[Federal Register Volume 77, Number 186 (Tuesday, September 25, 2012)]
[Rules and Regulations]
[Pages 58941-58952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23371]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 524, 539, 577, 580, 581, 582, 583, 584, and 585
RIN 3141-AA47
Appeal Proceedings Before the Commission
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (NIGC or Commission)
promulgates this final rule to enhance and clarify appeal proceedings
before the Commission. This final rule removes three parts concerning
appeals, and adds a new subchapter concerning appeal proceedings before
the Commission.
This final rule has six parts. First, the Rules of General
Application in Appeal Proceedings Before the Commission define certain
terms, set forth the burden of proof and standard of review, explain
the content of a Commission decision, uniformly provide for resolution
of an appeal if the Commission does not issue a majority decision, and
clarify that an appeal of the Chair's decision for matters other than
disapproval of a gaming ordinance does not stay the effect of that
decision. Next, the regulations set forth rules for motion practice in
appeals before the Commission. This part addresses: How an entity other
than a tribe can request to participate on a limited basis in ordinance
appeals; how parties file motions to intervene, to supplement the
record, and for reconsideration; and how parties file motions before
the presiding official. Following these two general parts, the
regulations set forth more specific rules for the different types of
appeals. Rules for appeals of ordinance disapprovals, management
contract approvals and disapprovals, appeals before a presiding
official, and appeals before the Commission on written submission only,
each have their own unique appellate procedures.
DATES: Effective Date: These rules are effective October 25, 2012.
Applicability Date: These rules apply to all Notices of Appeal filed
after October 25, 2012.
FOR FURTHER INFORMATION CONTACT: Maria Getoff, National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005; email:
[email protected]; telephone: 202-632-7003.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act established the Commission and set out a comprehensive framework
for the regulation of gaming on Indian lands.
The Act gives the Chair the ``authority to levy and collect
appropriate civil fines, not to exceed $ 25,000 per violation, against
the tribal operator of an Indian game or a management contractor
engaged in gaming for any violation of any provision of [the Act], any
regulation prescribed by the Commission pursuant to [the Act], or
tribal regulations, ordinances, or resolutions approved under [the
Act].'' 25 U.S.C. 2713(a). In addition, IGRA requires that the
Commission, by regulation, provide an opportunity for an appeal and a
hearing before the Commission on fines levied by the Chair. 25 U.S.C.
2713(a)(2). Tribes and management contractors also have a right to a
hearing before the Commission to determine whether a temporary closure
order issued by the Chair should be made permanent or dissolved. 25
U.S.C. 2713(b).
Rules for appeal proceedings before the Commission were previously
found in three separate parts of this chapter: part 524 governing
appeals of ordinance disapprovals; part 539 governing appeals of
management contract approvals or disapprovals; and part 577 governing
appeals of enforcement actions and actions to void an approved
management contract. The purposes of this new subchapter are to
consolidate all appellate procedures in one place for clarity and
efficiency, and to improve the overall appellate process.
II. Previous Rulemaking Activity
On November 18, 2010, the National Indian Gaming Commission (NIGC
or Commission) issued a Notice of Inquiry and Notice of Consultation
advising the public that the NIGC was conducting a comprehensive review
of its regulations and requesting public comment on which of its
regulations were most in need of revision, in what order the Commission
should review its regulations, and the process that the NIGC should
utilize to make revisions. 75 FR 70680, Nov. 18, 2012. On April 4,
2011, after holding eight consultations and reviewing all comments, the
NIGC published a Notice of Regulatory Review Schedule setting out a
consultation schedule and process for review. 76 FR 18457, April 4,
2011. Part 519 (Service), part 524 (Appeals), part 539 (Appeals), and
part 577 (Appeals before the Commission) were included in this
regulatory review. The Commission will address changes to part 519
(Service) in a separate rulemaking action because part 519 sets forth
rules for service of actions and decisions by the Chair and therefore
does not implicate the appellate review process.
The Commission conducted additional consultations in conjunction
with its review of these parts. Tribal consultations were held in every
region of the country and were attended by
[[Page 58942]]
tribal leaders or their representatives. In addition to the tribal
consultations, on July 22, 2011, the Commission requested public
comment on a Preliminary Draft of new Subchapter H. On January 31,
2012, the Commission published a Notice of Proposed Rulemaking, which
proposed to create new Subchapter H (on February 16, 2012, the
Commission published a Correction Notice to the NPRM which made several
corrections to the preamble and regulatory text).
III. Review of Public Comments
In response to its Notice of Proposed Rulemaking, published on
January 31, 2012, 77 FR 4720 (Correction Notice published on February
16, 2012, 77 FR 9179), the Commission received the following comments:
General Comments Applicable to the Entire Subchapter
Comment: Some commenters stated that they generally supported the
creation of one subchapter on appeal proceedings, stating that these
rules are much more accessible to the parties, provide certainty about
the process, and appear to streamline and simplify the process. One of
the commenters further stated that while these proposed rules will
likely need refinement as they are implemented, they are a vast
improvement to the current appeal proceeding rules. Two of the
commenters stated that in the past, tribes have been held in limbo
waiting for long periods of time for a decision on appeal, but that
these rules address that concern by identifying clear timeframes for a
decision.
Response: The Commission agrees that consolidating all appellate
procedures into one subchapter provides greater clarity and efficiency,
and that addressing certain issues that were not addressed in the prior
regulations improves the overall appellate process.
Comment: A few commenters were concerned by what they deem to be
the Commission's formal, overly rigid, and inflexible approach to
hearing and deciding matters on appeal, which may burden the special
government-to-government relationship between the Commission and
tribes. One commenter was also concerned that the rules emphasize an
adversarial appeals process. All three commenters suggested that the
rules be re-drafted with a view towards a more informal and
collaborative approach that gives due regard and respect for the
sovereign authority of tribes, and encourages parties to reach an
amicable resolution of a regulatory matter on appeal.
Response: The Commission understands the commenters' concerns that
a rigid appeals process could impede a cooperative, government-to-
government dialogue. However, the Commission had to consider how best
to balance the desire for open, informal dialogue with the need to
ensure that each tribe is afforded a fair, efficient, and transparent
appellate process. Therefore, the Commission has elected not to adopt
the suggested changes. The Commission believes, however, that the
amendments improve a fair and efficient appellate process, accessible
to all who choose to utilize it. Moreover, the Commission notes that
nothing prevents the Commission and a party from reaching a mutually
beneficial and amicable settlement of an administrative appeal.
Comment: Some commenters generally stated that the time periods for
the filing of various motions and briefs in this subchapter are
unreasonably short and should be re-examined for reasonableness, with
the Commission taking into consideration the time-consuming, internal
decision processes that tribal governments and tribal agencies must
follow, as well as the resource constraints in obtaining timely legal
services. All three commenters suggested that the filing deadlines be
increased, with two commenters providing specific suggestions: (i)
Filing deadlines for major decisions, such as whether to file a notice
of appeal or motion for reconsideration, should be increased from 30
days to 60 days from the date of the Chair's decision; (ii) filing
deadlines for appeal briefs should be increased from 15 days to 45 days
after service of the record from the Commission; (iii) all other
appellant responses should be increased from 10 days to 20 days after
service of the submission; (iv) filing a motion to intervene by a third
party should be increased from 10 days to 20 days; and (v) filing a
reply brief in opposition to a motion to intervene should be increased
from 5 days to 20 days. One commenter further stated that the suggested
timeframes will help reduce the expense and inconvenience of processing
numerous motions for extensions of time in the future.
Response: In light of these comments, the Commission reviewed the
proposed filing deadlines and compared them with those of other federal
agencies. In the interest of establishing and maintaining uniformity to
the extent feasible with other appeals boards of the Department of the
Interior's Office of Hearings and Appeals (OHA), such as the Interior
Board of Indian Appeals (IBIA), the Commission modified certain
deadlines, but not others, to be consistent with many of the OHA
deadlines. Specifically:
(i) The Commission determined that the time period to file a notice
of appeal or motion for reconsideration should remain at 30 days. This
30-day time period is consistent with the IBIA's deadline for the
filing of notices of appeal.
(ii) The Commission modified the time period to file appeal briefs
from 15 days to 30 days after service of the record, except for appeals
before a presiding official, which shall remain at 10 days due to the
short timeframe for commencing and completing the hearing. This 30-day
time period is consistent with the IBIA's deadline for the filing of an
appeal brief after the docketing of the appeal.
(iii) The Commission modified the time period to file a response or
opposition brief from 10 days to 20 days, except for appeals before a
presiding official, which shall remain at 10 days due to the short
timeframe for commencing and completing the hearing.
(iv) The Commission determined that the time period to file motions
to intervene or for limited participation shall remain at 10 days. The
Commission believes that third party motions to intervene or
participate should be made early in the appellate process so that the
party that filed the appeal and the Commission know who is interested
in participating in the appeal and the reasons why they are interested.
Further, opposition briefs to such motions will remain at 10 days and
reply briefs at 5 days. All parties benefit when the Commission makes a
decision on these motions early in the appellate process. Finally,
nothing prevents a third party from filing a motion for an extension of
time to file either a motion to intervene or to participate, or a brief
in opposition thereof.
(v) The Commission modified the time period to file objections to
the presiding official's recommended decision from 10 days to 20 days,
except that if the subject of the appeal is an order of temporary
closure, the time period to file objections to the presiding official's
recommended decision shall be 5 days due to the statutory timeframe for
issuing decisions on temporary closure orders after the conclusion of
the hearing; and
(vi) The Commission determined that the time period to file most
reply briefs is modified from 5 or 10 days to 15 days, except for
appeals before a presiding official, which shall remain at 5 days due
to the short timeframe for commencing and completing the
[[Page 58943]]
hearing. This 15-day time period is consistent with the IBIA's deadline
for the filing of reply briefs.
Comment: A few commenters stated that it is necessary for tribal
governments to have knowledge of the facts underlying a decision before
filing an appeal so that they can better assess the merits of the
appeal in advance to make a fully informed decision of whether to
appeal, and to be better equipped to prepare appeal briefs and motions.
The commenters suggested that the appellants should have access to the
full record prior to filing a notice of appeal in order to make a fully
informed decision regarding whether or not to file a notice of appeal.
To that end, one commenter recommended the addition of a generally
applicable provision under which an appellant may request that the
Commission disclose the record that formed the basis for an agency
action before filing an appeal.
Response: The Commission disagrees. The Commission believes that it
would be inefficient and a burden on agency resources to produce
records for parties who have not appealed and may never appeal.
General Comments on Ex Parte Communications
In the Notice of Proposed Rulemaking, the Commission removed the ex
parte communication prohibition rule, but nevertheless invited general
comments on how to address ex parte communications.
Comment: Two commenters stated that a prohibition on ex parte
communications should not serve as a barrier or impermissible restraint
to the special government-to-government relationship between a tribal
government and the Commission. Both commenters suggested that the
prohibition on ex parte communications should only apply when the
appeal proceeding involves both an appellant and an additional adverse
party, other than the Chair, before a neutral arbiter. One commenter
stated that it would be unreasonable for either the Chair or the tribal
appellant to cease communicating with the Commission, and the other
further stated that the lines of communication between tribal
governments and the Commission should always remain open throughout the
appeals process so that there is ample opportunity for the parties to
engage in discussions, negotiations, and informal meetings.
Response: As set forth in the Notice of Proposed Rulemaking, the
Commission explained that it removed the ex parte communication
prohibition rule that appeared in the preliminary draft (circulated to
tribes in advance of the NPRM) because several commenters expressed
concern regarding the reach and application of the prohibition, as well
as concerns that it could stifle otherwise lawful communications
between the Commission and the tribes. Therefore, the prohibition is
not part of these final rules. The Commission will consider issuing
guidance on ex parte communications instead.
Comment: One commenter suggested that, should a prohibited ex parte
communication occur, the Commission should allow for the preservation
of the communication on the record and service on adverse parties, as
well as an opportunity for the adverse party to respond to the
communication on the record.
Response: While an explicit prohibition on ex parte communications
is not part of the final rules, the Commission agrees with the
commenter that, should a prohibited ex parte communication occur, the
Commission will follow the practice of preserving the communication on
the record and serving it on the opposing party, as well as providing
an opportunity for the opposing party to respond to the communication
on the record.
580.1 What definitions apply?
Comment: Two commenters suggested a clearer and more precise
definition of ``presiding official'' that addresses, at a minimum, the
requirement that the presiding official be neutral and free from the
direct supervision or control of the Commission, so that appellants are
afforded a fair hearing consistent with due process principles.
Response: The Commission agrees with the commenters and has
modified the definition accordingly.
580.2 When may the Commission waive its procedural rules governing
appellate proceedings before the Commission?
Comment: A few commenters stated that the Commission's standard for
waiving its rules--``good cause'' and ``interest of justice''--are
unnecessarily high and restrictive, albeit for different reasons. One
commenter stated that tribal governments should not be required to show
``good cause'' if a waiver of the rules is necessary, but instead, the
possibility of waiving the rules should always remain open as a viable
option for every matter an appeal, and further stated that the
Commission should remove the ``interest of justice'' standard. The
second commenter noted that in no case may the time for filing a notice
of appeal be extended and sees no principled reason for the Commission
to bind itself and future Commissions to these rigid rules. The third
commenter stated that the ``interest of justice'' standard seems
inappropriate given the Commission's role as a civil regulatory agency,
not a criminal enforcement agency. However, all three commenters
suggested that waivers should be granted based on equitable
considerations.
Response: In light of these comments, the Commission decided to
define more clearly the standard to state ``if the ends of justice so
require and if to do so does not substantially prejudice any party.''
This standard is in accordance with Supreme Court precedent regarding
when an executive federal agency, regardless of whether it is a civil
regulatory agency or a criminal enforcement agency, may exercise its
discretion to relax or waive procedural rules that it adopted for the
orderly transaction of business.
580.11 What if the Commission does not issue a majority decision?
Comment: Some commenters were concerned by the Commission's
proposal to designate the Chair's decision as a final agency action in
the absence of a majority decision by the Commission, as it results in
the Chair being both the decision-maker of a matter and the exclusive
adjudicator of whether or not his or her decision in that matter was
correct. All three commenters stated that such an outcome deprives the
appellant of his or her right to have a matter on appeal adjudicated by
a fair and neutral decision-maker. Two commenters further stated that
this result is contrary to what Congress intended in IGRA, and another
commenter stated that such an outcome invites due process challenges.
One of the commenters was disappointed by the decision to remove
language that would have affirmed the presiding official's recommended
decision as final agency action in the absence of a majority decision,
and stated that it is patently unfair to favor the Chair's disputed
decision over a recommended decision issued by a neutral arbiter. This
commenter suggested that the Commission reinstate the provision
allowing a presiding official's recommended decision to become a final
agency action if the Commission is unable to reach a majority decision.
Another commenter suggested that the Commission carefully consider the
due process implications and draft this rule appropriately.
Response: IGRA mandates that Commission agency decisions shall be
made or adopted by either the Chair or
[[Page 58944]]
the Commission as a whole, and not by a presiding official who has not
been appointed to serve on the Commission and would not otherwise be
accountable for such an agency decision. Therefore, the Commission is
statutorily prohibited from making the recommended change.
In addition, the Commission explained in the preamble to the NPRM
that it removed the provision allowing the presiding official's
recommended decision to become final agency action in the absence of a
Commission majority decision because the recommended decision is, by
definition, a recommendation. Further, this provision already exists in
the rules governing management contracts, and for consistency, the
Commission determined to have the same provision apply to all appeals.
581.5 How do I file a motion to supplement the record?
Comment: One commenter suggested that the language in Sec. 581.5
should be similar to the provision in Sec. 584.8 of this subchapter
with respect to supplementation of the record in proceedings before a
presiding official.
Response: Regarding the suggested language change, Sec. 584.8 of
this subchapter governs hearings before a presiding official and
provides that the parties may make additional submissions to the record
after the hearing and before the presiding official closes the record.
Presiding officials provide recommended decisions for the Commission's
consideration, which the Commission either affirms or reverses, in
whole or in part. It is essential that the Commission refrain from
setting a closing date for the record similar to the provision in Sec.
584.8 to ensure that the Commission considers all relevant evidence
prior to issuing its final decision. The Commission thus declines to
make the suggested language change.
Comment: To avoid substantial uncertainty regarding the amount of
time available to a potential appellant to submit additional materials
while the record is still open, one commenter suggested that this
section be revised to provide clarity as to when the record is deemed
closed for the Commission to begin their decision-making process.
Response: Regarding the timing of the closing of the record, the
Commission states that the record is open until the Commission issues a
final agency decision because it is paramount that the Commission, the
final arbiter, makes its decision on as complete a record as possible.
581.6 How do I file a motion for reconsideration?
Comment: Some commenters had concerns about the ``extraordinary
circumstances'' standard for granting a motion for reconsideration. One
commenter stated that the rule implies that motions for reconsideration
will be considered rare exceptions rather than the norm. Another
commenter stated that such a high and relatively unattainable standard
for reconsiderations is contrary to the overall objective of the
appeals process, which should be to achieve an amicable resolution of a
regulatory issue, and should not be adversarial. One commenter stated
that this standard unnecessarily restricts a tribe's ability to work
with the Commission in reaching an agreeable solution after a final
decision has been issued and another commenter stated that this
standard hinders opportunities for the Commission to continue the
dialogue with an appellant tribe after a final decision has been
issued. All three commenters suggested that the Commission remove the
``extraordinary circumstances'' standard to ensure that any party can
file a motion for reconsideration without limitation as to the
circumstances giving rise to the motion.
Response: The Commission agrees in part, and disagrees in part. In
federal courts, motions for reconsideration are ``disfavored'' and are
granted only to correct manifest errors in law or fact or to present
newly discovered evidence. Other federal executive agencies have also
codified these legal standards into their regulations. For example, the
U.S. Merit Systems Protection Board will grant a petition for review of
an appellate decision only when a party has established that: ``(1)
[n]ew and material evidence is available that, despite due diligence,
was not available when the record closed; or (2) [t]he decision of the
judge is based on an erroneous interpretation of statute or
regulation.'' 5 CFR 1201.115. Therefore, the Commission disagrees that
parties should be able to file motions for reconsideration without any
limitation.
Nonetheless, in light of the comments received, the Commission has
removed the term ``extraordinary circumstances'' and replaced it with
defined legal standards. As noted above, these standards are based on
both federal court practice and that of other federal executive
agencies. A moving party must meet any one of these three standards for
a motion for reconsideration to be sustained.
Further, administrative appeals are a form of litigation and are
adversarial. Nothing, however, prevents the Chair and a party from
reaching a mutually beneficial settlement of an administrative appeal.
Comment: One commenter stated that the 30-day timeframe for filing
a motion for reconsideration may be problematic because the Commission
fails to take into account the long-term and ongoing nature of some
enforcement matters such as civil fine assessments, the payment of
which may be made in installments over time. The commenter suggested
that the proposed rule not limit the ability of the tribal government
and the Commission to modify that dispute-specific relationship as new
facts or arguments come to light, even after the 30-day timeframe has
expired.
Response: The Commission considered this comment and concluded that
the filing deadline for motions for reconsideration does not affect the
imposition and ongoing payments of civil fine assessments. Once a civil
fine has been appealed to the Commission, the Commission may, at any
time after the appellate process has concluded and the civil fine has
become final agency action, exercise its discretion to reconsider the
continued payment and/or reduction of civil fine payments if a petition
for such action is submitted to the Commission.
584.6 When will the hearing be held?
Comment: A commenter noted that there is a potential for an overlap
between the time a presiding official is designated and the deadline
for concluding the hearing in temporary closure order appeals. In the
interest of ensuring that the presiding official can conduct a full and
fair hearing, the commenter suggested that the timeframe for
designating a presiding official should be much shorter for appeals
involving temporary closure orders, requiring the Commission to appoint
a presiding official within five to seven days after a timely notice of
appeal is filed.
Response: Many of the presiding officials participating in
Commission appeals are designated by the Department of the Interior's
Office of Hearings and Appeals (OHA). When an appeal hearing concerns a
temporary closure order, the Commission will request that OHA quickly
designate a presiding official so that the appeal hearing may be
commenced and concluded within the timeframes set forth in these rules.
Comment: A commenter requested clarification on whether there is
any language that allows the parties or the
[[Page 58945]]
entity that is making the appeal to recommend or object to the
selection of the presiding official, and suggested that parties should
be given an opportunity to make recommendations or objections on the
selection of the presiding official because certain individuals have
very limited gaming experience.
Response: The Commission disagrees. Pursuant to other comments, the
Commission has modified the definition of ``presiding official'' to
state clearly that a presiding official ``shall not be under the direct
control or supervision of the Commission, nor subject to influence by
the Chair or the Commission.'' Similarly, the Commission believes that
presiding officials should not be subject to the approval of parties to
the appeal, regardless of the extent of their gaming experience.
584.8 What is the hearing process?
Comment: A commenter suggested that the Commission allow parties to
supplement the record at any time prior to the issuance of the
Commission's final decision.
Response: The Commission agrees. Parties may move to supplement the
record under Sec. 581.5, which provides that a party may file a motion
for leave to submit additional evidence at any time prior to issuance
of a final decision by the Commission.
The Commission has added two provisions to proposed Sec. 584.8(c)
that shorten filing deadlines in temporary closure order cases to
comply with the statutory requirement that the Commission issue
decisions in these cases within 60 days of the conclusion of a hearing.
Thus, Sec. 584.8(c) now provides that if the subject of the appeal is
an order of temporary closure, the record will be kept open for a
maximum of 10 days, rather than ``a reasonable period of time'' as
provided for in all other matters. In addition, Sec. 584.8(c) also now
provides that in temporary closure order matters, the presiding
official shall issue a recommended decision within 20 days after the
record closes.
584.10 What is the process for pursuing settlement or a consent decree?
Comment: A few commenters stated that this rule could be construed
as limiting the period during which parties to an appeal proceeding may
pursue settlement or a consent decree once the ``five days before the
date scheduled for hearing'' deadline has passed. These commenters thus
suggested that this section be clarified to expressly allow parties to
negotiate the terms of a potential settlement agreement at any time
during the appeal proceeding.
Response: This rule is intended to set a time limit for the parties
to move jointly to defer a hearing before a presiding official so that
the parties may enter negotiations for a settlement. Parties may engage
in settlement negotiations at all times; however, if the parties wish
to defer a hearing before a presiding official to engage in settlement
negotiations, they must do so at least five days before the date
scheduled for hearing.
585.7 When will the Commission issue its decision?
The Commission changed Sec. 585.7 to shorten the time within which
it will issue its decision in temporary closure order matters from 60
days to 30 days. The temporary closure of a tribe's casino is a very
serious consequence, and the Commission believes that such matters
should be resolved expeditiously. In addition, if this timeframe is not
shortened, then temporary closure order cases on written submission
could take longer than temporary closure order cases that go to a
hearing. Therefore, if the subject of the appeal is whether to dissolve
or make permanent a temporary closure order, the Commission shall issue
its decision within 30 days of the conclusion of briefing by the
parties.
Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant economic effect on a
substantial number of small entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq. Moreover, Indian tribes are not
considered to be small entities for the purposes of the Regulatory
Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
annual effect on the economy of $100 million or more. The rule will not
cause a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies or geographic
regions. Nor will the rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act. 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that this rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Executive
Order.
National Environmental Policy Act
The Commission has determined that this rule does not constitute a
major federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
Paperwork Reduction Act
This proposed rule does not require information collection under
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is
therefore not subject to review by the Office of Management and Budget.
List of Subjects
25 CFR Parts 524, 539, and 577
Administrative practice and procedure, Gambling, Indian-lands,
Reporting and recordkeeping requirements.
25 CFR Parts 580, 581, 582, 583, 584, and 585
Appeals, Gambling, Indian-lands.
For the reasons stated in the preamble, and under the authority of
the Indian Gaming Regulatory Act, 25 U.S.C. 2701-2712, the Commission
removes 25 CFR parts 524, 539, and 577, and adds subchapter H,
consisting of parts 580 through 585, to 25 CFR chapter III as follows:
PART 524--[REMOVED]
0
1. Remove part 524.
PART 539--[REMOVED]
0
2. Remove part 539.
PART 577--[REMOVED]
0
3. Remove part 577.
0
4. Add subchapter H, consisting of parts 580 through 585 to read as
follows:
[[Page 58946]]
Subchapter H--Appeal Proceedings Before the Commission
PART 580--RULES OF GENERAL APPLICATION IN APPEAL PROCEEDINGS BEFORE
THE COMMISSION
PART 581--MOTIONS IN APPEAL PROCEEDINGS BEFORE THE COMMISSION
PART 582--APPEALS OF DISAPPROVALS OF GAMING ORDINANCES, RESOLUTIONS,
OR AMENDMENTS
PART 583--APPEALS FROM APPROVALS OR DISAPPROVALS OF MANAGEMENT
CONTRACTS OR AMENDMENTS TO MANAGEMENT CONTRACTS
PART 584--APPEALS BEFORE A PRESIDING OFFICIAL OF NOTICES OF
VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF TEMPORARY
CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY MANAGEMENT
CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A CERTIFICATE OF
SELF-REGULATION, AND NOTICES OF LATE FEES AND LATE FEE ASSESSMENTS
PART 585--APPEALS TO THE COMMISSION ON WRITTEN SUBMISSIONS OF
NOTICES OF VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF
TEMPORARY CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY
MANAGEMENT CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A
CERTIFICATE OF SELF-REGULATION, AND NOTICES OF LATE FEES AND LATE
FEE ASSESSMENTS
PART 580--RULES OF GENERAL APPLICATION IN APPEAL PROCEEDINGS BEFORE
THE COMMISSION
Sec.
580.1 What definitions apply?
580.2 When may the Commission waive its procedural rules governing
appellate proceedings before the Commission?
580.3 Who may appear before the Commission?
580.4 How do I effect service?
580.5 What happens if I file late or fail to file?
580.6 How is time computed?
580.7 What is the burden of proof and standard of review?
580.8 What will the Commission's final decision contain?
580.9 What is the effective date of the Commission's final decision?
580.10 Is the Commission's decision a final agency action?
580.11 What if the Commission does not issue a majority decision?
580.12 Does an appeal of a Chair's decision stay the effect of that
decision?
Authority: 25 U.S.C. 2706, 2713, 2715.
Sec. 580.1 What definitions apply?
The following definitions apply to this subchapter:
Day: A calendar day.
De novo review: A standard of review where the Commission reviews
the matter anew, as if it had not been reviewed by the Chair.
Limited participant: A party who successfully petitions the
Commission to participate on a limited basis in an ordinance appeal
under Sec. 582.5 of this subchapter.
Preponderance of the evidence: The degree of relevant evidence that
a reasonable person, considering the record as a whole, would accept as
sufficient to find that a contested fact is more likely to be true than
untrue.
Presiding official: The individual who presides over the hearing
and issues the recommended decision under part 584. This individual
shall not be under the direct control or supervision of the Commission,
nor subject to influence by the Chair or the Commission.
Proceeding: All or part of an appeal heard by a presiding official
or the Commission, and decided by the Commission.
Summary proceeding: Ordinance appeals and management contract and
amendment appeals are summary proceedings.
Sec. 580.2 When may the Commission waive its procedural rules
governing appellate proceedings before the Commission?
The procedural provisions of parts 580 through 585 of this
subchapter may be waived, in whole or in part, to promote the orderly
conduct of business on motion to the Commission or on its own motion,
if the ends of justice so require and if to do so does not
substantially prejudice any party, except that the Commission may not
extend the time for filing a notice of appeal.
Sec. 580.3 Who may appear before the Commission?
In any appellate proceeding under parts 582 through 585 of this
subchapter, a party or limited participant may appear in person or by
an attorney or other authorized representative. An attorney must be in
good standing and admitted to practice before any Court of the United
States, the District of Columbia, any tribal court, or the highest
court of any state, territory, or possession of the United States. Any
person appearing as an attorney or authorized representative shall file
with the Commission a written notice of appearance. The notice must
state his or her name, address, telephone number, facsimile number,
email address, if any, and the name and address of the person or entity
on whose behalf he or she appears.
Sec. 580.4 How do I effect service?
(a) An appellant shall serve its notice of appeal on the Commission
at the address indicated in the decision or notice that is the subject
of the appeal.
(b) Copies of the notice of appeal shall be filed personally or by
registered or certified mail, return receipt requested. All subsequent
documents shall be served personally, by facsimile, by email to an
address designated by a Commission employee, or by first class mail. In
matters where a hearing has been requested, all filings shall be made
with the Commission until a presiding official is designated and the
parties are so notified, after which all filings shall be made with the
presiding official.
(c) All documents filed after the notice of appeal shall be served
on the Commission and copies concurrently served on all parties,
intervenors, or limited participants.
(d) Service of copies of all documents is complete at the time of
personal service or, if service is made by mail, facsimile, or email,
upon transmittal.
(e) When a representative (including an attorney) has entered an
appearance for a party, limited participant, or intervenor in a
proceeding initiated under any provision of parts 582 through 585 of
this subchapter, service thereafter shall be made upon the
representative.
(f) The Commission may extend the time for filing or serving any
document, except a notice of appeal.
(1) A request for an extension of time must be filed within the
time originally allowed for filing.
(2) For good cause, the Commission may grant an extension of time
on its own motion.
(g) Rules governing service of documents by the Chair or Commission
are governed by part 519 of this chapter.
Sec. 580.5 What happens if I file late or fail to file?
(a) Failure to file an appeal within the time provided shall result
in a waiver of the right to appeal.
(b) Failure to meet any deadline for the filing of any motion or
response thereto shall result in a waiver of the right to file.
Sec. 580.6 How is time computed?
In computing any period of time prescribed for filing and serving a
document, the first day of the period so computed shall not be
included. The last day shall be included unless it falls on a Saturday,
Sunday, or Federal legal holiday, in which case the period shall run
until the end of the next business day. Except for appeals of temporary
closure orders, when the period of time
[[Page 58947]]
prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and legal federal holidays shall be excluded in the
computation.
Sec. 580.7 What is the burden of proof and standard of review?
(a) The Chair bears the burden of proof to support his or her
action or decision by a preponderance of the evidence.
(b) The Commission shall review the Chair's actions or decisions de
novo.
Sec. 580.8 What will the Commission's final decision contain?
The Commission may affirm, modify, or reverse, in whole or in part,
the Chair's decision or the presiding official's recommended decision,
or may remove a certificate of self-regulation, and will state the
bases of its decision. The final decision will be in writing and will
include:
(a) A statement of findings and conclusions, with the bases for
them on all material issues of fact, law, or discretion;
(b) A ruling on each material issue; and
(c) An appropriate grant or denial of relief.
Sec. 580.9 What is the effective date of the Commission's final
decision?
The Commission's final decision is effective immediately unless the
Commission provides otherwise in the decision.
Sec. 580.10 Is the Commission's decision a final agency action?
The Commission's final decision is a final agency action for
purposes of judicial review.
Sec. 580.11 What if the Commission does not issue a majority
decision?
In the absence of a decision of a majority of the Commission within
the time provided, the Chair's decision shall constitute the final
decision of the Commission, except that if the subject of the appeal is
a temporary closure order, the order shall be dissolved.
Sec. 580.12 Does an appeal of a Chair's decision stay the effect of
that decision?
Except as otherwise provided by NIGC regulations at 25 CFR 522.5
and 522.7, the filing of an appeal does not stay the effect of the
Chair's decision. The appellant must comply with the Chair's decision
pending the outcome of the appeal.
PART 581--MOTIONS IN APPEAL PROCEEDINGS BEFORE THE COMMISSION
Sec.
581.1 What is the scope of this part?
581.2 How does an entity other than a tribe request to participate
on a limited basis in an ordinance appeal?
581.3 How do I file a motion to intervene in appeals?
581.4 How do I file a motion before a presiding official?
581.5 How do I file a motion to supplement the record?
581.6 How do I file a motion for reconsideration?
Authority: 25 U.S.C. 2706, 2713, 2715.
Sec. 581.1 What is the scope of this part?
(a) This part governs motion practice under:
(1) Part 582 of this subchapter relating to appeals of disapprovals
of gaming ordinances, resolutions, or amendments;
(2) Part 583 of this subchapter relating to appeals of the approval
or disapproval of management contracts or amendments to a management
contract;
(3) Part 584 of this subchapter relating to appeals before a
presiding official of notices of violation, orders of temporary
closure, proposed civil fine assessments, the Chair's decisions to void
or modify management contracts, the Commission's proposals to remove
certificates of self-regulation, and notices of late fees and late fee
assessments; and
(4) Part 585 of this subchapter relating to appeals to the
Commission on written submissions of notices of violation, orders of
temporary closure, proposed civil fine assessments, the Chair's
decisions to void or modify management contracts, the Commission's
proposals to remove certificates of self-regulation, and notices of
late fees and late fee assessments.
(b) This part also governs motion practice in hearings under Sec.
535.3 of this subchapter to review the Chair's decision to void or
modify a management contract.
Sec. 581.2 How does an entity other than a tribe request to
participate on a limited basis in an ordinance appeal?
Requests for limited participation in ordinance appeals are
governed by Sec. 582.5 of this subchapter.
Sec. 581.3 How do I file a motion to intervene in appeals?
Motions to intervene in appeals before a presiding official are
governed by Sec. 584.5 of this subchapter. Motions to intervene in
appeals before the Commission are governed by Sec. 585.5 of this
subchapter.
Sec. 581.4 How do I file a motion before a presiding official?
Motion practice before a presiding official on appeals of notices
of violation, orders of temporary closure, proposed civil fine
assessments, the Chair's decisions to void or modify management
contracts, the Commission's proposals to remove certificates of self-
regulation, and notices of late fees and late fee assessments is
governed by Sec. 584.4 of this subchapter.
Sec. 581.5 How do I file a motion to supplement the record?
Upon its own motion or the motion of a party, the Commission may
allow the submission of additional evidence. A party may file a motion
for leave to submit additional evidence at any time prior to issuance
of a final decision by the Commission. Such motion shall show with
particularity that such additional evidence is material and that there
were reasonable grounds for failure to previously submit such evidence.
The Commission may adjust its time for issuing a final decision
accordingly, unless the subject of the appeal is a temporary closure
order.
Sec. 581.6 How do I file a motion for reconsideration?
(a) Motions for reconsideration may be made only for final
decisions on appeal and will only be granted if a party can establish
that:
(1) New and material evidence is now available that, despite the
party's due diligence, was not available when the record closed;
(2) The final decision was based on an erroneous interpretation of
law or there has been an intervening change in the controlling law; or
(3) A manifest injustice, clearly apparent or obvious on its face,
will occur if the motion for reconsideration is not granted.
(b) A motion for reconsideration and accompanying brief shall be
filed within 30 days of the date of the Commission's final decision and
shall be served on all parties, limited participants, and intervenors,
if any. A motion for reconsideration shall explain the circumstances
requiring reconsideration.
(c) A party may file only one motion and accompanying brief for
reconsideration.
(d) Opposition briefs shall be filed within 20 days after the
motion is filed.
(e) A reply brief to the brief in opposition shall be filed within
15 days of service of the brief in opposition.
(f) The Commission shall issue a decision on reconsideration within
30
[[Page 58948]]
days of the filing of the reply brief or of the expiration of the time
to file a reply brief, whichever is later. The Commission shall issue a
brief statement of the reason(s) for its decision.
(g) If the Commission grants the motion, it may reverse or modify
the decision, in whole or in part, from which reconsideration is sought
or may remand to the Chair for further consideration.
(h) The filing of a motion for reconsideration will not stay the
effect of any decision or order and will not affect the finality of any
decision or order for purposes of judicial review, unless so ordered by
the Commission.
PART 582--APPEALS OF DISAPPROVALS OF GAMING ORDINANCES,
RESOLUTIONS, OR AMENDMENTS
Sec.
582.1 What does this part cover?
582.2 Who may appeal the disapproval of a gaming ordinance?
582.3 How do I appeal the disapproval of a gaming ordinance?
582.4 Are motions permitted?
582.5 How does an entity other than a tribe request to participate
on a limited basis?
582.6 When will I receive a copy of the record on which the Chair
relied?
582.7 When will the Commission issue its final decision?
Authority: 25 U.S.C. 2706, 2710, 2713, 2715.
Sec. 582.1 What does this part cover?
This part applies to appeals from the Chair's decision to
disapprove a gaming ordinance, resolution, or amendment thereto under
part 522 of this chapter.
Sec. 582.2 Who may appeal the disapproval of a gaming ordinance?
Only the tribe whose gaming ordinance, resolution, or amendment
thereto is disapproved by the Chair may appeal.
Sec. 582.3 How do I appeal the disapproval of a gaming ordinance?
Within 30 days after the Chair serves his or her disapproval, the
appellant must file with the Commission a notice of appeal. The notice
of appeal must reference the decision from which the appeal is taken.
Unless the Commission has extended the time for filing an appeal brief
pursuant to Sec. 580.4(f) of this subchapter, the appeal brief must be
filed within 30 days of service of the record pursuant to Sec. 582.6.
The appeal brief shall state succinctly why the appellant believes the
Chair's disapproval should be reversed and may include supporting
documentation.
Sec. 582.4 Are motions permitted?
Ordinance appeals are summary proceedings. Only motions for
extension of time under Sec. 580.4(f) of this subchapter, motions for
limited participation under Sec. 582.5, motions to supplement the
record under Sec. 581.5 of this subchapter, and motions for
reconsideration under Sec. 581.6 of this subchapter, are permitted.
Sec. 582.5 How does an entity other than a tribe request to
participate on a limited basis?
(a) An individual, whether acting on his or her own behalf or as an
agent of an entity, or an entity other than the tribe identified in
Sec. 582.2, may request to participate in an appeal of an ordinance
disapproval on a limited basis by filing a submission with the
Commission within 10 days of the filing of the notice of appeal.
(b) The submission may contain supporting documentation, and shall
state:
(1) The individual's or entity's property, financial, or other
interest at stake in the proceeding; and
(2) The reason(s) why the Chair's decision should be upheld or
reversed. The submission shall address the ordinance requirements under
Sec. Sec. 522.4, 522.5, 522.6, and 522.7 of this chapter.
(c) The submission shall be served concurrently on the tribe
consistent with Sec. 580.4 of this subchapter. Failure to properly
serve the tribe may be a basis for denying limited participation.
(d) Within 10 days after service of the submission, any party to
the appeal may file a brief and supporting material in response to the
submission.
(e) Within 10 days of the filing of a response pursuant to
paragraph (d) of this section, the Commission will notify the submitter
in writing of its decision whether to accept and consider the
submission and will state the basis for its decision, which it shall
serve on the individual or entity and the tribe.
Sec. 582.6 When will I receive a copy of the record on which the
Chair relied?
Within 10 days of the filing of a notice of appeal, or as soon
thereafter as practicable, the record on which the Chair relied will be
transmitted to the tribe.
Sec. 582.7 When will the Commission issue its final decision?
(a) Within 90 days after it receives the appeal brief or within 90
days of its ruling on a request for limited participation brought under
Sec. 582.5 or within 90 days of the conclusion of briefing by all
parties, whichever is later, the Commission shall issue its final
decision.
(b) The Commission shall notify the tribe and any limited
participant of its final decision and the reason(s) supporting it.
PART 583--APPEALS FROM APPROVALS OR DISAPPROVALS OF MANAGEMENT
CONTRACTS OR AMENDMENTS TO MANAGEMENT CONTRACTS
Sec.
583.1 What does this part cover?
583.2 Who may appeal the approval or disapproval of a management
contract or amendment to a management contract?
583.3 How do I appeal the approval or disapproval of a management
contract or amendment to a management contract?
583.4 Are motions permitted?
583.5 When will I receive a copy of the record on which the Chair
relied?
583.6 When will the Commission issue its final decision?
Authority: 25 U.S.C. 2706, 2711, 2712, 2713, 2715.
Sec. 583.1 What does this part cover?
This part applies to appeals from the Chair's decision to approve
or disapprove a management contract or amendment to a management
contract under parts 533 and 535 of this chapter.
Sec. 583.2 Who may appeal the approval or disapproval of a management
contract or amendment to a management contract?
Only a party to the management contract or amendment thereto
approved or disapproved by the Chair may appeal.
Sec. 583.3 How do I appeal the approval or disapproval of a
management contract or amendment to a management contract?
(a) Within 30 days after the Chair serves his or her determination,
the appellant must file a notice of appeal with the Commission and
serve it on all parties to the management contract. The notice of
appeal must reference the decision from which the appeal is taken.
Unless the Commission has extended the time for filing an appeal brief
pursuant to Sec. 580.4(f) of this subchapter, the appeal brief must be
filed within 30 days of service of the record pursuant to Sec. 583.5.
The brief shall state succinctly why the appellant believes the Chair's
approval or disapproval should be reversed and may include supporting
documentation.
(b) Another party to the management contract may oppose the appeal
by filing an opposition brief with the Commission within 20 days after
service of the appellant's brief. The opposition brief shall state
succinctly why the party believes the Chair's approval or disapproval
should be upheld and may include supporting documentation.
[[Page 58949]]
(c) The appellant may file a reply brief within 15 days of service
of the opposition brief.
Sec. 583.4 Are motions permitted?
Management contract and amendment appeals are summary proceedings.
Only motions for an extension of time under Sec. 580.4(f) of this
subchapter, motions to supplement the record under Sec. 581.5 of this
subchapter, and motions for reconsideration under Sec. 581.6 of this
subchapter, are permitted.
Sec. 583.5 When will I receive a copy of the record on which the
Chair relied?
Within 10 days of the filing of a notice of appeal, or as soon
thereafter as practicable, the record will be transmitted to all
parties.
Sec. 583.6 When will the Commission issue its final decision?
(a) The Commission shall issue its final decision within 90 days
after service of the appeal brief or within 90 days after the
conclusion of briefing by the parties, whichever is later.
(b) The Commission shall notify the tribe and management contractor
of its final decision and the reason(s) supporting it.
PART 584--APPEALS BEFORE A PRESIDING OFFICIAL OF NOTICES OF
VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF TEMPORARY
CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY MANAGEMENT
CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A CERTIFICATE OF
SELF-REGULATION, AND NOTICES OF LATE FEES AND LATE FEE ASSESSMENTS
Sec.
584.1 What does this part cover?
584.2 Who may appeal?
584.3 How do I appeal a notice of violation, proposed civil fine
assessment, order of temporary closure, the Chair's decision to void
or modify a management contract, the Commission's proposal to remove
a certificate of self-regulation, and a notice of late fees and late
fee assessments?
584.4 Are motions permitted?
584.5 How do I file a motion to intervene?
584.6 When will the hearing be held?
584.7 When will I receive a copy of the record on which the Chair
relied?
584.8 What is the hearing process?
584.9 How may I request to limit disclosure of confidential
information?
584.10 What is the process for pursuing settlement or a consent
decree?
584.11 Will the hearing be transcribed?
584.12 What happens after the hearing?
584.13 May I file an objection to the recommended decision?
584.14 When will the Commission issue its final decision?
Authority: 25 U.S.C. 2706, 2710, 2711, 2712, 2713, 2715, 2717.
Sec. 584.1 What does this part cover?
(a) This part applies to appeals of the following where the
appellant elects a hearing before a presiding official:
(1) Violation(s) alleged in a notice of violation under Sec. 573.3
of this chapter;
(2) Proposed civil fine assessments under part 575 of this chapter;
(3) Orders of temporary closure under Sec. 573.4 of this chapter;
(4) The Chair's decision to void or modify a management contract
under part 535 of this chapter subsequent to initial approval;
(5) The Commission's proposal to remove a certificate of self-
regulation under part 518 of this chapter; and
(6) Late fee notifications and assessments under part 514 of this
chapter.
(b) Appeals identified in paragraph (a) of this section brought
directly before the Commission on the written record and without a
hearing are filed pursuant to part 585 of this subchapter.
Sec. 584.2 Who may appeal?
(a) Appeals of notices of violation, proposed civil fine
assessments, orders of temporary closure, proposals to remove
certificates of self-regulation, and late fee notifications and
assessments may only be brought by the tribe or the recipient of the
action that is the subject of the appeal.
(b) Appeals of the Chair's decisions to void or modify a management
contract after approval may only be brought by a party to the
management contract.
Sec. 584.3 How do I appeal a notice of violation, proposed civil fine
assessment, order of temporary closure, the Chair's decision to void or
modify a management contract, the Commission's proposal to remove a
certificate of self-regulation, and a notice of late fees and late fee
assessments?
(a) Within 30 days after the Chair serves his or her action or
decision, or the Commission serves its intent to remove a certificate
of self-regulation, the appellant must file a notice of appeal with the
Commission. The notice of appeal must reference the action or decision
from which the appeal is taken.
(b) Within 10 days after filing the notice of appeal, the appellant
shall file with the Commission:
(1) A list of the names of proposed witnesses who will present oral
testimony at the hearing, the general nature of their expected
testimony, and whether a closed hearing is requested and the reason(s)
therefor; and
(2) A brief that states succinctly the relief sought and the
ground(s) in support thereof, which may include supporting
documentation and evidence in the form of affidavits.
(c) A party that has filed a notice of appeal may waive the right
to an oral hearing before a presiding official and instead elect to
have the matter determined by the Commission solely on the basis of
written submissions. Appeals based on written submissions are governed
by part 585 of this subchapter. If there is more than one party that
has filed a notice of appeal, and any party that has filed a notice of
appeal elects a hearing before a presiding official, the entire matter
will proceed before a presiding official.
(d) The Chair may file a response brief and a list of the names of
proposed witnesses who will present oral testimony at the hearing, the
general nature of their expected testimony, and whether a closed
hearing is requested and the reason(s) therefor, within 10 days after
service of the appellate brief.
Sec. 584.4 Are motions permitted?
Yes. Motions to intervene under Sec. 584.5 are permitted. Motions
for an extension of time that are filed before the appointment of a
presiding official shall be decided by the Commission. All other
motions may be scheduled and heard at the discretion of the presiding
official.
Sec. 584.5 How do I file a motion to intervene?
(a) An entity or an individual, whether acting on his or her own
behalf or as an agent of another entity not permitted to appeal, may be
permitted to participate as a party if the presiding official finds
that:
(1) The final decision could directly and adversely affect it or
the class it represents;
(2) The individual or entity may contribute materially to the
disposition of the proceedings;
(3) The individual's or the entity's interest is not adequately
represented by existing parties; and
(4) Intervention would not unfairly prejudice existing parties or
delay resolution of the proceeding.
(b) A tribe with jurisdiction over the lands on which there is a
gaming operation that is the subject of a proceeding under this part
may intervene as a matter of right if the tribe is not already a party.
(c) A motion to intervene shall be submitted to the presiding
official within 10 days of the notice of appeal. The motion shall be
filed with the presiding official and served on each person who has
been made a party at the time of filing. The motion shall state
succinctly:
[[Page 58950]]
(1) The moving party's interest in the proceeding;
(2) How his or her participation as a party will contribute
materially to the disposition of the proceeding;
(3) Who will appear for the moving party;
(4) The issues on which the moving party seeks to participate; and
(5) Whether the moving party seeks to present witnesses.
(d) Objections to the motion must be filed by any party within 10
days after service of the motion.
(e) A reply brief to the brief in opposition may be filed within 5
days of service of the brief in opposition.
(f) When motions to intervene are made by individuals or groups
with common interests, the presiding official may request all such
movants to designate a single representative, or he or she may
recognize one or more movants.
(g) The presiding official shall give each movant and party written
notice of his or her decision on the motion. For each motion granted,
the presiding official shall provide a brief statement of the reason(s)
for the decision. If the motion is denied, the presiding official shall
briefly state the ground(s) for denial. The presiding official may
allow the movant to participate as amicus curiae, if appropriate.
Sec. 584.6 When will the hearing be held?
(a) The Commission shall designate a presiding official who shall
commence a hearing within 30 days after the Commission receives a
timely notice of appeal. At the request of the appellant, the presiding
official may waive the 30-day hearing requirement upon designation.
(b) If the subject of an appeal is whether an order of temporary
closure should be made permanent or dissolved, the presiding official
shall be designated within 7 days of the timely filing of the notice of
appeal, and the hearing shall be concluded within 30 days after the
Commission receives a timely notice of appeal, unless the appellant
waives this right. Notwithstanding any other provision of this part,
the presiding official shall conduct such hearing in a manner that will
enable him or her to conclude the hearing within the period required by
this paragraph and consistent with any due process rights of the
parties, including any period that the record is kept open following
the hearing.
Sec. 584.7 When will I receive a copy of the record on which the
Chair relied?
Within 10 days of the timely filing of a notice of appeal, or as
soon thereafter as practicable, the record on which the Chair relied
will be transmitted to the parties. In appeals dealing with temporary
closure orders, the record will be transmitted within 5 days of the
timely filing of a notice of appeal. Upon designation of the presiding
official, the Commission shall transmit the agency record to the
presiding official.
Sec. 584.8 What is the hearing process?
(a) Once designated by the Commission, the presiding official shall
schedule the matter for hearing. The appellant may appear at the
hearing personally, through counsel, or through an authorized
representative consistent with the requirements of Sec. 580.3 of this
subchapter. The appellant, the Chair, and any intervenor shall have the
right to introduce relevant written materials and to present an oral
argument. At the discretion of the presiding official, a hearing under
this section may include an opportunity to submit oral and documentary
evidence and cross-examine witnesses.
(b) When holding a hearing under this part, the presiding official
shall:
(1) Administer oaths and affirmations;
(2) Issue subpoenas authorized by the Commission;
(3) Rule on offers of proof and receive relevant evidence;
(4) Authorize exchanges of information (including depositions and
interrogatories in accordance with 25 CFR part 571, subpart C of this
chapter) among the parties when to do so would expedite the proceeding;
(5) Establish and administer the course of the hearing;
(6) When appropriate, hold conferences for the settlement or
simplification of the issues by consent of the parties;
(7) At any conference held pursuant to paragraph (b)(6) of this
section, require the attendance of at least one representative from
each party who has authority to negotiate the resolution of issues in
controversy;
(8) Dispose of procedural requests or similar matters;
(9) Recommend decisions in accordance with Sec. 584.12; and
(10) Take other actions consistent with this part that are
authorized by the Commission.
(c) The presiding official may order the record to be kept open for
a reasonable period of time following the hearing (normally 10 days),
during which time the parties may make additional submissions to the
record, except that if the subject of the appeal is an order of
temporary closure under Sec. 573.4 of this chapter, the record will be
kept open for a maximum of 10 days. Thereafter, the record shall be
closed and the hearing shall be deemed concluded. Within 30 days after
the record closes, the presiding official shall issue a recommended
decision in accordance with Sec. 584.12, except that if the subject of
the appeal is an order of temporary closure under Sec. 573.4 of this
chapter, the presiding official shall issue a recommended decision
within 20 days after the record closes.
Sec. 584.9 How may I request to limit disclosure of confidential
information?
(a) If any person submitting a document in a proceeding claims that
some or all of the information contained in that document is:
(1) Exempt from the mandatory public disclosure requirements under
the Freedom of Information Act (5 U.S.C. 552);
(2) Information referred to in 18 U.S.C. 1905 (disclosure of
confidential information); or
(3) Otherwise exempt by law from public disclosure, the person
shall:
(i) Indicate that the whole document is exempt from disclosure or
identify and segregate information within the document that is exempt
from disclosure; and
(ii) Request that the presiding official not disclose such
information to the parties to the proceeding (other than the Chair,
whose actions regarding the disclosure of confidential information are
governed by Sec. 571.3 of this chapter) except pursuant to paragraph
(b) of this section, and shall serve the request upon the parties to
the proceeding. The request to the presiding official shall include:
(A) A copy of the document, group of documents, or segregable
portions of the documents marked ``Confidential Treatment Requested'';
and
(B) A statement explaining why the information is confidential.
(b) If the presiding official determines that confidential
treatment is not warranted with respect to all or any part of the
information in question, the presiding official shall so inform all
parties. The person requesting confidential treatment then shall be
given an opportunity to withdraw the document before it is considered
by the presiding official, or to disclose the information voluntarily
to all parties.
(c) If the presiding official determines that confidential
treatment is warranted, the presiding official shall so inform all
parties.
(d) If the presiding official determines that confidential
treatment is warranted, a party to a proceeding may request that the
presiding official direct the person submitting the confidential
information
[[Page 58951]]
to provide that information to the party. The presiding official may so
direct if the party requesting the information agrees under oath and in
writing:
(1) Not to use or disclose the information except directly in
connection with the hearing; and
(2) To return all copies of the information at the conclusion of
the proceeding to the person submitting the information under paragraph
(a) of this section.
(e) If a person submitting documents in a proceeding under this
part does not claim confidentiality under paragraph (a) of this
section, the presiding official may assume that there is no objection
to disclosure of the document in its entirety.
(f) When a decision by a presiding official is based in whole or in
part on evidence not included in the record, the decision shall so
state, specifying the nature of the evidence and the provision of law
under which disclosure was denied, and the evidence so considered shall
be retained under seal as part of the official record.
Sec. 584.10 What is the process for pursuing settlement or a consent
decree?
(a) General. At any time after the commencement of a proceeding,
but at least 5 days before the date scheduled for hearing under Sec.
584.6, the parties may jointly move to defer the hearing for a
reasonable time to permit negotiation of a settlement or an agreement
containing findings and an order disposing of the whole or any part of
the proceeding.
(b) Content. Any agreement containing consent findings and an order
disposing of the whole or any part of a proceeding shall also provide:
(1) A waiver of any further procedural steps before the Commission;
(2) A waiver of any right to challenge or contest the validity of
the order and decision entered into in accordance with the agreement;
and
(3) The presiding official's certification of the findings and that
the agreement shall constitute dismissal of the appeal and final agency
action.
(c) Submission. Before the expiration of the time granted for
negotiations, the parties or their authorized representatives may:
(1) Submit to the presiding official a proposed agreement
containing consent findings and an order;
(2) Notify the presiding official that the parties have reached a
full settlement or partial settlement and have agreed to dismissal of
all or part of the action, subject to compliance with the terms of the
settlement agreement; or
(3) Inform the presiding official that agreement cannot be reached.
(d) Disposition. In the event a full or partial settlement
agreement containing consent findings and an order is submitted within
the time granted, the presiding official shall certify such findings
and agreement within 30 days after his or her receipt of the
submission. Such certification shall constitute full or partial
dismissal of the appeal, as applicable, and final agency action.
Sec. 584.11 Will the hearing be transcribed?
Yes. Hearings under this part that involve oral presentations shall
be recorded verbatim and transcripts thereof shall be provided to
parties upon request. Each party shall pay its own fees for
transcripts.
Sec. 584.12 What happens after the hearing?
(a) Within 30 days after the record closes, the presiding official
shall issue his or her recommended decision, except that if the subject
of the appeal is an order of temporary closure under Sec. 573.4 of
this chapter, the presiding official shall issue a recommended decision
within 20 days after the record closes.
(b) The recommended decision shall be in writing, based on the
whole record, and include:
(1) Recommended findings of fact and conclusions of law upon each
material issue of fact or law; and
(2) A recommended grant or denial of relief.
(c) The presiding official's recommended decision is reviewed by
the Commission. The Commission issues the final decision.
Sec. 584.13 May I file an objection to the recommended decision?
Yes. Within 20 days after service of the presiding official's
recommended decision, any party may file objections with the Commission
to any aspect of the decision and the reasons therefore, unless the
recommended decision is to dissolve or make permanent a temporary
closure order issued under Sec. 573.4 of this chapter, in which case
objections to the recommended decision must be filed within 5 days
after service of the recommended decision.
Sec. 584.14 When will the Commission issue its final decision?
(a) The Commission shall issue its final decision within 90 days
after the date of the recommended decision or within 90 days after the
date when objections to the recommended decision are filed or within 90
days after the conclusion of briefing by the parties, whichever comes
later, unless the recommended decision is to dissolve or make permanent
a temporary closure order issued under Sec. 573.4 of this chapter, in
which case the Commission shall issue its decision within 30 days of
the recommended decision.
(b) The Commission shall serve its final decision upon the parties.
PART 585--APPEALS TO THE COMMISSION ON WRITTEN SUBMISSIONS OF
NOTICES OF VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF
TEMPORARY CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY
MANAGEMENT CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A
CERTIFICATE OF SELF-REGULATION, AND NOTICES OF LATE FEES AND LATE
FEE ASSESSMENTS
Sec.
585.1 What does this part cover?
585.2 Who may appeal?
585.3 How do I appeal a notice of violation, proposed civil fine
assessment, order of temporary closure, the Chair's decision to void
or modify a management contract, the Commission's proposal to remove
a certificate of self-regulation, and notices of late fees and late
fee assessments?
585.4 Are motions permitted?
585.5 How do I file a motion to intervene?
585.6 When will I receive a copy of the record on which the Chair
relied?
585.7 When will the Commission issue its decision?
Authority: 25 U.S.C. 2706, 2710, 2711, 2712, 2713, 2715, 2717.
Sec. 585.1 What does this part cover?
(a) This part applies to appeals of the following where the
appellant does not elect a hearing before a presiding official and
instead elects to have the matter decided by the Commission solely on
the basis of the written submissions:
(1) Violation(s) alleged in a notice of violation under Sec. 573.3
of this chapter;
(2) Proposed civil fine assessments under part 575 of this chapter;
(3) Orders of temporary closure under Sec. 573.4 of this chapter;
(4) The Chair's decisions to void or modify a management contract
under part 535 of this chapter subsequent to initial approval;
(5) The Commission's proposals to remove a certificate of self-
regulation under part 518 of this chapter; and
(6) Late fee notifications and assessments under part 514 of this
chapter.
(b) Appeals from these actions involving a hearing before a
presiding official are brought under part 584 of this chapter.
[[Page 58952]]
Sec. 585.2 Who may appeal?
(a) Appeals of notices of violation, proposed civil fine
assessments, orders of temporary closure, proposals to remove
certificates of self-regulation, and late fee notifications and
assessments may only be brought by the tribe or the recipient that is
the subject of the action.
(b) Appeals of the Chair's decision to void or modify a management
contract after approval may only be brought by a party to the
management contract.
Sec. 585.3 How do I appeal a notice of violation, proposed civil fine
assessment, order of temporary closure, the Chair's decision to void or
modify a management contract, the Commission's proposal to remove a
certificate of self regulation, and notices of late fees and late fee
assessments?
Within 30 days after the Chair serves his or her action or
decision, or the Commission serves notice of its intent to remove a
certificate of self-regulation, the appellant must file a notice of
appeal with the Commission. The notice of appeal must reference the
action or decision from which the appeal is taken and shall include a
written waiver of the right to an oral hearing before a presiding
official and an election to have the matter determined by the
Commission solely on the basis of written submissions. Unless the
Commission has extended the time for filing an appeal brief pursuant to
Sec. 580.4(f) of this subchapter, the appeal brief must be filed
within 30 days of service of the record pursuant to Sec. 585.6. The
appeal brief shall state succinctly the relief sought and the
supporting ground(s) therefor, and may include supporting
documentation.
Sec. 585.4 Are motions permitted?
(a) Motions for extension of time under Sec. 580.4(f) of this
subchapter, motions to supplement the record under Sec. 581.5 of this
subchapter, motions to intervene under Sec. 585.5, and motions for
reconsideration under Sec. 581.6 of this subchapter, are permitted.
All other motions may be considered at the discretion of the
Commission.
(b) The Chair shall not, either individually or through counsel,
file or respond to motions.
Sec. 585.5 How do I file a motion to intervene?
(a) An entity or individual, whether acting on his or her own
behalf or as an agent of another entity, not permitted to appeal, may
be permitted to participate as a party to a pending appeal if the
Commission finds that:
(1) The final decision could directly and adversely affect it or
the class it represents;
(2) The individual or entity may contribute materially to the
disposition of the proceedings;
(3) The individual's or entity's interest is not adequately
represented by existing parties; and
(4) Intervention would not unfairly prejudice existing parties or
delay resolution of the proceeding.
(b) A tribe with jurisdiction over the lands on which there is a
gaming operation that is the subject of a proceeding under this part
may intervene as a matter of right if the tribe is not already a party.
(c) A motion to intervene shall be submitted to the Commission
within 10 days of the notice of appeal. The motion shall be filed with
the Commission and served on each person who has been made a party at
the time of filing. The motion shall succinctly state:
(1) The moving party's interest in the proceeding;
(2) How his or her participation as a party will contribute
materially to the disposition of the proceeding;
(3) Who will appear for the moving party;
(4) The issues on which the moving party seeks to participate; and
(5) Whether the moving party seeks to present witness affidavits.
(d) Objections to the motion must be filed by any party within 10
days after service of the motion.
(e) A reply brief to the brief in opposition may be filed within 5
days of service of the brief in opposition.
(f) When motions to intervene are made by individuals or groups
with common interests, the Commission may request all such movants to
designate a single representative, or the Commission may recognize one
or more movants.
(g) The Commission shall give each movant and party written notice
of the decision on the motion. For each motion granted, the Commission
shall provide a brief statement of the reason(s) for the decision. If
the motion is denied, the Commission shall briefly state the ground(s)
for denial. The Commission may allow the movant to participate as
amicus curiae, if appropriate.
Sec. 585.6 When will I receive a copy of the record on which the
Chair relied?
Within 10 days of the filing of a notice of appeal, or as soon
thereafter as practicable, the record will be transmitted to the
appellant.
Sec. 585.7 When will the Commission issue its decision?
(a) The Commission shall issue its decision within 90 days: After
it receives the appeal brief; or its ruling on a request for
intervention, if applicable; or after the conclusion of briefing by the
parties, whichever comes later, unless the subject of the appeal is
whether to dissolve or make permanent a temporary closure order issued
under Sec. 573.4 of this chapter, in which case, the Commission shall
issue its decision within 30 days of conclusion of briefing by the
parties.
(b) The Commission shall serve the final decision upon the
appellants.
Dated: September 18, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Commissioner.
[FR Doc. 2012-23371 Filed 9-24-12; 8:45 am]
BILLING CODE 7565-01-P