82_FR_45415 82 FR 45228 - Technical Standards

82 FR 45228 - Technical Standards

NATIONAL INDIAN GAMING COMMISSION

Federal Register Volume 82, Issue 187 (September 28, 2017)

Page Range45228-45233
FR Document2017-20635

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.

Federal Register, Volume 82 Issue 187 (Thursday, September 28, 2017)
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Proposed Rules]
[Pages 45228-45233]
From the Federal Register Online  [www.thefederalregister.org]
[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.

-----------------------------------------------------------------------

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:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Email: [email protected].
     Fax: 202-632-7066.
     Mail: National Indian Gaming Commission, 1849 C Street 
NW., MS 1621, Washington, DC 20240.
     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



                                                    45228              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                    participating State’s performance in                    PART 622—ENVIRONMENTAL IMPACT                         floor by November 10, 2018. The
                                                    implementing the requirements of the                    AND RELATED PROCEDURES                                Commission proposes this action to
                                                    Program at least once every 5 years.                                                                          assist tribal governments, tribal gaming
                                                       (1) The Operating Administration                     ■  7. The authority citation for part 622             regulatory authorities, and operations in
                                                    must provide notice and an opportunity                  is revised to read as follows:                        ensuring the integrity and security of
                                                    for public comment during the review.                     Authority: 42 U.S.C. 4321 et seq.; 49               Class II games and gaming revenue
                                                       (2) At the conclusion of its last review             U.S.C. 303 and 5323(q); 23 U.S.C. 139, 326,           through minimum technical standards
                                                    prior to the expiration of the term, the                327, and 330; Pub. L. 109–59, 119 Stat. 1144,         for Class II gaming systems and
                                                    Operating Administration may extend a                   sections 6002 and 6010; 40 CFR parts 1500–            equipment.
                                                    State’s participation in the Program for                1508; 49 CFR 1.81; Pub. L. 112–141, 126 Stat.
                                                                                                            405, sections 1315, 1316, 1317, and 1318;             DATES: The agency must receive
                                                    an additional term of not more than 5
                                                                                                            and Pub. L. 114–94, section 1309.                     comments on or before November 13,
                                                    years (as long as such term does not
                                                                                                            ■   8. Revise § 622.101 to read as follows:           2017.
                                                    extend beyond the termination date of
                                                    the Program) or terminate the State’s                                                                         ADDRESSES: You may send comments by
                                                                                                            § 622.101    Cross-reference to procedures.           any of the following methods:
                                                    participation in the Program.
                                                       (c) Early Termination. (1) If the                       The procedures for complying with                     • Federal eRulemaking Portal: Go to
                                                    Operating Administration, in                            the National Environmental Policy Act                 http://www.regulations.gov. Follow the
                                                    consultation with the Office of the                     of 1969, as amended (42 U.S.C. 4321 et                instructions for submitting comments.
                                                    Secretary and the Chair of CEQ,                         seq.), and related statutes, regulations,                • Email: 547.5_Comments@nigc.gov.
                                                    determines that a State is not                          and orders are set forth in part 771 of                  • Fax: 202–632–7066.
                                                    administering the Program consistent                    title 23 of the Code of Federal                          • Mail: National Indian Gaming
                                                    with the terms of its written agreement,                Regulations. The procedures for                       Commission, 1849 C Street NW., MS
                                                    or the requirements of this part or 23                  complying with 49 U.S.C. 303,                         1621, Washington, DC 20240.
                                                                                                            commonly known as ‘‘Section 4(f),’’ are                  • Hand Delivery: National Indian
                                                    U.S.C. 330, the Operating
                                                                                                            set forth in part 774 of title 23 of the              Gaming Commission, 90 K Street NE.,
                                                    Administration must provide the State
                                                                                                            Code of Federal Regulations. The                      Suite 200, Washington, DC 20002,
                                                    notification of that determination.
                                                                                                            procedures for complying with the                     between 9 a.m. and 5 p.m., Monday
                                                       (2) After notifying the State of its
                                                                                                            surface transportation project delivery               through Friday, except Federal holidays.
                                                    determination under paragraph (c)(1),
                                                    the Operating Administration must                       program application requirements and                  FOR FURTHER INFORMATION CONTACT:
                                                    provide the State a maximum of 90 days                  termination are set forth in part 773 of              Austin Badger, National Indian Gaming
                                                    to take the appropriate corrective action.              title 23 of the Code of Federal                       Commission; Telephone: 202–632–7003.
                                                    If the State fails to take such corrective              Regulations. The procedures for                       SUPPLEMENTARY INFORMATION:
                                                    action, the Operating Administration                    participating and complying with the
                                                                                                            program for eliminating duplication of                I. Comments Invited
                                                    may terminate the State’s participation
                                                    in the Program.                                         environmental reviews are set forth in                   Interested parties are invited to
                                                                                                            part 778 of title 23 of the Code of                   participate in this proposed rulemaking
                                                    Title 49—Transportation                                 Federal Regulations.                                  by submitting such written data, views,
                                                                                                            [FR Doc. 2017–20561 Filed 9–27–17; 8:45 am]           or arguments as they may desire.
                                                    PART 264—PROGRAM FOR                                                                                          Comments that provide the factual basis
                                                                                                            BILLING CODE 4910–22–P
                                                    ELIMINATING DUPLICATION OF                                                                                    supporting the views and suggestions
                                                    ENVIRONMENTAL REVIEWS AND THE                                                                                 presented are particularly helpful in
                                                    SURFACE TRANSPORTATION                                                                                        developing reasoned regulatory
                                                    PROJECT DELIVERY PROGRAM                                NATIONAL INDIAN GAMING
                                                                                                            COMMISSION                                            decisions on the proposal.
                                                    ■  4. The authority citation for part 264                                                                     II. Background
                                                    is revised to read as follows:                          25 CFR Part 547
                                                                                                                                                                     The Indian Gaming Regulatory Act
                                                      Authority: 23 U.S.C. 327; 49 CFR 1.81; 23             RIN 3141–AA64                                         (IGRA or Act), Public Law 100–497, 25
                                                    U.S.C. 330.
                                                                                                                                                                  U.S.C. 2701 et seq., was signed into law
                                                    ■ 5. Revise the heading for part 264 to                 Technical Standards                                   on October 17, 1988. The Act
                                                    read as set forth above.                                AGENCY:  National Indian Gaming                       establishes the National Indian Gaming
                                                    ■ 6. Revise § 264.101 to read as follows:               Commission.                                           Commission (NIGC or Commission) and
                                                                                                            ACTION: Proposed rule.                                sets out a comprehensive framework for
                                                    § 264.101 Procedures for complying with
                                                    the surface transportation project delivery                                                                   the regulation of gaming on Indian
                                                    program application requirements and                    SUMMARY:   The National Indian Gaming                 lands. On October 8, 2008, the NIGC
                                                    termination and the procedures for                      Commission proposes to amend the                      published a final rule in the Federal
                                                    participating in and complying with the                 minimum technical standards for Class                 Register called Technical Standards for
                                                    program for eliminating duplication of                  II gaming systems and equipment. The                  Electronic, Computer, or Other
                                                    environmental reviews.                                  proposed rule would amend regulations                 Technologic Aids Used in the Play of
                                                      The procedures for complying with                     that describe how tribal governments,                 Class II Games. 73 FR 60508. The rule
                                                    the surface transportation project                      tribal gaming regulatory authorities, and             added a new part to the NIGC’s
                                                    delivery program application                            tribal gaming operations comply with                  regulations establishing a process for
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                                                    requirements and termination are set                    the technical standards. In particular,               ensuring the integrity of electronic Class
                                                    forth in part 773 of title 23 of the Code               the proposed rule amends the                          II games and aids. The standards were
                                                    of Federal Regulations. The procedures                  requirement that gaming systems                       designed to assist tribal gaming
                                                    for participating in and complying with                 manufactured before November 10,                      regulatory authorities and operators
                                                    the program for eliminating duplication                 2008, be modified to meet standards                   with ensuring the integrity and security
                                                    of environmental reviews are set forth in               applicable to gaming systems                          of Class II gaming, the accountability of
                                                    part 778 of title 23 of the Code of                     manufactured on or after November 10,                 Class II gaming revenue, and provide
                                                    Federal Regulations.                                    2008, or be removed from the gaming                   guidance to equipment manufacturers


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                                                                       Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                          45229

                                                    and distributors of Class II gaming                     2017. In addition, NIGC staff attended                commenters as ‘‘high risk.’’ In addition,
                                                    systems. The standards do not classify                  several National Indian Gaming                        commenters suggested that, even
                                                    which games are class II and which                      Association Class II Subcommittee                     assuming additional risks are associated
                                                    games are class III.                                    meetings. The consultations and                       with 2008 Systems, such risks are
                                                       When implemented in 2008, the part                   meetings, combined with the written                   mitigated by tribal gaming regulatory
                                                    547 technical standards introduced                      comments, proved invaluable in the                    authorities (TGRAs) through internal
                                                    several new requirements for Class II                   development of a discussion draft. On                 control standards.
                                                    gaming systems designed to protect the                  June 14, 2017, the Commission issued a                  The Commission agrees that the 2008
                                                    security and integrity of Class II gaming               discussion draft which, among other                   sunset can be removed. The
                                                    systems and tribal operations. The                      proposed amendments, proposed                         Commission disagrees, however, that
                                                    Commission understood, however, that                    removing the November 10, 2018,                       evidence of risk forms the sole legal
                                                    some existing Class II gaming systems                   sunset for 2008 Systems. Additional                   justification for the technical standards.
                                                    might not meet all of the requirements                  written comments responsive to the                    The technical standards are intended to
                                                    of the technical standards. Therefore, to               discussion draft were solicited through               ensure the integrity and security of
                                                    avoid any potentially significant                       July 15, 2017.                                        Class II gaming and the accountability of
                                                    economic and practical consequences of                     Written comments received after the                Class II gaming revenue. The technical
                                                    requiring immediate compliance, the                     issuance of the discussion draft were                 standards include minimum
                                                    Commission implemented a five year                      generally supportive of the proposed                  requirements that the Commission
                                                    sunset provision which allowed eligible                 removal of the November 10, 2018,                     believes, in its judgment, are
                                                    gaming systems manufactured before                      sunset for 2008 Systems. Comments also                appropriate and consistent with its
                                                    November 10, 2008 (2008 Systems) to                     indicated, however, several specific                  Federal regulatory oversight mission.
                                                    remain on the gaming floor. The                         remaining areas of concern. The                       The Commission has, however,
                                                    Commission believed that a five year                    Commission developed the proposed                     determined that removal of the sunset
                                                    period was sufficient for market forces                 rule after considering the comments                   provision is justified provided that 2008
                                                    to move equipment toward compliance                     received.                                             Systems are subject to additional annual
                                                    with the standards applicable to gaming                                                                       review by TGRAs.
                                                                                                            A. General Comments
                                                    systems manufactured on or after                                                                                Commenters also suggested that the
                                                    November 10, 2008.                                         Some commenters questioned the
                                                                                                            Commission’s authority to implement                   sunset provision threatens significant
                                                       On September 21, 2012, the NIGC
                                                                                                            technical standards and its authority to              economic harm and the continued
                                                    published a final rule in the Federal
                                                                                                            enforce the standards. IGRA gives the                 success and viability of the Class II
                                                    Register which included an amendment
                                                                                                            Commission the authority to adopt these               gaming industry. Commenters suggested
                                                    delaying the sunset provision by an
                                                    additional five years. 77 FR 58473. The                 technical standards. Congress was                     that the sunset provision is an
                                                    Commission recognized that its prior                    expressly concerned that gaming under                 unnecessary cost burden on
                                                    analysis regarding the continued                        IGRA be ‘‘conducted fairly and honestly               manufacturers and tribes. Commenters
                                                    economic viability of the 2008 Systems                  by both the operator and players’’ and                further suggested that the sunset
                                                    had proven to be mistaken. The NIGC                     ‘‘to ensure that the Indian tribe is the              provision will cause tribes to lose
                                                    established the initial five year period in             primary beneficiary of the gaming                     leverage in compact negotiations with
                                                    the midst of a much stronger economy.                   operation.’’ 25 U.S.C. 2702(2). The                   states.
                                                    In the time that followed the economic                  technical standards are designed to                     The Commission understands the
                                                    downturn, many tribal gaming                            ensure that these concerns are                        commenters’ concerns over the
                                                    operations set new priorities that                      addressed. These standards implement                  economic impact of removing non-
                                                    required keeping a 2008 System on the                   the authority granted the NIGC to                     compliant Class II gaming systems from
                                                    gaming floor for a longer period of time.               monitor, inspect, and examine Class II                the gaming floor. The Commission
                                                    Balancing the economic needs against a                  gaming, 25 U.S.C. 2706(b)(1)–(4), and to              notes, however, that part 547 as
                                                    risk that potentially increases as                      promulgate such regulations as it deems               originally enacted and as amended only
                                                    technology advances and 2008 Systems                    appropriate to implement the provisions               requires removal if the games are not
                                                    remain static, the Commission                           of IGRA. 25 U.S.C. 2706(b)(10). The                   made compliant with the testing
                                                    determined that 2008 Systems could                      Commission further reiterates that this               standards for newer systems set forth in
                                                    continue to be offered for play until                   rule does not classify games for                      the regulation. The regulation initially
                                                    November 10, 2018.                                      purposes of IGRA. The rule assumes                    provided the industry with five years to
                                                       Now, with the November 10, 2018,                     that the games played are Class II games.             modify or replace 2008 Systems. The
                                                    sunset approaching, the Commission                      This rule establishes a process for                   Commission subsequently granted an
                                                    believed it appropriate to include the                  ensuring the integrity and security of                additional five years to bring the
                                                    2008 Systems and associated sunset                      Class II games and an accounting of                   systems into compliance with the
                                                    provision of the part 547 technical                     Class II revenue.                                     standards for newer systems. The
                                                    standards as a topic for consultation.                                                                        Commission has now determined that
                                                                                                            B. 2008 Systems, Pre-Discussion Draft                 removal of the sunset provision is
                                                    The topic was therefore included in a
                                                    November 22, 2016, letter to tribal                       Many commenters requested that the                  justified provided that 2008 Systems are
                                                    leaders introducing the Commission’s                    November 10, 2018, sunset for 2008                    subject to additional annual review by
                                                                                                            Systems be removed. Commenters                        the TGRA.
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                                                    2017 consultation series.
                                                                                                            suggested that the existing sunset                      Commenters suggested that the sunset
                                                    III. Development of the Proposed Rule                   provision could not be justified because              provision is retroactive and that IGRA
                                                       On March 23, 2017, in Tulsa, OK, and                 there has been no evidence that 2008                  does not authorize the NIGC to
                                                    April 12, 2017, in San Diego, CA, the                   Systems represent a risk to the integrity             promulgate regulations that have
                                                    NIGC consulted on the 2008 Systems                      and security of Class II gaming.                      retroactive effect. The Commission
                                                    and associated sunset provision of part                 Commenters noted that 2008 Systems                    disagrees that the proposed
                                                    547. The Commission also solicited                      appear to be protected by 26 out of 28                amendments are retroactive. The
                                                    written comments through May 31,                        technical standards identified by                     proposed amendments do not alter the


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                                                    45230              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

                                                    legal consequences of actions completed                 that the Discussion Draft could be                    D. Class II Gaming System Component
                                                    before their effective date.                            misinterpreted to provide that all Class              Repair, Replacement, or Modification
                                                      A commenter suggested extending the                   II gaming systems manufactured prior to                 Discussion draft § 547.5(c)(2)(ii)
                                                    sunset provision indefinitely, subject to               November 10, 2008, including those that               provided that ‘‘The testing laboratory
                                                    the authority of TGRAs. A commenter                     are now compliant with § 547.5(b),                    tests the submission to the standards
                                                    submitted proposed language                             would be subject to the 2008 System                   established by: (A) This part; (B) Any
                                                    implementing an annual audit                            provisions in § 547.5(a). Commenters                  applicable provisions of part 543 of this
                                                    requirement for 2008 Systems. The                       further suggested that approving a 2008               chapter that are testable by the testing
                                                    Commission’s subsequent discussion                      System pursuant to § 547.5(b) requires a              laboratory; and (C) The TGRA.’’
                                                    draft partially incorporated this                       2008 System to be resubmitted to a
                                                                                                                                                                  Commenters suggested that the new
                                                    recommendation.                                         testing lab for full re-certification and/
                                                                                                                                                                  requirement that modifications to 2008
                                                    C. 2008 Systems, Post-Discussion Draft                  or requires TGRAs to make technical
                                                                                                                                                                  Systems be tested to the standards
                                                                                                            determinations.
                                                       The discussion draft required TGRAs                     The Commission believes that                       applicable to newer systems is
                                                    to: ‘‘Annually review the Class II gaming               discussion draft § 547.5(a)(3) is clear               unnecessary and will only result in
                                                    system, its current components, and the                 that Class II gaming systems approved                 additional costs with no practical
                                                    associated testing laboratory reports to                pursuant to § 547.5(b) are no longer                  benefit. Commenters noted that
                                                    determine whether the Class II gaming                   2008 Systems. The Commission has,                     laboratory reports are currently not
                                                    system may be approved pursuant to                      however, clarified in the proposed rule               required for all modifications to 2008
                                                    paragraph (b) of this section. The TGRA                 that the use of the term ‘‘approved’’ is              Systems, thereby providing TGRAs with
                                                    shall make a finding identifying the                    intended to reference TGRA approval                   greater flexibility and control over such
                                                    Class II gaming systems reviewed, the                   based on review of existing testing lab               modifications. Commenters suggested
                                                    Class II gaming systems subsequently                    reports for all current components of the             that this provision will force TGRAs to
                                                    approved pursuant to paragraph (b),                     Class II gaming system.                               use the emergency modification
                                                    and, for Class II gaming systems that                      Finally, the discussion draft                      procedures to avoid testing delays.
                                                    cannot be approved pursuant to                          Discussion Draft § 547.5(a)(1)(viii)                    The Commission disagrees that the
                                                    paragraph (b), the modifications                        provides that ‘‘All player interfaces of              requirement that all modifications be
                                                    necessary for such approval. The TGRA                   the Class II gaming system have a date                tested to the standards applicable to
                                                    shall transmit its findings to the                      of manufacture before November 10,                    newer systems is unnecessary. The
                                                    Commission within 120 days of the                       2008.’’ Commenters suggested that the                 current and proposed regulations
                                                    gaming operation’s fiscal year end.’’                   requirement that all player interfaces of             require the TGRA to determine, among
                                                    Commenters suggested that the NIGC                      2008 Systems have a date of                           other requirements, whether a
                                                    has provided no compelling reason to                    manufacture before November 10, 2008,                 modification will maintain or advance
                                                    change the existing reporting                           was a new requirement. Commenters                     the Class II gaming system’s compliance
                                                    requirements. Commenters further                        further suggested that this requirement               with the technical standards. The new
                                                    suggested that the annual reporting                     was unnecessary and would prevent use                 requirement ensures that TGRAs are
                                                    requirement appears to be                               of newer player interfaces with 2008                  provided with the information needed
                                                    unintentionally applicable to all Class II              Systems, contrary to provisions                       for the TGRA to make such a
                                                    gaming systems.                                         encouraging 2008 Systems to be                        determination. In addition, the
                                                       Although the requirement does                        modified to move towards compliance                   Commission believes that TGRAs will
                                                    impose an additional requirement on                     with standards for newer systems.                     continue to utilize the emergency
                                                    TGRAs, the Commission believes that                        Although not included in the 2012                  modification provisions for their
                                                    removal of the sunset provision                         amendment to part 547, the date of                    intended purpose.
                                                    warrants annual review specific to 2008                 manufacture requirement is not entirely
                                                    Systems. In addition, the annual                                                                              E. Records
                                                                                                            new. The 2008 System provisions were
                                                    reporting requirement is contained                      originally intended to apply only to                     Discussion draft § 547.5(g) provided
                                                    within § 547.5(a) and is therefore                      systems in play or manufactured by                    that ‘‘The Commission may use the
                                                    applicable only to 2008 Systems. The                    November 10, 2008. 73 FR 60508,                       information derived therefrom for any
                                                    Commission has, however, revised and                    60510. Pursuant to the 2008 regulations,              lawful purpose including, without
                                                    clarified the annual review and                         § 547.4(a)(7) required ‘‘the supplier of              limitation, to monitor the use of Class II
                                                    reporting procedures in the proposed                    any player interface to designate with a              gaming systems, to assess the
                                                    rule to reduce the perceived burden on                  permanently affixed label each player                 effectiveness of the standards required
                                                    TGRAs. Pursuant to this proposed rule,                  interface with an identifying number                  by this Part, and to inform future
                                                    TGRAs are not required to transmit its                  and the date of manufacture or a                      amendments to this Part. The
                                                    findings, but rather must maintain                      statement that the date of manufacture                Commission will only make available
                                                    records and make them available to                      was on or before the effective date of                for public review records or portions of
                                                    NIGC staff upon request.                                this part. The tribal gaming regulatory               records subject to release under the
                                                       The discussion draft further provided                authority shall also require the supplier             Freedom of Information Act, 5 U.S.C.
                                                    that ‘‘A TGRA may not permit the use                    to provide a written declaration or                   552; the Privacy Act of 1974, 5 U.S.C.
                                                    of any Class II gaming system                           affidavit affirming that the date of                  552a; or the Indian Gaming Regulatory
                                                    manufactured before November 10, 2008                   manufacture was on or before November                 Act, 25 U.S.C. 2716(a).’’ Commenters
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    in a tribal gaming operation unless:’’ it               10, 2008.’’ 73 FR 60508, 60527 (October               expressed reluctance to expose sensitive
                                                    meets requirements applicable to 2008                   10, 2008). The Commission agrees,                     testing and compliance records to
                                                    Systems. Discussion Draft § 547.5(a)(3)                 however, that the date of manufacture                 possible public disclosure. Commenters
                                                    provides that ‘‘If the Class II gaming                  requirement included in the discussion                suggested that records only be available
                                                    system is subsequently approved                         draft could be interpreted as preventing              for review on site by NIGC staff.
                                                    pursuant to paragraph (b) of this section,              the use of newer player interfaces and                   The Commission agrees that sensitive
                                                    this paragraph (a) [2008 Systems] no                    has therefore removed the requirement                 testing and compliance records should
                                                    longer applies.’’ Commenters suggested                  from the proposed rule.                               not be disclosed. As cited in the


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                                                                       Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                          45231

                                                    discussion draft, 25 U.S.C. 2716(a) states              environment and that no detailed                      system and its components, to the
                                                    that ‘‘the Commission shall preserve any                statement is required pursuant to the                 Commission;
                                                    and all information received pursuant to                National Environmental Policy Act of                     (vi) Remote communications with the
                                                    this chapter as confidential pursuant to’’              1969, 42 U.S.C. 4321, et seq.                         Class II gaming system are only allowed
                                                    the confidential commercial or financial                                                                      if authorized by the TGRA; and
                                                                                                            Paperwork Reduction Act                                  (vii) Player interfaces of the Class II
                                                    information and law enforcement
                                                    information exceptions of the Freedom                     The information collection                          gaming system exhibit information
                                                    of Information Act. The Commission is                   requirements contained in this rule                   consistent with § 547.7(d) and any other
                                                    therefore precluded from releasing such                 were previously approved by the Office                information required by the TGRA.
                                                    information.                                            of Management and Budget (OMB) as                        (2) For so long as a Class II gaming
                                                                                                            required by 44 U.S.C. 3501 et seq. and                system is made available for use at any
                                                    Regulatory Matters                                                                                            tribal gaming operation pursuant to this
                                                                                                            assigned OMB Control Number 3141–
                                                    Regulatory Flexibility Act                              0007, which expired in August of 2011.                paragraph (a) the TGRA shall:
                                                      The proposed rule will not have a                     The NIGC is in the process of reinstating                (i) Retain copies of the testing
                                                    significant impact on a substantial                     that Control Number.                                  laboratory’s report, the TGRA’s
                                                    number of small entities as defined                                                                           compliance certificate, and the TGRA’s
                                                                                                            List of Subjects in 25 CFR Part 547                   approval of the use of the Class II
                                                    under the Regulatory Flexibility Act, 5
                                                    U.S.C. 601, et seq. Moreover, Indian                       Gambling, Indian—lands, Indian—                    gaming system;
                                                                                                            tribal government, Reporting and                         (ii) Maintain records identifying the
                                                    Tribes are not considered to be small
                                                                                                            recordkeeping requirements.                           Class II gaming system and its current
                                                    entities for the purposes of the
                                                                                                               Therefore, for reasons stated in the               components; and
                                                    Regulatory Flexibility Act.                                                                                      (iii) Annually review the testing
                                                                                                            preamble, 25 CFR part 547 is proposed
                                                    Small Business Regulatory Enforcement                   to be amended as follows:                             laboratory reports associated with the
                                                    Fairness Act                                                                                                  Class II gaming system and its current
                                                       The proposed rule is not a major rule                PART 547—MINIMUM TECHNICAL                            components to determine whether the
                                                    under 5 U.S.C. 804(2), the Small                        STANDARDS FOR CLASS II GAMING                         Class II gaming system may be approved
                                                    Business Regulatory Enforcement                         SYSTEMS AND EQUIPMENT                                 pursuant to paragraph (b)(1)(v) of this
                                                    Fairness Act. The rule does not have an                                                                       section. The TGRA shall make a finding
                                                    effect on the economy of $100 million                   ■ 1. The authority citation for part 547              identifying the Class II gaming systems
                                                    or more. The rule will not cause a major                continues to read as follows:                         reviewed, the Class II gaming systems
                                                    increase in costs or prices for                             Authority: 25 U.S.C. 2706(b).                     subsequently approved pursuant to
                                                    consumers, individual industries,                                                                             paragraph (b)(1)(v), and, for Class II
                                                                                                            ■   2. Revise § 547.5 to read as follows:             gaming systems that cannot be approved
                                                    Federal, State, local government
                                                    agencies or geographic regions. Nor will                § 547.5 How does a tribal government,
                                                                                                                                                                  pursuant to paragraph (b)(1)(v), the
                                                    the proposed rule have a significant                    TGRA, or tribal gaming operation comply               components of the Class II gaming
                                                    adverse effect on competition,                          with this part?                                       system preventing such approval.
                                                    employment, investment, productivity,                                                                            (3) If the Class II gaming system is
                                                                                                               (a) Gaming systems manufactured
                                                    innovation, or the ability of the                                                                             subsequently approved by the TGRA
                                                                                                            before November 10, 2008. (1) Any Class
                                                    enterprises, to compete with foreign                                                                          pursuant to paragraph (b)(1)(v) as
                                                                                                            II gaming system manufactured before
                                                    based enterprises.                                                                                            compliant with paragraph (b) of this
                                                                                                            November 10, 2008, that is not
                                                                                                                                                                  section, this paragraph (a) no longer
                                                    Unfunded Mandate Reform Act                             compliant with paragraph (b) of this
                                                                                                                                                                  applies.
                                                                                                            section may be made available for use
                                                      The Commission, as an independent                                                                              (b) Gaming system submission,
                                                                                                            at any tribal gaming operation if:
                                                    regulatory agency, is exempt from                                                                             testing, and approval—generally. (1)
                                                                                                               (i) The Class II gaming system                     Except as provided in paragraph (a) of
                                                    compliance with the Unfunded                            software that affects the play of the
                                                    Mandates Reform Act, 2 U.S.C. 1502(1);                                                                        this section, a TGRA may not permit the
                                                                                                            Class II game, together with the                      use of any Class II gaming system in a
                                                    2 U.S.C. 658(1).                                        signature verification required by                    tribal gaming operation unless:
                                                    Takings                                                 § 547.8(f) was submitted to a testing                    (i) The Class II gaming system has
                                                                                                            laboratory within 120 days after                      been submitted to a testing laboratory;
                                                      In accordance with Executive Order
                                                                                                            November 10, 2008, or October 22,                        (ii) The testing laboratory tests the
                                                    12630, the Commission has determined
                                                                                                            2012;                                                 submission to the standards established
                                                    that the proposed rule does not have
                                                                                                               (ii) The testing laboratory tested the             by:
                                                    significant takings implications. A
                                                                                                            submission to the standards established                  (A) This part;
                                                    takings implication assessment is not
                                                                                                            by § 547.8(b), § 547.8(f), and § 547.14;                 (B) Any applicable provisions of part
                                                    required.
                                                                                                               (iii) The testing laboratory provided              543 of this chapter that are testable by
                                                    Civil Justice Reform                                    the TGRA with a formal written report                 the testing laboratory; and
                                                      In accordance with Executive Order                    setting forth and certifying to the                      (C) The TGRA;
                                                    12988, the Commission has determined                    findings and conclusions of the test;                    (iii) The testing laboratory provides a
                                                    that the proposed rule does not unduly                     (iv) The TGRA made a finding, in the               formal written report to the party
                                                                                                            form of a certificate provided to the                 making the submission, setting forth
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    burden the judicial system and meets
                                                    the requirements of section 3(a) and                    supplier or manufacturer of the Class II              and certifying its findings and
                                                    3(b)(2) of the Order.                                   gaming system, that the Class II gaming               conclusions, and noting compliance
                                                                                                            system is compliant with § 547.8(b),                  with any standard established by the
                                                    National Environmental Policy Act                       § 547.8(f), and § 547.14;                             TGRA pursuant to paragraph (b)(1)(ii)(C)
                                                       The Commission has determined that                      (v) The Class II gaming system is only             of this section;
                                                    the proposed rule does not constitute a                 used as approved by the TGRA and the                     (iv) The testing laboratory’s written
                                                    major federal action significantly                      TGRA transmitted its notice of that                   report confirms that the operation of a
                                                    affecting the quality of the human                      approval, identifying the Class II gaming             player interface prototype has been


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                                                    45232              Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules

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


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                                                                       Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules                                          45233

                                                    552a; or the Indian Gaming Regulatory                   www.regulations.gov (IRS REG–128841–                  techniques or other forms of information
                                                    Act, 25 U.S.C. 2716(a).                                 07).                                                  technology; and
                                                      Dated: September 19, 2017.                            FOR FURTHER INFORMATION CONTACT:                        Estimates of capital or start-up costs
                                                                                                            Concerning the proposed regulations,                  and costs of operation, maintenance,
                                                    Jonodev O. Chaudhuri,
                                                                                                            Spence Hanemann at (202) 317–6980;                    and purchase of services to provide
                                                    Chairman.                                                                                                     information.
                                                    Kathryn Isom-Clause,
                                                                                                            concerning submissions of comments
                                                                                                            and requesting a hearing, Regina                        An agency may not conduct or
                                                    Vice Chair.                                                                                                   sponsor, and a person is not required to
                                                                                                            Johnson at (202) 317–6901 (not toll-free
                                                    E. Sequoyah Simermeyer,                                 numbers).                                             respond to, a collection of information
                                                    Associate Commissioner.                                                                                       unless it displays a valid control
                                                                                                            SUPPLEMENTARY INFORMATION:
                                                    [FR Doc. 2017–20635 Filed 9–27–17; 8:45 am]                                                                   number assigned by the Office of
                                                    BILLING CODE 7565–01–P                                  Paperwork Reduction Act                               Management and Budget.
                                                                                                                                                                    Books or records relating to a
                                                                                                               The collection of information                      collection of information must be
                                                                                                            contained in this notice of proposed                  retained as long as their contents may
                                                    DEPARTMENT OF THE TREASURY                              rulemaking has been submitted to the                  become material in the administration
                                                                                                            Office of Management and Budget for                   of any internal revenue law. Generally,
                                                    Internal Revenue Service                                review under OMB Control Number                       tax returns and tax return information
                                                                                                            1545–2185 in accordance with the                      are confidential, as required by 26
                                                    26 CFR Parts 1 and 5f                                   Paperwork Reduction Act of 1995 (44                   U.S.C. 6103.
                                                                                                            U.S.C. 3507(d)). The collection of
                                                    [REG–128841–07]                                                                                               Background
                                                                                                            information in this proposed regulation
                                                    RIN 1545–BG91                                           is the requirement in § 1.147(f)–1 that                 This document contains proposed
                                                                                                            certain information be contained in a                 amendments to 26 CFR part 1 under
                                                    Public Approval of Tax-Exempt Private                   public notice or public approval and,                 section 147(f) of the Internal Revenue
                                                    Activity Bonds                                          consequently, disclosed to the public.                Code of 1986 (the Code) and 26 CFR
                                                                                                            This information is required to meet the              part 5f under section 103(k) of the
                                                    AGENCY: Internal Revenue Service (IRS),                 statutory public approval requirement                 Internal Revenue Code of 1954 (the 1954
                                                    Treasury.                                               provided in section 147(f). The likely                Code). In the Tax Equity and Fiscal
                                                    ACTION: Withdrawal of notice of                         respondents are the governmental units                Responsibility Act of 1982 (TEFRA),
                                                    proposed rulemaking and notice of                       required to approve an issue of private               Public Law 97–248, 96 Stat. 324,
                                                    proposed rulemaking.                                    activity bonds under section 147(f).                  Congress added section 103(k) to the
                                                                                                               Estimated total annual burden: 2,600               1954 Code to impose a public approval
                                                    SUMMARY:   This document contains
                                                                                                            hours.                                                requirement on tax-exempt industrial
                                                    proposed regulations to update and                         Estimated average annual burden per
                                                    streamline the public approval                                                                                development bonds. On May 11, 1983,
                                                                                                            respondent: 1.3 Hours.                                the Department of the Treasury
                                                    requirement provided in section 147(f)                     Estimated number of respondents:
                                                    of the Internal Revenue Code applicable                                                                       (Treasury Department) and the IRS
                                                                                                            2,000.                                                published in the Federal Register (48
                                                    to tax-exempt private activity bonds                       Estimated frequency of responses:
                                                    issued by State and local governments.                                                                        FR 21117) temporary regulations under
                                                                                                            Annual.                                               section 103(k) of the 1954 Code (TD
                                                    The proposed regulations would update                      Comments on the collection of
                                                    the existing regulations on the public                                                                        7892) (the Existing Regulations). See
                                                                                                            information should be sent to the Office              § 5f.103–2. A notice of proposed
                                                    approval requirement to reflect statutory               of Management and Budget, Attn: Desk
                                                    changes, to streamline the public                                                                             rulemaking (LR–221–82) by cross-
                                                                                                            Officer for the Department of the                     reference to the temporary regulations
                                                    approval process, and to reduce burden                  Treasury, Office of Information and
                                                    on State and local governments that                                                                           was published in the Federal Register
                                                                                                            Regulatory Affairs, Washington, DC                    (48 FR 21166) on the same day.
                                                    issue tax-exempt private activity bonds.                20503, with copies to the Internal                      In the Tax Reform Act of 1986 (1986
                                                    This document also withdraws two                        Revenue Service, Attn: IRS Reports                    Tax Act), Public Law 99–514, 100 Stat.
                                                    previous notices of proposed                            Clearance Officer, SE:CAR:MP:T:T:SP,                  2085, Congress reorganized the tax-
                                                    rulemaking on this topic. The proposed                  Washington, DC 20224. Comments on                     exempt bond provisions and carried
                                                    regulations affect State and local                      the collection of information should be               forward the public approval
                                                    governments that issue tax-exempt                       received by November 27, 2017.                        requirement of section 103(k) of the
                                                    private activity bonds.                                    Comments are specifically requested                1954 Code in expanded form in section
                                                    DATES: Comments and requests for a                      concerning:                                           147(f) of the Code. In section 147(f),
                                                    public hearing must be received by                         Whether the proposed collection of                 Congress extended the public approval
                                                    December 27, 2017.                                      information is necessary for the proper               requirement to apply to all types of tax-
                                                    ADDRESSES: Send submissions to                          performance of the functions of the IRS,              exempt private activity bonds, as
                                                    CC:PA:LPD:PR (REG–128841–07), Room                      including whether the information will                provided in section 141(e). The
                                                    5203, Internal Revenue Service, P.O.                    have practical utility;                               legislative history of the 1986 Tax Act
                                                    Box 7604, Ben Franklin Station,                            The accuracy of the estimated burden               indicates that ‘‘[t]he conferees intend
                                                    Washington, DC 20044. Submissions                       associated with the proposed collection               that, to the extent not amended, all
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    may be hand-delivered Monday through                    of information;                                       principles of present law continue to
                                                    Friday between the hours of 8 a.m. and                     How the quality, utility, and clarity of           apply under the reorganized
                                                    4 p.m. to CC:PA:LPD:PR (REG–128841–                     the information to be collected may be                provisions.’’ H.R. Rep. No. 99–841, at II–
                                                    07), Courier’s Desk, Internal Revenue                   enhanced;                                             686 (1986) (Conf. Rep.). Thus, the
                                                    Service, 1111 Constitution Avenue NW.,                     How the burden of complying with                   Existing Regulations in § 5f.103–2
                                                    Washington, DC 20224, or sent                           the proposed collection of information                remain in effect.
                                                    electronically via the Federal                          may be minimized, including through                     On September 9, 2008, the Treasury
                                                    eRulemaking Portal at                                   the application of automated collection               Department and the IRS published a


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Document Created: 2017-09-28 01:32:37
Document Modified: 2017-09-28 01:32:37
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesThe agency must receive comments on or before November 13, 2017.
ContactAustin Badger, National Indian Gaming Commission; Telephone: 202-632-7003.
FR Citation82 FR 45228 
RIN Number3141-AA64
CFR AssociatedGambling; Indian-Lands; Indian-Tribal Government and Reporting and Recordkeeping Requirements

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