See link to an amendment published at 77 FR 58945, Sept. 25, 2012.
25 U.S.C. 2706, 2713, 2715.
58 FR 5845, Jan. 22, 1993, unless otherwise noted.
(a) This part provides procedures for appeals to the Commission regarding:
(1) A violation alleged in a notice of violation;
(2) Civil fines assessed by the Chairman;
(3) Whether an order of temporary closure issued by the Chairman should be made permanent or be dissolved; and
(4) The Chairman's decision to void or modify a management contract under part 535 of this chapter subsequent to initial approval.
(b) Appeals from determinations of the Chairman under 25 U.S.C. 2710 and 2711 (regarding management contracts) and 2710 (regarding tribal gaming ordinances) are addressed in parts 539 and 524 of this chapter respectively.
§ 577.3 Request for hearing.
(a) A respondent may request a hearing to contest the matters listed in §577.1(a)(1)–(4) by submitting a notice of appeal to the Commission within thirty (30) days after service of:
(1) A notice of violation;
(2) A proposed civil fine assessment or reassessment;
(3) An order of temporary closure; or
(4) An order voiding or modifying a management contract subsequent to initial approval.
(b) A notice of appeal shall reference the notice or order from which the appeal is taken.
(c) Within ten (10) days after filing a notice of appeal, the respondent shall file with the Commission a supplemental statement that states with particularity the relief desired and the grounds therefor and that includes, when available, supporting evidence in the form of affidavits. If the respondent wishes to present oral testimony or witnesses at the hearing, the respondent shall include a request to do so with the supplemental statement. The request to present oral testimony or witnesses shall specify the names of proposed witnesses and the general nature of their expected testimony, and whether a closed hearing is requested and why. The respondent may waive in writing his or her right to an oral hearing and instead elect to have the matter determined by the Commission solely on the basis of written submissions.
§ 577.4 Hearing deadline.
(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 from the respondent. At the request of the respondent, the presiding official may order the hearing to commence at a time more than 30 days after the respondent files a notice of appeal. The Commission shall transmit the administrative record of the case to the presiding official 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 respondent waives this requirement. 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 within the period required by this paragraph, while ensuring due process to all parties.
(a) A respondent who initiates an appeal under this part shall serve copies of the initiating documents on the Commission at the address indicated in the notice or order that is the subject of the appeal. 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. Any party or other person who subsequently files any other document with the Commission or the presiding officer shall simultaneously serve copies of that document on any other parties to the proceeding, except to that extent §577.8 of this part may govern the disclosure of confidential information contained in a filing.
(b) Copies of documents by which a proceeding is initiated shall be served on all known parties personally, by facsimile, or by registered or certified mail, return receipt requested. All subsequent documents shall be served personally, by facsimile, or by first class mail.
(c) Service of copies of all documents is complete at the time of personal service or, if service is made by mail or facsimile, upon transmittal.
(d) Whenever a representative (including an attorney) has entered an appearance for a party in a proceeding initiated under this part, service thereafter shall be made upon the representative.
(e) 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.
(f)(1) The presiding official may extend the time for filing or serving any document except a notice of appeal.
(2) A request for an extension of time must be filed within the time originally allowed for filing.
(3) For good cause the presiding official may grant an extension of time on his or her own initiative.
§ 577.7 Conduct of hearing.
(a) Once designated by the Commission, the presiding official shall set the case for hearing. The respondent may appear at the hearing personally, through counsel, or personally with counsel. The respondent 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) Regulate 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 §577.14 of this part; 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 five 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 §577.14 of this part.
§ 577.8 Request to limit disclosure of confidential information.
(a) If any person submitting a document in a proceeding that involves more than two parties claims that some or all of the information contained in that document is exempt from the mandatory public disclosure requirements under the Freedom of Information Act (5 U.S.C. 552), is information referred to in 18 U.S.C. 1905 (disclosure of confidential information), or is otherwise exempt by law from public disclosure, the person shall:
(1) 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
(2) Request that the presiding official not disclose such information to the parties to the proceeding (other than the Chairman, whose actions regarding the disclosure of confidential information are governed by §571.3 of this chapter) 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:
(i) A copy of the document, group of documents, or segregable portions of the documents marked “Confidential Treatment Requested”; and
(ii) A statement explaining why the information is confidential.
(b) A party to a proceeding may request that the presiding official direct a person submitting information under paragraph (a) of this section to provide that information to the party. The presiding official shall 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.
(c) 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.
(d) 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 by telephone, if possible, and by facsimile or express mail letter directed to the parties' last known addresses. 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.
(e) If the presiding official determines that confidential treatment is warranted, the presiding official shall so inform all parties by facsimile or express mail directed to the parties' last known address.
(f) When a decision by a presiding official is based in whole or in part on evidence not included in the public 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.
§ 577.9 Consent order or settlement.
(a) General. At any time after the commencement of a proceeding, but at least five (5) days before the date set for hearing under §577.7 of this part, 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) That 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 and have agreed to dismissal of the action, 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 settlement agreement containing consent findings and an order is submitted within the time granted, the presiding official shall certify such findings and agreement within thirty (30) days after his or her receipt of the submission. Such certification shall constitute dismissal of the appeal and final agency action.
(a) Persons other than the respondent may be permitted to participate as parties if the presiding official finds that:
(1) The final decision could directly and adversely affect them or the class they represent;
(2) They may contribute materially to the disposition of the proceedings;
(3) Their interest is not adequately represented by existing parties; and
(4) Intervention would not unfairly prejudice existing parties or delay resolution of the proceeding.
(b) If a tribe has jurisdiction over lands on which there is a gaming operation that is the subject of a proceeding under this part, and the tribe is not already a named party, such tribe may intervene as a matter of right.
(c) A person not named as a party and who wishes to participate as a party under this section shall submit a petition to the presiding official within ten (10) days after the person knew or should have known about the proceeding. The petition shall be filed with the presiding official and served on each person who has been made a part at the time of filing. The petition shall state concisely:
(1) Petitioner'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 petitioner;
(4) The issues on which petitioner wishes to participate; and
(5) Whether petitioner wishes to present witnesses.
(d) Objections to the petition may be filed by any party within ten (10) days after service of the petition.
(e) When petitions to participate as parties are made by individuals or groups with common interests, the presiding official may request all such petitioners to designate a single representative, or he or she may recognize one or more petitioners.
(f) The presiding official shall give each petitioner, as well as the parties, written notice of the presiding official's decision on the petition. For each petition granted, the presiding official shall provide a brief statement of the basis of the decision. If the petition is denied, the presiding official shall briefly state the grounds for denial and may then treat the petition as a request for participation as amicus curiae (that is, “friend of the court”).
§ 577.13 Transcript of hearing.
Hearings under this part that involve oral presentations shall be recorded verbatim and transcripts thereof shall be provided to parties upon request. Fees for transcripts shall be at the actual cost of duplication.
§ 577.14 Recommended decision of presiding official.
(a) Recommended decision. Within thirty (30) days after the record closes, the presiding official shall render his or her recommended decision. The recommended decision of the presiding official shall be based upon the whole record and shall include findings of fact and conclusions of law upon each material issue of fact or law presented on the record.
(b) Filing of objections. Within ten (10) days after the date of service of the presiding official's recommended decision, the parties may file with the Commission objections to any aspect of the decision, and the reasons therefor.
§ 577.15 Review by Commission.
The Commission shall affirm or reverse, in whole or in part, the recommended decision of the presiding official by a majority vote within thirty (30) days after the date on which the presiding official issued the decision. The Commission shall provide a notice and order to all parties stating the reasons for its action. In the absence of a majority vote by the Commission within the time provided by this section, the recommended decision of the presiding official shall be deemed affirmed except that, if the subject of the appeal is an order of temporary closure issued under §573.6 of this chapter, the order of temporary closure shall be dissolved.