As noted previously, the Self-regulation regulations should be reviewed because they have not been effective. While we have no objection to the proposed clarification as to when the NIGC may issue a final decision regarding whether a self-regulation certificate should issue, we assert that further clarification is warranted. Many procedural questions are left unanswered. What happens, for example, if a tribal government does not want a hearing before the Commission?” To whom or which office should such notice be directed? What, if any, restrictions exist as to who may send such a notice, the contents of the notice, and what it must include. Next, we would recommend clarifying that the NIGC may issue their decision within 30 days of any hearing held, as well. Further, we urge the NIGC to expand, in detail, the standards to which it holds tribes seeking a self-regulation certificate in 25 C.F.R. § 518.5 when assessing the provided information against the terms of 25 C.F.R. § 518.3 (a)-(e). Although tribal governments must meet or exceed many of these standards to remain in compliance with federal and tribal law and regulations, a disproportionately low number of tribes have been granted a certificate of self-regulation. We are thus concerned, that the regulations do not make clear the full scope of what the NIGC is assessing. Determining why the program has languished for so long is a worthy inquiry in advance of rulemaking. 2. “Section 518.2 states that the Office of Self-Regulation will administer the self- regulation program on behalf of the Commission. To clarify and expand the Office of Self- Regulation’s role in the process, the Commission is proposing the following revisions to Part 518:” i. “Section 518.11 – Instead of the Commission receiving notifications of material changes from self-regulated tribes, the Office of Self-Regulation will be the entity that self-regulated tribes must notify. Also, consistent with the Commission’s remaining investigatory and enforcement authority once the Commission issues a certificate, the Office of Self-Regulation may request information from a self- regulated tribe;” To begin, we have several concerns as to the content of 25 C.F.R. § 518.11 generally. First, we are concerned that the “three business day” window for advising the Office of Self-Regulation of any changes material to the approval criteria in § 518.5 is too brief, such that it may artificially elicit non-compliance. For example, a tribe would likely have a duty to report “evidence of criminal or dishonest activity” material to § 518.5 (a)(1)(iii), but pursuant to a tribe’s due process protections, determining whether initial evidence rises to the level of material evidence may take longer than three business days. Accordingly, we would recommend either extending the reporting deadline or revising the language in this section to trigger that clock for giving notice after the tribe has determined that something constitutes reportable information. Additionally, the circumstances deemed specifically reportable by the regulation are currently overly vague. Providing a definition of what constitutes a reportable level of “financial instability” under this section might help. Providing additional specific examples of reportable information would also be helpful in this section.
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