The National Indian Gaming Association is pleased to provide comments on the U.S. Treasury Department’s Financial Crimes Enforcement Network’s (“FinCEN”) Advance Notice of Proposed Rulemaking (“ANPRM”) titled “Beneficial Ownership Information Reporting Requirements,” which was published in the Federal Register on April 5, 2021. The National Indian Gaming Association is an inter-tribal association of 184 federally recognized Indian Tribes that currently offer Tribal gaming subject to the statutory provisions of the Indian Gaming Regulatory Act (“IGRA”) and its implementing regulations. As such, the National Indian Gaming Association is particularly appreciative of the opportunity to provide these comments herein on the ANPRM, which may have a significant impact on the 184 tribes in its membership and their continued economic development.
In the federal rulemaking context, it is critical that agencies seek Tribal government input in the early decision-making stages of the rulemaking process. Early Tribal involvement will help ensure that both FinCEN and Tribal governments have sufficient time to review the issues, consider proposed solutions, and develop a consensus on the best regulatory approach. Thus, the National Indian Gaming Association urges FinCEN to engage in specifically targeted, meaningful consultation with Tribal governments before formally initiating the rulemaking process. Furthermore, due to the number and level of detail in the questions posed by FinCEN, the National Indian Gaming Association requests an extension of the comment period for this ANPRM. Lastly, in this letter, the National Indian Gaming Association also addresses some of the questions posed in the ANPRM, specifically the clarity of the “reporting company” exemptions found in the Corporate Transparency Act (“CTA”), and the usefulness of including Tribal gaming regulatory agencies as a listed exemption to the definition of “reporting company” in any final regulations promulgated by FinCEN.
I. Tribal Consultation Requested
The unique relationship between the federal government and each federally recognized Indian Tribe is grounded in the U.S. Constitution, numerous treaties, statutes, federal case law, regulations and executive orders. In particular, as directed in Executive Order 13175, each agency has a federally mandated duty to consult meaningfully with Tribal governments prior to taking any action or committing to a decision with Tribal implications. To be meaningful, consultation must not be treated as a single act of communication but rather as an ongoing collaborative process that culminates in a mutually acceptable outcome that accommodates Tribal interests to the maximum extent permitted by law.
The regulatory changes under consideration here would directly impact the economic environment of Tribal governments, as well as subject legal entities formed under Tribal law (often comprised of Tribal members) to willingly convey personal information to a bureau of the federal government. Accordingly, the National Indian Gaming Association believes that it is essential that Tribal governments have the opportunity to meaningfully consult with FinCEN on the formation of any draft and final regulations in this regard.
Indeed, the National Indian Gaming Association is of the opinion that, without appropriate consultation with and input from Tribal governments, FinCEN would not be able to appropriately resolve the “issues for comment” posed in the ANPRM, specifically, but not limited to: A) Questions 2 and 4 regarding the clarity of the definitions of “reporting company” and “applicant” as it pertains to the filing of documents for incorporation or formation under Tribal law; B) Questions 6, 7, and 9 concerning the clarity of the exemptions found in the statutory definition of “reporting company”; C) Question 16 regarding specific burdens to be anticipated in connection with the new reporting requirements; D) Question 18 which specifically involves the CTA statutory provision that Indian tribes may not receive certain funds if they do not provide notice of reporting obligations to a reporting company; E) Question 29 regarding what steps FinCEN can take to best protect FinCEN identifiers from being used without an individuals’ and an entities’ authorization; F) Question 32 which deals, in part, with how FinCEN should respond to a Tribal law enforcement agency’s request for beneficial ownership information; and G) Questions 44 - 46 which asks, in part, what specific burdens CTA requirements would impose on Tribal governmental agencies and how might FinCEN best partner with Tribal governmental agencies to achieve the purposes of the CTA.
To that end, the National Indian Gaming Association formally requests that FinCEN engage in government-to-government consultations with the National Indian Gaming Association’s Member Tribes and other Tribal governments prior to the promulgation of any final regulations implementing the CTA. Further, the National Indian Gaming Association respectfully advises FinCEN that Tribal consultations should occur in various regions through Indian country, such that Tribal concerns are broadly reflected in this rulemaking process.
a. Right to Tribal Consultation Under Executive Order 13175
Executive Order 13175 makes clear that Tribal consultations function not only to strengthen the United States’ government-to-government relationship with Tribal governments but also to reduce the imposition of unfunded mandates upon Tribal governments. Specifically, as to when such consultation is due, § 5(b) of Executive Order 13175 states that:
[t]o the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless... (1) funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal government; or (2) the agency, prior to the formal promulgation of the regulation... (a) consulted with Tribal officials early in the process of developing the proposed regulation[,] ... (b) provides to the Director of OMB a Tribal summary impact statement[,] ... and (c) makes available to the Director of OMB any written communications submitted to the agency by Tribal officials.
“Policies that have Tribal implications” refer to regulations and other actions that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.” Specifically, with respect to regulations “administered by Indian Tribal governments,” as would be the rules contemplated by the ANPRM, FinCEN would be hereby required to provide “Indian Tribal governments [with] the maximum administrative discretion possible.” Here, the National Indian Gaming Association believes that early and thorough consultation would allow for the development of rules that satisfy FinCEN’s regulatory goals while remaining workable for enforcement by Tribal governments. Consultation would also further the principles emphasized in the January 26, 2021, Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, in which President Biden states that it is a priority of his administration to have “regular, meaningful, and robust consultation with Tribal Nations” be a “cornerstone . . . of Federal Indian policy.”
b. Right to Tribal Consultation Under the Department of the Treasury’s Consultation Policy
Pursuant to Executive Order 13175, the Treasury Department issued its own Tribal Consultation Policy, which requires that the Department “consult with Tribal Officials prior to implementing Policies that have Tribal Implications.” Such “policies that have Tribal Implications” include “Treasury regulations, published guidance, or other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or the distribution of power and responsibilities between the Federal Government and Indian Tribes.”
While “policy matters of general applicability that may have an impact on Indian Tribes or their members” would not require consultation under Treasury policy, the National Indian Gaming Association believes that consultation on the ANPRM is warranted since elements of the proposed actions would have a direct effect on the distribution of power and responsibilities between the Federal Government and Indian Tribes. However, even if the proposed action were found to be a matter of general applicability, the Treasury’s policy provides that Tribal governments may nonetheless request consultation on “policy matters” such as the one at hand “ that may have an impact on Indian Tribes or their members.” As such, the National Indian Gaming Association formally requests government-to-government consultation between FinCEN and the National Indian Gaming Association’s Member Tribes pursuant to §§ III (A) and (E) of the Treasury Department’s Tribal Consultation Policy.
II. Extension of Time for Comment Requested
Next, the National Indian Gaming Association, on behalf of its Member Tribes, respectfully requests for an extension to the comment period currently set to expire on May 5, 2021. Tribal Governments need sufficient time to draft meaningful comments and get those comments through the proper approval processes. While a 30-day window of time may be appropriate in some instances, the sheer number of questions posed in this ANPRM simply requires sacrificing the quality of the responses that FinCEN could rely on in promulgating final regulations.
In total, this ANPRM has 48 numbered questions and 56 additional sub-questions, for a total of 104 questions that the National Indian Gaming Association’s Member Tribes would like to answer in sufficient detail, but cannot practically do so in the time allotted. The submitted comments to this ANPRM as of April 30, 2021, also evinces that such a short response period has not, and likely will not, be beneficial to FinCEN in formulating regulations, or to the financial institutions, reporting companies, and applicants that, consequently, will be regulated. The National Indian Gaming Association is aware that FinCEN has a statutory obligation to promulgate final regulations by January 1, 2022; however, extending the comment period for this ANPRM, while providing appropriate consultation with Tribal governments, would not only improve the appearance of FinCEN’s rulemaking processes, but also better serve FinCEN’s interests by ensuring that its detailed “questions for comment” are appropriately answered. Accordingly, the National Indian Gaming Association respectfully requests an extension of this comment period for sixty (60) days.
III. Comments on ANPRM
The National Indian Gaming Association generally supports the goals of the CTA as well as FinCEN to combat money laundering that occurs by or through the use of legal entities. However, with respect to Questions 6 and 7 of the ANPRM, the National Indian Gaming Association requests that FinCEN adopt a final rule specifically exempting Tribal gaming regulatory agencies or other Tribal entities formed to regulate or facilitate Tribal gaming under the Indian Gaming Regulatory Act from the definition of “reporting company” under the CTA.
Section 5336 (a)(11)(B)(ii) of the CTA states that a “reporting company” does not include “an entity established under the laws of . . . an Indian Tribe . . . and that exercises governmental authority on behalf of . . . any such Indian Tribe.” Further, section 5336 (a)(11)(B)(xxii) exempts from the definition of a “reporting company” “any corporation, [LLC], or other similar entity of which the ownership interests are owned or controlled, directly or indirectly, by [an entity that exercises governmental authority on behalf of an Indian tribe.]” Because Tribal gaming regulatory agencies and other similar bodies are treated as instrumentalities or “arms” of their respective Tribal governments, it appears that they would already be statutorily exempt from the definition of “reporting company.” Accordingly, if FinCEN were to adopt a final rule specifically providing for this exemption that is likely already present in the CTA, it would provide a tremendous level of certainty and clarity to Tribal gaming operations and their regulatory agencies across the United States regarding their ever-changing duties under Title 31.
The National Indian Gaming Association appreciates the opportunity to comment on this ANPRM published by FinCEN. The National Indian Gaming Association hopes that further consultation, as requested pursuant to E.O. 13175 and the Treasury Tribal Consultation Policy may occur in order to provide the National Indian Gaming Association’s Member Tribes, as well as other Tribal governments, much-needed input on any proposed regulations and clarification of the CTA’s statutory requirements as understood by FinCEN. Further, the National Indian Gaming Association requests an extension of the comment period to enable Tribal governments a sufficient opportunity to provide meaningful feedback on FinCEN’s request for comments. Lastly, the National Indian Gaming Association requests clarifying that a Tribal gaming regulatory agency, or similar Tribal entity that is already subject to the reporting requirements of the Indian Gaming Regulatory Act, be exempt from the definition of “reporting company” in any proposed or final rule promulgated by FinCEN.
 E.O. 13175, Consultation and Coordination with Indian Tribal Governments, § (1)(a) (Nov. 6, 2000).
 Id. § (3)(b).
 Tribal Consultation Policy, 80 Fed. Reg. 57434 (Sept. 23, 2015).
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