Eastern Band of Cherokee Indians
Tribal Alcoholic Beverage Control Commission
NOTICE
Adoption of Interim Rules
SUMMARY: The Tribal Council of the Eastern Band of Cherokee Indians has enacted Ordinance No. 768 (Sept. 8, 2011), an ordinance to govern the regulation of alcoholic beverages, to be codified as Chapter 18B of the Cherokee Code. The Tribal Alcoholic Beverage Control Commission (“Commission” or “TABCC”) is vested with authority to administer Tribal alcoholic beverage control law. Under federal law, an Indian tribal government has the sovereign authority to regulate the introduction of liquor into Indian country, so long as the tribe enacts a tribal law that is in conformity with state law and that has been certified by the Secretary of the Interior and published in the Federal Register. 18 U.S.C. § 1161. Ordinance No. 768 has been certified by the Secretary of the Interior and published in the Federal Register. 77 Fed. Reg. 5265 (Feb. 2, 2012). To achieve conformity withNorth Carolina state law, Ordinance No. 768 incorporates by reference certain specific sections of state law codified in chapter 18B of the North Carolina General Statutes. The specific sections of state law that are incorporated by Ordinance No. 768 are those specified in a state law, Senate Bill 324, enacted in June 2011. Ordinance No. 768 (Cherokee Code section 18B-112(e)) provides: “The Tribal Alcoholic Beverage Control Commission shall adopt the rules of the North Carolina Alcoholic Beverage Control Commission regulating retail outlet activity.” This interim rule is intended to fulfill that mandate.
In addition to the requirement to adopt rules regulating retail outlet activity, Ordinance No. 768 also authorizes the Tribal Alcoholic Beverage Control Commission to adopt rules and procedures for the issuance and enforcement of ABC permits. Cherokee Code § 18B-203(a)(4). This interim rule includes such procedural rules, which are adapted from the rules of the North Carolina Alcoholic Beverage Control Commission.
DATES: The rules take effect upon publication of this notice. Comments[1] on the rules will be accepted until March 23, 2012. The Commission does not currently plan to hold a public hearing on these rules but may do so if written comments indicate a sufficient level of interest to warrant a hearing.
ADDRESS: Written comments should be addressed to 738 Acquoni Road, Cherokee NC 28719 or PO Box 1804, Cherokee NC 28719.
FOR FURTHER INFORMATION CONTACT: Copies of the rules may be picked up at the Tribal Alcoholic Beverage Control Commission office, located on 738 Acquoni Road, Cherokee NC. Contact numbers are 828/554/6372 or 828/554/6374.
SUPPLEMENTARY INFORMATION:
Background. Under federal law, an Indian tribal government has the sovereign authority to regulate the introduction of liquor into Indian country, so long as the tribe enacts a tribal law that is approved by the Secretary of the Interior and that is in conformity with state law. 18 U.S.C. § 1161. The Tribal Council of the Eastern Band of Cherokee Indians has enacted Ordinance No. 768 (Sept. 8, 2011), an ordinance to govern the regulation of alcoholic beverages, to be codified as Chapter 18B of the Cherokee Code. The Tribal ordinance establishes the Tribal Alcoholic Beverage Control Commission (herein “Commission” or “TABCC”) and vests it with certain powers, including the power to “adopt rules and procedures for the issuance and enforcement of ABC permits” and to otherwise carry out the Commissions duties under the Ordinance. (Cherokee Code section 18B-203). To achieve conformity withNorth Carolina state law, Ordinance No. 768 incorporates by reference certain specific sections of state law codified in chapter 18B of the North Carolina General Statutes. The specific sections of state law that are incorporated by Ordinance No. 768 are those specified in a state law, Senate Bill 324, enacted in June 2011. Ordinance No. 768 (Cherokee Code section 18B-112(e)) provides: “The Tribal Alcoholic Beverage Control Commission shall adopt the rules of the North Carolina Alcoholic Beverage Control Commission regulating retail outlet activity.” This interim rule is intended to fulfill the mandate of section 18B-112(e). In addition, portions of this interim rule carry out the Commission’s discretionary rulemaking authority under section 18B-203.
The rules of the North Carolina Alcoholic Beverage Control Commission (“NCABCC” or “State Commission”) (which are available on the State Commission’s website: www.ncabc.com/legal/statutes_regulations.aspx) are codified in three subchapters of title 04 of the North Carolina Administrative Code (NCAC): Subchapter 2R – Organizational Rules: Policies and Procedures; Subchapter 2S – Retail Beer: Wine: Mixed Beverages: Brownbagging: Advertising: Special Permits; and Subchapter 2T – Industry Members: Retail/Industry Member Relationships; Ship Chandlers: Air Carriers; Fuel Alcohol. Subchapter 2R is mostly concerned with matters other than retail outlets, although there are a number of provisions in Subchapter 2R that do concern retail outlets. All of the provisions of Subchapter 2S relate to retail outlets. The subject matter of Subchapter 2T is beyond the scope of the Tribal ordinance. Accordingly, the provisions of the rules of the NCABCC that the Tribal Commission is required to adopt are certain provisions of Subchapter 2R and virtually all of Subchapter 2S.
In order to facilitate the use of the Tribal Commission’s rules by persons familiar with the rules of the NCABCC, the Tribal Commission has decided to use a system of numerical designation that corresponds to the system in the NCABCC rules. In this interim rulemaking, the Tribal Commission’s rules are divided into two chapters: Chapter 1 – Organizational Rules: Policies and Procedures; and Chapter 2 – Regulation of Retail Outlets. The rules in Chapter 1 are issued under the Commission’s discretionary authority. The rules in Chapter 2 implement the mandate to “adopt the rules of the North Carolina Alcoholic Beverage Control Commission regulating retail outlet activity.” Chapter 2 is divided into two Subchapters, designated R and S, to facilitate reference to the NCABCC rules.
In the nomenclature of the NCABCC, each Subchapter is divided into “Sections.” Each Section is further subdivided, and each numerically designated item under each section heading is referred to as a “rule.” The Commission has decided to use the same nomenclature. In the interim rules taken from Subchapter R of the NCABCC rules are designated with an “R” before the rule number in the Tribal rules; rules taken from Subchapter S of the NCABCC rules are designated with an “S” before the rule number. It should also be noted that at many points the numerical designations of subsections are not consecutive. The reason for this is that many subsections have been repealed from the State Commission’s rules.
The rules of the NCABCC regulating retail outlet activity have been adapted where appropriate so that they may be implemented by the Tribal Alcoholic Beverage Control Commission. For example, some of the changes are intended to make it clear that the regulatory body is the Tribal Commission rather than the State Commission. Some of the changes have to do with the fact that the NCABCC system features local ABC boards, which serve as intermediaries between the State Commission and retail outlets, including stores, restaurants, and hotels. There will be no such local boards in the TABCC system; rather, the Tribal Commission will generally perform roles that the NCABCC rules assign to local boards. Thus, one frequent kind of change was to replace the words “local board.” For the most part, the functions that are performed by local boards in the State Commission’s system will be performed by the Tribal Commission, and the rules have been adapted accordingly. For some functions performed by local boards, the draft interim rules authorize Tribal ABC stores to perform these functions.
Persons who are interested in filing comments on the interim rules are encouraged to contact the Commission for further information.
[1] To the extent that the TABCC decides that these rules should be subject to public notice and comment, we offer this language.
