25 CFR Part 575
Authority: 25 U.S.C. 2705(a), 2706, 2713, 2715.
Source: 58 FR 5844, Jan. 22, 1993, 58 FR 16495, Mar. 29, 1993.
This part addresses the assessment of civil fines under section 2713(a) of the Act with respect to notices of violation issued under §573.3 of this chapter.
§575.3 How assessments are made.
The Chairman shall review each notice of violation and order of temporary closure in accordance with §575.4 of this part to determine whether a civil fine will be assessed, the amount of the fine, and, in the case of continuing violations, whether each daily illegal act or omission will be deemed a separate violation for purposes of the total civil fine assessed.
§575.4 When civil fine will be assessed.
The Chairman may assess a civil fine, not to exceed $25,000 per violation, against a tribe, management contractor, or individual operating Indian gaming for each notice of violation issued under §573.3 of this chapter after considering the following factors:
(a) Economic benefit of noncompliance. The Chairman shall consider the extent to which the respondent obtained an economic benefit from the noncompliance that gave rise to a notice of violation, as well as the likelihood of escaping detection.
(1) The Chairman may consider the documented benefits derived from the noncompliance, or may rely on reasonable assumptions regarding such benefits.
(2) If noncompliance continues for more than one day, the Chairman may treat each daily illegal act or omission as a separate violation.
(b) Seriousness of the violation. The Chairman may adjust the amount of a civil fine to reflect the seriousness of the violation. In doing so, the Chairman shall consider the extent to which the violation threatens the integrity of Indian gaming.
(c) History of violations. The Chairman may adjust a civil fine by an amount that reflects the respondent's history of violations over the preceding five (5) years.
(1) A violation cited by the Chairman shall not be considered unless the associated notice of violation is the subject of a final order of the Commission and has not been vacated; and
(2) Each violation shall be considered whether or not it led to a civil fine.
(d) Negligence or willfulness. The Chairman may adjust the amount of a civil fine based on the degree of fault of the respondent in causing or failing to correct the violation, either through act or omission.
(e) Good faith. The Chairman may reduce the amount of a civil fine based on the degree of good faith of the respondent in attempting to achieve rapid compliance after notification of the violation.
§575.5 Procedures for assessment of civil fines.
(a) Within 15 days after service of a notice of violation, or such longer period as the Chairman may grant for good cause, the respondent may submit written information about the violation to the Chairman. The Chairman shall consider any information so submitted in determining the facts surrounding the violation and the amount of the civil fine.
(b) The Chairman shall serve a copy of the proposed assessment on the respondent within thirty (30) days after the notice of violation was issued, when practicable.
(c) The Chairman may review and reassess any civil fine if necessary to consider facts that were not reasonably available on the date of issuance of the proposed assessment.
§575.6 Settlement, reduction, or waiver of civil fine.
(a) Reduction or waiver.
(1) Upon written request of a respondent received at any time prior to the filing of a notice of appeal under part 577 of this chapter, the Chairman may reduce or waive a civil fine if he or she determines that, taking into account exceptional factors present in a particular case, the fine is demonstrably unjust.
(2) All petitions for reduction or waiver shall contain:
(i) A detailed description of the violation that is the subject of the fine;
(ii) A detailed recitation of the facts that support a finding that the fine is demonstrably unjust, accompanied by underlying documentation, if any; and
(iii) A declaration, signed and dated by the respondent and his or her counsel or representative, if any, as follows: Under penalty of perjury, I declare that, to the best of my knowledge and belief, the representations made in this petition are true and correct.
(3) The Chairman shall serve the respondent with written notice of his or her determination under paragraph (a) of this section, including a statement of the grounds for the Chairman's decision.
(b) Settlement. At any time prior to the filing of a notice of appeal under part 577 of this chapter, the Chairman and the respondent may agree to settle an enforcement action, including the amount of the associated civil fine. In the event a settlement is reached, a settlement agreement shall be prepared and executed by the Chairman and the respondent. If a settlement agreement is executed, the respondent shall be deemed to have waived all rights to further review of the violation or civil fine in question, except as otherwise provided expressly in the settlement agreement. In the absence of a settlement of the issues under this paragraph, the respondent may contest the assessed civil fine before the Commission in accordance with part 577 of this chapter.
§575.9 Final assessment.
(a) If the respondent fails to request a hearing as provided in part 577 of this chapter, the proposed civil fine assessment shall become a final order of the Commission.
(b) Civil fines assessed under this part shall be paid by the person assessed and shall not be treated as an operating expense of the operation.
(c) The Commission shall transfer civil fines paid under this subchapter to the U.S. Treasury.