assesses and how the NIGC conducts a self-regulation assessment is not fully outlined in the pertinent sections of the rule. The IGA renews its request for increased transparency in the assessment process to ensure the process of self-regulation is more accessible and achievable for tribal regulatory authorities. B. Duty to Advise the Commission (25 C.F.R. § 518.11) “A tribe that holds a certificate of self-regulation has a continuing duty to advise the Office of Self-Regulation within ten business days of any changes in circumstances that are material to the approval criteria in § 518.5 and may reasonably cause the Commission to review and revoke the tribe’s certificate of self-regulation. Failure to do so is grounds for revocation of a certificate of self-regulation.” 2 As enumerated in our earlier commentary on proposed changes to Part 518, we are concerned that the current iteration of the regulation is overly vague when outlining the circumstances that are deemed specifically reportable. While we understand and appreciate that long lists of definitions are not necessarily conducive to concise regulation, there are a few definitions and examples that would be helpful for tribal governments to mitigate the risk of accidental noncompliance. As part of the Series B Consultation in late 2021, we recommended that a definition of “financial instability” be provided to mitigate the risk of accidental noncompliance. During the consultation process, it was also recommended that a more expansive list be provided for “any other factors that are material to the decision to grant a certificate of self-regulation.” However, in the most recent iteration of this rule, rather than provide a definition of “financial instability” or give examples of “any other factors…,” the sentence was cut in its entirety. We are concerned that, by excluding these circumstances, rather than addressing them, the section has become even more vague. Now tribes are only left with the notion that “any changes in circumstances that are material to the approval criteria in § 518.5” need to be advised to the NIGC, without much explicit guidance on what those circumstances may be. We do appreciate that, in the latest iteration of the proposed rule, the NIGC no longer requires a tribe to provide “information that may lead to information that is relevant to any material change in circumstances.” This former requirement was overbroad, overburdensome, and impermissibly allowed the NIGC to adopt regulatory responsibilities that, by definition and by law, must remain with the self-regulated tribe. C. Determinations of Non-Compliance (25 C.F.R. § 518.13) “If the Office of Self-Regulation determines that the tribe no longer meets or did not comply with the eligibility criteria of § 518.5, the approval criteria of § 518.3, the requirements of § 518.10, or the requirements of § 518.11, the Office of Self-Regulation shall prepare a written recommendation to the Commission and deliver a copy of the recommendation to the tribe. The Office of Self-Regulation’s recommendation shall state the reasons for the recommendation and shall advise the tribe of its right to a hearing under part 584 of this
2 Self-Regulation of Class II Gaming, 87 Fed. Reg. 20351 (proposed Apr. 7, 2022) (to be codified at 25 C.F.R. pt. 518.11).
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