Daily Rules, Proposed Rules, and Notices of the Federal Government
This final rule has six parts. First, the
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701
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.
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
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:
(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
In the Notice of Proposed Rulemaking, the Commission removed the
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.
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.
The Commission has added two provisions to proposed § 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, § 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, § 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.
The Commission changed § 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.
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
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.
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).
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.
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.
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
This proposed rule does not require information collection under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
Administrative practice and procedure, Gambling, Indian-lands, Reporting and recordkeeping requirements.
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:
25 U.S.C. 2706, 2713, 2715.
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.
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.
(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.
(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.
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
(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.
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.
The Commission's final decision is effective immediately unless the Commission provides otherwise in the decision.
The Commission's final decision is a final agency action for purposes of judicial review.
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.
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.
25 U.S.C. 2706, 2713, 2715.
(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 § 535.3 of this subchapter to review the Chair's decision to void or modify a management contract.
Requests for limited participation in ordinance appeals are governed by § 582.5 of this subchapter.
Motions to intervene in appeals before a presiding official are governed by § 584.5 of this subchapter. Motions to intervene in appeals before the Commission are governed by § 585.5 of this subchapter.
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 § 584.4 of this subchapter.
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.
(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
(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.
25 U.S.C. 2706, 2710, 2713, 2715.
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.
Only the tribe whose gaming ordinance, resolution, or amendment thereto is disapproved by the Chair may appeal.
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 § 580.4(f) of this subchapter, the appeal brief must be filed within 30 days of service of the record pursuant to § 582.6. The appeal brief shall state succinctly why the appellant believes the Chair's disapproval should be reversed and may include supporting documentation.
Ordinance appeals are summary proceedings. Only motions for extension of time under § 580.4(f) of this subchapter, motions for limited participation under § 582.5, motions to supplement the record under § 581.5 of this subchapter, and motions for reconsideration under § 581.6 of this subchapter, are permitted.
(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 § 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 §§ 522.4, 522.5, 522.6, and 522.7 of this chapter.
(c) The submission shall be served concurrently on the tribe consistent with § 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.
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.
(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 § 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.
25 U.S.C. 2706, 2711, 2712, 2713, 2715.
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.
Only a party to the management contract or amendment thereto approved or disapproved by the Chair may appeal.
(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 § 580.4(f) of this subchapter, the appeal brief must be filed within 30 days of service of the record pursuant to § 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.
(c) The appellant may file a reply brief within 15 days of service of the opposition brief.
Management contract and amendment appeals are summary proceedings. Only motions for an extension of time under § 580.4(f) of this subchapter, motions to supplement the record under § 581.5 of this subchapter, and motions for reconsideration under § 581.6 of this subchapter, are permitted.
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.
(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.