[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Proposed Rules]
[Pages 4720-4731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1767]


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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: Proposed rule.

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SUMMARY: The National Indian Gaming Commission proposes to add a new 
subchapter to its regulations to create a clear process for appeal 
proceedings before the Commission. It would, among other things, define 
certain terms, set forth the burden of proof and standard of review, 
explain what information a Commission decision will contain, and what 
happens if the Commission does not issue a majority decision, and 
provide that an appeal of the Chair's decision does not stay the effect 
of that decision. The proposed regulations set forth rules for motion 
practice in appeals before the Commission, addresses how an entity 
other than a tribe would 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 to file motions before the 
presiding official. Additionally, the proposed regulation sets forth 
more specific rules for 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 receive somewhat 
different treatment.

DATES: The agency must receive comments on or before April 2, 2012.

ADDRESSES: You may submit comments by any one of the following methods, 
however, please note that comments sent by electronic mail are strongly 
encouraged.
     Email comments to: [email protected].
     Mail comments to: Maria Getoff, National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
     Hand deliver comments to: 1441 L Street NW., Suite 9100, 
Washington, DC 20005.
     Fax comments to: Maria Getoff, National Indian Gaming 
Commission at (202) 632-0045.

FOR FURTHER INFORMATION CONTACT: Maria Getoff, National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100 Washington, DC 20005. 
Telephone: (202) 632-7003; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Comments Invited

    Interested parties are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments that provide the factual basis supporting the 
views and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on the proposal.

II. Background

    On November 18, 2010, the National Indian Gaming Commission (NIGC) 
issued a Notice of Inquiry and Notice of Consultation (NOI) 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 NIGC should utilize to make 
revisions. 75 FR 70680 (Nov. 18, 2010). On April 4, 2011, after holding 
eight consultations and reviewing all comments, NIGC published a Notice 
of Regulatory Review Schedule (NRR) setting out a consultation schedule 
and process for review. 76 FR 18457. The Commission's regulatory review 
process established a tribal consultation schedule with a description 
of the regulation groups to be covered at each consultation. 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.

III. Development of the Proposed Rule

    The Commission conducted a total of 10 tribal consultations as part 
of its review of Part 519--Service; Part 524--Appeals; Part 539--
Appeals; and Part 577--Appeals before the Commission. Tribal 
consultations were held in every region of the country and were 
attended by numerous tribes and tribal leaders or their 
representatives. In addition to tribal consultations, on July 22, 2011, 
the Commission requested public comment on a Preliminary Draft of new 
Subchapter H. After considering the comments received from the public 
and through tribal consultations, the Commission will remove Part 524--
Appeals; Part 539--Appeals; and Part 577--Appeals before the Commission 
and will add a new subchapter H--Appeal Proceedings before the 
Commission.
    Currently, rules for appeals before the Commission are found in 
three separate places: Part 524 governs appeals of ordinance actions; 
part 539 addresses appeals of management contract actions; and part 577 
sets forth procedures for appeals of enforcement actions and actions to 
void an approved management contract. The Commission believes that 
consolidating all appellate procedures in a new subchapter promotes 
clarity and effectiveness for the regulated community.
    Proposed subchapter H consists of six parts: 580--Rules of general 
application in appellate proceedings before the Commission; 581--
Motions in appellate proceedings before the Commission ; 582--Appeals 
of disapprovals of gaming ordinances, resolutions, or amendments.; 
583--Appeals of approvals or disapprovals of management contracts or 
amendments to management contracts; 584--Appeals before a presiding 
official of notices of violation, proposed civil fine assessments, 
orders of temporary closure, the Chair's decision to void or modify a 
management contracts, the Commission's proposal to remove a certificate 
of self-regulation, and notices of late fees and late fee assessments; 
and 585--Appeals to the Commission on written submissions of notices of 
violation, proposed civil fine assessments, orders of temporary 
closure, the Chair's decision to void or modify management contracts, 
the Commission's proposal 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

    This new part sets forth rules that are generally applicable to all 
appellate proceedings before the Commission. First, it defines terms 
used throughout the subchapter. Several commenters

[[Page 4721]]

suggested that the terms ``limited participant'' and ``presiding 
official'' be defined. The Commission has defined those terms. Other 
terms commenters suggested be defined are ``petition'', ``leave'', 
``motion'', ``movant'', and ``brief.'' The Commission believes that 
these terms are generally understood and has chosen not to define them. 
The Commission has also defined the terms ``day'', ``de novo review'', 
``preponderance of the evidence'', ``proceeding'', and ``summary 
proceeding.''
    In the Preliminary Draft, several of these generally applicable 
sections were repeated throughout the regulations. One commenter 
suggested that, to reduce redundancy, those sections should be stated 
only once. The Commission agrees and has removed the redundancies and 
grouped those generally applicable sections here.
    A commenter suggested that the Commission utilize a tribal advisory 
committee to develop these regulations. While the Commission has used 
advisory committees in the past, it choose not to do so here. Advisory 
committees are best utilized for technical issues or where tribes might 
have particular experience or a unique perspective. The Commission 
acknowledges that Tribes and their representatives have valuable 
information to contribute to this regulation, as repeatedly 
demonstrated during the consultation process. We believe, though, that 
the best way to ensure that all of the comments throughout Indian 
country, as well as the public at large, are considered, is to develop 
the regulations through notice and comment rulemaking.
    Part 580 includes a section entitled ``When may the Commission 
suspend, revoke, amend, or waive its rules governing proceedings before 
the Commission?'', and provides that the Commission may do so in 
certain circumstances for good cause shown, if the interest of justice 
so requires. This provision allows flexibility in situations where 
adherence to the rules would work an injustice or would impair the 
orderly conduct of the proceedings.
    Part 580 also includes a section which explains who may appear 
before the Commission. One commenter suggested the language in the 
Preliminary Draft was too restrictive and did not allow for 
representation by an advocate who was not an attorney admitted to 
practice in a Federal court. The Commission revised the language to 
allow for representation by an attorney or other authorized 
representative, and included attorneys licensed to practice in tribal 
courts.
    Existing section 577.6 addresses service of documents by appellants 
in appeals before the Commission regarding notices of violation, civil 
fines, temporary closure orders, and decisions to void or modify a 
management contracts. There are currently no rules of service by 
appellants in actions other than those governed by section 577.6. As a 
result, appellants in ordinance disapprovals and management contract 
actions have in practice relied on the existing service rules for all 
appeals. Proposed part 580 improves the rules of services and makes 
them generally applicable.
    Proposed part 580 requires that copies of the notice of appeal and 
appeal brief 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. This is a change from 
Sec.  577.6, which allows notices of appeal and appeal briefs to be 
filed via these methods and also via fax. The Commission has removed 
fax service as an option for these filings and has added email service 
as a option for the filing of all subsequent documents.
    One commenter proposes the Commission amend the service rule so 
that service on parties by fax or email is only effective if prior 
consent is given to be served in such ways. Another commenter suggests 
that email is acceptable as a method of service if there is agreement 
between the parties. Yet another commenter proposes that if email or 
fax are used, a hard copy should follow. First, part 580 applies to 
parties, not the Commission. Furthermore, fax and email service is 
available only after the initial notice of appeal and brief are filed 
personally or by registered or certified mail. If a party does not wish 
to serve subsequent documents via email or fax, it can utilize the 
other methods of service (personal service or first class mail). One 
benefit of email filing is that the filer can request a ``read 
receipt'' email from their email service and have proof that the email 
was received. The Commission declines to require that a hard copy 
follow, but parties are free to send follow-up hard copies if they 
wish, however the date of filing will be the date service was first 
accomplished.
    The Commission proposes to refer to all parties who file appeals as 
``appellants.'' Part 577 refers to those who file appeals of actions 
governed by that section ``respondents'', while parts 524 and 539 do 
not assign a name to those who file appeals. The Commission believes it 
makes sense to refer to all appellants consistently and to use 
``appellant'' rather than ``respondent.'' This proposed change has been 
made throughout the subchapter.
    The Preliminary Draft provided that 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 is a Saturday, Sunday, or Federal legal holiday, in 
which case the period shall run until the end of the next business day. 
The Proposed rule adds that except for appeals of temporary closure 
orders, when the period of time prescribed allowed is less than 11 
days, intermediate Saturdays, Sundays, and Federal legal holidays shall 
be excluded in the computation.
    The Preliminary Draft included a section prohibiting ex parte 
communications. Several commenters questioned the reach and application 
of the prohibition, and expressed concern that it could stifle 
otherwise lawful communications. The Commission has not included the 
provision in this proposed rulemaking and invites comment on how to 
address ex parte communications.
    One commenter suggested that the Commission should include a 
section on recusal. The Commission disagrees. Commission members must 
follow ethical rules applicable to all government employees as set 
forth in Federal law. See 5 CFR 2635.501 et seq.
    Proposed Sec.  580.5 provides that failure to file an appeal and 
brief within the time provided shall result in a waiver of the right to 
appeal and failure to meet any deadline for the filing of any motion or 
response thereto shall also result in a waiver of the right to file.
    Proposed part 580 includes several additional sections designed to 
improve the appellate practice process. The Commission explains what is 
the burden of proof and standard of review, what a final decision will 
contain, the effective date of a decision, the finality of Commission 
decisions, what happens if the Commission does not issue a majority 
decision, and that an appeal of a Chair's decision does not stay the 
effect of that decision.
    One commenter suggested that the filing of an appeal to the 
Commission should stay the effect of the Chair's decision. The 
Commission disagrees. The Commission believes that effective regulation 
of the industry will be fostered by requiring compliance with decisions 
of the Chair pending the resolution of an appeal to the Commission. 
Accordingly, the filing of a motion shall not stay the effect of any 
decision or order nor shall it affect the

[[Page 4722]]

finality of any decision or order for purposes of judicial review.
    Section 580.10 provides that in the absence of a decision by a 
majority of the Commission within the time provided, the Chair's 
decision shall constitute the final decision of the Commission. The 
Preliminary Draft included the presiding official's recommended 
decision would also become final in the absence of a majority decision 
in the time provided. This was removed because the recommended decision 
is just that, a recommendation, and does not constitute a decision that 
would become final upon inaction.
    Part 582 also explains what the final decision will contain, what 
the effective date of the decision will be, and that the decision is 
final for purposes of judicial review. It also sets forth the standard 
of review, which is de novo.

Part 581--Motions in Appeal Proceedings Before the Commission

    Existing regulations do not set forth motion practice other than 
motions to intervene in appellate proceedings before a presiding 
official and motions for limited participation in ordinance appeals. Of 
course, during the course of an appeal appellants file typical 
appellate litigation motions and the Commission rules on those motions. 
Part 581 sets forth rules for this routine practice. This proposal is 
consistent with comments suggesting the Commission provide more rules 
governing appellate practice.
    In the Preliminary Draft, motions to intervene were allowed in 
appeals before the presiding official, and motions for limited 
participation were allowed in appeals before the Commission on written 
submission. Proposed part 581 provides for the right to intervene in 
cases before the Commission on written submission as well as cases 
before the presiding official. Because intervention affords more 
process to litigants than limited participation, the Commission has 
removed limited participation from written submission appeals.
    Proposed part 581, then, sets forth the procedure for filing a 
motion in an appeal on written submissions, a motion to supplement the 
record, and a motion for reconsideration. For requests for limited 
participation in ordinance appeals, motions to appeal before a 
presiding official and on written submissions before the Commission, 
and other motions before a presiding official, part 581 refers to the 
sections that govern those actions, where the process is set forth in 
detail: Sec. Sec.  582.6, 584.6, and 584.5, and 585.5 respectively.
    One commenter suggested that the Commission should clarify whether 
leave is required to file a motion to intervene. Motions to intervene 
are made only in appeals before a presiding official, governed by part 
584, and proceedings on written submission before the Commission, 
governed by part 585. Part 584 does not require that leave be made to 
file a motion to intervene. The Commission believes the regulations are 
sufficiently clear in this regard.
    One commenter noted that the terms ``motion for reconsideration'' 
and ``petition for reconsideration'' were used interchangeably 
throughout this part. The Commission has changed the language so that 
only ``motion for reconsideration'' is used.
    The Commission believes that a full record enhances due process and 
effective decisionmaking. Consequently, in past matters the Commission 
has allowed the submission of additional evidence. No rules currently 
govern this area however. Thus, the Commission proposes that part 581 
provide that parties may file motions to supplement the record at any 
time prior to a final Commission decision. The Commission may also 
supplement the record on its own motion.
    One commenter proposed that the Commission should define the record 
and guarantee that parties have access to the record prior to filing an 
appeal. The Commission does not believe it necessary to include a 
definition of the record. The record is generally understood to include 
all documents relied on by the decisionmaker in arriving at the 
decision. The Commission believes that the current process of providing 
the record after an appeal has been filed conserves agency resources 
given that only a small number of decisions are appealed.
    On occasion, the Commission has received and ruled upon motions for 
reconsideration of its decisions. Proposed part 581 sets forth rules 
for these motions. Under the proposed rule, motions for reconsideration 
may be made only in extraordinary circumstances, and a party may file 
only one such motion. The motion shall be filed within 30 days of the 
date of the final decision. Opposition briefs shall be filed within 10 
days after the motion is filed. A reply brief must be filed within 5 
days of service of the opposition brief. The Commission shall issue a 
decision within 30 days of the filing of the reply brief or the time to 
file a reply expires.

Part 582--Appeals of Disapprovals of Gaming Ordinances, Resolutions, or 
Amendments

    The existing regulations governing appeals of disapprovals of 
gaming ordinances are set forth in part 524. The Commission proposes to 
repeal part 524, and replace it with part 582. Part 582 would be 
substantially similar to part 524, however some significant changes are 
proposed to improve the regulation. The existing rule does not provide 
a deadline by which one may request limited participation. Part 582 
provides a deadline of 10 days after the filing of a notice of appeal. 
In addition, proposed part 582 requires the filing of a submission 
which shall state the entity's interest in the proceeding and why the 
Chair's decision should be upheld or reversed. In addition, part 582 
provides that parties to the appeal may file briefs in opposition to 
the request for limited participation. New part 582 also requires the 
Commission rule on the request within 10 days of the last filing, or 
the expiration of the time to file.
    Additionally, together, proposed Sec. Sec.  582.3 and 582.6 provide 
that the record on which the Chair relied will be provided within 10 
days of the filing of the notice of appeal, where practicable, and the 
appeal brief shall be filed within 15 days of service of the record.
    Existing part 524 provides that the Commission will issue its 
decision within 90 days after receiving the appeal. Proposed part 582 
provides that the Commission will issue its decision within 90 days of 
receiving the appeal brief, or within 90 days of its ruling on a 
request for limited participation. This affords the Commission 
sufficient time to allow full briefing of a request for limited 
participation while also allowing itself enough time to consider and 
rule on the merits of the matter.
    One commenter noted that Sec.  582.3 assumes that the Commission 
will always grant an appeal and asks whether the Commission could 
refuse to hear any appeal. No, the Commission may not refuse to hear an 
appeal. IGRA requires that the Commission provide an opportunity for an 
appeal and hearing for fines levied and for temporary closure orders. 
See 25 U.S.C. 2713(a)(2) and (b)(2).

Part 583--Appeals From Approvals or Disapprovals of Management 
Contracts or Amendments to Management Contracts

    Existing part 539 provides that a party may appeal the approval or 
disapproval of a management contract or amendment. The appeal shall be 
filed

[[Page 4723]]

within 30 days after the Chair serves his or her determination. The 
appeal shall specify why the party believes the Chair's determination 
was erroneous, and the Commission shall issue a decision within 30 days 
unless the appellant elects to provide the Commission an additional 30 
days. In the absence of a decision within the time provided, the 
Chair's decision shall constitute a final decision.
    Proposed part 583 clarifies that only a party to the management 
contract or amendment may appeal pursuant to this part. It further 
requires a brief as well as a notice of appeal. The Commission amended 
the filing requirements of an appellant to demonstrate ``why the 
appellant believes the Chair's approval or disapproval should be 
reversed.'' This change was made because the word ``erroneous'' in the 
current rule could be interpreted to mean that the standard of proof is 
``erroneous'', a common standard of proof but not one that is 
applicable here.
    Proposed Sec. Sec.  583.3 and 583.6, together, provide that the 
record on which the Chair relied will be provided within 10 days of the 
filing of the notice of appeal, where practicable, and the appeal brief 
shall be filed within 15 days of service of the record. Proposed part 
583 further provides that another party to the contract may oppose the 
appeal by filing an opposition brief within 20 days after service of 
the notice and brief. The appellant may file a reply brief within 10 
days. The Commission will issue a final decision within 90 days after 
receipt of a notice of appeal and brief or within 90 days after the 
conclusion of briefing by the parties, whichever is later.
    A commenter questioned why a party would wish to appeal an 
approval, and that appeals should be limited to disapprovals. The 
overwhelming majority of appeals in management contract cases are 
appeals of disapprovals. The Commission has, however, heard an appeal 
of an approval in a matter where two tribal factions were at odds. One 
faction argued that the other faction did not have authority to submit 
the management contract, and, based on that argument, appealed the 
approval of the contract.

Part 584--Appeals Before a Presiding Official of Notices of Violation, 
Proposed Civil Fine Assessments, Orders of Temporary Closure, the 
Chair's Decision To Void or Modify a Management Contracts, the 
Commission's Proposal To Remove a Certificate of Self-Regulation, and 
Notices of Late Fees and Late Fee Assessments

    Existing part 577 governs appeals of enforcement actions and 
actions to void an approved management contract. Proposed part 584 
provides that a party may appeal the issuance of a notice of violation, 
proposed civil fine assessment, order of temporary closure, decision to 
void or modify a management agreement, the Commission's removal of a 
certificate of self regulation, and late fee notifications and 
assessments.
    Part 584 clarifies that appeals may be initiated by a tribe or the 
recipient of the action that is the subject of an appeal or in matters 
involving a management contract by a party to that contract.
    The deadlines contained in proposed part 584 are substantially the 
same as in existing part 577. Appeals under part 584 must be brought 
within 30 days of the Chair or Commissions action or decision. The 
appeal must reference the action or decision that is being appealed. 
Part 584 provides that within 10 days after filing a notice of appeal 
the appellant must file a list of names of proposed witnesses, what 
they are expected to testify about, and whether a closed hearing is 
requested. Additionally, an appellant must submit a brief stating what 
relief they are seeking and why they think it should be granted. The 
brief may include supporting documentation including evidence in the 
form of affidavits.
    Part 584 allows a party to waive the right to an oral hearing and 
instead elect to have the matter decided on the basis of written 
submissions. If a party elects to have the matter decided on written 
submissions, the proposed part 585 will govern the process by which the 
Commission reviews those appeals.
    As with existing part 577, proposed part 584 allows an entity to 
intervene in the appeal if the presiding official finds that a final 
decision could directly or adversely affect it or the class it 
represents, it may contribute materially to the disposition of the 
proceedings, its interest is not adequately represented by existing 
parties, and the intervention would not prejudice the existing parties 
or delay the proceedings. As with existing part 577, proposed part 584 
allows a tribe with jurisdiction over lands that are the subject of the 
appeal to intervene as a matter of right if they are not already a 
party. Proposed Sec.  584.5(c) provides that such motions must be filed 
within 10 days of the notice of appeal. The Commission plans to quickly 
post appeals to its Web site to inform the public.
    Part 584 allows the Chair to file a list of witnesses and their 
expected testimony and request that a hearing be closed. The Chair must 
make this request within 10 days after it has been served the 
appellants brief. Part 584 requires that a presiding official be named 
and a hearing take place within 30 days after the Commission receives a 
timely notice of appeal.
    Part 584 requires that if the subject of the appeal is whether an 
order of temporary closure should be made permanent or be dissolved 
then a hearing must be concluded within 30 days or receiving a timely 
notice of appeal unless the appellant waives this right.
    Proposed part 584 establishes procedures for requesting that 
information be treated as confidential. If the presiding official 
determines that confidential treatment is not warranted a party will be 
given the opportunity to withdraw a document before it is considered by 
the presiding official or disclose it voluntarily to all parties.
    As with existing part 577, part 584 allows the parties to defer the 
hearing to negotiate a settlement or consent decree.
    Part 584 requires the presiding official to issue a recommended 
decision within 30 days after the record has closed. The recommended 
decision will include findings of fact and conclusions of law and a 
recommended grant or denial of relief. Within 10 days after the 
recommended decision has issued the parties may file an objection to 
the recommended decision with the Commission.
    Part 584 requires the Commission to issue a decision within 90 days 
after the recommended decision has been issued. In cases of temporary 
closure orders the Commission must issue its decision within 30 days.

Part 585--Appeals to the Commission on Written Submissions of Notices 
of Violation, Proposed Civil Fine Assessments, Orders of Temporary 
Closure, the Chair's Decision To Void or Modify a Management Contracts, 
the Commission's Proposal To Remove a Certificate of Self Regulation, 
and Notices of Late Fees and Late Fee Assessments

    Existing part 577 combines procedures for both appeals where an 
oral hearing is requested and appeals where a decision on written

[[Page 4724]]

submissions has been requested. The proposed changes to the existing 
regulation separates oral hearing procedures from written submission 
decisions. Part 585 allows a tribe or the recipient to appeal an action 
based on written submissions instead of an oral hearing. The Commission 
believes that this option can benefit some parties because it can 
shorten the time period between when an action is taken and when a 
final decision is issued.
    Part 585 allows an entity other than one of the parties to 
participate in the appeal on a limited basis. The proposed part 585 
requirements for intervention mirror the current requirements contained 
in existing part 577.
    Proposed Sec. Sec.  585.3 and 585.6, together, provide that the 
record on which the Chair relied will be provided within 10 days of the 
filing of the notice of appeal, where practicable, and the appeal brief 
shall be filed within 15 days of service of the record. Regarding 
motions to intervene, proposed Sec.  585.5(c) provides that such 
motions must be filed within 10 days of the notice of appeal. The 
Commission plans to quickly post appeals to its Web site to inform the 
public.
    Proposed Sec.  585.4 was expanded to permit motions other than 
those specifically set out at the discretion of the Commission. This 
mirrors language in part 584 regarding motions before a Presiding 
Official.
    Existing part 577 allows the parties to suspend a hearing so that a 
settlement or consent decree may be negotiated. Since proposed part 585 
segregates appeals based on written submissions from oral hearings such 
procedures are not necessary.
    Part 585 requires the Commission to issues its decision within 90 
days of receiving a notice of appeal and appeal brief. For appeals of 
temporary closure orders, the Commission must issue its decision within 
60 days.
    A commenter expressed concern about Commission and staff turnover 
and the impact of such turnover on how appeals are handled and decided. 
This commenter argued that turnover leads to inconsistent outcomes. 
First, the terms of Commissioners are for a substantial period of time. 
Under the Act, the Chairman and one of the Commissioners have terms of 
3 years. The other Commissioner has a term of one year. However, 
Commissioners can serve after the expiration of their term until his or 
her successor has been appointed. That being said, changes in 
personnel, whether Commissioners after their term or Commission staff, 
are inevitable in any decision-making forum. The fact that Commission 
members and staff change, however, should not lead to inconsistent 
results. Commission decisions establish precedent that the Commission 
must either follow or must provide a reasonable basis for its departure 
from.

Regulatory Matters

Regulatory Flexibility Act

    This proposed 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. Indian tribes are not considered 
to be small entities for the purposes of the Regulatory Flexibility 
Act.

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rule does not 
have an annual effect on the economy of $100 million or more. This rule 
will not cause a major increase in costs or prices for consumers, 
individual industries, Federal, state or local government agencies or 
geographic regions and does not 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 within the 
Department of the Interior, 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 proposed rule does not have significant takings 
implications. A takings implication assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of General 
Counsel has determined that the proposed 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 proposed 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, Indians--lands, 
Reporting and recordkeeping requirements.

 25 CFR Parts 580, 581, 582, 583, 584, and 585

    Appeals, Gambling, Indians--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 National 
Indian Gaming Commission proposes to amend 25 CFR chapter III by 
removing 25 CFR parts 524, 539, and 577, and adding subchapter H, 
consisting of parts 580 through 585, as follows:

PART 524--[REMOVED]

    1. Remove part 524.

PART 539--[REMOVED]

    2. Remove part 539.

PART 577--[REMOVED]

    3. Remove part 577.
    4. Add subchapter H, consisting of parts 580 through 585 to read as 
follows:

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 DECISION TO VOID OR MODIFY A MANAGEMENT 
CONTRACTS, THE COMMISSION'S PROPOSAL 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

[[Page 4725]]

TEMPORARY CLOSURE, THE CHAIR'S DECISION TO VOID OR MODIFY A 
MANAGEMENT CONTRACTS, THE COMMISSION'S PROPOSAL 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 suspend, revoke, amend, or waive its 
rules governing 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 What is the burden of proof and standard of review?
580.7 What will the Commission's final decision contain?
580.8 What is the effective date of the Commission's final decision?
580.9 Is the Commission's decision final agency action?
580.10 What if the Commission does not issue a majority decision?
580.11 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?

    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 either an ordinance 
appeal under Sec.  582.5, or an appeal on written submissions under 
Sec.  585.5.
    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.
    Proceeding: All or part of an appeal heard by a presiding official 
or the Commission, and decided by the Commission.
    Summary proceeding: A proceeding in which the appeal is on paper 
only, with no hearing.


Sec.  580.2  When may the Commission suspend, revoke, amend, or waive 
its rules governing proceedings before the Commission?

    The procedural provisions of subchapter H of this chapter may be 
suspended, revoked, amended, or waived for good cause shown, in whole 
or in part, on motion to the Commission, or on its own motion, if the 
interest of justice so requires, 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 appeal 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 and 
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 simultaneously 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 581 through 585 of 
this subchapter, service thereafter shall be made upon the 
representative.
    (f) 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 is 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 prescribed or allowed is less 
than 11 days, intermediate Saturdays, Sundays, and Federal legal 
holidays shall be excluded in the computation.
    (g) 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.
    (h) 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  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.  580.7  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 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.  580.8  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.

[[Page 4726]]

Sec.  580.9  Is the Commission's decision final agency action?

    The Commission's final decision is a final agency action for 
purposes of judicial review.


Sec.  580.10  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.  580.11  Does an appeal of a Chair's decision stay the effect of 
that decision?

    An appeal does not stay the effect of a 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 appeals?
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 chapter, appeals of disapprovals of gaming 
ordinances, resolutions, or amendments;
    (2) Part 583 of this chapter, appeals of the approval or 
disapproval of management contracts or amendments to a management 
contract;
    (3) Part 584 of this chapter, appeals before a presiding official 
of notices of violation, orders of temporary closure, proposed civil 
fine assessments, the Chair's decision to void or modify a management 
contracts, the Commission's proposal to remove a certificate of self-
regulation, and notices of late fees and late fee assessments; and
    (4) Part 585 of this chapter, appeals to the Commission on written 
submissions of, notices of violation, orders of temporary closure, 
proposed civil fine assessments, the Chair's decision to void or modify 
a management contracts, the Commission's proposal to remove a 
certificate 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 chapter 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 appeals?

    Requests for limited participation in ordinance appeals are 
governed by Sec.  582.5.


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.
    Motions to intervene in appeals before the Commission are governed 
by Sec.  585.5.


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 decision to void or modify a management 
contracts, and notices of late fees and late fee assessments is 
governed by Sec.  584.4.


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 submit such evidence previously. 
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 only in extraordinary circumstances.
    (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 extraordinary 
circumstances requiring reconsideration.
    (c) A party may file only one motion and accompanying brief for 
reconsideration.
    (d) Opposition briefs shall be filed within 10 days after the 
motion is filed.
    (e) A reply brief to the brief in opposition shall be filed within 
5 days of service of the brief in opposition.
    (f) The Commission shall issue a decision on reconsideration within 
30 days of the filing of the reply brief or the time to file a reply 
brief expires, whichever is later. The Commission shall issue a brief 
statement of the reasons 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 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 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 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(g), the appeal brief must be filed within 15 
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

[[Page 4727]]

reversed and may include supporting documentation.


Sec.  582.4  Are motions permitted?

    Ordinance appeals are summary proceedings. Only motions for 
extension of time, motions for limited participation, motions to 
supplement the record under Sec.  581.5, and motions for 
reconsideration under Sec.  581.6 are permitted.


Sec.  582.5  How does an entity other than a tribe request to 
participate on a limited basis?

    (a) 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 entity's property, financial, or other interest at stake in 
the proceeding; and
    (2) 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 simultaneously be served on the tribe 
consistent with Sec.  580.4. 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 submitter 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, 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 reasons 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 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 with the Commission, and serve on all parties 
to the management contract, 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(g), the appeal brief must be filed within 15 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:
    (1) 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 10 days.


Sec.  583.4  Are motions permitted?

    Management contract and amendment appeals are summary proceedings. 
Only motions for extension of time under Sec.  580.4(g), motions to 
supplement the record under Sec.  581.6, and motions for 
reconsideration under Sec.  581.7 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 on which the Chari relied 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 reasons supporting it.

PART 584--APPEALS BEFORE A PRESIDING OFFICIAL OF NOTICES OF 
VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF TEMPORARY 
CLOSURE, THE CHAIR'S DECISION TO VOID OR MODIFY A MANAGEMENT 
CONTRACTS, THE COMMISSION'S PROPOSAL 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 notices 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.

[[Page 4728]]

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) A violation alleged in a notice of violation under Sec.  573.3;
    (2) Proposed civil fine assessments under part 575 of this chapter;
    (3) Orders of temporary closure under Sec.  573.6;
    (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 515 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 chapter.


Sec.  584.2  Who may appeal?

    (a) Appeals of notices of violation, proposed civil fine 
assessments, orders of temporary closure, proposals to remove a 
certificate 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 decision 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 notices 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 would present 
oral testimony at the hearing, the general nature of their expected 
testimony, and whether a closed hearing is requested and why;
    (2) A brief that states succinctly the relief desired and the 
grounds in support thereof; and 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 why 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 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) It may contribute materially to the disposition of the 
proceedings;
    (3) Its 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:
    (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 wishes to participate; and
    (5) Whether the moving party wishes to present witnesses.
    (d) Objections to the motion must be filed by any party within ten 
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 basis for 
the decision. If the motion is denied, the presiding official shall 
briefly state the grounds 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 be dissolved, 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 
a hearing in a manner that will enable him or her to conclude the 
hearing, including any period the record is kept open following the 
hearing, within the period required by this paragraph consistent with 
any due process rights of the parties.


Sec.  584.7  When will I receive a copy of the record on which the 
Chair relied?

    Upon designation by the presiding official, the Commission shall 
transmit the agency record on which the Chair relied to the presiding 
official and the parties.


Sec.  584.8  What is the hearing process?

    (a) Once designated by the Commission, the presiding official shall 
set the matter for hearing. The appellant may appear at the hearing 
personally, through counsel, or by an authorized

[[Page 4729]]

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) 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 of 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 authorized by the Commission consistent 
with this part.
    (c) The presiding official may order the record to be kept open for 
a reasonable period following the hearing (normally ten days), during 
which time the parties may make additional submissions to the record. 
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.


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 document in its entirety 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) 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 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 five days before the date set for hearing under Sec.  
584.6, the parties jointly may 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 
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 
the action or part thereof, subject to compliance with the terms of the 
settlement; 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.
    (b) The recommended decision shall be in writing, based on the 
whole record, and include:

[[Page 4730]]

    (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 10 days after service of the presiding official's 
recommended decision, any party may file with the Commission objections 
to any aspect of the decision, and the reasons therefore.


Sec.  584.14  When will the Commission issue its decision?

    (a) The Commission shall issue its decision within 90 days after 
the date of the recommended decision, unless the recommended decision 
is to dissolve or make permanent a temporary closure order issued under 
Sec.  573.6 of this chapter, in which case the Commission shall issue 
its decision within 30 days.
    (b) The Commission shall serve the 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 DECISION TO VOID OR MODIFY A 
MANAGEMENT CONTRACTS, THE COMMISSION'S PROPOSAL 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 written submissions:
    (1) A violation alleged in a notice of violation under Sec.  573.3;
    (2) Proposed civil fine assessments under part 575 of this chapter;
    (3) Orders of temporary closure under Sec.  573.6;
    (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 585 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.


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?

    (a) 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, 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 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(g), the appeal brief must be filed 
within 15 days of service of the record pursuant to Sec.  585.7. The 
appeal brief shall state succinctly the relief desired and the 
supporting grounds thereof and may include supporting documentation.
    (b) Hearings before a presiding official are governed by part 584.


Sec.  585.4  Are motions permitted?

    (a) Motions for extension of time, motions to supplement the record 
under Sec.  581.6, motions to intervene under Sec.  585.5, and motions 
for reconsideration under Sec.  581.7 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 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) It may contribute materially to the disposition of the 
proceedings;
    (3) Its 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 ten 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 state succinctly:
    (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 wishes to participate; and
    (5) Whether the moving party wishes to present witnesses.
    (d) Objections to the motion must be filed by any party within ten 
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

[[Page 4731]]

brief statement of the basis for the decision. If the motion is denied, 
the Commission shall briefly state the grounds 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 an appeal brief, or as soon 
thereafter as practicable, the record on which the Chair relied 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, unless the subject of the appeal is whether to dissolve 
or make permanent a temporary closure order issued under Sec.  573.6 
chapter, in which case the Commission shall issue its decision within 
60 days.
    (b) The Commission shall serve the final decision upon the 
appellants, and any limited participant.

    Dated: January 23, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Commissioner.
[FR Doc. 2012-1767 Filed 1-27-12; 11:15 am]
BILLING CODE 7565-01-P