[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Proposed Rules]
[Pages 48615-48617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16976]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 585

RIN 3141-AA75


Appeals to the Commission

AGENCY: National Indian Gaming Commission, Department of the Interior.

ACTION: Proposed rule.

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[[Page 48616]]

SUMMARY: The National Indian Gaming Commission proposes to amend its 
regulations to add a settlement process for appeals proceedings on 
written submissions to the Commission.

DATES: Written comments on this proposed rule must be received on or 
before September 9, 2022.

ADDRESSES: You may submit comments by any one of the following methods, 
however, please note that comments sent by electronic mail are strongly 
encouraged.
    [ssquf] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
    [ssquf] Email comments to: [email protected].
    [ssquf] Mail comments to: National Indian Gaming Commission, 1849 C 
Street NW, MS 1621, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Michael Hoenig at (202) 420-9241 (this 
number is not toll free).

SUPPLEMENTARY INFORMATION: 

I. Background and Development of the Rule

A. 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 National Indian Gaming Commission (``NIGC'' or 
``Commission'') and set out a comprehensive framework for the 
regulation of gaming on Indian lands. IGRA, in several instances, 
requires that the Commission provide an opportunity for a hearing 
before it on: proposed fines, temporary closure orders, and removals of 
a certificate of self-regulation. Also through regulatory action, the 
Commission has afforded appeals before it for: notice of violations, 
modified and voided management contracts, and notices of late fees and 
late fee assessments. As to all these areas, part 585 of NIGC 
regulations offers appeals to the Commission on written submissions.
    The Commission comprehensively updated the appeals regulations in 
2012, consolidating them in one subchapter. (77 FR 58941-01). This 
proposed rule augments the appeals regulations by inserting a 
comprehensive settlement procedure for appeals under part 585, 
rectifying its absence in the current regulations.

B. Development of the Rule

    On June 9, 2021, the National Indian Gaming Commission sent a 
Notice of Consultation announcing that the Agency intended to consult 
on a number of topics, including proposed changes to the appeals 
regulations in part 585. Prior to consultation, the Commission sent 
another Notice of Consultation, dated September 13, 2021, and released 
a proposed discussion draft of the regulations for review. The proposed 
amendments to these regulations were intended to solicit Tribes' views 
on: (1) the Commission inviting, directing or granting leave to the 
Chair to file or respond to motions and (2) supplying a settlement 
procedure for appeals to the Commission on written submissions. The 
Commission held three virtual consultation sessions in September and 
October of 2021 to receive Tribal input on the possible changes. The 
Commission reviewed all comments received as part of the consultation 
process.
    Commenters at the consultation phase requested the addition of 
language to the settlement procedures specifying that ``the NIGC will 
consider any and all such requests to enter into settlement 
negotiations in good faith.'' The Commission declines to add this 
language. It is unclear whether this comment is directed to the full 
Commission, who will decide whether to grant a stay of proceedings for 
the purposes of settlement negotiations between the Chair and the other 
party, or whether this comment is directed at the Chair. In any event, 
in the context of agency adjudications, the U.S. Supreme Court found 
that agency members are presumed to act in good faith, with honesty and 
integrity. See Withrow v. Larkin, 421 U.S. 35, 47 (1975). Therefore, 
the addition is unnecessary.
    Additionally, based on comments received, the Commission omitted 
the proposed change permitting the Chair to respond to motions. 
Instead, the Commission proposes to limit the motions that may be filed 
in proceedings before the Commission to those listed in the regulation 
and prohibit the Chair from responding.

II. Regulatory Matters

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.

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

    The information collection requirements contained in this rule were 
previously approved by the Office of Management and Budget as required 
by 44 U.S.C. 3501, et seq., and assigned OMB Control Number 3141-0003.

Tribal Consultation

    The National Indian Gaming Commission is committed to fulfilling 
its Tribal consultation obligations--whether directed by statute or 
administrative action such as Executive Order (E.O.) 13175 
(Consultation and Coordination with Indian Tribal Governments)--by 
adhering to the consultation framework described in its Consultation 
Policy published July 15, 2013. The NIGC's consultation policy 
specifies that it will consult with Tribes on Commission Action with 
Tribal Implications, which is defined as: Any Commission regulation, 
rulemaking, policy, guidance, legislative proposal, or operational 
activity that may have a substantial direct effect on an Indian Tribe 
on matters including, but not limited to the ability of an Indian Tribe 
to regulate its Indian gaming; an Indian Tribe's formal relationship 
with the Commission; or the consideration of the Commission's trust 
responsibilities to Indian Tribes.
    Pursuant to this policy, on June 9 and September 13, 2021, the 
National Indian Gaming Commission sent Notices of Consultation 
announcing that the Agency intended to consult on a number of topics, 
including proposed changes to the appeals regulations. The Commission 
held three virtual consultation sessions in September and October of 
2021 to receive Tribal input on the possible changes.

List of Subjects in 25 CFR Part 585

    Administrative practice and procedure, Appeals gambling, Indian-
lands, Reporting and recordkeeping requirements.


[[Page 48617]]


    Therefore, for reasons stated in the preamble, 25 CFR part 585 is 
amended as follows:

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, AND NOTICES OF LATE FEES AND LATE 
FEE ASSESSMENTS

0
1. The authority citation for part 585 continues to read as follows:

    Authority: 25 U.S.C. 2706, 2710, 2711, 2713, 2715, 2717.

0
2. Revise Sec.  585.4 to read as follows:


Sec.  585.4   Are motions permitted?

    (a) Only motions for extension of time under Sec.  580.4(f) of this 
subchapter, motions to supplement the record under Sec.  581.5 of this 
subchapter, motions to intervene under Sec.  585.5, and motions for 
reconsideration under Sec.  581.6 of this subchapter, are permitted.
    (b) The Chair shall not, either individually or through counsel, 
respond to motions.
0
3. Add Sec.  585.8 to read as follows:


Sec.  585.8   What is the process for pursuing settlement in an appeal 
to the Commission?

    (a) General. At any time after the commencement of a proceeding, 
but before the date scheduled for the Commission to issue a final 
decision under Sec.  585.7, the parties may jointly move to stay the 
proceeding for a reasonable time to permit negotiation of a settlement 
or an agreement disposing of the whole or any part of the proceeding.
    (b) Content. Any agreement disposing of the whole or any part of a 
proceeding shall also provide:
    (1) A waiver of any further proceedings before the Commission 
regarding the specific matter(s) settled under the agreement; and
    (2) That the agreement shall constitute dismissal of the appeal of 
the specific matter(s) settled, a final order of the Commission, and 
final agency action.
    (c) Submission. Before the expiration of the time granted for 
negotiations, the parties or their authorized representatives may:
    (1) Notify the Commission that the parties have reached a full or 
partial settlement and have agreed to dismissal of all or part of the 
action, subject to compliance with the terms of the settlement 
agreement; or
    (2) Inform the Commission that an agreement cannot be reached.
    (d) Disposition. If the parties enter into a full or partial 
settlement agreement, it shall constitute: full or partial dismissal of 
the appeal, as applicable; a final order of the Commission; and final 
agency action.

    Dated: August 2, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-16976 Filed 8-9-22; 8:45 am]
BILLING CODE 7565-01-P