# Class III Tribal State Gaming Compacts

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-25741

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 6, 2022
- **Citation:** 87 FR 74916

## Text

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 293
[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF68
Class III Tribal State Gaming Compacts

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Bureau of Indian Affairs (BIA) seeks input on changes to its regulations governing the review and approval of Tribal-State gaming compacts. The revisions would add factors and clarify how the Department reviews “Class III Tribal-State Gaming Compacts” (Tribal-State gaming compacts or compacts).

DATES:

Interested persons are invited to submit comments on or before March 1, 2023.

ADDRESSES:

You may submit comments by any one of the following methods.

•
Federal eRulemaking Portal:
Please upload comments to
http://www.regulations.gov
by using the “search” field to find the rulemaking and then following the instructions for submitting comments.

•
Email:
Please send comments to
consultation@bia.gov
and include “RIN 1076-AF68, 25 CFR part 293” in the subject line of your email.

•
Mail:
Please mail comments to Indian Affairs, RACA, 1001 Indian School Road NW, Suite 229, Albuquerque, NM 87104.

FOR FURTHER INFORMATION CONTACT:

Oliver Whaley, Director, Office of Regulatory Affairs and Collaborative Action (RACA), Office of the Assistant Secretary—Indian Affairs; Department of the Interior, telephone (202) 738-6065,
RACA@bia.gov.

SUPPLEMENTARY INFORMATION:

This proposed rule is published in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs (Assistant Secretary; AS-IA) by 209 DM 8.

Table of Contents

I. Statutory Authority

II. Executive Summary

III. Background

IV. Summary of Comments Received

A. General Comments

B. Section Comments

V. Summary of Changes by Section

A. Proposed Subpart A—General Provisions and Scope

B. Proposed Subpart B—Submission of Tribal-State Gaming Compacts

C. Proposed Subpart C—Secretarial Review of Tribal-State Gaming Compacts

D. Proposed Subpart D—Scope of Tribal-State Gaming Compacts

VI. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

B. Regulatory Flexibility Act

C. Congressional Review Act (CRA)

D. Unfunded Mandates Reform Act of 1995

E. Takings (E.O. 12630)

F. Federalism (E.O. 13132)

G. Civil Justice Reform (E.O. 12988)

H. Consultation With Indian Tribes (E.O. 13175)

I. Paperwork Reduction Act

J. National Environmental Policy Act (NEPA)

K. Effects on the Energy Supply (E.O. 13211)

L. Clarity of This Regulation

M. Public Availability of Comments

I. Statutory Authority

In enacting IGRA, Congress delegated authority to the Secretary to review compacts to ensure that they comply with IGRA, other provisions of Federal law that do not relate to jurisdiction over gaming on Indian lands, and the trust obligations of the United States. 25 U.S.C. 2710(d)(8)(B)(i)-(iii).

II. Executive Summary

The Department of the Interior (Department) is considering revisions to its regulations governing the review and approval of Tribal-State gaming compacts (25 CFR part 293). The revisions would add factors and clarify how the Department reviews “Class III Tribal-State Gaming Compacts” (Tribal-State gaming compacts or compacts).

The Department's current regulations do not identify the factors the Department considers; rather, those factors are contained in a series of decision letters issued by the Department dating back to 1988. Evolution in the gaming industry and ongoing litigation highlight the need for the Department to clarify how it will analyze Tribal-State gaming compacts to determine whether they comply with the Indian Gaming Regulatory Act of 1988 (IGRA), 25 U.S.C. 2701,
et. seq.,
other provisions of Federal law that does not relate to jurisdiction over gaming on Indian lands, or the trust obligations of the United States to Indians.

III. Background

In 1988 the Indian Gaming Regulatory Act acknowledged that many Tribes were already engaged in gaming, and placed limits on Tribes' sovereign right to conduct gaming. It sought to ensure that Indian Tribes are the primary beneficiaries of the gaming operation, but also authorized State governments to play a limited role in the regulation of class III Indian gaming by negotiating agreements with Tribes called “Class III Tribal-State Gaming Compacts” (class III gaming compacts or compacts). Congress sought to strike a balance between Tribal sovereignty and States' interests in regulating gaming and “shield it from organized crime and other corrupting influences.” 25 U.S.C. 2702(2).

At the time of IGRA's enactment, Indian gaming represented an approximately $121 million segment of the total United States gaming industry, while Nevada casinos reported approximately $4.1 billion in gross gaming revenue.
1

By the end of fiscal year 2021, Indian gaming represented an approximately $39 billion segment of the total United States gaming industry, with commercial gaming reporting $53 billion.
2

In the Casino City's Indian Gaming Industry Report 2018 Edition, Allen Meister, Ph.D. of Meister Economic Consulting, estimated that Indian Gaming gross gaming revenue for 2016 of approximately $31.5 billion represented a total economic contribution of $105.4 billion across the U.S. economy.

1

See, e.g.,
“The Economic Impact of Tribal Gaming: A State-By-State Analysis,” by Meister Economic Consulting and American Gaming Association dated November 8, 2018.

2

See, e.g.,
“The Nation Indian Gaming Commission's annual gross gaming revenue report for 2021;”
see also
American Gaming Association's press release “2021 Commercial Gaming Revenue Shatters Industry Records, reaches $53B.”

In line with the growth in Indian gaming, State licensed commercial gaming and State lotteries have also experienced growth. In the early 1980's when Congress began considering legislation addressing Indian gaming, two States had legalized commercial casino gaming and seventeen had State run lotteries. By 2017, twenty-four States had legalized commercial casino gaming resulting in approximately 460 commercial casino locations, excluding locations with State licensed video lottery terminals, animal racetracks without gaming machines, and card rooms. In 2017, the gross gaming revenue for the commercial casino industry represented approximately $40.28 billion and generated approximately $9.2 billion in gaming tax revenue. Further, 44 States were operating State lotteries in 2017.

The expansion of State lotteries and State licensed commercial gaming can place Tribes and States in direct competition for market share. Also, advancements in gaming technology and changes in State and Federal gaming law since the passage of IGRA

has shaped the compact negotiation process. As a result, class III gaming compacts have expanded in scope and complexity as the parties seek mutually beneficial provisions. However, IGRA did not anticipate the compact negotiation process would be between competitors, rather sovereign governments seeking to regulate gaming.

Through IGRA, Congress required Tribes to enter into a compact with a State to conduct class III gaming. 25 U.S.C. 2710(d)(1)(C). IGRA requires States to negotiate class III gaming compacts in good faith, limits the scope of bargaining for class III gaming compacts, and prohibits States from using the process to impose any tax, fee, charge, or other assessment on Tribal gaming operations. 25 U.S.C. 2710(d)(3)(A); 2710(d)(3)(C); and 2710(d)(4).

Under IGRA, the Department has 45 days to complete its review and either approve or disapprove a class III gaming compact. If the Department takes no action within that 45-day period, the Tribal-State gaming compact is considered approved by operation of law—to the extent that it is consistent with IGRA. In order for a compact to take effect, notice of its approval must be published in the
Federal Register
.

The regulations that codify the Department's review process for Tribal-State gaming compacts are found at 25 CFR part 293 and were promulgated in 2008 (“2008 Regulations”). 73 FR 74004 (Dec. 5, 2008). The Department's 2008 Regulations were designed to “address[es] the process for submission by Tribes and States and consideration by the Secretary of Class III Tribal-State Gaming Compacts, and [are] not intended to address substantive issues.” 73 FR 74004-5. The Department's consideration of substantive issues appears in a number of decision letters. In addition, a body of case law has developed addressing the appropriate boundaries of class III gaming compacts. Through this rule making, the Department seeks to codify longstanding Departmental policies and interpretation of case law in the form of substantive regulations which would provide certainty and clarity on how the Secretary will review certain provisions in a compact.

On March 28, 2022, the Department published a Dear Tribal Leader Letter announcing Tribal consultation pursuant to the Department's consultation policy and under the criteria in E.O. 13175, regarding proposed changes to 25 CFR part 293. The Department held two listening sessions and four formal consultation sessions. The Department also accepted written comments until June 30, 2022.

The Dear Tribal Leader Letter included a Consultation Draft of the proposed revisions to 25 CFR part 293 (hereinafter Consultation Draft); a Consultation Summary Sheet of Draft Revisions to part 293; and a redline reflecting proposed changes to the 2008 Regulations. The Dear Tribal Leader Letter asked for comments on the Consultation Draft as well as responses to seven consultation questions.

The Department received a number of written and verbal comments from Tribal leaders and Tribal advocacy groups. The Department also received written comments from non-Tribal entities which are not addressed in the Tribal consolation comment and response but will be included and addressed as part of the public comment record.

IV. Summary of Comments Received

A. General Comments

Several commenters commented on the process and timing of the proposed rulemaking process. Some requested additional consultations during the rulemaking process, some requested the Department engage in extensive consultations equating to negotiated rulemaking, and others encouraged the Department to proceed with the rulemaking expeditiously.

The Department acknowledges the comments. The Department seeks to balance robust consultation with expeditious processing of the rulemaking. The Department held four virtual consultation sessions, two in-person listening sessions, and is providing additional opportunities for comment on the proposed regulations, which reflect the significant input of Tribal leaders during the scheduled consultation sessions and their written comments.

A number of commenters responded to the Department's first consultation question: “[d]o the draft revisions increase certainty and clarity in the Secretary's compact review process? Are there additional ways to increase certainty and clarity?” Commenters expressed support for the proposed revisions to part 293 and noted the Consultation Draft appeared to codify longstanding Departmental policies and interpretation of case law in the form of substantive regulations which would provide certainty and clarity on how the Secretary will review certain provisions in a compact. Commenters also provided a number of specific suggested improvements to specific propose sections, including expressing concerns that some provisions as written are overly broad or vague and may cause confusion. Other commenters cautioned the Department should not apply the proposed regulations in a rigid or paternalistic manner and when possible, defer to a Tribe's sovereign decision making.

The Department acknowledges the comments. The Department seeks to clarify and enforce the proper scope of compacts negotiated under IGRA while deferring to and respecting Tribes' sovereign decision making. The proposed regulations codify existing limitations on Tribes and States negotiating compacts pursuant to IGRA. The Department has addressed specific suggested improvements in the relevant sections below including narrowing some provisions.

A number of commenters responded to the Department's second consultation question: “[d]o the draft revisions provide sufficient guidance to parties engaged in compact negotiations? Are there ways to provide additional guidance?” Commenters expressed support for the Consultation Draft and opined that the proposed new substantive provisions would improve the guidance for negotiating parties. Commenters also recommended the Department include in the proposed rule a codification of the Department's longstanding practice of offering “technical assistance” to negotiating parties. Other commenters noted “sufficient guidance” was a laudable but ultimately unachievable goal. One commenter expressed concern with the Consultation Draft and argued the proposed substantive provisions are cumbersome, unnecessary, and would result in increased requests for technical assistance as Tribes negotiate with State and local governments as required by IGRA.

The Department acknowledges the comments. The Department addresses technical assistance in a separate comment summary and response below. The Department notes the proposed substantive provisions reflect a codification of longstanding Department policy and case law, including the proper scope of a compact. The Department notes intergovernmental agreements between Tribes and States, or local governments can be beneficial, however, Congress provided a narrow scope of topics Tribes and States may include when negotiating a Tribal-State gaming compact.

Commenters requested clarification on whether the proposed regulations would impact ongoing negotiations.

The Department notes the Consultation Draft, and the proposed

regulations are prospective and reflect a codification of existing Departmental policy, past precedent, and case law. The Consultation Draft has been made public and the Department encourages Tribes and States that are engaged in negotiations to review the Consultation Draft and the proposed regulations.

A number of commenters requested the Department clarify the effective date of the proposed substantive provisions and questioned whether they would be retroactive. Commenters requested clarification when parties may submit under the new regulations once promulgated. One commenter provided proposed text for a section addressing the effective date and grandfather clause.

The Department has accepted the proposed regulatory text in part and added a section to the proposed rule addressing the effective date of the proposed regulations. The new section is numbered § 293.30. IGRA limits the review period to approve or disapprove compacts or amendments to 45 days. As a result, the Department cannot retroactively approve or disapprove compacts or amendments after the 45-day review period has run.

A number of commenters questioned the Secretary's authority to promulgate substantive regulations interpreting IGRA's scope of compact negotiations. Commenters further questioned the Secretary's authority to determine evidence of bad faith noting IGRA delegated that role to the courts and requested clarification on how the Secretary will find bad faith.

The Secretary has authority to promulgate these regulations on the procedures for the submission and review of compacts and amendments based on the statutory delegation of powers contained in IGRA and 25 U.S.C. 2, and 9. In enacting IGRA, Congress delegated authority to the Secretary to review compacts to ensure that they comply with IGRA, other provisions of Federal law that do not relate to jurisdiction over gaming on Indian lands, and the trust obligations of the United States. 25 U.S.C. 2710(d)(8)(B)(i)-(iii). IGRA establishes the parameters for topics that may be the subject of compact and amendment negotiations and included in compacts. Thus, in reviewing submitted compacts and amendments, the Secretary is vested the authority to determine whether the compacts contain impermissible topics. The Department recognizes that section 2710(d)(7)(A)(I) vests jurisdiction in district courts over any causes of action . . . arising from the failure of a State . . . to conduct [ ] negotiations in good faith.” Therefore, the Department has replaced the phrase “evidence of bad faith” with the phrase “evidence of a violation of IGRA” in the proposed rule. This change harmonizes the Department's regulations, with IGRA's plain language, is prescribing those topics, as addressed by IGRA, that may provide evidence of a violation of IGRA and which a court may find as evidence of bad faith negotiations to assist Tribes with their negotiations.

A number of commenters requested the Department include a “
Seminole
Fix” in the proposed rule, referencing the decision by Supreme Court of the United States in
Seminole Tribe
v.
Florida,
517 U.S. 44 (1996), holding Congress could not waive a State's sovereign immunity through IGRA. Some commenters recommended the Department provide technical amendments to 25 CFR part 291 in response to
Texas
v.
United States
(Traditional Kickapoo Tribe), 497 F.3d 491 (5th Cir. 2007) and
New Mexico
v.
United States
(Pueblo of Pojoaque), 854 F.3d 1207 (10th Cir. 2017). Commenters stated the Fifth Circuit and the Tenth Circuit found part 291 did not provide for an independent forum to make the threshold finding that the subject State failed to conclude negotiations in good faith and therefore part 291 was too far adrift from Congressional intent to be allowed to stand. Other commenters recommended providing a mechanism for the Department to seek intervention by the Department of Justice when States raise their 11th Amendment Immunity to a Tribe's challenge of bad faith negotiations under IGRA. Commenters noted without a workable
Seminole
fix, Tribes are often at the mercy of the States who are often the Tribe's gaming competitor and seek to undermine Tribal sovereignty. Commenters noted some Tribes are forced to either accept a State's demand for improper provisions or revenue sharing, or risk a notice of violation and closure for operating without a compact.

The Department notes a minority of circuits have invalidated the Department's part 291 Regulations, which were promulgated to provide Tribes with Secretarial Procedures in response to the Supreme Court's decision in
Seminole Tribe of Florida
v.
Florida,
517 U.S. 44 (1996), which found that Congress lacked the authority to subject States to suits by Indian Tribes under IGRA. The Department is considering all avenues including technical amendments to part 291. The proposed part 293 regulations reflect the Department's efforts to ensure all Tribes may benefit from the goals of IGRA while enforcing IGRA's limited scope of compacts. The inclusion of clear guidance and codification of key tests as well as articulating situations that may be evidence of a violation of IGRA and therefore evidence of bad faith negotiations is a step in this direction. The Department declines to codify a formal process by which Tribes may submit evidence of bad faith in negotiations to the Department for its consideration and referral to the Department of Justice. The Department has long coordinated with the Department of Justice and the National Indian Gaming Commission regarding enforcement or non-enforcement of IGRA's requirement that a Tribe conduct class III gaming pursuant to a compact or secretarial procedures.
3

The Department will continue to coordinate with the Department of Justice and the National Indian Gaming Commission regarding enforcement of IGRA.

3

See, e.g.,
Statement of Indian Gaming in New Mexico, DOJ 95-459 (August 28, 1995); Statement of Indian Gaming in New Mexico, DOJ 95-553 (October 27, 1995); and Justice Department and California announce plan for orderly transition to legal Indian Gaming, DOJ 98-102 (March 6, 1998).

Several commenters requested the Department include additional examples of “bad faith” including: take it or leave it compacts; a State's refusal to offer substantially similar compacts to all Tribes in the State; and a State's refusal to negotiate a compact or amendment until an existing compact is set to expire.

The Department acknowledges these may be examples of bad faith negotiations under IGRA. The Department has included in the proposed rule several provisions which the Department considers to be evidence of a violation of IGRA. The Department will continue to coordinate with the Department of Justice and the National Indian Gaming Commission regarding enforcement of IGRA.

Several commenters requested the Department provide notice to the Department of Justice when a compact is disapproved and request the Department of Justice file a bad faith lawsuit against the State on behalf of the Tribe.

On its face, the disapproval of a compact or amendment is not evidence of bad faith negotiations. If, however, the Tribe provides evidence that the State forced the Tribe to include the disapproved provision, the Department may request the Department of Justice file a bad faith lawsuit on behalf of the Tribe in certain situations.

Several commenters requested the Department publish all compact decision letters as well as deemed approval letters in an accessible index.

The Department acknowledges the comments. The Department strives to publish all compact decision letters as well as deemed approval letters on the Office of Indian Gaming's website, which includes an accessible index.

A number of commenters requested the Department include in the proposed rule a formal codification of the Office of Indian Gaming's practice of providing technical assistance to Tribes and States. Some commenters requested a fixed timeline for the Department to issue a technical assistance letter. Other commenters requested the Department include the option for a `legal opinion' or formal Departmental action in response to some requests for technical assistance.

The Department declines to accept the recommendation. Technical assistance is neither a `pre-determination' nor `legal guidance,' rather it is often an explanation of past precedent and interpretation of case law. The Department notes Tribes and States have presented a wide range of unique questions to the Office of Indian Gaming, which may require extensive policy and legal research. Further, depending on the parties' needs and the scope of their requests, some may prefer verbal technical assistance over written technical assistance. The Department will continue to provide technical assistance.

Several commenters discussed their experiences negotiating compacts with States or seeking to enforce disputes under their compacts. Other commenters discussed the importance of Indian gaming to their Tribes as a source of revenue, job growth, and economic self-sufficiency.

The Department acknowledges these comments.

Several commenters discussed legal articles, including work by former Assistant Secretary—Indian Affairs Kevin Washburn.

The Department acknowledges these comments.

Several commenters recommended the Department quote IGRA's statutory language rather than paraphrase the statute as that can result in unintended changes. A commenter recommended the Department narrowly tailor the proposed substantive provisions. Other commenters also noted a primary concern is the definition of gaming activity in § 293.2(d) and used in § 293.23 of the Consultation Draft, § 293.24 of the proposed draft regulations.

The Department adhered closely to the statutory text in the Consultation Draft and the proposed substantive provisions codify longstanding Departmental policy and case law. The Department notes the term “gaming activity” is not defined in IGRA. As discussed below, the Department has revised the definition of “gaming activity” in § 293.2, as well as addressed it in § 293.24.

Consultation Question: Should the draft revisions include provisions that facilitate Statewide remote wagering or internet gaming?

A number of commenters responded to the Department's sixth consultation question: “[s]hould the draft revisions include provisions that facilitate Statewide remote wagering or internet gaming?” The overwhelming majority of commenters agreed that the Department should include provisions relating to i-gaming. Several commenters believe that i-gaming provisions are necessary because Tribes need to be able to compete in the digital industry. Other commenters pointed out that the draft revisions should address i-gaming and provide for its allowance as negotiated between a Tribe and State. Another commenter explained that IGRA encourages agreements between sovereigns.

Several other commenters stated that the State law model of i-gaming is not a substitute for i-gaming under IGRA and Tribes should be able to engage in internet gaming under IGRA. A handful of comments also expressed support for the Department's inclusion but questioned the need to define gaming activity as including the elements of prize, consideration, and chance, as it could potentially be misconstrued in a court ruling that requires all three elements to be present on Indian lands.

Finally, several of the commenters in support of inclusion of i-gaming also praised the Department's i-gaming analysis in the June 21, 2021, Deemed Approved letter to the Seminole Nation. At least three commenters also submitted proposed language for the Department to address i-gaming.

A handful of commenters opposed the Department addressing i-gaming in the draft revisions. One commenter stated that the issue was not ripe for inclusion; another stated that i-gaming was subject to State law and there's no case law to state that the Secretary has power over this topic; another thought that the issue is an unresolved matter of Federal law and the Department should not weigh in; and another believed there is a lack of ability to regulate i-gaming and would harm brick and mortar facilities.

Two commenters did not expressly support or oppose the inclusion of i-gaming; one noted that the Department should further consult with Tribes before making any decisions and the other noted that while the Department's views on the legality of such a provision would be helpful, it is unclear what further provisions would be proposed. Other commenters shared personal experiences and/or legal analysis which helped inform their decision-making.

The Department acknowledges the comments and has added a new section to the proposed rule “§ 293.29 May a compact of amendment include provisions addressing Statewide remote wagering or internet gaming,” addressing Statewide remote wagering and internet gaming. The IGRA provides that a Tribe and State may negotiate for “the application of the criminal and civil laws and regulations of the Indian Tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity” and “the allocation of criminal and civil jurisdiction between the State and the Indian Tribe necessary for the enforcement of such laws and regulations.” 25 U.S.C. 2710(d)(3)(c)(i)-(ii). The Department's position is that the negotiation between a Tribe and State over Statewide remote wagering or i-gaming falls under these broad categories of criminal and civil jurisdiction. Accordingly, provided that a player is not physically located on another Tribe's Indian lands, a Tribe should have the opportunity to engage in this type of gaming pursuant to a Tribal-State gaming compact.

B. Section Comments

Comments on § 293.1 What is the purpose of this part?

Several commenters recommended the Department revise § 293.1(a) by including the word “or” after the word “and” so that the relevant provision would read “[p]rocedures that Indian Tribes and/or States must use when submitting . . . .” The commenters suggested change would clarify either party may submit compacts or compact amendments.

The Department has accepted this suggested revision and notes that § 293.6 explains either the Tribe or the State may submit the compact or amendment.

Several commenters supported the proposed revisions to § 293.1.

The Department acknowledges the comment.

Comments on § 293.2 How are key terms defined in this part?

Several commenters recommended the Department retain the 2008 Regulation's introductory text for § 293.2 “[f]or purposes of this part, all

terms have the same meaning as set forth in the definitional section of the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2703 and any amendments thereto.”

The Department declines to accept the recommendation to retain the 2008 Regulation's introductory text for § 293.2. The Department proposed changes to the introductory text in § 293.2 to improve clarity.

One commenter recommended the phrasing “[i]n addition to terms already defined in IGRA, this part defines the following additional key terms.”

The Department declines to accept the recommendation. One term “Indian Tribe” is defined in IGRA at 25 U.S.C. 2703(5) and refined here as “Tribe.” The proposed language indicates the defined terms in § 293.2 are all new or additional terms, which could cause confusion.

Several commenters expressed support for the proposed revisions to § 293.2 and noted the new definitions for key terms are consistent with IGRA.

The Department acknowledges the comments.

Comments on § 293.2(a)—Amendment

Several commenters suggested the definition of
Amendment
in § 293.2(a) and as applied in § 293.4 is too broad. Other commenters suggested the Department clarify the definition of
Amendment
to exclude strictly administrative or procedural amendments from review under § 293.4.

The Department has revised § 293.4 to address these and related comments on that section.

One commenter requested the Department revise the definition of
Amendment
to include “or an amendment to secretarial procedures prescribed under 25 U.S.C. 2710(d)(7)(B)(vii) when such amendment is agreed upon by the Indian Tribe and State.” The commenter explained this addition would clarify that any such agreements are treated as a “compact” or “compact amendment” for the purposes of IGRA's 45-day review period.

The Department has accepted the recommendation and include the proposed text in § 293.2(a).

Comments on § 293.2(c)—Extension

Several commenters expressed support for the revised definition of
Extension
in § 293.2(c).

The Department acknowledges the comments.

One commenter recommended the Department remove the words “or amendment” from the definition of
Extension
and noted that § 293.5 does not include the words “or amendment.”

The Department notes the terms “Compact” and “Amendment” are frequently used interchangeably depending on the underlying facts and needs of the parties to the agreement. For that reason, the Department used the phrase “compact or amendment” throughout the Consultation Draft of part 293. The Department has made a conforming edit to § 293.5.

Comments on § 293.2(d)—Gaming Activity

Several commenters recommended the Department revise the definition of “gaming activity or gaming activities” in § 293.2(d) by replacing the word “prize” with the word “reward.” The commenters explained the term `reward' is the more commonly used term in the Tribal gaming industry.

The Department accepted the recommended revision to § 293.2(e), in part. The definition of
gaming activity or gaming activities
now reads “
[g]aming activity or gaming activities
means the conduct of class III gaming involving the three required elements of change, consideration, and prize or reward.”

Several commenters expressed concern that including a definition of
Gaming Activity
in part 293 could be construed to require all elements of the gaming activity to occur on a Tribe's Indian lands thereby precluding Tribes from negotiating Statewide mobile or i-gaming in compacts.

The Department acknowledges this concern and has included a new proposed § 292.29 which addresses i-gaming in compacts.

Comments on § 293.2(e)—Gaming Facility

One commenter recommended the Department include a defined term for “gaming spaces” consistent with the rational in the Department's 2021 disapprovals of three California compacts. The commenter explained that including “gaming spaces” defined term would resolve a logical conflict between the Department's definition of
gaming facility
and 25 U.S.C. 2710(d)(3)(C)(vi), which permits a compact to include “standards for the . . . maintenance of the gaming facility, including licensing.” The commenter explained that by defining
gaming facility
as the whole structure for the purposes of building maintenance under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi); and
gaming spaces
for section 2710(d)(3)(C)(i), (ii), the first clause of (vi), and (vii), would provide parties with clarity regarding the appropriate limits of State oversite under IGRA.

The Department accepted the recommendation and has included
gaming spaces
as a defined term and revised the definition of
gaming facility
by moving the clause addressing the gaming spaces to the new paragraph (f)
gaming spaces.
The revised definition of
gaming facility
addresses the commenter's concern regarding building maintenance and licensing under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi).

A number of commenters addressed the clause addressing the gaming spaces in the proposed definition of
gaming facility
in § 293.2(e).

Several commenters recommended the Department replace the phrase “the spaces that are necessary for conduct of gaming” with the phrase “the spaces that are directly related to, and necessary for, the operation of class III gaming activities.” Commenters explained that phrasing is more consistent with how the Department has described the appropriate reach of the term “gaming facility” in a compact.

Several commenters recommended the Department replace the phrase “including the casino floor” with the phrase “such as the casino floor.” Commenters explained this change would permit the parties to determine which areas should be properly included and which areas should properly be excluded.

Several commenters recommended the Department revise the phrase “class III gaming device, and storage areas” by adding the word “and” before the phrase and deleting the comma after the word “device” so that the phrase would read “and class III gaming devices and supplies storage areas.” Another commenter recommended adding the work “gaming” before the word “supplies” to read “gaming supplies storage areas.”

Several commenters recommended adding the phrase “and other secured areas” at the end of the definition.

Several commenters recommended clarifying that the definition of
gaming facility
excludes areas that merely provide amenities to gaming patrons—hotels, restaurants, and other spaces that are not directly used for the conduct of class III gaming.

The Department has accepted the recommended revisions to the clause addressing the gaming spaces in the definition of
gaming facility
in part. The new definition of
gaming spaces
incorporates the suggested revisions and continues to seek the smallest physical footprint of potential State jurisdiction over a Tribe's land under IGRA. This

definition is intended to codify the Department's long-standing narrow read of 25 U.S.C. 2710(d)(3)(C) as applying only to the spaces in which the operation of class III gaming actually takes place. The revised definition of
gaming facility
addresses building maintenance and licensing under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi) and is intended to be narrowly applied to only the building or structure where the gaming activity occurs.
4

4

See, e.g.,
Letter to the Honorable Peter S. Yucupicio, Chairman, Pascua Yaqui Tribe of Arizona, from the Director, Office of Indian Gaming, dated June 15, 2012, at 5, and fn. 9, discussing the American Recovery & Reinvestment Act of 2009 and the IRS's “safe harbor” language to reassure potential buyers that tribally-issued bonds would be considered tax exempt by the IRS because the bonds did not finance a casino or other gaming establishment.

One commenter recommended the Department include the term “structure” to reflect the diversity of structures Tribes utilize for the conduct of Gaming.

The Department has accepted the recommended revision to the definition of
gaming facility.
The definition of
gaming facility
in § 293.2(e) now reads “the physical building or structure, where the gaming activity occurs.

Several commenters recommended the Department include a definition for the term “project” in § 293.2, as part of the definition of the term “gaming facility” in § 293.2(e). The commenters explained that some States have used the term “project” or “gaming project” in conjunction with “gaming facility” to extend State oversight and taxation through triggering extensive environmental reviews and impact or mitigation payments when a Tribe seeks to develop or expand a “gaming facility.”

The Department declines to include a definition for the term “project.” Proposed revisions to part 293, including the definitions of
gaming facility
and
gaming spaces,
and proposed substantive provisions in §§ 293.24, 293.25, and 293.28 build on the Department's narrow read of the permissible scope of a Tribal State compacts, and is consistent with the Department's disapproval of compacts from the State of California in part due to expansive definitions of “gaming facility” and “project.”

Comments on the Term Necessary for

Several commenters recommended the Department define or otherwise articulate a standard for interpreting the term “necessary for” as it is used in 25 U.S.C. 2710(d)(3)(C) and 25 CFR part 293. The commenters further recommended the Department defer to a Tribe's reasonable determination of which provisions in a compact are “necessary for the operation of class III gaming.”

The Department notes there is not a strict definition for “necessary,” therefore, we must look to the context in which it is used in the statute. As used in IGRA, “necessary” is a limiting phrase, or one that employs the common law use of “necessary” in the strict sense of indispensable or essential.
5

When applying provisions which incorporate “necessary for” in IGRA and in part 293 the Department will ask “is this provision absolutely needed for the Tribe to operate class III gaming?”

5
“Like ordinary English speakers, the common law uses `necessary' in this strict sense of essential or indispensable.”
Vorchheimer
v.
Philadelphian Owners Ass'n,
903 F.3d 100, 106 (3d Cir. 2018) (discussing Congress' use of “necessary” in legislation where no definition provided). “[W]hen Congress wants to loosen necessity to mean just `sufficiently important,' it uses the phrase `reasonably necessary.' ”
Id.
at 107;
see Ayestas
v.
Davis,
__ U.S. __, 138 S. Ct. 1080, 1093 (2018) (“[18 U.S.C. 3599] appears to use the term `necessary' to mean something less than essential. The provision applies to services that are `reasonably necessary,' but it makes little sense to refer to something as being `reasonably essential.' ”).

Comments on § 293.3 What authority does the Secretary have to approve or disapprove compacts and amendments?

Several commenters supported the proposed revisions to § 293.3, but questioned if the internal cross-reference to § 293.14 is accurate.

The Department acknowledges the comments. The internal cross-reference to § 293.14 appears in the current § 293.3 and the redline reflects a strikeout of “293.14” with the updated cite to § 293.15.

Several commenters recommend that § 293.3 cite the statutory authority of the Secretary to approve or disprove a compact or amendment. Commenters noted other sections in part 293 address the baseline requirements of compact execution and submissions.

The Department has revised § 293.3 to remove references to the signatures of the parties.

One commenter recommended the Department revise § 293.3 by adding the phrase: “and an amendment resulting from another agreement, including, but not limited to, agreements, other documents, dispute resolutions, settlement agreements, or arbitration decisions.”

The Department declines to include the proposed language in § 293.3. The Department notes revisions to §§ 293.4, 293.7, and 293.21, address amendments caused by dispute resolution agreement, arbitration award, settlement agreement, or other resolution of a dispute outside of Federal court.

Several commenters recommended the Department revise § 293.3 by adding the phrase: “and applicable approvals of both parties.”

The Department declines to include the proposed language in § 293.3. The Department notes revisions to §§ 293.7 and 293.8 address the execution and approval requirements for a compact or amendment.

Comments on § 293.4 Are compacts and amendments subject to review and approval?

Several commenters recommended the Department revise § 293.4 by moving the references to “agreements or other documents” from paragraph (a) to paragraph (b) and removing references to the State including its political subdivisions from paragraph (b). Commenters noted these changes would allow a Tribe to determine which documents are not `amendments.'

The Department accepted the proposed revisions in part. The Department notes that proposed § 293.21 addresses compact amendments arising from dispute resolution procedures and proposed § 293.27 addresses intergovernmental agreements or memoranda of understanding between the Tribe and the State or its political subdivisions. The Department notes the § 293.4 determination process is open to either party consistent with the submission procedures in Subpart B.

Several commenters recommended the Department split § 293.4(b) into a new section addressing ancillary agreements. The commenters noted this proposed section would strike a balance between documents that amend a compact and are properly subject to Secretarial review and documents or agreements between Tribal regulators and State regulators addressing technical implementation of compact terms. The proposed new section would be titled “[w]hen are ancillary agreements and documents subject to review and approval?” The proposed new section would include three new paragraphs and contain revisions to the text of § 293.4(b).

The Department accepted the proposed revisions in part and incorporated the proposed ancillary agreement test in § 293.4(b).

Several commenters requested the Department codify a streamlined approach for review and approval of technical amendments.

The Department declines to provide a separate “streamlined” procedure for

technical amendments. IGRA provides the Secretary with a 45-day review period, which also applies to technical amendments.

Comments on § 293.4(a)

Several commenters questioned if the Secretary's authority under IGRA extended to `non-compact' agreements between Tribes and States or local governments. Commenters noted that Tribes often find agreements with local governments addressing a myriad of topics—including payments in leu of taxes, service agreements, and mutual aid agreements—are mutually beneficial and in the Tribe's best interest. Commenters further questioned the Department's inclusion of “[a]ny agreement which includes provisions for the payment from a Tribe's gaming revenue . . .” in § 293.27 as requiring review and determination under § 293.4(c), if such agreements are a “compact” or “amendment.”

The Department declines to accept the comments. The Department notes some States have included a requirement in compacts for the Tribe to enter into agreements with local governments often addressing payments by the Tribe for the loss of tax revenue. Some of these agreements are designed to avoid Secretarial review and impose impermissible taxes or other assessments on the Tribes. IGRA at 25 U.S.C. 2710(b)(2)(B) permits a Tribe to utilize net gaming revenue to fund the Tribe's government, provide for general welfare of the Tribe and its members, promote Tribal economic development, to donate to charitable organizations, and help fund operations of local governments. However, IGRA then at 25 U.S.C. 2710(d)(4) prohibits a State and its political subdivisions from imposing any “tax, fee, charge, or other assessment” on the Tribe for engaging in class III gaming. The proposed § 293.4(c) process is designed to ensure these agreements receive proper scrutiny and are not the result of a State improperly demanding—through its political subdivisions—a tax, fee, charge, or other assessment.

Several commenters requested the Department narrow the scope of § 293.4. The commenters explained that many compacts anticipate the utilization of ancillary agreements between the Tribe and the State to interpret specific compact terms for the purpose of effective operation and regulation of the day-to-day minutiae of operating class III gaming. Commenters noted that the consultation draft of § 293.4 could be construed to capture internal controls, memorandum of understanding between Tribal and State regulatory and licensing bodies, and other documents utilized by the parties to effectively and efficiently ensure the Tribe's class III gaming operation is in compliance with the compact and with IGRA.

The Department has revised § 293.4 to clarify which documents the Department considers within the definition of “amendment” subject to Secretarial review.

Other commenters noted some compacts include mechanisms for the Tribe and the State to add games pursuant to changes in State or Federal law without amending the Compact and noted that the consultation draft of § 293.4 could be construed to capture the Tribe and the State's documentation of games added pursuant to changes in State or Federal law.

The Department has revised § 293.4 to clarify which documents the Department considers within the definition of “amendment” subject to Secretarial review.

Several commenters requested the Department revise § 293.4(a) for consistency with § 293.21 by exempting Federal court decisions from Secretarial review as an `amendment.'

The Department has revised § 293.4 for consistency with § 293.21 to clarify which documents the Department considers within the definition of “amendment” subject to Secretarial review.

Several commenters raised concerns that the Department's inclusion of “dispute resolution, settlement agreements, or arbitration decisions” within § 293.4's list of documents subject to Secretarial review may discourage parties from utilizing potentially cost-effective dispute resolution methods and would increase burdens on the parties. The commenters argued the expansion of Secretarial review to include dispute resolution, settlement agreements, or arbitration decisions may increase uncertainty. Commenters also recommended the Department defer to a Tribe's determination if a document warrants Departmental review.

The Department has revised § 293.4 for consistency with § 293.21 to clarify which documents the Department considers within the definition of “amendment” subject to Secretarial review.

Other commenters expressed support for the Department's inclusion of “dispute resolution, settlement agreements, or arbitration decisions” within § 293.4's list of documents subject to Secretarial review and noted examples of settlement agreements and arbitration awards which materially change the parties' obligations under the compact in a manner that may conflict with IGRA and would otherwise have been considered an amendment subject to Secretarial review. Commenters noted an example where an arbitration panel decision added a term to the compact changing the Tribe's revenue sharing obligation beyond the compact provisions reviewed by the Secretary. Commenters noted the Tribe determined the arbitration decision amended the compact and sought Secretarial review but was prevented by the State's refusal to certify the arbitration decision as an amendment.

The Department acknowledges the concerns raised by the commenters. The Department notes the proposed changes to part 293 are intended to address these and similar situations. The Department has revised § 293.4 in response to these comments.

Several commenters requested the Department revise § 293.4(a) by removing the phrase “regardless of whether they are substantive or technical.”

The Department declines the requested revision and notes that phrase is found in the 2008 Regulations at § 293.4(b). When promulgating the 2008 Regulations the Department had proposed an exception for “technical amendments” but in response to comments on the 2008 Notice of Proposed Rulemaking, removed that provision. 73 FR 74005 (Dec. 5, 2008). The Department explained many commenters questioned how to determine if an amendment was `substantive' and subject to Secretarial review, or `technical' and not subject to Secretarial review.

One commenter recommended the Department clarify § 293.4(a) by moving the words “agreements or other documents” after the phrase “including but not limited to” along with conforming grammatical edits.

The Department incorporated the suggested edit in the revised § 293.4(a) and (c).

Comments on § 293.4(b)—Which Has Been Renumbered as § 293.4(c)

The Department has renumbered the proposed § 293.4(b) as § 293.4(c) and comments have been edited to reflect the new section number.

Several commenters expressed support for the Department's proposed process in § 293.4(c) to provide parties a determination if an agreement is a “compact” or “amendment” and must be submitted for review and approval by the Secretary. Commenters noted this proposed process provides Tribes with a similar service as the National Indian Gaming Commission's “declination

letters,” which determine if an agreement is a “Management Contract” requiring approval by the NIGC Chair.

The Department acknowledges the comments.

Several commenters requested the Department amend § 293.4(c) by including a deadline for the Department to review the submitted document and to issue a determination letter.

The Department has added a 60-day review period for a determination under § 293.4.

Other commenters requested the Department clarify if a non-party may submit a request for a § 293.4(c) determination.

The Department notes the existing 2008 Regulations at § 293.6 address the processes by which the parties to a Compact may submit it for Secretarial review. In relevant part, § 293.6 states “either party [ ] to the compact or amendment can submit.” The Consultation Draft of § 293.4(c) utilized similar language and stated, “either party may request in writing a determination . . . if their agreement is a compact or amendment.” The Department has consistently and will continue to exclude third parties from the submission and review process.

Several commenters requested the Department amend § 293.4(c) to clarify if the Department's determination letter or materials submitted pursuant to this review would be used by the Department as the basis for an adverse action against the Tribe. Commenters also requested the Department include in a § 293.4(c) determination letter a discussion of any provisions in the underlying document which may lead to subsequent disapproval as a compact under IGRA.

The Department intends for the § 293.4(c) determination process to provide parties with improved clarity whether their agreement or other document is a compact or amendment, without submitting the document for Secretarial review and approval or disapproval. The Department historically has provided parties with technical assistance as well as deemed approval letters which identify problematic provisions. The Department anticipates a § 293.4(c) determination letter may include similar guidance; however, the Department declines to revise § 293.4(c) to require such guidance.

Several commenters requested the Department clarify how and where a party may submit a request and encouraged the Department to allow flexibility in submitting such requests.

The Department has revised § 293.9 to clarify that compacts, amendments, written requests for a determination pursuant to § 293.4(c), or requests for technical assistance must be submitted to the Office of Indian Gaming at the address listed in § 293.9. The Department further notes that § 293.9 has been revised to include the email address “
indiangaming@bia.gov
”.

Several commenters requested the Department amend § 293.4(c) to require the Department's determination letter clearly state in the introduction of the letter either: “Yes. This agreement constitutes a [compact/amendment] requiring secretarial approval” or “No. This agreement does not constitute a [compact/amendment] . . . .”

The Department declines to include the requested requirement within the regulatory text of § 293.4(c). The Department is required to utilize plain writing—in other words clear, concise, and well-organized writing. The Department implements this requirement by providing a brief summary of the document submitted and the Department's determination in the introductory section of decision letters.

Several commenters requested the Department revise the concluding sentence of § 293.4(c) to state: “[t]he Department will issue a letter providing notice of the Secretary's determination.” Commenters suggested this would reduce potential ambiguity.

The Department has accepted the requested revision to the concluding sentence of § 293.4(c).

Comments on § 293.5 Are extensions to compacts or amendments subject to review and approval?

Several commenters supported the proposed revisions to § 293.5 and noted the revisions reflected the Department's longstanding practice of treating extensions as a type of amendment which is exempted from Secretarial approval prior to publication of a notice in the
Federal Register
.

The Department acknowledges the comments.

Several commenters requested the Department clarify the distinctions between an “amendment” and an “extension” as defined in § 293.2 and applied in §§ 293.4 and 293.5. Commenters noted an extension may have the effect of changing the “operation and regulation” of a Tribe's Class III gaming activities.

The Department has revised § 293.2(c). The 2008 Regulations adopted the provision exempting extensions from Secretarial review in response to a comment on the draft rule, which had proposed to exempt “technical amendments” but not substantive amendments or extensions.
See
73 FR 37909 (July 2, 2008) and 73 FR 74005. Extensions are a form of amendment, which changes only the term of the compact, but not other provisions in the compact.

One commenter suggested the Department provide a mechanism for a Tribe to unilaterally extend an existing compact in the event the Tribe and the State are unable to successfully negotiate an amendment or new compact. The commenter noted such a mechanism would incentivize the State to engage in timely good faith negotiations and protect Tribes from risking the expiration of an existing compact due to a State's negotiation delays.

The Department appreciates the concern raised by the commenter but lacks the authority to provide a mechanism for unilateral compact extensions. We will include this type of provision as a best practice in providing technical assistance.

Several commenters questioned if the parties to an approved compact with an automatic renewal provision or automatic extension provision are subject to § 293.5, when the provisions of the compact are satisfied thereby extending the compact.

The Department notes compacts may have provisions allowing for renewal or extensions of the term of the compact if certain provisions are met. The Department does not consider the renewal or extension of the term of the compact under the very terms of the compact as an
extension
as defined in § 293.2(e) and requiring publication of notice in the
Federal Register
under § 293.5. The Department has revised the definition of
extension
to clarify extensions are new agreements between the parties to extend the compact term rather than the exercise of an existing provision.

Several commenters requested the Department amend § 293.5 to limit the reference to documents required under § 293.8 to paragraph (b) and (c) as required by the 2008 Regulations. Commenters stated the requiring compliance with all of § 293.8 would be a burden on Tribes seeking an extension.

The Department has revised the reference in § 293.5 to 293.8 in response to these comments. Section 293.5 now requires the documents listed in § 293.8(a) through (c). The Department notes the provision in § 293.8(a) reflects the definition of
extension
in § 293.2(e).

Several commenters questioned the necessity for the Department to publish a notice of compact extension in the
Federal Register
in order for the

extension to be “in effect.” Commenters questioned if the process for extensions may result in undue delay because the extension requires a
Federal Register
document but is exempted from Secretarial review and not subject to the statutory 45-day review period.

The Department disagrees with the comment. An extension is subject to the 45-day statutory review period. Proposed revisions to § 293.5 in the Consultation Draft included clarifying that IGRA requires publication of a notice of extension in the
Federal Register
for the extension to be in effect. The Department notes an extension is an amendment to the
duration
of the compact and under the proposed regulations continues to receive expedited processing.

Several commenters requested the Department revise § 293.5 to require publication of a notice of compact extension within 14 days of the submission of the extension.

The Department declines to revise § 293.5 to include a 14-day deadline for publishing a notice of compact extension in the
Federal Register
. The Department notes an extension is a type of amendment that receives expedited processing. Further § 293.14 addresses timing of publication of notices in the
Federal Register
in compliance with IGRA.

Several commenters requested the Department revise § 293.5 to exempt restated compacts in the same manner as extensions.

The Department declines the requested revision. A restated compact is a new restatement of existing provisions as amended in a compact, and thus, a new compact subject to review. An extension is an amendment that changes only the duration of the compact, and is not subject to review. IGRA limits the Secretary's authority to review and approve or disapprove a compact or amendment to 45 days. The Department encourages parties to utilize restated compacts or amended and restated compacts as a best practice to incorporate a series of amendments into a single document. The Department finds it helpful if the Tribe or State also submits a redlined copy of the restated compact.

Comments on § 293.6 Who can submit a compact or amendment?

Several commenters sought clarification on whether § 293.6, or other provisions in part 293, exclude third party submissions.

The Department has consistently and will continue to exclude third parties from the submission and review process. The Department's longstanding application of § 293.6 is to permit either party to the compact or amendment to submit the required documents for Secretarial review and approval. The Consultation draft of § 293.6 contained minor stylistic edits for clarity and consistency.

Several commenters expressed support for the proposed revisions to § 293.6.

The Department acknowledges the comments.

Comments on § 293.7 When should the Tribe or State submit a compact or amendment for review and approval?

Several commenters requested the Department revise § 293.7 to more accurately reflect the legal status of the document pending secretarial review, and in some instances, how an amendment may be created through compact dispute resolution procedures. One commenter requested the Department replace the phrase “legally entered into by the parties” with the phrase “duly executed by the Tribe and State in accordance with applicable Tribal and State law.” Another commenter suggested adding the phrase “or the amendment has been issued by an arbitration panel” to the end of § 293.7.

The Department notes the Consultation Draft of § 293.7 remained unchanged from the 2008 Regulations. The phrase “legally entered into” reflects the requirements of the statutory text in IGRA at 25 U.S.C. 2710(d)(8)(A), and is consistent with the requirements in § 293.8, in compliance with both Tribal law and State law. The Department has revised § 293.7 by adding the phrase “or is otherwise binding on the parties” to more accurately reflect how an amendment or other ancillary agreement may be created, as described in § 293.4.

One comment suggested the phrase “legally entered into by the parties” in § 293.7 contradicts § 293.14 because the compact does not take effect until it is published in the
Federal Register
.

The Department has revised § 293.7 to state “duly executed by the Tribe and the State in accordance with applicable Tribal land State law, or is otherwise binding on the parties.” IGRA requires the compact or amendment to first be entered into by the parties; second, submitted for review by the Secretary; and third, have notice published in the
Federal Register
prior to the compact or amendment being “in effect.” 25 U.S.C. 2710(d)(3)(B).

Comments on § 293.8 What documents must be submitted with a compact or amendment?

Several commenters noted the documents required for submission under § 293.8 may contain confidential business information of the Tribe and requested the Department maintain confidentiality of sensitive business information and protect it from release under the Freedom of Information Act.

The Department routinely receives confidential Tribal business information in response to requests for additional information under § 293.8(d) of the 2008 Regulations. This information is protected from public disclosure under exemption 4 of the Freedom of Information Act. Additionally, prior to releasing any requested tribally submitted information, the Department consults with the submitting Tribe to confirm such information is confidential business information and can properly be withheld. The Department recommends that as a best practice, Tribes should notify the Department when confidential information is submitted, so that it can be properly withheld if requested under the Freedom of Information Act.

Several commenters noted the documents required by § 293.8, if not submitted, are grounds of disapproval of a compact under § 293.16(b). Commenters requested clarity on how the Department will determine if the requirements of § 293.8 have been met and if the Department will provide parties opportunities to submit missing documents or cure deficiencies in the submitted documents.

The Department notes that § 293.16(b) clarifies that the Department must inform the parties in writing of any missing documents required by § 293.8.

Several commenters requested the Department revise § 293.8 to include an express waiver the Secretary may invoke if or when either party shows a need for additional flexibility in submitting a compact or amendment. Commenters noted parties to a compact who resort to arbitration or similar dispute resolution may be reluctant to provide the required certification of an arbitration panel decision under § 293.8(b) and (c) in an effort to avoid Secretarial review or enforcement of an unfavorable decision.

The Department declines to include a blanket waiver under § 293.8, but notes the Secretary may consider issuing a discretionary waiver in certain circumstances after consideration of the submitted documents. Certain documents, such as arbitration decisions, are self-certifying. Section

293.16 addresses the Secretary's discretionary authority to disapprove a compact or amendment.

Some commenters also noted that a Tribe may choose to adopt a compact or amendment, including an arbitration award, under protest and requested the Department revise § 293.8(b) to allow for a Tribe to adopt a compact or amendment under protest.

The Department declines to include the requested revision. Section 293.8(b) requires a Tribal resolution or other document that certifies that the Tribe has approved the compact or amendment in accordance with applicable Tribal law. The Department notes that a Tribal resolution or cover letter may articulate that the Tribe's `approval' is under protest or identify provisions in the compact or amendment that the Tribe disagrees with or is concerned violate IGRA.

One commenter questioned the Department's proposed change of pronoun in § 293.8(c) from “he or she” to “they.”

The Department made certain stylistic edits including using a gender-neutral pronoun in § 293.8(c), which is the only section that uses a pronoun.

Several commenters expressed support for the proposed revisions to § 293.8. Commenters noted that the proposed § 293.8(d) reflects proposed changes to §§ 293.4, 293.21, and 293.27, which address certain types of ancillary documents which are sometimes referenced or required by a compact or amendment.

The Department acknowledges the comments.

Several commenters expressed concern with § 293.8(d) and questioned if the documents required by § 293.8 were subject to secretarial review and approval. Commenters noted that the Consultation Draft of § 293.4 expanded the Department's definition of compacts or amendments subject to Secretarial review and appeared to conflict with § 293.8(d). Commenters further noted §§ 293.4 and 293.8(d) could capture Tribal Gaming ordinances and/or minimum internal control standards which may not be drafted at the time of compact submission. Commenters noted a broad reading of § 293.8(d) posed an undue burden on Tribes and impermissibly intruded into Tribal self-governance and self-determination.

The Department has revised § 293.8(d) to clarify this provision does not apply to Tribal Gaming Ordinances subject to review and approval by the Nation Indian Gaming Commission pursuant to 25 U.S.C. 2710 and 25 CFR part 522. Further, the Department has revised § 293.4 to clarify which documents are compact or amendments subject to Secretarial review. The documents identified in § 293.8(d) allow the Department to understand how the compact or amendment interacts with other documents and agreements, which in some instances are treated as grounds for material breach of the compact. The Department notes in some instances compacts have utilized ancillary documents to improperly impose State law or State law equivalent onto Tribal governments and a Tribe's Indian lands.

Several commenters requested the Department revise § 293.8(d) by including the phrase “provided however that nothing herein shall prohibit the amendment, modification, or other changes to Tribal ordinance or laws and any such change, amendment, or modification is not required to be submitted for review and approval unless otherwise expressly required by Federal law.”

Several commenters requested the Department amend proposed § 293.8(d) to state that any agreement between a Tribe and a State, its agencies or its political subdivisions required by a compact or amendment if the agreement requires the Tribe to make payments to the State, its agencies, or its political subdivisions, or it restricts or regulates a Tribe's use and enjoyment of its Indian Lands. Commenters argued this language is more narrowly tailored and addresses the concerns raised in § 293.28 of the Consultation Draft. Commenters requested the Department defer to a Tribe's decision to provide voluntary payments to local governments as permitted by IGRA at 25 U.S.C. 2710(b)(2)(B)(v).

One commenter suggested comprehensive revisions to Section 293.8, including renumbering the subsections and adding two new sections. The commenter proposed adding references to amendments arising out of dispute resolution processes including arbitration. The commenter proposed adding a new section addressing the Secretary's authority to waive the requirements of § 293.8. The commenter also proposed adding a section requiring the Secretary to provide notice to the parties within 14 business days if the Secretary determines documents required by § 293.8 are missing and permit the parties to either submit the documents or request a waiver of § 293.8.

The Department declines to include the requested new provisions in § 293.8. The Department notes that the requested provision addressing the Secretary's authority to offer a wavier under 25 CFR 1.2 is not required for the Secretary to issue a waiver of specific requirements. The Department also notes that the requested provision addressing a notice to the parties providing an opportunity to cure deficiencies reflects the Department's longstanding practice. Additionally, the remaining language in that provision addresses the Secretary's authority to disapprove a compact or amendment and is addressed in § 293.16.

Several commenters expressed concerns with § 293.8(e), arguing the section is vague and ambiguous, potentially permitting the Department to request documents unrelated to the Secretary's review of the submitted compact.

The Department notes § 293.8(e) in the Consultation Draft retains the text of § 293.8(d) in the 2008 Regulations. This provision allows the Department to request additional information—when needed—to determine if a submitted compact complies with IGRA.

Comments on § 293.9 Where should a compact or amendment be submitted for review and approval?

A number of commenters responded to the Department's seventh consultation question “[s]hould the draft revisions include provisions that offer or require the submission of electronic records?” Commenters encouraged the Department to include provisions allowing electronic submission but cautioned against requiring electronic submission. Commenters noted electronic submission is less expensive and is faster than traditional methods of submission. Commenters also noted parties should be provided reasonable flexibility when submitting compacts or amendments for Secretarial Review. Several commenters questioned the need for the inclusion of electronic submission in the proposed regulations, noting in their experience the technical requirements of submission are not a significant consideration between parties negotiating a compact.

The Department acknowledges the comments and has included the Office of Indian Gaming's email address in § 293.9. The Department notes the Consultation Draft included proposed revisions to the 2008 Regulations which were stylistic or technical in nature including electronic submission.

Several commenters requested the Department revise § 293.9 by removing the requirement for hard copy submission of the “original copy” when a party chooses to utilize email submission. Commenters noted that the Department could request an original hard copy if needed under § 293.8(e). Commenters also noted many Tribal and

State governments as well as the gaming industry are utilizing electronically signed and verified documents.

The Department will reevaluate the requirements in § 293.8(a) for an “original compact or amendment executed by both the Tribe and the State” and § 293.9 “as long as the original copy is submitted to the address listed above” as the Department updates the record keeping requirements. The Office of Indian Gaming is the formal record keeper and archivist of Tribal-State gaming compacts for the Department. The Office is bound by Departmental record keeping requirements, including electronic records.

Comments on § 293.10 How long will the Secretary take to review a compact or amendment?

Several commenters expressed support for the proposed revisions to § 293.10.

The Department acknowledges the comments.

Comments on § 293.11 When will the 45-day timeline begin?

Several commenters recommended the Department amend § 293.11 to allow for electronic submissions to trigger the 45-day review period upon submission by removing the requirement for the Office of Indian Gaming to stamp the document received. Commenters argued that the inclusion of a date stamp for electronically submitted documents is no longer necessary to confirm when the document was received. Commenters also noted the requirement for the Office of Indian Gaming to date stamp a document received could result in administrative delays.

The Department declines to remove the requirement for the Office of Indian Gaming to stamp the document received in order for the 45-day review period to begin for electronically submitted documents. The Department notes the Consultation Draft of § 293.11 reflects the removal of the cross reference to § 293.9 and the address of the Office of Indian Gaming. The consultation draft of § 293.9 was amended to include a dedicated email address for the Office of Indian Gaming to facilitate email submission of documents. The application of a date stamp for submitted documents irrespective of the submission method allows for consistent timely processing of all documents.

Several commenters requested the Department amend § 293.11 to include a requirement that the Office of Indian Gaming provide submitters with an email acknowledgement of receipt with confirmation of the 45-day review period.

The Department has revised § 293.11 to include an emailed acknowledgement of receipt to the parties when the parties have provided their email addresses.

Several commenters noted an apparent conflict between §§ 293.11 and 293.9 and requested clarification if the 45-day review period begins with the receipt of the electronic copy or upon receipt of the mailed original copy.

The Consultation Draft reflected revisions in §§ 293.9 and 293.11 to allow for electronic or hard copy submission. The Department has revised § 293.9 to clarify the Department will accept either email or hard copy submission but requires a hard copy submission in addition to the emailed copy. The 45-day review period starts when the Office of Indian Gaming date stamps a hard copy original or an electronic copy of the document.

Comments on § 293.12 What happens if the Secretary does not act on the compact or amendment within the 45-day review period?

Several commenters noted that it was unclear what the legal effect is for a compact or amendment “approved by operation of law” or “deemed approved” when a guidance letter is issued after the 45-day review period.

The Department acknowledges the comments. A guidance letter issued after the 45th day review period does not alter the effective date of the compact or amendment. The effective date of a compact or amendment is the date the document is published in the
Federal Register
, as explained in § 293.14. A compact or amendment approved by operation of law is considered to have been approved by the Secretary, but only to the extent the compact or amendment is consistent with the provisions of IGRA. A guidance letter explains the provisions the Department believes to be inconsistent with IGRA.

Many commenters noted that the added language effectively codifies the Secretary's current practice.

The Department acknowledges the comments.

One commenter indicated that the provision conflicts with the Secretarial requirements under § 293.10.

The Department disagrees with the comment. The proposed regulations at § 293.12 explain what happens if the Secretary does not act on the compact or amendment within the 45-day review period.

Several commenters stated that it was unclear if there would be a process to appeal a guidance letter issued after the 45-day review period, with one commenter suggesting that the Secretary should consider including an appeal or review process.

The Department acknowledges the comments but declines to amend the provision to include an appeal or review process.

One commenter stated that it was unclear from the provision if the Secretary's issuance of a guidance letter under this provision would impact the publication of a “deemed approved” compact in the
Federal Register
.

The Secretary's issuance of a guidance letter under this provision does not impact the publication of a “deemed approved” compact in the
Federal Register
. A guidance letter issued after the 45-day review period does not alter the effective date of the compact or amendment. The effective date of a compact or amendment is the date the notice is published in the
Federal Register
, as explained in § 293.14.

Several commenters expressed concern that the Secretary could “unapprove” a compact or amendment through issuance of a guidance letter. These commenters requested that the Department specifically address the effect of a guidance letter on a compact's approval and which provisions are not deemed approved. One commenter expressed concern that if the Secretary takes no action or issues a guidance letter, a court may interpret the Secretary's guidance letter or inaction to mean that the compact violates IGRA and is void, potentially leaving a Tribe without the authority to continue to offer gaming under the compact. One commenter based its concern on the relationship between §§ 293.12 and 293.15.

The Department acknowledges the comments. Under IGRA, the Department has 45 days to complete its review and either approve or disapprove a class III gaming compact. If the Department takes no action within that 45-day period, the Tribal-State gaming compact is considered approved by operation of law—to the extent that it is consistent with IGRA. A guidance letter issued after the 45th day of the review period does not alter the effective date of the compact or amendment. The effective date of a compact or amendment is the date the notice is published in the
Federal Register
, as explained in § 293.14. A compact or amendment approved by operation of law is considered to have been approved by the Secretary, but only to the extent the compact or amendment is consistent with the provisions of IGRA. A guidance letter explains the provisions the

Department believes to be inconsistent with IGRA.

One commenter disagreed with the inclusion of § 293.12 and stated that the Secretary should not issue guidance letters after the 45-day review period because the Secretary should only act within the 45-day review period and not beyond.

The Department disagrees with the comment. A compact is not “considered to have been approved” by operation of law also known as “deemed approved” until after the 45-day review period. The Department cannot issue a guidance letter until after the 45th day.

One commenter stated that the Secretary has an obligation to ensure that compacts between Tribes and States are rejected if they violate the provisions of IGRA and stated that § 293.12 appears to permit the Secretary to allow compacts that violate IGRA to be “deemed approved” without alerting the relevant State, Tribe, or the public that provisions of the “approved” compact violate IGRA. The commenter recommended that § 293.12 be amended to state that “[t]he Secretary, after the 45th day, is required to issue a guidance letter to the parties identifying any provisions that are inconsistent with IGRA and thus not approved by operation of law.” Another commenter suggested the Department add language stating “Accordingly, the signatory Tribe or State may subsequently challenge the non-compliant compact provisions as unenforceable or severable from the compact.”

The Department accepts the comments in part and will make the appropriate changes to § 293.12, indicating the Secretary will issue a letter confirming the 45-day review period has lapsed and therefore the compact or amendment has been approved by operation of law. The Secretary's letter may identify provisions of the “deemed approved” compact that violate IGRA. The Department takes no position on whether a Tribe or a State may subsequently challenge the non-compliant compact provisions as unenforceable or severable from the compact.

One commenter recommended that the language in this section stating that “[t]he Secretary is not required to issue a letter, and if the Secretary does issue a letter, any such letter may offer guidance to the parties on the Department's interpretation of IGRA,” be stricken.

The Department agrees with the changes and will strike the language from § 293.12. The Secretary will issue a letter confirming the 45-day review period has lapsed and therefore the compact or amendment has been approved by operation of law.

Many commenters requested that the Department state how it will determine whether to issue a guidance letter and articulate a standard to promote the uniform issuance of guidance letters. These commenters expressed concern that if the Secretary is not required to issue a guidance letter, the lack of a guidance letter may place some Tribes on unequal footing. These commenters request that § 293.12 be revised to articulate a standard that will ensure the uniform issuance of guidance letters.

The Department accepts the comments in part and will make the appropriate changes to § 293.12, indicating the Secretary will issue a letter confirming the 45-day review period has lapsed and therefore the compact or amendment has been approved by operation of law. The Secretary's letter may include guidance identifying provisions of the “deemed approved” compact that violate IGRA.

One commenter recommended that the Department clarify whether revised § 293.12 is intended to be a change in Department policy or a drafting error.

The Department acknowledges the comment. Section 293.12 will reflect a change in policy to issue a letter in each instance when a compact is deemed approved and clarify that letter may include guidance identifying provisions of the “deemed approved” compact that violate IGRA.

Several commenters requested the inclusion of a deadline by which the Secretary will issue a guidance letter. One commenter requested that § 293.12 be revised to provide that guidance letters be issued within 60 days of the date a compact is approved by operation of law in order to provide Tribes with certainty with respect to renegotiating terms of a compact and avoid lost time negotiating provisions the Department finds are in conflict with IGRA.

The Department accepts the comments in part. Section 293.12 will reflect that the Secretary will issue a letter after the 45th day but within 90 days from the date of submission. This timeline is consistent with the requirement to publish notice in the
Federal Register
in § 293.14.

Several commenters expressed concerns that the Secretary has no explicit statutory authority to issue a guidance letter. One commenter expressed concerns that a guidance letter, which is not required to be issued under IGRA, could be used as a litigation roadmap, potentially to oppose the project, and may pin the Secretary to a litigation position. The commenter suggested further discussion and requested that the Secretary consider a process that would provide confidentiality to the Tribe and State by, for example, communicating to the attorneys for the respective Tribe and State the Secretary's concerns if any provisions were inconsistent with IGRA to discuss perceived inconsistencies.

The Department acknowledges the comment. The Secretary has authority to promulgate these regulations based on the statutory delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review compacts and amendments. A guidance letter issued after the 45th day review period does not alter the effective date of the compact or amendment. A compact or amendment approved by operation of law is considered to have been approved by the Secretary, but only to the extent the compact or amendment is consistent with the provisions of IGRA. A guidance letter explains the provisions the Department believes to be inconsistent with IGRA. The Department currently offers technical assistance to Tribes and States; however the Department does not provide pre-approvals or legal opinions.

One commenter noted that “deemed approval” letters have had the effect of allowing States like California to attempt to use the letter as a way of forcing impermissible provisions into compacts.

The Department accepts the comments in part and will make the appropriate changes to § 293.12, indicating the Secretary will issue a letter informing the parties that the compact or amendment has been approved by operation of law, the letter may identify provisions of the “deemed approved” compact that violate IGRA.

One commenter recommended that the revised regulations be modified to expressly state the principles underlying the policy of issuing “deemed approved” letters and the limits of that policy.

The Department accepts the comments in part and will make the appropriate changes to § 293.12, indicating the Secretary will issue a letter informing the parties that the compact or amendment has been approved by operation of law. The letter may identify provisions of the “deemed approved” compact that violate IGRA. The Department declines to expressly state when the letter will include guidance or limits to that policy.

One commenter noted that States are often dismissive of “deemed approved” letters and requested that the Department revise the language to state that “[a]ccordingly, the signatory Tribe

or State may subsequently challenge the non-compliant compact provisions as unenforceable or severable from the compact,” stating that this additional language would eliminate State's false perception that an approval by operation of law is de facto approval of a State's “illicit agenda in compact negotiations.”

The Department acknowledges the comment. Under IGRA, the Department has 45 days to complete its review and either approve or disapprove a class III gaming compact. If the Department takes no action within that 45-day period, the Tribal-State gaming compact is considered approved by operation of law—to the extent that it is consistent with IGRA. The Department takes no position on whether a Tribe or a State may subsequently challenge the non-compliant compact provisions as unenforceable or severable from the compact.

Several commenters recommended that § 293.12 be amended to allow Tribal governments to request guidance letters and legal opinions from the Secretary or the Office of Solicitor for compacts.

The Department acknowledges the comment. The Department currently offers technical assistance to Tribes and States; however the Department does not provide pre-approvals or legal opinions.

One commenter stated that the issuance of a guidance letter explaining why a submitted compact was not affirmatively approved but “deemed approved” by operation of law was a solid improvement, noting that such letters provide an excellent source to inform and improve the negotiation process.

The Department acknowledges the comment.

Comments on § 293.13 Who can withdraw a compact or amendment after it has been received by the Secretary?

Several commenters requested the Department revise § 293.13 by adding the word “both” so that the relevant provision reads “Tribe and State must both submit.”

The Department accepts the requested revision. The Department notes the parties may submit a joint request for withdrawal of the compact or amendment, or submit individual requests for withdrawal.

One commenter recommended the Department accept electronically submitted requests for withdrawal.

The Department accepts the requested revision and has revised § 293.9 to clarify all submissions and requests under part 293 must be submitted to the Office of Indian Gaming, either at the physical address or the email address.

One commenter requested the Department revise § 293.9 to permit a Tribe to unilaterally withdraw a compact or amendment after submission.

The Department declines the requested change and notes this requirement remains unchanged from the 2008 Regulations, which requires both parties to request withdrawal. The compact process under IGRA is a formalized contract between sovereigns which is submitted to the Department for review and approval only after it is legally entered into or is otherwise binding on the parties.

Comments on § 293.14 When does a compact or amendment take effect?

Several commenters requested clarity of the effect of an approval by operation of law on a compact and subsequent publication of a notice in the
Federal Register
.

The Department acknowledges the comments. The Department notes IGRA provides a 45-day review period after which a compact is approved by operation of law but only to the extent the compact is consistent with IGRA. 25 U.S.C. 2710(d)(8)(C). A notice must also be published in the
Federal Register
for the compact to be in effect. 25 U.S.C. 2710(d)(8)(D).

One commenter requested the Department amend § 293.14 by changing the timeline for publication of a notice in the
Federal Register
from 90 days to 55 days from the date the compact or amendment is received to, or within 10 days of approval/disapproval, whichever is shorter.

The Department declines the requested change in the
Federal Register
notice timeline, which remains unchanged from the 2008 Regulations and is considered reasonable. The Department notes IGRA does not require publication of a notice in the
Federal Register
if the compact or amendment is disapproved.

Comment on § 293.15 Is the Secretary required to disapprove a compact or amendment that violates IGRA?

Several commenters agreed with the Department's proposed language in § 293.15, explaining that the Secretary has the discretionary authority to disapprove a compact that violates IGRA, but is not required to do so. However, many of the commenters that agreed with the Department's proposed language did express concern over the possibility that the language could encourage future administrations to avoid disapproving compacts where appropriate. Other commenters noted the importance of Deemed Approval determinations to empower Tribes to reject the non-compliant provisions of a deemed approved compact through litigation or other means.

The Department acknowledges the comments. The Department retains its proposed language in § 293.15. The Department is concerned a mandate that the Secretary affirmatively disapprove compacts that violate IGRA would narrow the discretion IGRA provides to the Secretary to either disapprove or approve a compact within a 45-day review period. Furthermore, this type of mandate could create unintended consequences if the Department fails to act within the prescribed 45-day review period on a compact that violates IGRA. The current language, which tracks the language of IGRA, provides that if the Secretary fails to act within the 45-day review period, the compact is deemed approved but only to the extent it is consistent with IGRA.

Several commenters expressed concern with the Department's proposed language in § 293.15 and argued that a compact which violates IGRA must be affirmatively disapproved. Another commenter went as far as stating that allowing compacts to go into effect that should be disapproved is a violation of IGRA.

The Department acknowledges the comments. The Department retains its proposed language in § 293.15. The Department is concerned a mandate that the Secretary affirmatively disapprove compacts that violate IGRA would narrow the discretion IGRA provides the Secretary to either approve or disapprove a compact within the prescribed 45-day review period. Furthermore, this type of mandate could create unintended consequences if the Department fails to act within the prescribed 45-day review period on a compact that violates IGRA. The current language, which tracks the language of IGRA, provides that if the Secretary fails to act within the 45-day time period, the compact is deemed approved but only to the extent it is consistent with IGRA.

Finally, a few commenters agreed that the Secretary has discretionary authority over whether to disapprove a compact but should be required to issue a guidance letter or legal opinion identifying provisions not approved under IGRA. Commenters recommended the Secretary defer to a Tribe's sovereign decision-making and permit compacts to go into effect rather than disapprove.

The Department acknowledges the comments. The Department retains its proposed language in § 293.15. The Department is concerned a mandate that

the Secretary affirmatively disapprove compacts that violate IGRA would narrow the discretion IGRA provides the Secretary to either approve or disapprove a compact within the prescribed 45-day review period. Furthermore, this type of mandate could create unintended consequences if the Department fails to act within the prescribed 45-day time period on a compact that violates IGRA. The current language, which tracks the language of IGRA, provides that if the Secretary fails to act within the 45-day time period, the compact is deemed approved but only to the extent it is consistent with IGRA. The Department has revised § 293.12 to provide the Secretary will issue a letter informing the parties that the compact or amendment has been approved by operation of law and the letter may include guidance.

Comments on § 293.16 When may the Secretary disapprove a compact or amendment?

Several commenters requested the Department clarify § 293.16(a)(3) and suggested the provision is overly broad.

The Department acknowledges the comments, but notes this provision is consistent with Congress's grant of discretionary disapproval authority to the Secretary. 25 U.S.C. 2710(d)(8)(B)(iii).

Several commenters recommended the Department revise § 293.16(a)(3) to include an opportunity for an appropriate designee of the Secretary to serve as a mediator to facilitate fair compact negotiations between a Tribe and a State and to ensure that Federal law is complied with by the parties.

The Department acknowledges the comments. The Department routinely provides technical assistance to Tribes and States including guidance on Departmental precedents and past procedures, the Departments interpretation and application of case law, as well as best practices.

One commenter requested the Department include a new section titled “[m]ay a compact or amendment include provisions that violate the trust obligations of the United States to Indians?” The proposed text for this section would explain that a compact may not include provisions that violate the trust obligations of the United States and cited to provisions limiting third-party Tribe's rights to conduct gaming as an example of a provision violating the trust obligation.

The Department declines the requested new section and notes § 293.24(c)(1) addresses compact provisions which act to limit a third-party Tribe's rights to conduct gaming.

Several commenters expressed support for the proposed § 293.16(b) and noted it helps enforce the requirements in other sections of part 293.

The Department acknowledges the comments.

Several commenters objected to the proposed § 293.16(b) which provides the Secretary may disapprove a compact if the documents required in § 293.8 are not submitted. Commenters questioned the Secretary's authority to disapprove a compact based on the parties' failure to submit specific documents. Several commenters expressed concerns that the document required by § 293.8(d) may be overly broad and burdensome. Other commenters recommended the Department revise § 293.16 to require written notice of deficiencies and an opportunity to cure before disapproving a compact under § 293.16(b).

The Department accepts the comments and notes § 293.16(b) provides the Secretary with grounds to disapprove a compact if the documents required by § 293.8 are not submitted. The Department has revised § 293.16(b) to require written notice of deficiencies, which is consistent with the Department's longstanding practice of informing parties of deficiencies and permitting parties to cure the deficiencies. IGRA provides the Secretary with discretionary authority to disapprove a compact if it violates one of the three specified criteria. 25 U.S.C. 2710(d)(8)(B). Section 293.16(b) allows a presumption that a compact violates one of the three specified criteria if the parties fail to cure deficiencies in the record.

Several commenters requested the Department revise § 293.16(b) to provide if the parties fail to submit the required documents in § 293.8, the Secretary will return the compact as incomplete. The commenters recommended the Department clarify that the parties may resubmit the compact or amendment after it has been returned based on the failure to submit the required documents, but must submit all of the required supporting documents.

The Department declines to accept the requested provisions. IGRA provides the Secretary with 45-days to review and approve or disapprove a compact. The Secretary does not have the authority to return a compact as incomplete which could frustrate Congress's clear intent to prevent unnecessary delay by providing a 45-day review period.

One commenter recommended the Department revise § 293.16 by including a provision permitting the Secretary while reviewing an amendment to a compact to disapprove provisions in the underlying compact or amendment which was approved by operation of law if that provision violates one of IGRA's three specified criteria.

The Department declines to include the proposed provision. IGRA limits the Secretary's authority to review and approve or disapprove a compact or amendment to 45 days. As a result, the Department cannot retroactively approve or disapprove a compact or amendment after the 45-day review period has run. Instead, the Department's review is limited to the text of the document under review during the 45-day review period. The Department treats restated and resubmitted compacts as a new compact because the parties have submitted entire text of the compact for review. The Department encourages parties to utilize restated compacts or amended and restated compacts as a best practice to incorporate a series of amendments into a single document. The Department finds it helpful if the Tribe or State also submits a redlined copy of the restated compact.

Comments on § 293.17 May a compact or amendment include provisions addressing the application of the Tribe's or the State's criminal and civil laws and regulations?

Several commenters expressed support for the proposed § 293.17.

The Department acknowledges the comments.

Several commenters recommended the Department revise § 293.17 to clarify how the parties can comply with the requirement to “show that these laws and regulations are both directly related to and necessary for, the licensing and regulation of the gaming activity.” Commenters noted this provision adds a vague new requirement that could cause confusion.

The Department accepts this comment in part. The Department has revised § 293.17, to clarify the Secretary may ask for a showing that the provisions addressing the application of criminal and civil laws and regulations are both directly related to and necessary for, the licensing and regulation of the gaming activity.

Several commenters addressed § 293.17 in responding to the Department's third consultation question “[s]hould the draft revisions include provisions that facilitate or prohibit the enforcement of State court orders related to employee wage garnishment or patron winnings?” Commenters suggested the parties may address the effect of such State (or Tribal) court orders as a jurisdictional matter under § 293.17.

The Department declines to address the enforcement of State court orders related to employee wage garnishment or patron winnings in § 293.17. The Department has added enforcement of State court orders to the list of provisions in a compact which are not directly related to the operational gaming activities in § 293.24(c). The Department notes this is consistent with the 9th Circuit decision in
Chicken Ranch Ranchera of Me-Wuk Indians
v.
California,
42 F.4th 1024 (9th Cir. 2022).

Comments on § 293.18 May a compact or amendment include provisions addressing the allocation of criminal and civil jurisdiction between the State and the Tribe?

A number of commenters responded to the Department's fourth consultation question: “[s]hould the draft revisions include provisions that facilitate or prohibit State court jurisdiction over the gaming facility or gaming operations? Should this apply to all claims or only certain types of claims?”

Many commenters discouraged the Department from including provisions which could be perceived as permitting or facilitating State court jurisdiction because States have a history of leveraging limited grants of jurisdiction to undermine Tribal sovereignty. Commenters noted while IGRA includes allocation of jurisdiction it also is intended to promote strong Tribal governments which includes strong Tribal courts. Other commenters noted Tribal courts should be the default jurisdiction, however court jurisdiction could be left to negotiations between a Tribe and State, at the request of a Tribe when the Tribal court does not have the capability to take full jurisdiction over the relevant claims. Commenters also discussed case law supporting the presumption that Tribal court is the proper venue for third party claims—including patron disputes, labor disputes, and tort claims against the Tribe arising out of the Tribe's gaming facility.

The Department acknowledges the comments. The Department proposed § 293.18 to clarify the Department reads IGRA's provision permitting Tribes and States to allocate criminal and civil jurisdiction narrowly and limited by § 293.17. The Department has addressed third party tort claims in proposed § 293.24(c).

Several commenters supported the proposed § 293.18, as drafted, and noted it appears consistent with IGRA and case law. Commenters also noted the proposed provision could help preserve Tribal court systems.

The Department acknowledges the comments.

Several commenters questioned the need for the proposed § 293.18.

The Department acknowledges the comments. The Department notes IGRA provides a compact may include provisions relating to the allocation of criminal and civil jurisdiction between the State and the Tribe necessary for the enforcement of such laws and regulations. 25 U.S.C. 2710(d)(3)(C)(ii).

Several commenters requested the Department include a bad faith standard for jurisdiction when a State seeks to compel State jurisdiction of the Tribe or Indian country.

The Department acknowledges the comments. The Department has added provisions in § 293.24(c) to address these concerns, which § 294.24(d) now states are “considered evidence of a violation of IGRA.”

Several commenters requested the Department amend proposed § 293.18 to expressly require the Tribe to request the State take jurisdiction over claims involving the gaming facility or gaming operations in order for such an allocation of jurisdiction to be proper.

The Department did not adopt the comment. A compact or amendment may include provisions allocating criminal and civil jurisdiction between the State and the Tribe necessary for the enforcement of the laws and regulations described in § 293.17.

Several commenters requested the Department revise § 293.18 to prohibit State court jurisdiction over Tribal gaming operations or facilities.

The Department did not adopt the comment. A compact or amendment may include provisions allocating criminal and civil jurisdiction between the State and the Tribe necessary for the enforcement of the laws and regulations described in § 293.17.

Comments on § 293.19 May a compact or amendment include provisions addressing the State's costs for regulating gaming activities?

A number of commenters expressed support for the proposed § 293.19. Commenters noted States have used IGRA's regulatory cost provision as an indirect tax often funding both regulatory and non-regulatory functions. Commenters opined the bad faith standard would assist negotiating parties in limiting regulatory cost provisions and Tribal oversite over the State's use of those funds. Commenters also noted the Department will likely receive severe pushback from States on this provision and encouraged the Department to “stay the course.”

The Department acknowledges the comments. Section 293.19 addresses Tribal payments for the State's costs of regulating gaming activities. As explained above the Department has replaced the phrase “evidence of bad faith” with “evidence of a violation of IGRA.”

Several commenters expressed concern with the inclusion of a bad faith standard in proposed § 293.19. Commenters questioned the Secretary's authority to determine bad faith and questioned how the Department would enforce such a provision over the life of the compact.

IGRA provides the Secretary with the authority to review and approve or disapprove a compact within a 45-day review period. The Department evaluates the terms of the compact including auditing standards for assessments of regulatory costs as part of this review. The Department has revised § 293.19 to clarify the Secretary's review is limited to the terms of the compact. Enforcement of those terms lies with the parties and is governed by the compact's dispute resolution provisions, if any. As explained above, the Department has replaced the phrase “evidence of bad faith” with “evidence of a violation of IGRA.”

Several commenters requested the Department provide definitions for “actual and reasonable” and provide boundaries on the types of costs for which the State may reasonably seek reimbursement. Other commenters requested the Department allow flexibility for States to aggregate costs with limits on what costs can be aggregated.

The Department declines to provide specific boundaries on the types of gaming regulatory costs for which the State may seek reimbursement. The Department reads IGRA's provision permitting the State to assess regulatory costs narrowly and inherently limited to the negotiated allocation of regulatory jurisdiction. Providing specific definitions would diminish parties' flexibility in negotiating a reasonable allocation of regulatory jurisdiction that best meets the needs of the parties. Further, the Department has revised § 293.19 to give parties the flexibility in negotiating the terms of a compact to determine how the State will show aggregate costs are actual and reasonable.

Several commenters requested the Department require the State to provide annual audits, prove actual and reasonable expenses, and periodically negotiate regulatory costs. One commenter requested the Department

add the phrase “and reasonable” to the last sentence in § 293.19. Another commenter requested the Department add the phrase “or refuses to provide such records” to the last sentence in § 293.19.

The Department has accepted these suggested edits in part and has revised § 293.19, to reflect these comments.

Several commenters requested the Department clarify how the department distinguishes between assessed regulatory costs and a prohibited tax, fee, charge, or other assessment.

The Department acknowledges the comments. Section 293.25 includes a discussion of the Department's interpretation of IGRA's prohibition against the imposition of a tax, fee, charge, or other assessment. IGRA provides a compact may include provisions relating to “the assessment by the State of [the Tribe's class III gaming activity] in such amounts as are necessary to defray the costs of regulating [the Tribe's class III gaming activity].” 25 U.S.C. 2710(d)(3)(C)(iii). IGRA in section 2710(d)(4) then prohibits the State from imposing a tax, fee, charge, or other assessment except for any assessments that may be agreed to under paragraph (3)(C)(iii). The Department reads IGRA's provision permitting the State to assess regulatory costs narrowly and inherently limited to the negotiated allocation of regulatory jurisdiction. Section 293.25 includes a discussion of the Department's interpretation of IGRA's prohibition against the imposition of a tax, fee, charge, or other assessment.

Comments on § 293.20 May a compact or amendment include provisions addressing the Tribe's taxation of gaming?

Several commenters expressed support for the proposed § 293.20, and noted clear guidelines are beneficial to all parties by reducing the risk that improper provisions will be included. Commenters expressed support for the inclusion of a bad faith standard in the proposed § 293.20. Several commenters requested the Department add the word “presumptive” so the relevant sentence would read “[t]he inclusion of provisions addressing the Tribe's taxation of other activities is considered presumptive evidence of bad faith.”

The Department acknowledges the comments but declines to add the word “presumptive.” As explained above the Department has replaced the phrase “evidence of bad faith” with “evidence of a violation of IGRA.”

Several commenters expressed opposition for the proposed § 293.20. Commenters raised concerns that the proposed text appears to allow States to tax gaming revenue. Other commenters noted this may cause States to demand specific forms of Tribal taxation of Tribal gaming and argues the provision is unnecessary.

The Department acknowledges the comment, but notes IGRA provides a compact may address Tribal taxation of Tribal gaming in amounts comparable to State taxation of State gaming. 25 U.S.C. 2710(d)(3)(C)(iv). The Department has revised § 293.20 to clarify this provision.

Comments on § 293.21 May a compact or amendment include provisions addressing remedies for breach of the compact?

Several commenters expressed support for the proposed § 293.21 and the inclusion of a bad faith standard. Several commenters discussed their experiences with States seeking to enforce dispute resolution agreements or decisions that violated IGRA.

The Department acknowledges the comments. As explained above, the Department has replaced the phrase “evidence of bad faith” with “evidence of a violation of IGRA.”

Several commenters questioned the Secretary's authority to review dispute resolution agreements, arbitration awards, settlement agreements, or other resolutions of a dispute outside of Federal court.

The Department acknowledges the comments. The Secretary has authority to promulgate these regulations based on the statutory delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review compacts and amendments. The Department is aware of arbitration awards, settlement agreements, and other similar dispute resolution agreements which have amended the terms of a compact. IGRA requires the Secretary to review compacts and publish notice in the
Federal Register
before a compact is in effect and the Department has made conforming edits to § 293.4.

Several commenters expressed concern with the proposed § 293.21. Commenters stated the documents sought under the provision was overly broad. Other commenters suggested the proposed § 293.21 would encourage parties to seek dispute resolution in Federal court and discourage parties from seeking more cost effective and faster resolution of disputes because of the risk the Secretary may reject the agreement. Commenters noted settlement agreements are often confidential. One commenter requested clarification why the Department is interested in reviewing dispute resolution agreements and arbitration awards. Another commenter cautioned the Department's review of these provisions may prevent Tribes from exercising self-determination and sovereignty in compact negotiations.

The Department acknowledges the comments. The Department seeks to ensure all compacts, amendments, and dispute resolution agreements or awards are consistent with IGRA and are properly in effect. The Department has made conforming edits to §§ 293.2, 293.4, 293.7, and 293.21 to address concerns raised regarding secretarial review of compact amendments arising out of dispute resolution. The Department encourages parties to resolve compact disputes in a timely, cost-effective manner, which is consistent with IGRA.

Several commenters requested the Department revise the proposed § 293.21 by amending the title and adding text to § 293.21. The proposed title would read: “[m]ay a compact or amendment include provisions addressing the resolution of disputes for breach of the compact?”

The Department has accepted the proposed revisions in part. As explained above, the Department has replaced the phrase “evidence of bad faith” with “evidence of a violation of IGRA.”

Several commenters requested the Department clarify if compacts should include dispute resolution options other than termination of a compact, which only harms the Tribe.

The Department acknowledges the comments. The Department notes that compacts are carefully negotiated long-term agreements between sovereigns. IGRA provides compacts may include “remedies for breach of contract.” The Department notes well drafted compacts include options for the parties to continue operating under the compact, while seeking to resolve any disputes arising from the compact. If the compact includes payments to the State for regulatory costs as described in proposed § 293.19, or revenue sharing as described in § 293.25, the Department recommends including provisions which permit the Tribe to divert disputed funds into an escrow account.

One commenter requested the Department include a grandfather clause for established settlement agreements to protect the settled expectations of parties to existing agreements. The commenter explained a party may seek to relitigate a settled dispute by arguing the agreement is not valid.

The Department declines to include a grandfather clause for settlement agreements which have not been submitted for Secretarial review and

publication of a notice in the
Federal Register
. The Department has included revisions to the proposed § 293.21 as well as § 293.4 to clarify and limit the scope of this review. The Department encourages parties to seek § 293.4 review if the parties are concerned their settlement agreement is an `amendment.'

Comments on § 293.22 May a compact or amendment include provisions addressing standards for the operation of gaming activity and maintenance of the gaming facility?

A number of commenters expressed support for the proposed § 293.22 and requested the Department strengthen the provision by defining what qualifies as “maintenance” in greater detail. Commenters explained some States seek expansive regulatory standards that are not related to the maintenance of a facility. Other commenters noted State's may seek to require a Tribe to adopt State law equivalent ordinances and requested the Department add the following sentence to § 293.22, “[i] f a compact or amendment mandates that the Tribe adopt standards equivalent or comparable to the standards set forth in a State law or regulation, the parties must show that these mandated Tribal standards are both directly related to and necessary for, the licensing and regulation of the gaming activity.”

The Department acknowledges the comments and has revised § 293.22 by including the requested sentence.

Comments on § 293.23—Which Has Been Renumbered as 293.24—What factors will be used to determine whether provisions in a compact or amendment are directly related to the operation of gaming activities?

The Department has renumbered the proposed § 293.23 as § 293.24 comments have been edited to reflect the new section number.

Several commenters expressed support for the proposed § 293.24. Commenters explained the provision would improve compact negotiations by providing parties with clear guidance on which topics are consistent with IGRA and which topics are outside of IGRA's narrow scope of compact terms under 25 U.S.C. 2710(d)(3)(C). Commenters noted the proposed § 293.24 is consistent with the Departments long standing requirement of a direct connection and repudiation of some States' application of a “but for” test.

The Department acknowledges the comments.

One commenter expressed concern that the Department was inadvertently creating additional tests including a “incidental benefit” test in § 293.24.(b) and a “not directly related” test in § 293.24(b) and (c) as well as an “unrelated to” test in § 293.24(c)(4).

The Department acknowledges the comments. The Department has revised § 293.24(b) and (c)(4) for consistency and notes the phrase “not directly related” as used in § 293.24 as the inverse of the phrase “directly related.”

One commenter recommended the Department include a section immediately preceding proposed § 293.24 mirroring the question-and-answer format of the proceeding sections in Subpart D. The section would be titled “[m]ay a compact or amendment include provisions that are not directly related to the operation of gaming activities?” With a firm declaration that provisions which are not directly related to the operation of gaming activities is a violation of IGRA.

The Department has incorporated the recommended section with modifications for consistency with the proceeding section in Subpart D. The new section is numbered § 293.23 and the following sections have been renumbered.

Several commenters recommended the Department revise § 293.24 by inserting the word “activity” or “activities” after the phrase “class III gaming” for consistency with other sections in part 293.

The Department has added the word “activity” or “activities” as appropriate in § 293.24.

Several commenters requested the Department provide a table of authority for provisions considered “directly related to the operation of gaming activities” under § 293.24(a) as well as provisions considered “not directly related to the operation of gaming activities” under § 293.24(c). Commenters recommended the Department revise or remove provisions which were not supported by past decisions issued by the Department and/or case law.

The Department has prepared a table of authorities addressing these and other provisions.

Several commenters recommended the Department provide standards and/or a procedure within the regulatory text outlining how the parties are expected to comply with the requirement in § 293.24(a) to “show that [provisions included in the compact or amendment] are directly connected to the Tribe's conduct of class III gaming.” Commenters also recommended the Department include in the part 293 regulations deference to a reasonable Tribal determination that a provision is directly connected to the Tribe's conduct of class III gaming.

The Department declines to provide a specific procedure for complying with § 293.24 in order to provide the parties with the necessary flexibility to address the specific terms of their agreement. Some parties chose to provide a justification brief explaining key or novel provisions to the Department as part of their compact or amendment submission. When necessary, the Department's practice is to request additional information from the parties regarding specific provisions in the compact or amendment. Additionally, the Department frequently provides technical assistance to parties negotiating a compact or amendment by flagging provisions which may violate IGRA or may require additional justification. A best practice for compacts requiring State legislative approval is to seek technical assistance before the compact is formally adopted by legislative action.

A number of commenters responded to the Department's third consultation question “[s]hould the draft revisions include pro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-25741. Public record. Not legal advice.