[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Proposed Rules]
[Pages 45228-45233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20635]


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NATIONAL INDIAN GAMING COMMISSION

25 CFR Part 547

RIN 3141-AA64


Technical Standards

AGENCY: National Indian Gaming Commission.

ACTION: Proposed rule.

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SUMMARY: The National Indian Gaming Commission proposes to amend the 
minimum technical standards for Class II gaming systems and equipment. 
The proposed rule would amend regulations that describe how tribal 
governments, tribal gaming regulatory authorities, and tribal gaming 
operations comply with the technical standards. In particular, the 
proposed rule amends the requirement that gaming systems manufactured 
before November 10, 2008, be modified to meet standards applicable to 
gaming systems manufactured on or after November 10, 2008, or be 
removed from the gaming floor by November 10, 2018. The Commission 
proposes this action to assist tribal governments, tribal gaming 
regulatory authorities, and operations in ensuring the integrity and 
security of Class II games and gaming revenue through minimum technical 
standards for Class II gaming systems and equipment.

DATES: The agency must receive comments on or before November 13, 2017.

ADDRESSES: You may send comments by any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#0732333029325844686a6a6269737447696e606429606871"><span class="__cf_email__" data-cfemail="dde8e9eaf3e8829eb2b0b0b8b3a9ae9db3b4babef3bab2ab">[email protected]</span></a>.
    <bullet> Fax: 202-632-7066.
    <bullet> Mail: National Indian Gaming Commission, 1849 C Street 
NW., MS 1621, Washington, DC 20240.
    <bullet> Hand Delivery: National Indian Gaming Commission, 90 K 
Street NE., Suite 200, Washington, DC 20002, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Austin Badger, National Indian Gaming 
Commission; Telephone: 202-632-7003.

SUPPLEMENTARY INFORMATION: 

I. Comments Invited

    Interested parties are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments that provide the factual basis supporting the 
views and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on the proposal.

II. Background

    The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The 
Act establishes the National Indian Gaming Commission (NIGC or 
Commission) and sets out a comprehensive framework for the regulation 
of gaming on Indian lands. On October 8, 2008, the NIGC published a 
final rule in the Federal Register called Technical Standards for 
Electronic, Computer, or Other Technologic Aids Used in the Play of 
Class II Games. 73 FR 60508. The rule added a new part to the NIGC's 
regulations establishing a process for ensuring the integrity of 
electronic Class II games and aids. The standards were designed to 
assist tribal gaming regulatory authorities and operators with ensuring 
the integrity and security of Class II gaming, the accountability of 
Class II gaming revenue, and provide guidance to equipment 
manufacturers

[[Page 45229]]

and distributors of Class II gaming systems. The standards do not 
classify which games are class II and which games are class III.
    When implemented in 2008, the part 547 technical standards 
introduced several new requirements for Class II gaming systems 
designed to protect the security and integrity of Class II gaming 
systems and tribal operations. The Commission understood, however, that 
some existing Class II gaming systems might not meet all of the 
requirements of the technical standards. Therefore, to avoid any 
potentially significant economic and practical consequences of 
requiring immediate compliance, the Commission implemented a five year 
sunset provision which allowed eligible gaming systems manufactured 
before November 10, 2008 (2008 Systems) to remain on the gaming floor. 
The Commission believed that a five year period was sufficient for 
market forces to move equipment toward compliance with the standards 
applicable to gaming systems manufactured on or after November 10, 
2008.
    On September 21, 2012, the NIGC published a final rule in the 
Federal Register which included an amendment delaying the sunset 
provision by an additional five years. 77 FR 58473. The Commission 
recognized that its prior analysis regarding the continued economic 
viability of the 2008 Systems had proven to be mistaken. The NIGC 
established the initial five year period in the midst of a much 
stronger economy. In the time that followed the economic downturn, many 
tribal gaming operations set new priorities that required keeping a 
2008 System on the gaming floor for a longer period of time. Balancing 
the economic needs against a risk that potentially increases as 
technology advances and 2008 Systems remain static, the Commission 
determined that 2008 Systems could continue to be offered for play 
until November 10, 2018.
    Now, with the November 10, 2018, sunset approaching, the Commission 
believed it appropriate to include the 2008 Systems and associated 
sunset provision of the part 547 technical standards as a topic for 
consultation. The topic was therefore included in a November 22, 2016, 
letter to tribal leaders introducing the Commission's 2017 consultation 
series.

III. Development of the Proposed Rule

    On March 23, 2017, in Tulsa, OK, and April 12, 2017, in San Diego, 
CA, the NIGC consulted on the 2008 Systems and associated sunset 
provision of part 547. The Commission also solicited written comments 
through May 31, 2017. In addition, NIGC staff attended several National 
Indian Gaming Association Class II Subcommittee meetings. The 
consultations and meetings, combined with the written comments, proved 
invaluable in the development of a discussion draft. On June 14, 2017, 
the Commission issued a discussion draft which, among other proposed 
amendments, proposed removing the November 10, 2018, sunset for 2008 
Systems. Additional written comments responsive to the discussion draft 
were solicited through July 15, 2017.
    Written comments received after the issuance of the discussion 
draft were generally supportive of the proposed removal of the November 
10, 2018, sunset for 2008 Systems. Comments also indicated, however, 
several specific remaining areas of concern. The Commission developed 
the proposed rule after considering the comments received.

A. General Comments

    Some commenters questioned the Commission's authority to implement 
technical standards and its authority to enforce the standards. IGRA 
gives the Commission the authority to adopt these technical standards. 
Congress was expressly concerned that gaming under IGRA be ``conducted 
fairly and honestly by both the operator and players'' and ``to ensure 
that the Indian tribe is the primary beneficiary of the gaming 
operation.'' 25 U.S.C. 2702(2). The technical standards are designed to 
ensure that these concerns are addressed. These standards implement the 
authority granted the NIGC to monitor, inspect, and examine Class II 
gaming, 25 U.S.C. 2706(b)(1)-(4), and to promulgate such regulations as 
it deems appropriate to implement the provisions of IGRA. 25 U.S.C. 
2706(b)(10). The Commission further reiterates that this rule does not 
classify games for purposes of IGRA. The rule assumes that the games 
played are Class II games. This rule establishes a process for ensuring 
the integrity and security of Class II games and an accounting of Class 
II revenue.

B. 2008 Systems, Pre-Discussion Draft

    Many commenters requested that the November 10, 2018, sunset for 
2008 Systems be removed. Commenters suggested that the existing sunset 
provision could not be justified because there has been no evidence 
that 2008 Systems represent a risk to the integrity and security of 
Class II gaming. Commenters noted that 2008 Systems appear to be 
protected by 26 out of 28 technical standards identified by commenters 
as ``high risk.'' In addition, commenters suggested that, even assuming 
additional risks are associated with 2008 Systems, such risks are 
mitigated by tribal gaming regulatory authorities (TGRAs) through 
internal control standards.
    The Commission agrees that the 2008 sunset can be removed. The 
Commission disagrees, however, that evidence of risk forms the sole 
legal justification for the technical standards. The technical 
standards are intended to ensure the integrity and security of Class II 
gaming and the accountability of Class II gaming revenue. The technical 
standards include minimum requirements that the Commission believes, in 
its judgment, are appropriate and consistent with its Federal 
regulatory oversight mission. The Commission has, however, determined 
that removal of the sunset provision is justified provided that 2008 
Systems are subject to additional annual review by TGRAs.
    Commenters also suggested that the sunset provision threatens 
significant economic harm and the continued success and viability of 
the Class II gaming industry. Commenters suggested that the sunset 
provision is an unnecessary cost burden on manufacturers and tribes. 
Commenters further suggested that the sunset provision will cause 
tribes to lose leverage in compact negotiations with states.
    The Commission understands the commenters' concerns over the 
economic impact of removing non-compliant Class II gaming systems from 
the gaming floor. The Commission notes, however, that part 547 as 
originally enacted and as amended only requires removal if the games 
are not made compliant with the testing standards for newer systems set 
forth in the regulation. The regulation initially provided the industry 
with five years to modify or replace 2008 Systems. The Commission 
subsequently granted an additional five years to bring the systems into 
compliance with the standards for newer systems. The Commission has now 
determined that removal of the sunset provision is justified provided 
that 2008 Systems are subject to additional annual review by the TGRA.
    Commenters suggested that the sunset provision is retroactive and 
that IGRA does not authorize the NIGC to promulgate regulations that 
have retroactive effect. The Commission disagrees that the proposed 
amendments are retroactive. The proposed amendments do not alter the

[[Page 45230]]

legal consequences of actions completed before their effective date.
    A commenter suggested extending the sunset provision indefinitely, 
subject to the authority of TGRAs. A commenter submitted proposed 
language implementing an annual audit requirement for 2008 Systems. The 
Commission's subsequent discussion draft partially incorporated this 
recommendation.

C. 2008 Systems, Post-Discussion Draft

    The discussion draft required TGRAs to: ``Annually review the Class 
II gaming system, its current components, and the associated testing 
laboratory reports to determine whether the Class II gaming system may 
be approved pursuant to paragraph (b) of this section. The TGRA shall 
make a finding identifying the Class II gaming systems reviewed, the 
Class II gaming systems subsequently approved pursuant to paragraph 
(b), and, for Class II gaming systems that cannot be approved pursuant 
to paragraph (b), the modifications necessary for such approval. The 
TGRA shall transmit its findings to the Commission within 120 days of 
the gaming operation's fiscal year end.'' Commenters suggested that the 
NIGC has provided no compelling reason to change the existing reporting 
requirements. Commenters further suggested that the annual reporting 
requirement appears to be unintentionally applicable to all Class II 
gaming systems.
    Although the requirement does impose an additional requirement on 
TGRAs, the Commission believes that removal of the sunset provision 
warrants annual review specific to 2008 Systems. In addition, the 
annual reporting requirement is contained within Sec.  547.5(a) and is 
therefore applicable only to 2008 Systems. The Commission has, however, 
revised and clarified the annual review and reporting procedures in the 
proposed rule to reduce the perceived burden on TGRAs. Pursuant to this 
proposed rule, TGRAs are not required to transmit its findings, but 
rather must maintain records and make them available to NIGC staff upon 
request.
    The discussion draft further provided that ``A TGRA may not permit 
the use of any Class II gaming system manufactured before November 10, 
2008 in a tribal gaming operation unless:'' it meets requirements 
applicable to 2008 Systems. Discussion Draft Sec.  547.5(a)(3) provides 
that ``If the Class II gaming system is subsequently approved pursuant 
to paragraph (b) of this section, this paragraph (a) [2008 Systems] no 
longer applies.'' Commenters suggested that the Discussion Draft could 
be misinterpreted to provide that all Class II gaming systems 
manufactured prior to November 10, 2008, including those that are now 
compliant with Sec.  547.5(b), would be subject to the 2008 System 
provisions in Sec.  547.5(a). Commenters further suggested that 
approving a 2008 System pursuant to Sec.  547.5(b) requires a 2008 
System to be resubmitted to a testing lab for full re-certification 
and/or requires TGRAs to make technical determinations.
    The Commission believes that discussion draft Sec.  547.5(a)(3) is 
clear that Class II gaming systems approved pursuant to Sec.  547.5(b) 
are no longer 2008 Systems. The Commission has, however, clarified in 
the proposed rule that the use of the term ``approved'' is intended to 
reference TGRA approval based on review of existing testing lab reports 
for all current components of the Class II gaming system.
    Finally, the discussion draft Discussion Draft Sec.  
547.5(a)(1)(viii) provides that ``All player interfaces of the Class II 
gaming system have a date of manufacture before November 10, 2008.'' 
Commenters suggested that the requirement that all player interfaces of 
2008 Systems have a date of manufacture before November 10, 2008, was a 
new requirement. Commenters further suggested that this requirement was 
unnecessary and would prevent use of newer player interfaces with 2008 
Systems, contrary to provisions encouraging 2008 Systems to be modified 
to move towards compliance with standards for newer systems.
    Although not included in the 2012 amendment to part 547, the date 
of manufacture requirement is not entirely new. The 2008 System 
provisions were originally intended to apply only to systems in play or 
manufactured by November 10, 2008. 73 FR 60508, 60510. Pursuant to the 
2008 regulations, Sec.  547.4(a)(7) required ``the supplier of any 
player interface to designate with a permanently affixed label each 
player interface with an identifying number and the date of manufacture 
or a statement that the date of manufacture was on or before the 
effective date of this part. The tribal gaming regulatory authority 
shall also require the supplier to provide a written declaration or 
affidavit affirming that the date of manufacture was on or before 
November 10, 2008.'' 73 FR 60508, 60527 (October 10, 2008). The 
Commission agrees, however, that the date of manufacture requirement 
included in the discussion draft could be interpreted as preventing the 
use of newer player interfaces and has therefore removed the 
requirement from the proposed rule.

D. Class II Gaming System Component Repair, Replacement, or 
Modification

    Discussion draft Sec.  547.5(c)(2)(ii) provided that ``The testing 
laboratory tests the submission to the standards established by: (A) 
This part; (B) Any applicable provisions of part 543 of this chapter 
that are testable by the testing laboratory; and (C) The TGRA.'' 
Commenters suggested that the new requirement that modifications to 
2008 Systems be tested to the standards applicable to newer systems is 
unnecessary and will only result in additional costs with no practical 
benefit. Commenters noted that laboratory reports are currently not 
required for all modifications to 2008 Systems, thereby providing TGRAs 
with greater flexibility and control over such modifications. 
Commenters suggested that this provision will force TGRAs to use the 
emergency modification procedures to avoid testing delays.
    The Commission disagrees that the requirement that all 
modifications be tested to the standards applicable to newer systems is 
unnecessary. The current and proposed regulations require the TGRA to 
determine, among other requirements, whether a modification will 
maintain or advance the Class II gaming system's compliance with the 
technical standards. The new requirement ensures that TGRAs are 
provided with the information needed for the TGRA to make such a 
determination. In addition, the Commission believes that TGRAs will 
continue to utilize the emergency modification provisions for their 
intended purpose.

E. Records

    Discussion draft Sec.  547.5(g) provided that ``The Commission may 
use the information derived therefrom for any lawful purpose including, 
without limitation, to monitor the use of Class II gaming systems, to 
assess the effectiveness of the standards required by this Part, and to 
inform future amendments to this Part. The Commission will only make 
available for public review records or portions of records subject to 
release under the Freedom of Information Act, 5 U.S.C. 552; the Privacy 
Act of 1974, 5 U.S.C. 552a; or the Indian Gaming Regulatory Act, 25 
U.S.C. 2716(a).'' Commenters expressed reluctance to expose sensitive 
testing and compliance records to possible public disclosure. 
Commenters suggested that records only be available for review on site 
by NIGC staff.
    The Commission agrees that sensitive testing and compliance records 
should not be disclosed. As cited in the

[[Page 45231]]

discussion draft, 25 U.S.C. 2716(a) states that ``the Commission shall 
preserve any and all information received pursuant to this chapter as 
confidential pursuant to'' the confidential commercial or financial 
information and law enforcement information exceptions of the Freedom 
of Information Act. The Commission is therefore precluded from 
releasing such information.

Regulatory Matters

Regulatory Flexibility Act

    The proposed rule will not have a significant impact on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not 
considered to be small entities for the purposes of the Regulatory 
Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

    The proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. The rule does not 
have an effect on the economy of $100 million or more. The rule will 
not cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, local government agencies or geographic 
regions. Nor will the proposed rule have a significant adverse effect 
on competition, employment, investment, productivity, innovation, or 
the ability of the enterprises, to compete with foreign based 
enterprises.

Unfunded Mandate Reform Act

    The Commission, as an independent regulatory agency, is exempt from 
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 
U.S.C. 658(1).
Takings
    In accordance with Executive Order 12630, the Commission has 
determined that the proposed rule does not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Commission has 
determined that the proposed rule does not unduly burden the judicial 
system and meets the requirements of section 3(a) and 3(b)(2) of the 
Order.

National Environmental Policy Act

    The Commission has determined that the proposed rule does not 
constitute a major federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 
4321, et seq.

Paperwork Reduction Act

    The information collection requirements contained in this rule were 
previously approved by the Office of Management and Budget (OMB) as 
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 
3141- 0007, which expired in August of 2011. The NIGC is in the process 
of reinstating that Control Number.

List of Subjects in 25 CFR Part 547

    Gambling, Indian--lands, Indian--tribal government, Reporting and 
recordkeeping requirements.

    Therefore, for reasons stated in the preamble, 25 CFR part 547 is 
proposed to be amended as follows:

PART 547--MINIMUM TECHNICAL STANDARDS FOR CLASS II GAMING SYSTEMS 
AND EQUIPMENT

0
1. The authority citation for part 547 continues to read as follows:

    Authority: 25 U.S.C. 2706(b).

0
2. Revise Sec.  547.5 to read as follows:


Sec.  547.5  How does a tribal government, TGRA, or tribal gaming 
operation comply with this part?

    (a) Gaming systems manufactured before November 10, 2008. (1) Any 
Class II gaming system manufactured before November 10, 2008, that is 
not compliant with paragraph (b) of this section may be made available 
for use at any tribal gaming operation if:
    (i) The Class II gaming system software that affects the play of 
the Class II game, together with the signature verification required by 
Sec.  547.8(f) was submitted to a testing laboratory within 120 days 
after November 10, 2008, or October 22, 2012;
    (ii) The testing laboratory tested the submission to the standards 
established by Sec.  547.8(b), Sec.  547.8(f), and Sec.  547.14;
    (iii) The testing laboratory provided the TGRA with a formal 
written report setting forth and certifying to the findings and 
conclusions of the test;
    (iv) The TGRA made a finding, in the form of a certificate provided 
to the supplier or manufacturer of the Class II gaming system, that the 
Class II gaming system is compliant with Sec.  547.8(b), Sec.  
547.8(f), and Sec.  547.14;
    (v) The Class II gaming system is only used as approved by the TGRA 
and the TGRA transmitted its notice of that approval, identifying the 
Class II gaming system and its components, to the Commission;
    (vi) Remote communications with the Class II gaming system are only 
allowed if authorized by the TGRA; and
    (vii) Player interfaces of the Class II gaming system exhibit 
information consistent with Sec.  547.7(d) and any other information 
required by the TGRA.
    (2) For so long as a Class II gaming system is made available for 
use at any tribal gaming operation pursuant to this paragraph (a) the 
TGRA shall:
    (i) Retain copies of the testing laboratory's report, the TGRA's 
compliance certificate, and the TGRA's approval of the use of the Class 
II gaming system;
    (ii) Maintain records identifying the Class II gaming system and 
its current components; and
    (iii) Annually review the testing laboratory reports associated 
with the Class II gaming system and its current components to determine 
whether the Class II gaming system may be approved pursuant to 
paragraph (b)(1)(v) of this section. The TGRA shall make a finding 
identifying the Class II gaming systems reviewed, the Class II gaming 
systems subsequently approved pursuant to paragraph (b)(1)(v), and, for 
Class II gaming systems that cannot be approved pursuant to paragraph 
(b)(1)(v), the components of the Class II gaming system preventing such 
approval.
    (3) If the Class II gaming system is subsequently approved by the 
TGRA pursuant to paragraph (b)(1)(v) as compliant with paragraph (b) of 
this section, this paragraph (a) no longer applies.
    (b) Gaming system submission, testing, and approval--generally. (1) 
Except as provided in paragraph (a) of this section, a TGRA may not 
permit the use of any Class II gaming system in a tribal gaming 
operation unless:
    (i) The Class II gaming system has been submitted to a testing 
laboratory;
    (ii) The testing laboratory tests the submission to the standards 
established by:
    (A) This part;
    (B) Any applicable provisions of part 543 of this chapter that are 
testable by the testing laboratory; and
    (C) The TGRA;
    (iii) The testing laboratory provides a formal written report to 
the party making the submission, setting forth and certifying its 
findings and conclusions, and noting compliance with any standard 
established by the TGRA pursuant to paragraph (b)(1)(ii)(C) of this 
section;
    (iv) The testing laboratory's written report confirms that the 
operation of a player interface prototype has been

[[Page 45232]]

certified that it will not be compromised or affected by electrostatic 
discharge, liquid spills, electromagnetic interference, or any other 
tests required by the TGRA;
    (v) Following receipt of the testing laboratory's report, the TGRA 
makes a finding that the Class II gaming system conforms to the 
standards established by:
    (A) This part;
    (B) Any applicable provisions of part 543 of this chapter that are 
testable by the testing laboratory; and
    (C) The TGRA.
    (2) For so long as a Class II gaming system is made available for 
use at any tribal gaming operation pursuant to this paragraph (b) the 
TGRA shall:
    (i) Retain a copy of the testing laboratory's report; and
    (ii) Maintain records identifying the Class II gaming system and 
its current components.
    (c) Class II gaming system component repair, replacement, or 
modification. (1) As permitted by the TGRA, individual hardware or 
software components of a Class II gaming system may be repaired or 
replaced to ensure proper functioning, security, or integrity of the 
Class II gaming system.
    (2) A TGRA may not permit the modification of any Class II gaming 
system in a tribal gaming operation unless:
    (i) The Class II gaming system modification has been submitted to a 
testing laboratory;
    (ii) The testing laboratory tests the submission to the standards 
established by:
    (A) This part;
    (B) Any applicable provisions of part 543 of this chapter that are 
testable by the testing laboratory; and
    (C) The TGRA;
    (iii) The testing laboratory provides a formal written report to 
the party making the submission, setting forth and certifying its 
findings and conclusions, and noting compliance with any standard 
established by the TGRA pursuant to paragraph (c)(2)(ii)(C) of this 
section;
    (iv) Following receipt of the testing laboratory's report, the TGRA 
makes a finding that the:
    (A) The modification will maintain or advance the Class II gaming 
system's compliance with this part and any applicable provisions of 
part 543 of this chapter; and
    (B) The modification will not detract from, compromise or prejudice 
the proper functioning, security, or integrity of the Class II gaming 
system;
    (3) If a TGRA authorizes a component modification under this 
paragraph, it must maintain a record of the modification and a copy of 
the testing laboratory report so long as the Class II gaming system 
that is the subject of the modification remains available to the public 
for play.
    (d) Emergency Class II gaming system component modifications. (1) A 
TGRA, in its discretion, may permit the modification of previously 
approved components to be made available for play without prior 
laboratory testing or review if the modified hardware or software is:
    (i) Necessary to correct a problem affecting the fairness, 
security, or integrity of a game or accounting system or any cashless 
system, or voucher system; or
    (ii) Unrelated to game play, an accounting system, a cashless 
system, or a voucher system.
    (2) If a TGRA authorizes modified components to be made available 
for play or use without prior testing laboratory review, the TGRA must 
thereafter require the hardware or software manufacturer to:
    (i) Immediately advise other users of the same components of the 
importance and availability of the update;
    (ii) Immediately submit the new or modified components to a testing 
laboratory for testing and verification of compliance with this part 
and any applicable provisions of part 543 of this chapter that are 
testable by the testing laboratory; and
    (iii) Immediately provide the TGRA with a software signature 
verification tool meeting the requirements of Sec.  547.8(f) for any 
new or modified software component.
    (3) If a TGRA authorizes a component modification under this 
paragraph, it must maintain a record of the modification and a copy of 
the testing laboratory report so long as the Class II gaming system 
that is the subject of the modification remains available to the public 
for play.
    (e) Compliance by charitable gaming operations. This part does not 
apply to charitable gaming operations, provided that:
    (1) The tribal government determines that the organization 
sponsoring the gaming operation is a charitable organization;
    (2) All proceeds of the charitable gaming operation are for the 
benefit of the charitable organization;
    (3) The TGRA permits the charitable organization to be exempt from 
this part;
    (4) The charitable gaming operation is operated wholly by the 
charitable organization's employees or volunteers; and
    (5) The annual gross gaming revenue of the charitable gaming 
operation does not exceed $3,000,000.
    (f) Testing laboratories. (1) A testing laboratory may provide the 
examination, testing, evaluating and reporting functions required by 
this section provided that:
    (i) It demonstrates its integrity, independence and financial 
stability to the TGRA.
    (ii) It demonstrates its technical skill and capability to the 
TGRA.
    (iii) If the testing laboratory is owned or operated by, or 
affiliated with, a tribe, it must be independent from the manufacturer 
and gaming operator for whom it is providing the testing, evaluating, 
and reporting functions required by this section.
    (iv) The TGRA:
    (A) Makes a suitability determination of the testing laboratory 
based upon standards no less stringent than those set out in Sec.  
533.6(b)(1)(ii) through (v) of this chapter and based upon no less 
information than that required by Sec.  537.1 of this chapter, or
    (B) Accepts, in its discretion, a determination of suitability for 
the testing laboratory made by any other gaming regulatory authority in 
the United States.
    (v) After reviewing the suitability determination and the 
information provided by the testing laboratory, the TGRA determines 
that the testing laboratory is qualified to test and evaluate Class II 
gaming systems.
    (2) The TGRA must:
    (i) Maintain a record of all determinations made pursuant to 
paragraphs (f)(1)(iii) and (f)(1)(iv) of this section for a minimum of 
three years.
    (ii) Place the testing laboratory under a continuing obligation to 
notify it of any adverse regulatory action in any jurisdiction where 
the testing laboratory conducts business.
    (iii) Require the testing laboratory to provide notice of any 
material changes to the information provided to the TGRA.
    (g) Records. Records required to be maintained under this section 
must be made available to the Commission upon request. The Commission 
may use the information derived therefrom for any lawful purpose 
including, without limitation, to monitor the use of Class II gaming 
systems, to assess the effectiveness of the standards required by this 
part, and to inform future amendments to this part. The Commission will 
only make available for public review records or portions of records 
subject to release under the Freedom of Information Act, 5 U.S.C. 552; 
the Privacy Act of 1974, 5 U.S.C.

[[Page 45233]]

552a; or the Indian Gaming Regulatory Act, 25 U.S.C. 2716(a).

    Dated: September 19, 2017.
Jonodev O. Chaudhuri,
Chairman.
Kathryn Isom-Clause,
Vice Chair.
E. Sequoyah Simermeyer,
Associate Commissioner.
[FR Doc. 2017-20635 Filed 9-27-17; 8:45 am]
BILLING CODE 7565-01-P


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