Appeal Proceedings Before the Commission, 58941-58952 [2012-23371]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Indian Gaming Commission

[Federal Register Volume 77, Number 186 (Tuesday, September 25, 2012)]
[Rules and Regulations]
[Pages 58941-58952]
From the Federal Register Online via the Government Printing 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: 
maria_getoff@nigc.gov; 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