83 FR 2903 - Fees

NATIONAL INDIAN GAMING COMMISSION

Federal Register Volume 83, Issue 14 (January 22, 2018)

The National Indian Gaming Commission is amending its fee regulations. The rule amends the regulations that describe when the Commission adopts annual fee rates, defines the fiscal year of the gaming operation that will be used for calculating the fee payments, and includes additional revisions clarifying the fee calculation and submission process for gaming operations.

[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Rules and Regulations]
[Pages 2903-2907]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00877]


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NATIONAL INDIAN GAMING COMMISSION

25 CFR Part 514


Fees

AGENCY: National Indian Gaming Commission.

ACTION: Final rule.

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SUMMARY: The National Indian Gaming Commission is amending its fee 
regulations. The rule amends the regulations that describe when the 
Commission adopts annual fee rates, defines the fiscal year of the 
gaming operation that will be used for calculating the fee payments, 
and includes additional revisions clarifying the fee calculation and 
submission process for gaming operations.

[[Page 2904]]


DATES: Effective Date: February 21, 2018.

FOR FURTHER INFORMATION CONTACT: Austin Badger, National Indian Gaming 
Commission; 1849 C Street NW, MS 1621, Washington, DC 20240. 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 establishes the National Indian Gaming Commission (NIGC or 
Commission) and sets out a comprehensive framework for the regulation 
of gaming on Indian lands. The IGRA established an agency funding 
framework whereby gaming operations licensed by tribes pay a fee to the 
Commission for each gaming operation that conducts Class II or Class 
III gaming activity that is regulated pursuant to IGRA. 25 U.S.C. 
2717(a)(1). These fees are used to fund the Commission in carrying out 
its regulatory authority. Fees are based on the gaming operation's 
gross gaming revenues. The rates of fees are established annually by 
the Commission and payable on a quarterly basis. 25 U.S.C. 2717(a)(3). 
IGRA limits the total amount of fees imposed during any fiscal year to 
0.08 percent of the gross gaming revenues of all gaming operations 
subject to regulation under IGRA. Failure of a gaming operation to pay 
the fees imposed by the Commission's fee schedule can be grounds for a 
civil enforcement action. 25 U.S.C. 2713(a)(1).
    The purpose of part 514 is to establish how the NIGC sets and 
collects those fees, to establish a basic formula for tribes to utilize 
in calculating the amount of fees to pay, and to advise of the 
consequences for failure to pay the fees. Part 514 further establishes 
how the NIGC determines and assesses fingerprint processing fees.

II. Development of the Rule

    The development of the rule formally began with the Commission's 
notice to tribal leaders by letter dated November 22, 2016, of the 
topic's inclusion in the Commission's 2017 tribal consultation series. 
On March 24, 2017, in Tulsa, OK, April 5, 2017, in Scottsdale, AZ, 
April 13, 2017, in San Diego, CA, April 20, 2017, in Billings, MT, May 
4, 2017, in Biloxi, MS, and on May 25, 2017, in Portland, OR, the NIGC 
consulted with tribes on proposed changes to the fee regulations. In 
addition, the Commission issued a discussion draft on January 30, 2017, 
and solicited written comments through July 1, 2017. Comments received 
were generally supportive of the proposed changes to the fee 
regulations.
    The Commission subsequently published a proposed rule in the 
Federal Register on November 13, 2017. 82 FR 52253. The proposed rule 
included amendments to the discussion draft prompted by internal review 
and the Commission's careful consideration of the substantive comments 
received through consultation and written submissions. The proposed 
rule included discussion of the Commission's amendments to the 
discussion draft and the Commission's responses to comments received. 
The proposed rule invited interested parties to continue to participate 
in the rulemaking process by submitting comments to the proposed rule 
to the Commission. While the Commission did not receive any substantive 
comments in response to the proposed rule, the comments received 
through consultation have proven invaluable to the Commission in 
developing this rule amending the fee regulations.
    The rule is intended to improve the Commission's analysis and 
budgeting process and simplify the fee calculation and payment process 
for gaming operations, thereby reducing the frequency of error in fee 
calculation. Under the current fee regulations, the Commission adopts a 
preliminary fee rate by March 1 and a final fee rate by June 1 of every 
year. In addition, the NIGC annually reviews the costs involved in 
processing fingerprint cards and adopts a preliminary rate by March 1 
and a final rate by June 1. The rule simplifies this process by 
amending the fee regulations to provide that the Commission will adopt 
a final fee rate and fingerprint processing fee no later than November 
1 of each year. The rule also defines the fiscal year used in 
calculating the required annual fee so that the fee rate is applied 
consistently to a gaming operation's gross revenues for one fiscal 
year. Finally, among other clarifying revisions to the fee regulations, 
the rule describes the fees and statements required of gaming 
operations that cease operations.

III. Review of Public Comments

    The Commission did not receive any substantive comments in response 
to the proposed rule.

Regulatory Matters

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. As discussed above, the NIGC engaged 
in extensive consultation on this topic and received and considered 
comments in developing this rule.
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.

[[Page 2905]]

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 section 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 (OMB) as 
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 
3141- 0007. The OMB control number expires on November 30, 2018.

List of Subjects in 25 CFR Part 514

    Gambling, Indian--lands, Indian--tribal government, Reporting and 
recordkeeping requirements.

    Therefore, for reasons stated in the preamble, the National Indian 
Gaming Commission revises 25 CFR part 514 to read as follows:

PART 514--FEES

Sec.
514.1 What is the purpose of this part?
514.2 When will the annual rates of fees be published?
514.3 What is the maximum fee rate?
514.4 How does a gaming operation calculate the amount of the annual 
fee it owes?
514.5 When must a gaming operation pay its annual fees?
514.6 What are the quarterly statements that must be submitted with 
the fee payments?
514.7 What should a gaming operation do if it changes its fiscal 
year or ceases operations?
514.8 Where should fees, quarterly statements, and other 
communications about fees be sent?
514.9 What happens if a gaming operation submits its fee payment or 
quarterly statement late?
514.10 When does a late payment or quarterly statement submission 
become a failure to pay?
514.11 Can a proposed late fee be appealed?
514.12 When does a notice of late submission and/or a proposed late 
fee become a final order of the Commission and final agency action?
514.13 How are late submission fees paid, and can interest be 
assessed?
514.14 What happens if the fees imposed exceed the statutory maximum 
or if the Commission does not expend the full amount of fees 
collected in a fiscal year?
514.15 May tribes submit fingerprint cards to the Commission for 
processing?
514.16 How does the Commission adopt the fingerprint processing fee?
514.17 How are fingerprint processing fees collected by the 
Commission?

    Authority:  25 U.S.C. 2706, 2710, 2717, 2717a.


Sec.  514.1  What is the purpose of this part?

    Each gaming operation under the jurisdiction of the Commission, 
including a gaming operation operated by a tribe with a certificate of 
self-regulation, shall pay to the Commission annual fees as established 
by the Commission. The Commission, by a vote of not less than two of 
its members, shall adopt the rates of fees to be paid.


Sec.  514.2  When will the annual rates of fees be published?

    (a) The Commission shall adopt the rates of fees no later than 
November 1st of each year.
    (b) The Commission shall publish the rates of fees in a notice in 
the Federal Register.


Sec.  514.3  What is the maximum fee rate?

    (a) The rates of fees imposed shall be--
    (1) No more than 2.5% of the first $1,500,000 of the assessable 
gross revenues from each gaming operation; and
    (2) No more than 5% of amounts in excess of the first $1,500,000 of 
the assessable gross revenues from each gaming operation.
    (b) If a tribe has a certificate of self-regulation, the rate of 
fees imposed on assessable gross revenues from the class II gaming 
activity shall be no more than 0.25%.
    (c) The total amount of all fees imposed on assessable gross 
revenues during any fiscal year shall not exceed 0.08% of the 
assessable gross gaming revenues of all gaming operations.


Sec.  514.4  How does a gaming operation calculate the amount of the 
annual fee it owes?

    (a) The amount of annual fees owed shall be computed using:
    (1) The most recent rates of fees adopted by the Commission; and
    (2) The assessable gross revenues for the gaming operation's 
assessed fiscal year.
    (b) Assessed fiscal year means the gaming operation's fiscal year 
ending prior to January 1 of the year the Commission adopted fee rates.
    (c) For purposes of computing fees, assessable gross revenues for 
each gaming operation are the total amount of money wagered on class II 
and III games, plus entry fees (including table or card fees), less any 
amounts paid out as prizes or paid for prizes awarded, and less an 
allowance for capital expenditures for structures as reflected in the 
gaming operation's audited financial statements.
    (d) Tier 1 assessable gross revenues are the first $1,500,000 of 
the assessable gross revenues from each gaming operation. Tier 2 
assessable gross revenues are the amounts in excess of the first 
$1,500,000 of the assessable gross revenues from each gaming operation.
    (e) The allowance for capital expenditures for structures shall be 
either:
    (1) An amount not to exceed 5% of the cost of structures in use 
throughout the assessed fiscal year and 2.5% of the cost of structures 
in use during only a part of the assessed fiscal year; or
    (2) An amount not to exceed 10% of the total amount of depreciation 
expenses for the assessed fiscal year.
    (f) Unless otherwise provided by regulation, generally accepted 
accounting principles shall be used.


Sec.  514.5  When must a gaming operation pay its annual fees?

    (a) Annual fees are payable to the Commission on a quarterly basis. 
The annual fee payable to the Commission optionally may be paid in full 
in the first quarterly payment.
    (b) Each gaming operation shall calculate the amount of fees to be 
paid, if any, and remit them with the quarterly statement required in 
Sec.  514.6 within three (3) months, six (6) months, nine (9) months, 
and twelve (12) months of the end of the gaming operation's fiscal 
year.


Sec.  514.6  What are the quarterly statements that must be submitted 
with the fee payments?

    (a) Each gaming operation shall file with the Commission quarterly 
statements showing its assessable gross revenues for the assessed 
fiscal year.
    (b) These statements shall show the amounts derived from each type 
of game, the amounts deducted for prizes, and the amounts deducted for 
the allowance for capital expenditures for structures.
    (c) The quarterly statements shall identify an individual or 
individuals to be contacted should the Commission need to communicate 
further with the gaming operation. A telephone number and email address 
for each individual identified shall be included.
    (d) Each quarterly statement shall include the computation of the 
fees

[[Page 2906]]

payable, showing all amounts used in the calculations. The required 
calculations are as follows:
    (1) Multiply the Tier 1 assessable gross revenues by the rate for 
those revenues adopted by the Commission.
    (2) Multiply the Tier 2 assessable gross revenues by the rate for 
those revenues adopted by the Commission.
    (3) Add (total) the results (products) obtained in paragraphs 
(d)(1) and (2) of this section.
    (4) Multiply the total obtained in paragraph (d)(3) of this section 
by \1/4\.
    (5) Adjust for prior amounts paid and credits received, if 
applicable. The gaming operation shall provide a detailed justification 
for the adjustment.
    (6) The amount computed in paragraph (d)(5) of this section is the 
amount to be remitted.
    (e) As required by part 571 of this chapter, quarterly statements 
must be reconciled with a tribe's audited or reviewed financial 
statements for each gaming location. These reconciliations must be made 
available upon the request of any authorized representative of the 
Commission.


Sec.  514.7  What should a gaming operation do if it changes its fiscal 
year or ceases operations?

    (a) If a gaming operation changes its fiscal year, it shall notify 
the Commission of the change within thirty (30) days. The Commission 
may request that the gaming operation prepare and submit to the 
Commission fees and statements for the period from the end of the 
previous fiscal year to the beginning of the new fiscal year. The 
submission must be sent to the Commission within ninety (90) days of 
its request.
    (b) If a gaming operation ceases operations, it shall notify the 
Commission within (30) days. The Commission may request that the gaming 
operation, using the most recent rates of fees adopted by the 
Commission, prepare and submit to the Commission fees and statements 
for the period from the end of the most recent quarter for which fees 
have been paid to the date operations ceased. The submission must be 
sent to the Commission within (90) days of its request.


Sec.  514.8  Where should fees, quarterly statements, and other 
communications about fees be sent?

    Remittances, quarterly statements, and other communications about 
fees shall be sent to the Commission by the methods provided for in the 
rates of fees notice published in the Federal Register.


Sec.  514.9  What happens if a gaming operation submits its fee payment 
or quarterly statement late?

    (a) In the event that a gaming operation fails to submit a fee 
payment or quarterly statement in a timely manner, the Chair of the 
Commission may issue a notice specifying:
    (1) The date the statement and/or payment was due;
    (2) The number of calendar days late the statement and/or payment 
was submitted;
    (3) A citation to the federal or tribal requirement that has been 
or is being violated;
    (4) The action being considered by the Chair; and
    (5) Notice of rights of appeal pursuant to subchapter H of this 
chapter.
    (b) Within fifteen (15) days of service of the notice, the 
recipient may submit written information about the notice to the Chair. 
The Chair shall consider any information submitted by the recipient as 
well as the recipient's history of untimely submissions or failure to 
file statements and/or fee payments over the preceding five (5) years 
in determining the amount of the late fee, if any.
    (c) When practicable, within thirty (30) days of issuing the notice 
described in paragraph (a) of this section to a recipient, the Chair of 
the Commission may assess a proposed late fee against a recipient for 
each failure to file a timely quarterly statement and/or fee payment:
    (1) For statements and/or fee payments one (1) to thirty (30) 
calendar days late, the Chair may propose a late fee of up to, but not 
more than 10% of the fee amount for that quarter;
    (2) For statements and/or fee payments thirty-one (31) to sixty 
(60) calendar days late, the Chair may propose a late fee of up to, but 
not more than 15% of the fee amount for that quarter; and
    (3) For statements and/or fee payments sixty-one (61) to ninety 
(90) calendar days late, the Chair may propose a late fee of up to, but 
not more than 20% of the fee amount for that quarter.


Sec.  514.10  When does a late payment or quarterly statement 
submission become a failure to pay?

    Statements and/or fee payments over ninety (90) calendar days late 
constitute a failure to pay the annual fee, as set forth in IGRA, 25 
U.S.C. 2717(a)(4), and Commission regulations, 25 CFR 573.4(a)(2). In 
accordance with 25 U.S.C. 2717(a)(4), failure to pay fees shall be 
grounds for revocation of the approval of the Chair of any license, 
ordinance or resolution required under IGRA for the operation of 
gaming. In accordance with Sec.  573.4(a)(2) of this chapter, if a 
tribe, management contractor, or individually owned gaming operation 
fails to pay the annual fee, the Chair may issue a notice of violation 
and, simultaneously with or subsequently to the notice of violation, a 
temporary closure order.


Sec.  514.11  Can a proposed late fee be appealed?

    (a) Proposed late fees assessed by the Chair may be appealed under 
subchapter H of this chapter.
    (b) At any time prior to the filing of a notice of appeal under 
subchapter H of this chapter, the Chair and the recipient may agree to 
settle the notice of late submission, including the amount of the 
proposed late fee. In the event a settlement is reached, a settlement 
agreement shall be prepared and executed by the Chair and the 
recipient. If a settlement agreement is executed, the recipient shall 
be deemed to have waived all rights to further review of the notice or 
late fee in question, except as otherwise provided expressly in the 
settlement agreement. In the absence of a settlement of the issues 
under this paragraph (b), the recipient may contest the proposed late 
fee before the Commission in accordance with subchapter H of this 
chapter.


Sec.  514.12  When does a notice of late submission and/or a proposed 
late fee become a final order of the Commission and final agency 
action?

    If the recipient fails to appeal under subchapter H of this 
chapter, the notice and the proposed late fee shall become a final 
order of the Commission and final agency action.


Sec.  514.13  How are late submission fees paid, and can interest be 
assessed?

    (a) Late fees assessed under this part shall be paid by the person 
or entity assessed and shall not be treated as an operating expense of 
the operation.
    (b) The Commission shall transfer the late fee paid under this 
subchapter to the U.S. Treasury.
    (c) Interest shall be assessed at rates established from time to 
time by the Secretary of the Treasury on amounts remaining unpaid after 
their due date.


Sec.  514.14  What happens if the fees imposed exceed the statutory 
maximum or if the Commission does not expend the full amount of fees 
collected in a fiscal year?

    (a) The total amount of all fees imposed during any fiscal year 
shall not exceed the statutory maximum imposed by Congress. The 
Commission shall credit pro-rata any fees collected in

[[Page 2907]]

excess of this amount against amounts otherwise due.
    (b) To the extent that revenue derived from fees imposed under the 
rates of fees established under Sec.  514.2 are not expended or 
committed at the close of any fiscal year, such funds shall remain 
available until expended to defray the costs of operations of the 
Commission.


Sec.  514.15  May tribes submit fingerprint cards to the Commission for 
processing?

    Tribes may submit fingerprint cards to the Commission for 
processing by the Federal Bureau of Investigation and the Commission 
may charge a fee to process fingerprint cards on behalf of the tribes.


Sec.  514.16  How does the Commission adopt the fingerprint processing 
fee?

    (a) The Commission shall review annually the costs involved in 
processing fingerprint cards and, by a vote of not less than two of its 
members, shall adopt the fingerprint processing fee no later than 
November 1st of each year.
    (b) The Commission shall publish the fingerprint processing fee in 
a notice in the Federal Register.
    (c) The fingerprint processing fee shall be based on fees charged 
by the Federal Bureau of Investigation and costs incurred by the 
Commission. Commission costs include Commission personnel, supplies, 
equipment costs, and postage to submit the results to the requesting 
tribe.


Sec.  514.17  How are fingerprint processing fees collected by the 
Commission?

    (a) Fees for processing fingerprint cards will be billed monthly to 
each Tribe for cards processed during the prior month. Tribes shall pay 
the amount billed within forty-five (45) days of the date of the bill.
    (b) The Chair may suspend fingerprint card processing for a tribe 
that has a bill remaining unpaid for more than forty-five (45) days.
    (c) Remittances and other communications about fingerprint 
processing fees shall be sent to the Commission by the methods provided 
for in the rates of fees notice published in the Federal Register.

    Dated: January 9, 2018.
Jonodev O. Chaudhuri,
Chairman.

Kathryn Isom-Clause,
Vice Chair.

E. Sequoyah Simermeyer,
Associate Commissioner.
[FR Doc. 2018-00877 Filed 1-19-18; 8:45 am]
 BILLING CODE 7565-01-P