The NIGC Division of Compliance announced it will be maintaining a list of Frequently Asked Questions in consultation with the NIGC’s Office of General Counsel and the Agency’s Commission. This collection of FAQs is updated as needed.
The NIGC encourages all TGRAs to remain in close communication with their NIGC Region Office as Indian gaming facilities across Indian Country address the risks associated with the Coronavirus disease 2019 (COVID-19). The time periods discussed with regards to submission deadlines will continue to be re-examined should closures continue beyond deadlines or the specific number of days provided for in this version of the FAQ.
The most current version of this a document is available www.nigc.gov.
1. Question: How many tribally licensed gaming facilities have temporarily closed in response to COVID-19?
Answer: 520 tribal gaming facilities have suspended operations. Every closure decision has been based on local-level tribal assessments. The NIGC continues to support local government coordination and promotes the resources and guidance available at www.CDC.gov.
2. Question: What are the staffing concerns for TGRAs and gaming operations should they choose to remain open?
Answer: The TGRA should continually assess critical positions such as surveillance, gaming inspectors, and compliance officers to ensure regulatory duties are being upheld. Should the casino remain operational, both the casino and TGRA must ensure enough staffing to remain compliant with NIGC MICS, TICS, SICS, Compacts and other applicable regulatory requirements. A review of critical positions should be made to determine adequate coverage of the gaming operation. Consideration should be made for positions in surveillance, security, cage, count and drop, and various management positions needed for signature and approval authority to ensure internal control.
3. Question: What are the notification requirements for closing a facility?
Answer: The NIGC encourages tribes to self-report temporary closures to the NIGC as soon as possible. Under 25 C.F.R. Part 559, notice for closing should be submitted to NIGC within 30 days of closing if the tribe anticipates being closed for more than 180 days. However, the NIGC is asking that TGRAs report closures within 72 hours for tracking purposes along with the date the tribe anticipates reopening. NIGC asks that the TGRA keep in contact with NIGC through their Region Office and inform them of any changes with the plan to reopen.
4. Question: What does the NIGC do if it learns that there are plans to close a tribally licensed gaming facility?
Answer: As tribal law makers, tribal gaming regulatory bodies, and/or gaming operators decide to temporarily close a licensed facility based on their local on-the-ground assessments, the NIGC Region Offices will continue to have a presence. As referenced in the March 16, 2020 Dear Tribal Leader letter, NIGC Region Directors have received a two-step protocol from the NIGC Director of Compliance. The protocol will help the NIGC maintain an appropriate presence and facilitate support for a tribal community based on local circumstances.
5. Question: What considerations should a TGRA account for when securing and adequately protecting casino assets in the event that it becomes necessary to evacuate a casino with little forewarning and very little time to secure casino assets, such as monetary instruments and gaming instruments?
Answer: The TGRA, in coordination with casino management, should prepare for situations that would require expedited evacuation of the gaming facility. Plans should include transferring monetary instruments to the vault for security reasons. The Minimum Internal Control Standards found in NIGC regulations 25 C.F.R. Section 543.18(c)(4) requires the count of the cage and vault inventories by at least two employees with signatures attesting to the counts. Should the gaming operation close, this standard would be effective at the time of closure. Upon reopening, the cage and vault inventories would then be recounted and verified against the previous closing balances, with special emphasis and investigations placed on any variances between the two counts. The tribe and casino should consider transferring the cage and vault cash inventories to their financial institution as that would be considered the most secure option.
6. Question: What guidelines can the NIGC provide in the case of mandatory partial evacuations within the casino, but not a facility-wide closure, such as the following: a. Example: The evacuation and sterilization of the casino surveillance room.
Answer: Surveillance functions are critical to regulation and monitoring of assets. If the TGRA or gaming operation cannot properly regulate and monitor assets, the TGRA and/or gaming operation should consider what steps would best remedy the threat to assets, up to and including closure. b. Example: The evacuation and sterilization of the casino cash cage, soft count, slot tech department, or other mission critical departments.
The TGRA in coordination with the gaming operation should evaluate the adequacy of regulating, monitoring, or securing assets. Should there be threats that compromise the proper security and monitoring of assets, the TGRA should consider if it is appropriate to issue a temporary closure order.
7. Question: Can gaming operations refuse service or entry to patrons?
Answer: The TGRA should consult with its legal counsel to identify specific ordinances, codes, regulations and other authoritative documents (such as a tribe’s declarations of emergency, executive orders or resolutions) that explain any limits on the tribe’s authority to determine who enters and remains on its Indian lands.
8. Question: What Information Technology (IT) concerns should a TGRA consider during a temporary closure?
Answer: The TGRA in coordination with the gaming operation should ensure that NIGC MICS along with TICS and SICS are followed as a tribe closes its gaming operation. This would include but not be limited to, having back-ups in place with frequent saving of information and testing to ensure back-up systems are functioning properly. In terms of logical access, TGRAs should follow TICS and SICS surrounding access levels and who is required to have access. This requires TGRAs to review access lists and logs that will assist in terminating any non-essential access. VPN access should also follow MICS, TICS and SICS guidelines, however reviewing those licenses that will require essential access should occur. If there is a need for temporary VPN access, when operations are restored remove all temporary access. Avoid using any “bring your own device” (BYOD) if possible, however if BYOD cannot be avoided have those devices vetted to diminish any risks for the operations. Lastly, consideration may be appropriate for adding an additional IT Administrative access-user to the IT remote user access group for redundancy.
9. Question: What are some important surveillance considerations during a closure?
Answer: The TGRA and gaming operation management should ensure cameras are positioned to monitor and record all sensitive areas including cash, cash equivalents, gaming supplies, exits and entrances. Also, the TGRA and gaming operation management should ensure surveillance systems’ recordings are being backed-up and tested to be certain systems are working properly. Surveillance functions are critical to regulating and monitoring of assets. If the TGRA or gaming operation believes that it cannot properly regulate gaming operations and monitor assets, the TGRA and/or gaming operation should consider how best to remedy the threat by taking additional steps during the closure.
10. Question: What are some important considerations when clearing the casino floor?
Answer: The TGRA should coordinate with the gaming operation’s management when removing all patrons and unauthorized employees from the facility. Developing a matrix or authorized access listing to the facility during the closure is recommended. Coordinate with IT for possible disabling of non-essential’s logical access during closure. Procedures should be in place for monitoring VPN/remote access for vendors and authorized employees. Consider disabling all machines from play during the closure. Prior to disabling, a snap shot of all meters and in-house progressives should be obtained and provided to TGRA and accounting. Consider performing emergency drop procedures and ensure all funds are properly secure (e.g. vault). All monetary instruments should be properly secured and may be best secured by transferring to the vault. The tribe and casino may consider transferring the cage and vault cash inventories to their financial institution as that would be considered the most secure option. Casino management may want to consult with vendors with whom they have lease participation agreements. Consider that potential issues regarding adjustments to participation fees may arise.
11. Question: Will the NIGC adjust deadlines or grant any extensions for required submissions such as fees, contracts, licensing, Audited Financial Statements and Agreed Upon Procedure reports?
Answer: IGRA and NIGC regulations do not provide for extension to the statutory and regulatory deadlines. In instances where the tribe has provided written notice to the NIGC through their NIGC Region Office that its licensed gaming facility has closed, the NIGC Division of Compliance will remain in close communication with the TGRA if it is necessary to make recommendations for enforcement to the Chairman. This communication will help the Division of Compliance provide context in any recommendation in light of the Chairman’s March 20, 2020 memorandum. That memorandum modifies the Compliance Division’s enforcement focus. The Chairman has conveyed to the NIGC Division of Compliance that the Commission is considering its options for implementing easing measures for Indian gaming operations during this national mitigation effort. Please remain in close communication with the NIGC with regard to the below requirements in order to assist with the Commission’s assessment of any future measures.
a. Fees and Worksheets
i. As required by 25 C.F.R. § 514, Fees and Worksheets are due three (3) months, six (6) months, nine (9) months, and twelve (12) months of the end of the gaming operation’s fiscal year. For example, if the operation’s fiscal year end is December 31, 2019, fees will be due on or before March 31, 2020, June 30, 2020, September 30, 2020 and December 31, 2020.
ii. According to 25 C.F.R. § 514.9, fees that are not submitted when due are considered late until they are 90 days past due, after which the NIGC considers the fees as not submitted, rather than late.
iii. The Compliance Division will not recommend late fee assessmentsfor payments made within 90 days of the regulatory deadline. iv. NIGC encourages tribes to submit payments using the on-line process at pay.gov. Learn more about pay.gov and other fee related information at www.nigc.gov/finance/Annual-fees. You can submit additional inquiries to: [email protected]
b. Fingerprint Fee Statements
i. As required by 25 C.F.R. § 514, the current fingerprint card bill rate is $22.00, billed monthly and due within forty-five (45) days of the date of the bill.
ii. Payment made after reopening or staff returning to work but no later than 30 days from the date of the missed fingerprint fee statement due date will not be scrutinized. You can submit additional inquiriesto: [email protected]
c. Licensing Submissions:
i. Currently there are three required key employee and primary management official licensing requirements under 25 C.F.R. Parts 556 and 558. Under 25 C.F.R. Part 556.6 a Notice of Results (NOR) is due to the NIGC region office within sixty (60) days after an applicant begins work. Additionally, as required by 25 C.F.R. Part 558.3, a notice of license issuance is due to the NIGC region office within thirty (30) days of the tribe’s issuance of a permanent license. Also, under 25 C.F.R. Part 558.3, if a tribe does not license the applicant, the tribe shall submit a notice of no license issued, its eligibility determination and NOR to the NIGC. There is no a deadline for this submission.
ii. TGRA’s are encouraged to submit any outstanding NORs to the NIGC within 60 days of reopening or the applicant returning to work. At this time, the Notice of license can still be issued within 30 days of issuance on all NORs that were submitted late due to TGRA office closure. If Notice of License submissions were not completed for employees who were issued a permanent license before closure, those submissions must be made within 30 days of reopening. We request that Not Licensed by Tribe submissions are made within 30 days of reopening, however there is not a specific deadline for this particular submission. NIGC Compliance Officers’ scrutiny of submission dates will account for any extended closure period. Please contact your NIGC Regional Office for additional information.
d. Facility Licenses:
i. As required in 25 C.F.R. Part 559, a request to the NIGC for any new facility under consideration requires at least one hundred twenty (120) days’ notice before the opening of the new gaming facility. Newly issued or renewed facility licenses must be submitted to the NIGC within 30 days of issuance. Finally, if a facility license is terminated, expires, or if the gaming facility closes for longer than 180 days or reopens after such closure, notification must be made to the NIGC within thirty (30) days of the event.
ii. The NIGC will maintain the ability to accept electronic submission of all notices required under this requirement through [email protected]. The Compliance Division will actively assist TGRA’s on ensuring timely notices are made where possible and take into consideration where facility and tribal government closures otherwise prevented timely submissions. Should any actions taken by the TGRA or tribal government trigger the submission of any of the above notices, please notify your Region Office for furtherguidance.
e. Agreed Upon Procedures and Audited Financial Statements
i. As detailed in 25 C.F.R. § 543.23(d)(1) the Tribe must engage a CPA to complete an Agreed Upon Procedures (AUP) Audit and report the findings to the NIGC within one hundred twenty (120) days of the gaming operation’s fiscal year end. Additionally, 25 C.F.R. § 571 requires each tribe to prepare an Audited Financial Statement which is also due within one hundred twenty (120) days of the gaming operation’s fiscal year end.
ii. With regard to the reporting deadlines for audited financial statements and Agreed Upon Procedure reports, NIGC encourages submissions within 30 days of the audit and report original due dates.
iii. Please contact your NIGC regional office if you anticipate not meeting the 120-day deadline for reporting.
12. Question: What level of tribal gaming commission and casino oversight is required by the NIGC for suspended casino operations? At what point does the Gaming Commission fall below required regulatory minimums, and what is the NIGC’s guidance when circumstances related to the COVID-19 pandemic cause the TGRA personnel and resources to drop below minimums?
Answer: NIGC MICS do not require specific staffing levels while gaming operations are suspended. However, the TGRA and casino management should review TICS and SICS and make appropriate adjustments while gaming operations are suspended. It is recommended that surveillance and security oversight be maintained to monitor assets. TGRAs should evaluate any ongoing investigations, compliance reviews, audits, patron disputes, etc. and determine what matters and tasks can continue to be pursued and performed during the closure. If a TGRA believes that it cannot attest that the facility can be reopened and operated in a manner that protects the public health and safety of employees and patrons, or if application of tribal laws warrants, the TGRA must consider how to best take mitigation steps that will remedy the threat to public health and safety up to and including continued closure.
13. Question: What are NIGC’s suggested guidelines when the TGRA office becomes inaccessible for an extended period of time due to COVID-19 contamination, or when a state of emergency is declared and travel restrictions are imposed in the region where the office is located, preventing access to stored CJIS information and licensing department equipment (scanners, fingerprint equipment, etc.)?
Answer: Security for background investigation files and FBI CHRI should be maintained in accordance with the CJIS Security Policy and the TGRAs internal policies. See question #11.c for additional information regarding licensing and submissions.
14. Question: What is the NIGC’s recommendation for when the COVID-19 virus creates staffing issues for the TGRA and reduces its ability to fulfill the TGRA’S regulatory responsibilities under IGRA and the Tribe’s Gaming Regulatory Act?
Answer: If a TGRA believes that it cannot fulfill its regulatory responsibilities or attest to its ability to ensure the public health and safety of employees and patrons or if application of tribal laws warrants, the TGRA must consider suspending gaming operations.
15. Question: Can the TGRA suspend or waive required suitability backgrounds and licensing determinations of casino employees and vendors?
Answer: No. 25 C.F.R. Parts 556 and 558 requires all Key Employees and Primary Management Officials to be licensed by the tribe within 90 days of beginning work. NIGC has ensured services will remain in place for tribes to submit fingerprints and receive FBI CHRI, submit notice of results, receive no objection or objection letters from NIGC, and to submit notice of licenses issued.
16. Question: If a casino furloughs or lays off a key employee or primary management office will they have to be re-licensed before resuming their duties at the operation?
Answer: So long as the employee’s license has not expired during the closure, there is no requirement under IGRA or NIGC regulations to relicense all returning employees previously licensed upon reopening the gaming operation.
17. Question: Can the TGRA waive receipt of required periodic gaming and financial audit reports where gaming operations have been suspended?
Answer: Yes. The TGRA and Casino should assess their TICS and SICS to determine what reporting requirements remain in effect during a temporary closure. NIGC encourages the TGRA to identify what reports are necessary during closure and suspend those that would only be required while open. In particular, it is likely appropriate to maintain reports related to surveillance equipment malfunction and security incident reports per tribal regulatory requirements even during a temporary closure.
18. Question: What impact has the COVID-19 pandemic had on NIGC’s schedule of tribal casino inspections, audits, scheduled training, and visits? What is the mechanism for requesting rescheduling of such audits, inspections, training, and visits for casinos where gaming operations have been suspended and/or TGRA personnel have been reduced to essential staff only?
Answer: The NIGC has temporarily suspended non-mission critical travel for all NIGC staff. The NIGC remains operational and continues to monitor and review gaming operation activity remotely. All activities related to the site visits, auditing, training and investigatory activities that can be conducted off-site through telephone, email, document request and review, and other off-site methods shall continue until such time the remaining activities that require on-site observation and review can be undertaken. Please contact your Region Office for additional assistance (www.nigc.gov/compliance/regional-offices). You may also contact our training program at [email protected].
19. Question: Are there any planned or anticipated suspension(s) of NIGC regional office operations, staff reductions, constraints on service delivery, or reductions or postponement of NIGC initiatives in the short term or long term?
Answer: The NIGC is currently following all federal guidance and our staff is on maximum telework to continue agency essential duties. Region staff remain available via phone, video conference and email to provide technical assistance and will continue to process licensing submissions received. Non-mission critical travel has been suspended. Annual site visits and other onsite routine monitoring activities have been modified to perform work remotely when available. In-person Regional Training Conferences and Site Specific Training for the remainder of the FY 2020 will be replaced with remote opportunities that utilizes cost effective technology and anticipates disruptions in regular conference attendance. The NIGC Training Program is still accepting requests for virtual site-specific training and technical assistance. The NIGC will continue to review conditions and needs as the COVID-19 pandemic response evolves.
20. Question: If a Tribal Government has issued a proclamation closing a gaming facility due to the COVID-19 outbreak, what must they do to reopen?
Answer: The Tribal Government may need to issue another proclamation indicating that it believes it is now safe to resume casino operations. The NIGC also requests that prior to reopening, the TGRA notify the Region Office of its intent to reopen. Additionally, the TGRA should assess its ability to attest that the facility can be reopened and operated in a manner that protects the public health and safety of employees and patrons, or if application of tribal laws warrants. As was the NIGC’s recommendation regarding temporary closure decisions, the NIGC recommends for tribes to avail themselves of resources on www.CDC.gov and consider the value of coordination with local jurisdictions when assessing and planning.
21. Question: Can a tribe amend its Revenue Allocation Plan (RAP) to start making per capita payments, change the amount of the payments or stop making per capita payments to reallocate funds to tribal operations during the COVID-19 pandemic? Does the NIGC need to be notified of the amendment?
Answer: Tribes should discuss any RAP amendments with the Office of Indian Gaming (OIG) at the Department of the Interior.
22. Question: Can tribes issue gift cards or other types of cash payments of net gaming revenue to tribal members to assist in dealing with COVID-19?
Answer: Direct distributions of net gaming revenue to individual tribal members outside the scope of a Revenue Allocation Plan are not permitted under IGRA. IGRA does, however, include the funding of tribal programs in its permissible uses of net revenue. These programs can provide services and resources to tribal members. If a tribe wishes to make cash distributions, we recommend you reach out to the Office of Indian Gaming at the Department of the Interior to discuss options for creating or amending a Revenue Allocation Plan. Additional guidance regarding uses of net gaming revenue can be found in NIGC Bulletin 2005-1 at: www.nigc.gov/compliance/detail/use-of-net-gaming-revenues-bulletin.