[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