To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director
Re: NIGC Publishes Proposed Rule Amending Regulations Governing Background Investigations and Licensure of Key Employees and Primary Management Officials Date: August 10, 2022 On August 10, 2022, the National Indian Gaming Commission (“NIGC”) published a proposed rule in the Federal Register that, if promulgated, would amend the NIGC’s regulations governing background investigations and the issuance of gaming licenses to Primary Management Officials (“PMOs”) and Key Employees (“KEs”) in 25 C.F.R. Parts 502, 556, and 558. This proposed rule was a subject of the NIGC’s Tribal Consultation Series A and B, held between July 12 and August 12, 2021, and September 13 and November 1, 2021, respectively. First, this proposed rule would make several changes to the NIGC’s regulatory definitions. This includes amending the definition of a Key Employee to include any person authorized by the gaming operation for unescorted access to restricted areas as so designated by the tribal gaming regulatory authority. Further, the newly proposed definition of Key Employee would no longer automatically include individuals whose total cash compensation is in excess of $50,000 per year, and tribal governments would be permitted to designate other employees of a gaming enterprise as a “Key Employee” so long as such designation is included in a Tribe’s gaming ordinance. The proposed rule would also amend the definition of a Primary Management Official in 25 C.F.R. § 509.19 to specify that this term applies to those with management authority over some facet of the gaming operation or gaming enterprise, including the gaming operation’s general manager and chief financial officer. The NIGC also seeks to include definitions for the terms “Gaming Enterprise” and “Tribal Gaming Regulatory Authority” to provide greater clarity throughout its regulations. The NIGC’s proposed rule would also amend 25 C.F.R. Part 556 as it relates to background investigations of KEs and PMOs. Specifically, the proposed changes here would clarify that all KEs and PMOs of the gaming enterprise must be subject to a background investigation. An amendment would also be made to 25 C.F.R. § 556.8 to clarify that all gaming ordinances and amendments approved by the Chair prior to the effective date of this proposed rule becoming final would not need to be amended in order to be in compliance with such final rule; however, any future ordinance submissions must comply. Lastly, the NIGC endeavors to amend Part 558 to require tribal governments to notify the NIGC if it revokes a gaming license of a KE or PMO, and to forward copies of its license revocation decision and a summary of the evidence it relied upon to the NIGC. Similar to Part 556, the NIGC would include a provision stating that ordinances already in effect would not need to be amended to be consistent with these proposed changes, but all future ordinance submissions would have to comply.
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