” as the 

evaluator of the approval, reduces the time period provided for review from 60 to 30 days, and eliminates 

the possibility of extending the review period by mutual agreement. The proposed standard allows the 

Commission to disapprove the variance only in the event that a determination is made that said variance 

constitutes “an imminent threat to the integrity of the tribal gaming operation.” Can the TAC foresee a 

situation in which a proposed variance, while not rising to the level of “an imminent threat to the integrity 

of the gaming operation,” may pose an increased albeit not imminent threat to the integrity of the gaming 

operation, an imminent or less than imminent threat to the finances or other component of the gaming 

operation or simply fail to meet the intent of the standard?  Is the “imminent threat” language necessary? 

§ 543.18   How does a gaming operation apply for a variance from the 

standards of this part?  

Comparison of July TGWG Submission to July 2010 Draft MICS 

Page 6 of 6 12/29/2011 

NIGC VERSION 

Presumably a TGRA would not approve a variance that would constitute “an imminent threat to the 

integrity of the gaming operation.”   

Curing Chairman’s Objections 

Effect of §542.18: The existing text provides a method by which the TGRA may appeal a Commission 

decision not to concur with a TGRA approval of a variance. 

Effect of TGWG Proposal: Given the limited grounds for objecting to a variance under what circumstances 

will the appeal process be utilized? 

Effective Date of Variance 

Effect of §542.18: The existing text provides guidance to the gaming operation regarding compliance with 

standards during the time period that a TGRA-approved variance is under review by the Commission. 

Effect of TGWG Proposal: How does a gaming operation proceed while a variance is under review? 

TGWG Guidance 

The TGWG did not submit guidance for this proposed regulation.