[Federal Register Volume 78, Number 68 (Tuesday, April 9, 2013)]
[Rules and Regulations]
[Pages 21060-21063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08263]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 581, 584, and 585
RIN 3141-AA47
Appeal Proceedings Before the Commission
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (NIGC or Commission) is
revising its appeals regulations to include, amongst the appealable
actions, the Chair's decisions to approve or object to a tribal gaming
regulatory authority's adoption of alternate standards from those
required by the
[[Page 21061]]
Commission's minimum internal control standards and/or technical
standards.
DATES: The effective date of these regulations is May 9, 2013.
FOR FURTHER INFORMATION CONTACT: Armando Acosta, National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Email:
[email protected]; telephone: (202) 632-7003.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act established the Commission and set out a comprehensive framework
for the regulation of gaming on Indian lands. The Act requires that the
Commission, by regulation, provide an opportunity for an appeal and a
hearing before the Commission on fines levied by the Chair against the
tribal operator of an Indian game or a management contractor, and to
determine whether a temporary closure order issued by the Chair should
be made permanent or dissolved. 25 U.S.C. 2713(a)(2), 2713(b). By
regulation, the Commission has also provided rights to tribes and/or
management contractors to appeal ordinance disapprovals, management
contract approvals or disapprovals, enforcement actions, and actions to
void an approved management contract. The appellate procedures for
these actions are all consolidated in this subchapter.
II. Previous Rulemaking Activity
On September 21, 2012, the Commission published two final rules
amending 25 CFR parts 543 and 547. In its final rule for part 543, the
Commission provided tribal gaming regulatory authorities (TGRA) with
rights to appeal the Chair's decisions to approve or object to a TGRA's
adoption of alternate standards from those required by the Commission's
minimum internal control standards contained in part 543 (77 FR 58708,
Sept. 21, 2012). In its final rule for part 547, the Commission
provided TGRAs with rights to appeal the Chair's decisions to approve
or object to a TGRA's adoption of alternate standards from those
required by the Commission's technical standards contained in part 547
(77 FR 58473, Sept. 21, 2012).
On September 25, 2012, the Commission published a final rule
consolidating all appeal proceedings before the Commission into the
current subchapter H (Appeal Proceedings Before the Commission). 77 FR
58941, Sept. 25, 2012. However, the new appeal rights provided under
parts 543 and 547 were not included in subchapter H at that time. On
January 22, 2013, the Commission published a Notice of Proposed
Rulemaking proposing to revise subchapter H to include the new appeal
rights provided to TGRAs under parts 543 and 547 (78 FR 4366, Jan. 22,
2013).
III. Review of Public Comments
In response to its Notice of Proposed Rulemaking published on
January 22, 2013, the Commission received the following comments:
General Comments Applicable to the Entire Subchapter
Comment: One commenter applauded the revisions to the subchapter
and stated that these long-term, permanent changes reflect the
importance of tribal sovereignty rights and the true partnership
between the federal government and tribal nations.
Response: The Commission agrees.
584.2 Who may appeal? and 585.2 Who may appeal?
Comment: One commenter was concerned that the proposed revisions
limit appeals rights to TGRAs only. While the commenter recognizes that
TGRAs are the parties most directly affected by the Chair's decisions
to approve or object to a TGRA's adoption of alternate standards from
those required by the Commission's minimum internal control standards
and/or technical standards, the commenter suggests that the rule be
revised to also permit tribal governments to bring appeals on behalf of
TGRAs. The commenter provided multiple reasons for the suggested
revision, including that some TGRAs lack independent litigation
authority and thus may not be able to proceed with an appeal
independent of the tribe; or that some TGRAs do not have the funding to
proceed with an appeal without the financial assistance of the tribal
government, and thus, for accounting purposes, the appeal would have to
be brought in the name of the tribe rather than the TGRA.
Response: The Commission declines to revise the rule as suggested
by the commenter. While the Commission has taken into consideration the
circumstances that some TGRAs may lack independent litigation authority
and/or that some TGRAs do not have the funding to proceed with an
appeal without the financial assistance of a tribal government, the
Commission believes that such circumstances are internal tribal matters
that must be resolved between the TGRAs and their tribal governments
before the appeals reach the Commission. As noted by the commenter, the
TGRAs are the parties most affected by the Chair's decisions to approve
or object to the TGRAs' adoption of alternate standards from those
required by the Commission's minimum internal control standards and/or
technical standards. If an appeal is successful, only a TGRA can
implement the alternate standards in a gaming facility. Therefore, the
Commission believes that only the TGRAs should be allowed to bring an
appeal.
Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant impact on a substantial number
of small entities as defined under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian tribes are not considered to be
small entities for the purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
effect on the economy of $100 million or more. The rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local government agencies or geographic
regions. Nor will the rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of the enterprises, to compete with foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
[[Page 21062]]
National Environmental Policy Act
The Commission has determined that the 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 in 25 CFR Parts 581, 584, and 585
Appeals, Gambling, Indian-lands.
For the reasons set forth in the preamble, the Commission revises
its regulations at 25 CFR chapter III, subchapter H, parts 581, 584,
and 585, as follows:
Subchapter H--Appeal Proceedings Before the Commission
PART 581--MOTIONS IN APPEAL PROCEEDINGS BEFORE THE COMMISSION
0
1. The authority citation for part 581 continues to read as follows:
Authority: 25 U.S.C. 2706, 2713, 2715.
0
2. In Sec. 581.1, paragraph (a) introductory text is republished and
paragraphs (a)(3) and (4) are revised to read as follows:
Sec. 581.1 What is the scope of this part?
(a) This part governs motion practice under:
* * * * *
(3) Part 584 of this subchapter relating to appeals before a
presiding official of notices of violation, orders of temporary
closure, proposed civil fine assessments, the Chair's decisions to void
or modify management contracts, the Commission's proposals to remove
certificates of self-regulation, the Chair's decisions to approve or
object to a tribal gaming regulatory authority's adoption of alternate
standards from those required by the Commission's minimum internal
control standards and/or technical standards, and notices of late fees
and late fee assessments; and
(4) Part 585 of this subchapter relating to appeals to the
Commission on written submissions of notices of violation, orders of
temporary closure, proposed civil fine assessments, the Chair's
decisions to void or modify management contracts, the Commission's
proposals to remove certificates of self-regulation, the Chair's
decisions to approve or object to a tribal gaming regulatory
authority's adoption of alternate standards from those required by the
Commission's minimum internal control standards and/or technical
standards, and notices of late fees and late fee assessments.
* * * * *
0
3. Revise Sec. 581.4 to read as follows:
Sec. 581.4 How do I file a motion before a presiding official?
Motion practice before a presiding official on appeals of notices
of violation, orders of temporary closure, proposed civil fine
assessments, the Chair's decisions to void or modify management
contracts, the Commission's proposals to remove certificates of self-
regulation, the Chair's decisions to approve or object to a tribal
gaming regulatory authority's adoption of alternate standards from
those required by the Commission's minimum internal control standards
and/or technical standards, and notices of late fees and late fee
assessments is governed by Sec. 584.4 of this subchapter.
PART 584--APPEALS BEFORE A PRESIDING OFFICIAL OF NOTICES OF
VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF TEMPORARY
CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY MANAGEMENT
CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A CERTIFICATE OF
SELF-REGULATION, THE CHAIR'S DECISIONS TO APPROVE OR OBJECT TO THE
ADOPTION OF ALTERNATE STANDARDS FROM THOSE REQUIRED BY THE
COMMISSION'S MINIMUM INTERNAL CONTROL STANDARDS AND/OR TECHNICAL
STANDARDS, AND NOTICES OF LATE FEES AND LATE FEE ASSESSMENTS
0
4. The authority citation for part 584 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2711, 2712, 2713, 2715, 2717.
0
5. Revise the part heading to part 584 to read as set forth above.
0
6. In Sec. 584.1, paragraph (a) introductory text is republished,
paragraph (a)(6) is redesignated as paragraph (a)(8) and new paragraphs
(a)(6) and (7) are added to read as follows:
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:
* * * * *
(6) The Chair's decisions to approve or object to a tribal gaming
regulatory authority's adoption of alternate standards from those
required by the Commission's minimum internal control standards under
part 543 of this chapter;
(7) The Chair's decisions to approve or object to a tribal gaming
regulatory authority's adoption of alternate standards from those
required by the Commission's technical standards under part 547 of this
chapter; and
* * * * *
0
7. Amend Sec. 584.2 by adding paragraph (c) to read as follows:
Sec. 584.2 Who may appeal?
* * * * *
(c) Appeals of the Chair's decisions to approve or object to the
adoption of alternate standards from those required by the Commission's
minimum internal control standards and/or technical standards may only
be brought by the tribal gaming regulatory authority that approved the
alternate standards for the gaming operation(s).
0
8. Revise the section heading to Sec. 584.3 to read as follows:
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, the Chair's decision to approve or
object to a tribal gaming regulatory authority's adoption of alternate
standards from those required by the Commission's minimum internal
control standards and/or technical standards, and a notice of late fees
and late fee assessments?
* * * * *
PART 585--APPEALS TO THE COMMISSION ON WRITTEN SUBMISSIONS OF
NOTICES OF VIOLATION, PROPOSED CIVIL FINE ASSESSMENTS, ORDERS OF
TEMPORARY CLOSURE, THE CHAIR'S DECISIONS TO VOID OR MODIFY
MANAGEMENT CONTRACTS, THE COMMISSION'S PROPOSALS TO REMOVE A
CERTIFICATE OF SELF-REGULATION, THE CHAIR'S DECISIONS TO APPROVE OR
OBJECT TO THE ADOPTION OF ALTERNATE STANDARDS FROM THOSE REQUIRED
BY THE COMMISSION'S MINIMUM INTERNAL CONTROL STANDARDS AND/OR
TECHNICAL STANDARDS, AND NOTICES OF LATE FEES AND LATE FEE
ASSESSMENTS
0
9. The authority citation for part 585 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2711, 2712, 2713, 2715, 2717.
[[Page 21063]]
0
10. Revise the part heading to part 585 to read as set forth above.
0
11. In Sec. 585.1, paragraph (a) introductory text is republished,
paragraph (a)(6) is redesignated as paragraph (a)(8), and new
paragraphs (a)(6) and (7) are added to read as follows:
Sec. 585.1 What does this part cover?
(a) This part applies to appeals of the following where the
appellant does not elect a hearing before a presiding official and
instead elects to have the matter decided by the Commission solely on
the basis of the written submissions:
* * * * *
(6) The Chair's decisions to approve or object to a tribal gaming
regulatory authority's adoption of alternate standards from those
required by the Commission's minimum internal control standards under
part 543 of this chapter;
(7) The Chair's decisions to approve or object to a tribal gaming
regulatory authority's adoption of alternate standards from those
required by the Commission's technical standards under part 547 of this
chapter; and
* * * * *
0
12. Amend Sec. 585.2 by adding paragraph (c) to read as follows:
Sec. 585.2 Who may appeal?
* * * * *
(c) Appeals of the Chair's decisions to approve or object to the
adoption of alternate standards from those required by the Commission's
minimum internal control standards and/or technical standards may only
be brought by the tribal gaming regulatory authority that approved the
alternate standards for the gaming operation(s).
0
13. Revise the section heading to Sec. 585.3 to read as follows:
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, the Chair's decision to approve or
object to a tribal gaming regulatory authority's adoption of alternate
standards from those required by the Commission's minimum internal
control standards and/or technical standards, and notices of late fees
and late fee assessments?
* * * * *
Dated: April 4, 2013.
Tracie L. Stevens,
Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2013-08263 Filed 4-8-13; 8:45 am]
BILLING CODE 7565-01-P