[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Notices]
[Pages 79158-79163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30688]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Navajo Nation Liquor Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: This notice publishes the Secretary's certification of the 
Navajo Nation Liquor Regulations. These Regulations regulate and 
control the possession, sale and consumption of liquor within the 
Navajo Nation. The Navajo Nation is located on extensive reservation 
lands, and these Regulations establish a legal framework for licensing 
the transportation and sale of alcoholic beverages within the exterior 
boundaries of the Nation. These regulations will ensure the ability of 
the tribal government to control the distribution and possession of 
liquor within the reservation and at the same time will provide an 
important source of revenue. These Regulations provide solely for civil 
enforcement (fines) imposed on parties whose actions are subject to the 
licensing provisions set forth herein. Any violation of these 
regulations may also result in prosecution under other sections of the 
Navajo Nation Code, or under relevant State or Federal law.

DATES: Effective Date: These Regulations are effective as of December 
24, 2008.

FOR FURTHER INFORMATION CONTACT: Irene Herder, Tribal Operations 
Specialist, Navajo Regional Office, P.O. Box 1060, Gallup, New Mexico 
87305; Telephone (505) 863-8207; Fax (505) 863-8292; or Elizabeth 
Colliflower, Office of Indian Services, 1849 C Street, NW., Mail Stop 
4513-MIB, Washington, DC 20240; Telephone (202) 513-7627; Fax (202) 
208-5113.

SUPPLEMENTARY INFORMATION: Pursuant to the Act of August 15, 1953; 
Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the 
Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of 
the Interior shall certify and publish in the Federal Register notice 
of adopted liquor ordinances for the purpose of regulating liquor 
transactions in Indian country.
    The Navajo Nation is governed by the Navajo Nation Council, which 
has developed a comprehensive legal code (the Navajo Nation Code, 
N.N.C.). Title 17, subchapter 12, of the N.N.C. bars the 
transportation, sale, and consumption of alcoholic beverages on the 
Navajo Reservation. Section 412 of Title 17 sets out exceptions to the 
prohibitions in the title.
    In 2001, the Council amended 17 N.N.C. section 412 to permit use of 
alcohol at the Antelope Point Development Area of the Navajo Nation, 
and the Glen Canyon National Recreation Area. (Resolution CYJ-62-01). 
In 2008, the Council again amended 17 N.N.C. section 412, to authorize 
transportation, sale, delivery and consumption on the Navajo 
Reservation at authorized casinos. (Resolution CJA-03-08, passed by the 
Council January 31, 2008, and signed into law by the President of the 
Navajo Nation on February 11, 2008). By the same resolution, the 
Council delegated the authority to promulgate liquor regulations to the 
Navajo Tax Commission.
    The following Liquor Regulations were adopted and approved by the 
Navajo Nation Tax Commission by Resolution TAX-08-208.
    This notice is published in accordance with the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs. I certify that these Liquor Regulations of the Navajo Nation 
were promulgated by the Navajo Tax Commission pursuant to the authority 
vested in the Commission by the Navajo Nation Council by Resolution 
CJA-03-08.

    Dated: December 19, 2008.
George T. Skibine
Acting Deputy Assistant Secretary for Policy and Economic Development.

    The Navajo Nation's Liquor Regulations read as follows:

Navajo Nation Liquor Regulations

    1.101. Title. These Liquor Regulations shall be known as the Navajo 
Nation Liquor Regulations (``Liquor Regulations'').
    1.102. Purpose. The purpose of these Liquor Regulations is to 
ensure the proper transportation, sale, delivery, and consumption of 
alcoholic beverages within the exterior boundaries of the Navajo Nation 
and to ensure the health, safety, and welfare of the Navajo people.
    1.103. Authority. The Commission enacts these Liquor Regulations 
pursuant to the authority delegated to the Commission by the Navajo 
Nation Council in 17 N.N.C. Sec.  412.
    1.104. Definitions. Except as otherwise provided herein, the 
following definitions apply throughout these Liquor Regulations:
    A. ``Antelope Point'' means the area covered by the Antelope Point 
Resort and Marina Business Site Lease;
    B. ``Beer'' means any beverage obtained by the alcoholic 
fermentation of an infusion or decoction of barley, malt, and hops or 
other cereals in drinking water, and includes porter, beer, ale and 
stout;
    C. ``Certified Server'' means any employee of a Retailer Licensee 
who is certified to Sell Liquor on the Navajo Nation on behalf of the 
Retailer Licensee in accordance with these Liquor Regulations, and who 
has successfully completed a liquor server training program approved by 
the Office;
    D. ``Commission'' means the Navajo Tax Commission, delegated by the 
Navajo Nation Council to ensure the proper transportation, sale, 
delivery, and consumption of alcoholic beverages; or any such 
commission so delegated by the Navajo Nation;
    E. ``Enterprise'' means a Navajo Nation Enterprise or entity that 
is engaged in, or wishes to engage in, the business of Selling Liquor 
within the Navajo Nation;
    F. ``Liquor'' means the product of distillation of any fermented 
liquid, rectified either once or more often, of whatever the origin, 
and includes synthetic ethyl alcohol, which is considered potable. 
``Liquor'' includes distilled or rectified spirits, potable alcohol, 
brandy, whiskey, rum, gin, and aromatic bitters bearing the federal 
internal revenue strip stamps or any similar alcoholic beverage, 
including

[[Page 79159]]

blended or fermented beverages, dilutions, or mixtures of one or more 
of the foregoing containing more than one-half percent alcohol, but 
less than twenty-one percent alcohol by volume, including Beer, 
Spirits, Wine, and Malt Liquor. Beer, Spirits, Wine, and Malt Liquor 
and liquors or solids containing in excess of one half of one percent 
(.05%) of alcohol by volume, but not more than twenty-one percent (21%) 
shall be considered liquor;
    G. ``Malt Liquor'' means an alcoholic drink made from malt, 
typically having a higher alcohol content than most Beer or ale;
    H. ``Minor'' means any individual under the age of 21;
    I. ``Navajo casino facility'' means a gaming facility operated by 
the Navajo Nation, pursuant to the Indian Gaming Regulatory Act of 1988 
(Pub. L. 100-497, 25 U.S.C. 2701-2721 and U.S.C. 1166-1168), Navajo 
Gaming Ordinance, (5 N.N.C. Sec. Sec.  2001-2057) and any gaming 
compact entered into between the Navajo Nation and a State;
    J. ``Navajo Nation'' means:
    1. When referring to the body politic, the same meaning as set 
forth in 1 N.N.C. Sec.  551 et seq.
    2. When referring to governmental territory, the same meaning as 
set forth in 7 N.N.C. Sec.  254;
    K. ``Navajo Nation Court'' means any or all of the courts 
established by the Navajo Nation;
    L. ``Office'' means the Office of the Navajo Tax Commission, 
charged by the Commission with the day-to-day administration of these 
Liquor Regulations; or any such administrative office so charged by the 
Commission;
    M. ``Package Sale'' means any Sale of Liquor in containers filled 
or packed by a manufacturer or wine bottler and Sold in an unbroken 
package for consumption off the premises designated in the Retailer 
License and not for resale;
    N. ``Person'' means an individual, trust, firm, association, 
partnership, political subdivision, government agency, municipality, 
industry, public or private corporation, or any other entity 
whatsoever;
    O. ``Public Place'' means commercial or community facilities of 
every nature that are open to and/or are generally used by the public 
and to which the public is permitted to have unrestricted access;
    P. ``Retailer License'' means a revocable license granted by the 
Office authorizing the Licensee named therein and its Certified Servers 
to Sell Liquor at a specified location within the Navajo Nation;
    Q. ``Retailer Licensee'' means the holder of a valid Retailer 
License allowing the Sale of Liquor in a designated location, as 
authorized and granted by the Office;
    R. ``Sale'' or ``Sell'' means an exchange, transfer, sale, supply, 
barter, traffic, donation (with or without consideration), serving for 
consumption, dispensing, delivering, or distributing, by any means 
whatsoever, of Liquor within the Navajo Nation by any Person;
    S. ``Spirits'' means any beverage that contains alcohol obtained by 
distillation, mixed with drinkable water and other substances in 
solution, including brandy, rum, whiskey, and gin;
    T. ``Wholesaler'' means a person whose place of business is located 
off the Navajo Nation and who Sells, or possesses for the purpose of 
Sale, any Liquor for resale by a Retailer Licensee;
    U. ``Wholesaler License'' means a revocable license granted by the 
Office authorizing the Wholesaler named therein to do business within 
the Navajo Nation with a Retailer Licensee;
    V. ``Wholesaler Licensee'' means the holder of a valid Wholesaler 
License; and
    W. ``Wine'' means any alcoholic beverage obtained by the 
fermentation of the natural sugar content of fruits, such as grapes or 
apples or other agricultural products, containing sugar, including 
fortified wines such as port, sherry, and champagne.
    1.105. Powers of Enforcement.
    A. The Commission is empowered by the Navajo Nation Council to 
regulate the subject matter of these Liquor Regulations, pursuant to 17 
N.N.C. Sec.  412. The Commission shall have the following powers and 
duties:
    1. To approve, establish, and publish such rules and regulations as 
are necessary and appropriate to ensure the proper transportation, 
sale, delivery and consumption of alcoholic beverages within the Navajo 
Nation in accordance with 17 N.N.C. Sec.  412;
    2. To exercise such other delegated powers as are necessary and 
appropriate to fulfill the purposes of these Liquor Regulations.
    B. The Office is delegated the authority to enforce these Liquor 
Regulations and shall have the following powers and duties:
    1. To adopt policies and procedures as necessary to implement these 
Liquor Regulations, subject to approval by the Commission;
    2. To authorize the Sale of Liquor within the Navajo Nation in 
accordance with 17 N.N.C. Sec.  412;
    3. To bring any necessary action to enforce these Liquor 
Regulations;
    4. To determine penalties and seek damages for violations of these 
Liquor Regulations;
    5. To collect fees levied or set in relation to these Liquor 
Regulations and keep accurate records, books, and accounts; and
    6. To employ managers, accountants, security personnel, inspectors, 
and other such persons as may be reasonably necessary to administer 
these Liquor Regulations.
    1.106. Limitations.
    A. Notwithstanding any other provision of these Liquor Regulations, 
no penalty may be imposed pursuant or related to these Liquor 
Regulations in contravention of any limitation imposed by the Indian 
Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. 1301, et seq., or 
other applicable federal law.
    B. Any regulatory action taken by the Office pursuant to these 
Regulations will be civil in nature and will therefore apply to both 
Indians and non-Indians.
    C. Any alleged activity which would be deemed a criminal act under 
tribal, state, or federal law involving the transportation, sale, 
delivery, or consumption of liquor within the Navajo Nation will be 
referred to the appropriate tribal, state, and/or federal authorities.
    D. Nothing in these Liquor Regulations, including but not limited 
to any penalty imposed by the Office, shall be construed to bar a 
similar trial or punishment to the full extent of any applicable 
tribal, state, and/or federal civil or criminal law.
    1.107. Inspection Rights.
    A. All premises upon which Liquor is sold, stored, or distributed 
shall be open to inspection by duly authorized tribal officials or 
their designees for the purposes of ascertaining compliance with these 
Liquor Regulations and applicable law.
    B. Any Person who prevents or hinders, or attempts to prevent or 
hinder, such inspection shall be in violation of these Liquor 
Regulations.
    1.108. Authorized Liquor Sales and Practices.
    A. Generally. Except as otherwise provided herein, Retailer 
Licensees may Sell Liquor on the Navajo Nation at such places and hours 
permitted by their Retailer License and allowed by applicable Navajo 
Nation law.
    B. Sales on Sundays and Election Days. Except as otherwise limited 
by the Navajo Nation Council, the Sale of Liquor shall be allowed on 
Sunday and on any Navajo Nation, federal, or State election day.
    C. Sales Only by Certified Servers. All Liquor Sales within the 
Navajo Nation

[[Page 79160]]

authorized by these Liquor Regulations must be made only by Certified 
Servers.
    D. Liquor Sales at the Navajo Casino Facility. Any Sale of Liquor 
at a Navajo casino facility must comply with all applicable provisions 
of any Navajo Nation-State class II gaming compact between the Navajo 
Nation and any State, as it now exists or hereafter may be amended.
    E. Liquor Sales at Antelope Point. Any Sale of Liquor at Antelope 
Point must comply with all applicable laws and regulations.
    F. Wholesale Liquor Transactions. A Retailer Licensee may purchase 
Liquor for resale at a designated location only from a Wholesaler 
possessing a valid Wholesaler License issued by the Office. A 
Wholesaler Licensee may Sell Liquor for resale at a designated location 
only to holders of valid Retailer Licenses issued by the Office, 
provided that such Sales are otherwise in conformity with these Liquor 
Regulations and applicable laws of the State.
    1.109. Prohibited Liquor Sales and Practices.
    A. No Package Sales; Resale. No Retailer Licensee shall Sell Liquor 
on the Navajo Nation for resale; all such Sales must be for the 
personal use and consumption of the purchaser. Any Person who is not 
licensed pursuant to these Liquor Regulations who purchases Liquor 
within the Navajo Nation and re-sells it, whether in the original 
container or not, shall be in violation of these Liquor Regulations and 
shall be subject to penalties pursuant to these Liquor Regulations.
    B. Bringing Liquor onto premises. No Licensee shall allow any 
Person to bring any Liquor for personal consumption into the premises 
designated in the Retailer License.
    C. Other Prohibitions on Hours and Days of Sales. The Navajo Nation 
Council may establish other days on which, or times at which, Sales or 
consumption of Liquor is not permitted within the Navajo Nation. The 
Office will provide notice of any such enactment to all Wholesaler 
Licensees and Retailer Licensees doing business within the Navajo 
Nation.
    D. No Sales to Minors. No Licensee, Certified Server, or Person 
shall Sell Liquor on the Navajo Nation to a Minor; provided, however, 
that it shall be a defense to an alleged violation of this Section that 
the Minor presented to the Seller of the Liquor an apparently valid 
identification document showing the Minor's age to be 21 years or 
older.
    E. No Sales to Intoxicated Persons. No Licensee, Certified Server, 
or Person shall Sell Liquor on the Navajo Nation to a Person believed 
by a Certified Server to be intoxicated.
    F. All Sales Cash. A Retailer Licensee shall not make any Sale of 
any Liquor without receiving payment therefore by cash, check, or 
credit card at or about the time the Sale is made; provided that 
nothing herein shall preclude the Retailer Licensee from receiving a 
delivery of Liquor from a Wholesaler Licensee if arrangements have been 
made to pay for such delivery at a different time; and provided further 
that nothing herein shall preclude the Retailer Licensee from allowing 
a customer to purchase more than one item in sequence, and to pay for 
all such purchases at the conclusion thereof, so long as payment is 
made in full before the customer has left the premises; and provided 
further that nothing herein shall prevent the Retailer Licensee from 
distributing Liquor to customers without charge, so long as such 
distribution is not otherwise in violation any provision of these 
Liquor Regulations.
    G. Open Containers Prohibited. No Person shall have an open 
container of any Liquor in any automobile, whether moving or standing 
still, or in a Public Place, other than on the premises designated in a 
Retailer License.
    H. All Designated Premises Posted. A Retailer Licensee shall not 
make any Sale of Liquor unless signs are prominently posted in all 
premises designated in the Retail License informing the customers that 
removing Liquor from the premises is a violation of federal law 
prohibiting the possession of alcohol on Indian reservations. In the 
case of outdoor sales, such signage shall be prominently displayed no 
more than ten (10) feet from the point of sale.
    1.110. Reserved.
    1.111. Reserved.
    1.112. Licensing.
    A. Any Person wishing to Sell Liquor as a Wholesaler shall obtain 
and retain a Wholesaler License for such purpose.
    B. Any person wishing to Sell Liquor as a Retailer shall obtain one 
of the following types of License:
    1. Retailer License--Restaurant.
    2. Retailer License--Hotel/Motel.
    3. Retailer License--Special Events.
    4. Retailer License--Other. The Office shall have the authority to 
issue policies and procedures regarding the issuance of other types of 
licenses, subject to the Commission's approval of such policies and 
procedures.
    C. The pre-conditions to the issuance of a License include but are 
not limited to the following:
    1. Compliance with Business and Procurement Act--Before any License 
is issued to an applicant or renewed, the Office shall make a 
determination that such applicant is not ineligible under the 
provisions of 12 N.N.C. Sec.  1505(C) of the Navajo Business and 
Procurement Act. If such applicant is determined to be ineligible, the 
license application shall be denied.
    2. An applicant who has had a License revoked is ineligible to 
apply for a License within one year of the date of the revocation.
    3. An applicant who has had two or more License revocations is 
ineligible to apply for a License within five years of the date of the 
last revocation.
    4. An applicant who has been convicted of a felony or a misdemeanor 
involving a crime of moral turpitude is ineligible for a License.
    5. Any applicant who has committed any of the violations listed in 
Section 1.119 below is ineligible for a License.
    D. Liabilities of Licensee. The Licensee shall be accountable for 
all violations of its License and these Liquor Regulations, and for all 
taxes, fees, and penalties that may be charged against its License.
    E. License is Not a Property Right. Notwithstanding any other 
provision of these Liquor Regulations, a License is a mere permit for a 
fixed duration of time. A License shall not be deemed a property right 
or vested right of any kind, nor shall the granting of a License give 
rise to a presumption of legal entitlement to the granting of such 
License for a subsequent time period.
    F. Licenses Non-transferable. No License issued by the Office shall 
be assigned or transferred in any manner.
    G. Licenses or letter of denial.
    1. After considering the information submitted on the application 
for a License, the Office shall grant and issue a License if it 
concludes that granting the License will serve the best interests of 
the Navajo Nation.
    2. The Office shall deny the application if it finds that granting 
a License would be contrary to the best interests of the Navajo Nation, 
considering such factors as the applicant's compliance history with 
applicable Navajo Nation and federal law, whether the applicant is 
currently in violation of any Navajo Nation law, the number and density 
of locations selling liquor on the Navajo Nation, whether the applicant 
will operate a new or existing establishment, or any other reason 
bearing on the health, safety, and welfare of the Navajo Nation 
community or the economic security of the Navajo Nation.
    3. The Office shall send the applicant a final written decision 
within thirty days after the application is received by the Office, 
explaining the grounds for its

[[Page 79161]]

decision either granting or denying the application for a License.
    4. Failure of the Office to issue a License or a letter of denial 
within thirty days shall be deemed a denial.
    H. Appeal. A letter of denial for a License shall be considered an 
adverse action and may be appealed in accordance with these Liquor 
Regulations.
    1.113. Wholesaler License.
    A. Term.
    1. A separate License must be secured and maintained for each 
calendar year or portion thereof, ending on December 31st.
    2. Regardless of when the License is issued, it expires at midnight 
December 31st.
    B. Fee.
    1. Beer/Wine.
    a. The fee for the initial term of a Wholesaler License to Sell 
Beer and Wine shall be $500.
    b. The fee for subsequent renewals of the same License shall be 
$200 per year.
    2. Spirits.
    a. The fee for the initial term of a Wholesaler License to Sell 
Spirits shall be $700.
    b. The fee for subsequent renewals of the same License shall be 
$250 per year.
    C. Condition. A copy of the License shall be carried at all times 
in any vehicle used to transport liquor pursuant to this License.
    1.114. Retailer License--Restaurant.
    A. Term.
    1. A separate License shall be secured and maintained for each 
calendar year or portion thereof, ending on December 31st.
    2. Regardless of when the License is issued, it expires at midnight 
December 31st.
    B. Fee.
    1. Beer/Wine.
    a. The fee for the initial term of a Retailer License for a 
restaurant Selling Beer and Wine shall be $1,000.
    b. The fee for subsequent renewals of the same License shall be 
$250 per year.
    2. Spirits.
    a. The fee for the initial term of a Retailer License for a 
restaurant selling Spirits shall be $1,500.
    b. The fee for subsequent renewals of the same License shall be 
$500 per year.
    C. Conditions.
    1. The Retailer License shall be for a specific location. The 
Licensee may not transfer the License to any other person, even if such 
person takes over operation of the premises designated in the Retailer 
License. Nor may the Licensee use the license for any location operated 
by the Licensee, other than the premises designated in the Retailer 
License.
    2. The Retailer License shall at all times be on public display at 
the location designated in the Retailer License.
    3. The Location where Liquor is sold shall not be closer than 300 
feet to any existing church or school.
    1.115. Retailer License--Hotel/Motel.
    A. Term.
    1. A separate License shall be secured and maintained for each 
calendar year or portion thereof, ending on December 31st.
    2. Regardless of when the License is issued, it expires at midnight 
December 31st.
    B. Fee.
    1. Beer/Wine.
    a. The fee for the initial term of a Retailer License for a Hotel/
Motel Selling Beer and Wine shall be $1,000.
    b. The fee for subsequent renewals of the same License shall be 
$250 per year.
    2. Spirits.
    a. The fee for the initial term of a Retailer License for a Hotel/
Motel selling Spirits shall be $1,500.
    b. The fee for subsequent renewals of the same License shall be 
$500 per year.
    C. Conditions.
    1. The Retailer License shall be for a specific location and may 
not be transferred or used for any location other than that identified 
on the face of the License.
    2. The Retailer License shall at all times be on public display at 
the location designated in the Retailer License.
    3. The Location where Liquor is sold shall not be closer than 300 
feet to any existing church or school.
    1.116. Retailer License--Special Event.
    A. Term. The term of the License shall be for the term of the 
special event.
    B. Fee.
    1. Beer/Wine. The fee for a Retailer License for a Special Event 
Selling Beer/Wine shall be $300.
    2. Spirits. The fee for a Retailer License for a Special Event 
Selling Spirits shall be $500.
    C. Conditions.
    1. The Retailer License shall be for a specific location and shall 
not be transferred or used for any location other than that identified 
on the face of the License.
    2. The Retailer License shall at all times be on public display at 
the location designated in the Retailer License.
    3. The Location where Liquor is sold shall not be closer than 300 
feet to any existing church or school.
    1.117 License Renewal.
    A. If a Wholesaler Licensee or a Retailer Licensee fails to renew a 
License before December 31st of any year, the Licensee is hereby 
suspended from Selling Liquor until such Licensee renews the License or 
obtains a new License.
    B. So long as the Licensee renews the License by January 15th, the 
issuance of the License shall be treated as a renewal, and the fee 
shall be calculated accordingly; provided, provided, however, that 
there shall also be a $50 late fee assessed.
    C. If the Licensee fails to renew the License by 5:00 p.m. on 
January 15th, the Licensee must submit a new application for a License 
and pay the initial License application fee.
    D. In order to be eligible for renewal of a License, the Licensee 
must be in compliance with all terms and conditions of such License and 
these Liquor Regulations.
    1.118. Recordkeeping and Reporting.
    The Office shall maintain recordkeeping and reporting requirements 
for Licensees, in accordance with policies and procedures, including 
but not limited to, periodic reports of the amount of liquor sold or 
delivered within the Navajo Nation during a particular period.
    1.119. Violations.
    These Liquor Regulations apply to all persons licensed to transport 
or sell Liquor within the Navajo Nation. Violations of these Liquor 
Regulations include, but are not limited to, the following:
    A. Violating any term or condition of the License;
    B. Selling Liquor within the Navajo Nation without a License;
    C. Buying Liquor within the Navajo Nation from an unlicensed 
person;
    D. Selling Liquor within the Navajo Nation to a minor;
    E. Selling Liquor within the Navajo Nation to an intoxicated 
person;
    F. Permitting an uncertified server to sell or serve Liquor within 
the Navajo Nation;
    G. Failing to allow inspection of premises designated in a Retailer 
License or vehicles used to deliver Liquor within the Navajo Nation;
    H. Failure to present documents required by these Regulations upon 
a request by the Office;
    I. Failing to display License;
    J. Being convicted of a felony or a misdemeanor involving a crime 
of moral turpitude;
    K. Permitting repeated acts of violence or disorderly conduct on or 
near the premises designated in the Retailer License;
    L. Submitting false or fraudulent information on a License 
application; and
    M. Violating any applicable Navajo Nation or federal law.

[[Page 79162]]

    1.120. Penalties.
    Penalty amounts shall be set for each violation of these Liquor 
Regulations in accordance with policies and procedures.
    1.121. Appeals.
    A. A Person may appeal any adverse action taken pursuant to these 
Regulations, including but not limited to, denial of an application for 
a License, issuance of a penalty, denial of a request for approval of a 
Certified Server program, or revocation of a License.
    B. Appeals shall follow the following process.
    1. Appeals shall be made first to the Office. Upon notice of any 
adverse action by the Office, a Person may request a conference with 
the Office.
    a. To be entitled to a conference, the Person must make a written 
request within the time prescribed by the notice of the adverse action.
    b. The request for a conference must identify the disputed notice 
of assessment or notice of denial of refund or notice of other adverse 
action, state the determination sought, and contain a short and plain 
statement of the relevant facts and law.
    c. After receiving a timely request and within a reasonable period 
of time, the Office shall confer with the Person filing the appeal. The 
Office and the Person may agree on a suitable location for the 
conference or may agree to hold the conference by telephone and to 
exchange written documentation by mail. The Office and the Person may 
agree to confer more than once.
    d. Within sixty days following the conclusion of the conference, 
the Office will issue a written conference decision. If the Office 
denies in whole or in part the relief that the Person requests, then 
the decision shall state the basis for the denial of relief.
    2. Within thirty days after the issuance of the decision of the 
Office, the Person may appeal the decision to the Office of Hearings 
and Appeals. If the Person fails to appeal within that time period, 
then the decision of the Office is final and not subject to review by 
appeal to a hearing officer or to any court.
    a. A request for a hearing before a hearing officer must be in 
writing and contain a short and plain statement of the facts and law 
forming the basis for the relief sought. The Person appealing the 
decision must sign the request for Hearing.
    b. The hearing officer has the authority to enter pre-hearing 
orders. Where necessary, the hearing officer may confer with the 
parties before entering pre-hearing orders. Such orders may, for 
example, eliminate or narrow disputes concerning questions of fact or 
law, establish identities and subject matter of testimony of witnesses, 
require the identification and disclosure of documents, or provide for 
the time, place, and duration of hearings. Pre-hearing orders will 
control the course of the hearing.
    c. At the request of the parties, the hearing officer shall issue 
subpoenas for the attendance of witnesses at hearings and for 
production of books, records, maps, documents, or physical evidence. 
Any witness subject to a subpoena may petition the hearing officer to 
vacate or modify the subpoena served on the witness. The hearing 
officer shall promptly notify the party who requested the subpoena and 
proceed to rule on the petition. The hearing officer may investigate 
the grounds of the petition or, upon the petition itself, may deny or 
grant the petition, in whole or in part. The hearing officer's rulings 
on petitions to quash subpoenas are not subject to interlocutory appeal 
to any court.
    d. The hearing officer shall preside over these hearings and shall 
conduct them according to the following provisions.
    i. All documents filed by any party at a hearing shall be served 
personally or by first-class mail, postage prepaid, at the last known 
address, on all parties, including the Office, and proof of service 
must be filed on record.
    ii. Oral evidence shall be taken only on oath or affirmation.
    iii. Each party may call and examine witnesses, introduce exhibits, 
cross-examine opposing witnesses, impeach any witness regardless of 
which party first called the witness to testify, and may rebut any 
evidence presented. A party, a party's employee, or a party's agent, 
may be called by the opposing party and be examined as if under cross-
examination. The hearing officer may question any witness, may call the 
appellant as a witness, or may call as a witness any person who is 
present at the hearing.
    iv. Any privileges that apply in civil actions before Navajo courts 
shall be followed.
    v. Any relevant evidence, including affidavits and other forms of 
hearsay, shall be admitted if such evidence is of the sort upon which 
responsible persons are accustomed to rely in the conduct of serious 
affairs. The hearing officer shall be liberal in admitting evidence, 
but objections to its admission, and comments or observations of its 
weight, are relevant in weighing the evidence. The hearing officer may 
deny admission of evidence that is irrelevant, untrustworthy, or unduly 
repetitious.
    vi. All evidence will be offered and made part of the record and 
the hearing officer shall not consider any other factual information, 
except for matters officially noticed.
    vii. Where after proper notice a Person or its authorized 
representative fails to appear, the hearing officer may proceed with 
the hearing, dispose of the issues raised, and enter a final order.
    viii. Reasonable continuances may be granted for good cause.
    ix. Prior to entering an order, the hearing officer will afford the 
parties a reasonable time in which to submit any post-hearing 
memoranda, proposed findings of fact, and proposed conclusions of law.
    e. The hearing conducted under this part concludes when the hearing 
officer enters findings of fact, conclusions of law, and a final order. 
The final order issued by the hearing officer shall be a matter of 
public record, and all final orders issued shall be available for 
public inspection.
    f. A party may file a petition for rehearing. Such petition will 
allege as grounds for rehearing either a mistake of law or fact, or the 
discovery of new evidence which by due diligence could not have been 
discovered by the party at the time of the hearing. The petition must 
set out in some detail the mistake in law or fact claimed, or summarize 
the new evidence that has become available, specifically mentioning the 
source of such evidence and what it would tend to establish. The 
hearing officer will have wide discretion in accepting or rejecting 
such petitions.
    3. The decision of the hearing officer entered under this part may 
be appealed to the Navajo Supreme Court within 30 days. If not timely 
appealed, the hearing officer's order is binding on the parties and may 
not be appealed to any court.
    a. The rules of Appellate Procedure of the Navajo Supreme Court 
shall govern the conduct of appeals from orders of the hearing officer 
rendered under this section.
    b. Appeal to the Navajo Supreme Court shall be limited to the 
record on appeal.
    c. The record on appeal will be based on the findings, conclusions, 
and order of the hearing officer.
    C. In all administrative and judicial proceedings governed by this 
section, the orders, assessments, factual findings, and legal 
conclusions of the Office are presumed correct unless the Person filing 
the appeal demonstrates otherwise. In all factual hearings, the Person 
filing the appeal has the burden of proving by a preponderance of the

[[Page 79163]]

evidence the existence of an asserted fact, except where another 
standard is provided by statute or these Liquor Regulations.
    1.122. Revenue.
    All revenue collected pursuant to these Liquor Regulations shall be 
used to defray the expenses of administering the Liquor Regulations.
    1.123. Certified Servers.
    A. Every employee of a Retailer Licensee who Sells Liquor must be a 
Certified Server 21 years of age or older.
    B. The Office will adopt policies and procedures regarding the 
certification of servers.
    C. The Office shall have authority to approve certification 
programs offered by third-party providers and may adopt policies 
regarding minimum requirements of such programs.
    D. The Office may revoke any certification issued under this 
Section if the Certified Server violates any provision of these Liquor 
Regulations, the policies and procedures issued pursuant to them, any 
applicable Navajo Nation law, makes a material misstatement on the 
application for certification, is convicted of a felony, or for other 
good cause shown.
    E. The denial or revocation of a certification is an appealable 
action.
    1.124. Transportation Through the Navajo Nation.
    Nothing in these Liquor Regulations shall apply to the otherwise 
lawful transportation of Liquor through the Navajo Nation by Persons 
remaining on public highways or other paved facilities for motor 
vehicles provided that such Liquor is not Sold, or offered for Sale, 
within the Navajo Nation.
    1.125. Sovereign Immunity.
    Nothing in these Liquor Regulations is intended to be, nor shall be 
construed as, a waiver of the sovereign immunity of the Navajo Nation. 
No employee, officer, or agent of the Office shall be authorized, nor 
shall he or she attempt, to waive the immunity of the Navajo Nation.
    1.126. Jurisdiction.
    Except as otherwise provided in these Liquor Regulations, any and 
all actions pertaining to alleged violations of these Liquor 
Regulations, or seeking any relief against the Navajo Nation, its 
officers, employees, or agents arising under these Liquor Regulations, 
shall be brought in the Navajo Nation Courts, which courts shall have 
exclusive jurisdiction consistent with the inherent sovereignty and 
immunity of the Navajo Nation and applicable federal and Navajo Nation 
law.
    1.127. Severability.
    If any provisions of these Liquor Regulations or the application of 
any provision to any Person or circumstances is held invalid or 
unenforceable by a court of competent jurisdiction, such holding shall 
not invalidate or render unenforceable the remainder of these Liquor 
Regulations and its application to any other Person or circumstances, 
and, to this end, the provisions of these Liquor Regulations are 
severable.
    1.128. Effective Date.
    These Liquor Regulations shall be effective on such date as the 
Secretary of the Interior certifies these Liquor Regulations and 
publishes the same in the Federal Register.
[FR Doc. E8-30688 Filed 12-23-08; 8:45 am]
BILLING CODE 4310-02-P