[Federal Register Volume 64, Number 194 (Thursday, October 7, 1999)]
[Rules and Regulations]
[Pages 54541-54543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25747]
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NATIONAL INDIAN GAMING COMMISSION
25 CFR Part 516
RIN 3141-AA20
Administrative Practice and Procedure; Testimony; Information;
Response to Subpoena
AGENCY: National Indian Gaming Commission.
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission issues a final rule
describing the duties of its personnel and former personnel with
respect to litigation involving the National Indian Gaming Commission
or the official responsibilities of National Indian Gaming Commission
employees.
EFFECTIVE DATE: November 8, 1999.
FOR FURTHER INFORMATION CONTACT: Richard B. Schiff, National Indian
Gaming Commission, 1441 L Street, NW, Suite 9100, Washington, DC 20036;
telephone: 202-632-7003 (not a toll-free number).
SUPPLEMENTARY INFORMATION: Because the National Indian Gaming
Commission is regularly associated with a variety of matters which have
the potential for resulting in litigation, the National Indian Gaming
Commission has a requirement for regulations describing the duties of
its personnel with respect to such litigation. On July 1, 1999, the
Commission proposed such regulations. Federal Register: July 15, 1999
(Volume 64, Number 135) page 38164-38165. The Commission requested
comments on those proposed regulations. Below is the Commission's
analysis of the comments received during the comment period and the
text of the final regulations.
General Comments
A commenter pointed out that, although the SUPPLEMENTARY
INFORMATION published with the Proposed Rule had noted that the
regulations were intended to be the Commission's ``Touhy regulations,''
and cited United States Ex. Rel. Touhy v. Ragen, 340 U.S. 462 (1951),
the statutory basis for Touhy regulations, 5 U.S.C. 301, was omitted.
The Final Rule corrects this oversight.
Concern was expressed by a commenter that application of these
rules to litigation in which the National Indian Gaming Commission is a
party would be inconsistent with the Federal Rules of Civil Procedure.
The Commission considers it self-evident that it may not relieve itself
of its obligations as a litigant by promulgating a housekeeping
regulation, and that there will be circumstances under which the
Federal Rules of Civil Procedure rather than these regulations will
guide the actions of Commission personnel. Nonetheless, the Commission,
like any public or private party to litigation, may protect itself
against unauthorized disclosures of information, and, even when the
Commission is a party to the proceeding, it has authority to prescribe
regulations for the conduct of its employees relating to disclosure of
information to the opposing party.
Comment was received which referenced 25 U.S.C. 2716(a) and the
Trade Secrets Act, 18 U.S.C. 1905, and expressed the view that the
regulation should address concerns of gaming tribes respecting
protection of confidential information submitted to the National Indian
Gaming Commission by such tribes. The comment suggested that the Final
Rule should: (a) Restrict disclosure of such information in court, and
(b) Require notification to tribes in the event third parties request
such information.
The Commission is issuing these regulations to guide the conduct of
Commission personnel and former personnel with respect to requests or
demands for information that are
[[Page 54542]]
litigation-related or otherwise arise out of judicial, administrative
or other legal proceedings. The regulations do not, and under 5 U.S.C.
301, could not, provide a substantive basis for limiting the
availability of Commission records. In the context, however, of the
decision of the Chairman or General Counsel to allow a person to whom
the regulation applies to comply with a subpoena or other demand, the
Commission agrees that the interests of the submitter in confidential
material must be considered. See the discussion below of Section 516.2.
516.1 What does this part cover?
One commenter noted that the phrase ``litigation-related,''
standing alone, made applicability of the proposed rule uncertain with
respect to requests or demands such as those which might originate, for
example, in state grand juries or licensing boards. The Commission
agrees and has modified the language of this part to provide
clarification.
516.2 When may a person to whom this part applies give testimony, make
a statement or submit to interview?
A commenter noted that the term ``public interest,'' the basis on
which the Chairman or General Counsel determines whether to grant a
request for a statement or testimony under this section, or for
documents under section 516.3, is not defined.
The Commission considers the term ``public interest'' to be
sufficiently precise in this context. Depending upon the circumstances
of the request, an official making the ``public interest''
determination might look at any number of factors, including such
matters as: whether allowing the statement or testimony would serve the
goals of the regulation; whether allowing the statement or testimony is
necessary to prevent a miscarriage of justice; and whether the
Commission or the United States has any important interests which may
be affected by the outcome of the legal proceeding. With respect to
confidential commercial or proprietary information, the determination
of the Chairman or General Counsel will also include consideration of
the views of the submitter, consistent with the policy embodied in
Executive Order 12600, June 23, 1987, and 25 CFR 517.5. Recognizing
that, except when the Commission is a party to the litigation, the
decision to deny a request for testimony or documents under this part
may be subjected to judicial review under the Administrative Procedure
Act, 5 U.S.C. 702, a clear articulation of the basis for such a
determination will be made routinely.
516.3 When may a person to whom this part applies produce records?
A comment identified a discrepancy between this section and section
516.2 in that the two sections, as proposed, did not provide a parallel
process for the determination to respond to a subpoena ad
testificandum, on the one hand, and the determination to respond to a
subpoena duces tecum, on the other. The Final Rule modifies this
section to eliminate the discrepancy.
516.4 How are records certified or authenticated?
Comment was received suggesting that certification as to the
authenticity of copies be made mandatory by substituting the word
``shall'' for the word ``may.''
While accommodation of such requests will be the norm, the
Commission prefers non-mandatory language, thereby allowing a flexible
response in the event of receipt of a certification request which is
unreasonable or unnecessarily burdensome.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the Commission has determined that this rule will not have a
significant economic impact on a substantial number of small entities.
Because this rule is procedural in nature, it will not impose
substantive requirements that could be deemed impacts within the scope
of the Act.
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.
List of Subjects in 25 CFR Part 516
Administrative practice and procedure, Gambling, Indians--Lands,
Reporting and record keeping requirements.
For the reasons stated in the preamble, the Commission amends 25
CFR chapter III by adding a new Part 516 to read as follows:
PART 516--TESTIMONY OF COMMISSIONERS AND EMPLOYEES AND FORMER
COMMISSIONERS AND FORMER EMPLOYEES RESPECTING OFFICIAL DUTIES;
RESPONSE TO SUBPOENA
Sec.
516.1 What is the purpose of this part and to whom does it apply?
516.2 When may a person to whom this part applies give testimony,
make a statement or submit to interview?
516.3 When may a person to whom this part applies produce records?
516.4 How are records certified or authenticated?
Authority: 5 U.S.C. 301; 25 U.S.C. 2706; 25 U.S.C. 2716(a); 18
U.S.C. 1905.
Sec. 516.1 What is the purpose of this part and to whom does it apply?
(a) The purpose of this part is to promulgate regulations regarding
the release of official National Indian Gaming Commission information
and provision of testimony by National Indian Gaming Commission
personnel with respect to litigation or potential litigation and to
prescribe conduct on the part of National Indian Gaming Commission
personnel in response to a litigation-related request or demand.
(b) This part applies to requests or demands that are litigation-
related or otherwise arise out of judicial, administrative or other
legal proceedings (including subpoena, order or other demand) for
interview, testimony (including by deposition) or other statement, or
for production of documents relating to the business of the National
Indian Gaming Commission, whether or not the National Indian Gaming
Commission or the United States is a party to the litigation. It does
not, however, apply to document requests covered by 25 CFR parts 515
and 517.
(c) To the extent the request or demand seeks official information
or documents, the provisions of this part are applicable to
Commissioners, employees, and former Commissioners and former
employees, of the National Indian Gaming Commission.
Sec. 516.2 When may a person to whom this part applies give testimony,
make a statement or submit to interview?
(a) No person to whom this part applies, except as authorized by
the Chairman or the General Counsel pursuant to this regulation, shall
provide testimony, make a statement or submit to interview.
(b) Whenever a subpoena commanding the giving of any testimony has
been lawfully served upon a person to whom this part
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applies, such individual shall, unless otherwise authorized by the
Chairman or the General Counsel, appear in response thereto and
respectfully decline to testify on the grounds that it is prohibited by
this regulation.
(c) A person who desires testimony or other statement from any
person to whom this part applies may make written request therefor,
verified by oath, directed to the Chairman setting forth his or her
interest in the matter to be disclosed and designating the use to which
such statement or testimony will be put in the event of compliance with
such request: provided, that a written request therefor by an official
of any federal, state or tribal entity, acting in his or her official
capacity need not be verified by oath. If it is determined by the
Chairman or the General Counsel that such statement or testimony will
be in the public interest, the request may be granted. Where a request
for a statement or testimony is granted, one or more persons to whom
this part applies may be authorized or designated to appear and testify
or give a statement with respect thereto.
Sec. 516.3 When may a person to whom this part applies produce
records?
(a) Any request for records of the National Indian Gaming
Commission shall be handled pursuant to the procedures established in
25 CFR parts 515 and 517 and shall comply with the rules governing
public disclosure as provided in 25 CFR parts 515 and 517.
(b) Whenever a subpoena duces tecum commanding the production of
any record has been lawfully served upon a person to whom this part
applies, such person shall forward the subpoena to the General Counsel.
If commanded to appear in response to any such subpoena, a person to
whom this part applies shall respectfully decline to produce the record
on the ground that production is prohibited by this part and state that
the production of the record(s) of the National Indian Gaming
Commission is a matter to be determined by the Chairman or the General
Counsel.
Sec. 516.4 How are records certified or authenticated?
(a) Upon request, the person having custody and responsibility for
maintenance of records which are to be released under this part or 25
CFR parts 515 or 517 may certify the authenticity of copies of records
that are requested to be provided in such format.
(b) A request for certified copies of records or for authentication
of copies of records shall be sent to the National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005,
Attention: Freedom of Information Act Officer.
Authority and Signature
This proposed rule was prepared under the direction of the
Commissioners, National Indian Gaming Commission, 1441 L St. NW, Suite
9100, Washington DC 20005.
Signed at Washington, DC this 28th day of September, 1999.
Montie R. Deer,
Chairman, National Indian Gaming Commission.
[FR Doc. 99-25747 Filed 10-6-99; 8:45 am]
BILLING CODE 7565-01-P