Fees, 5178-5183 [2012-2254]
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Diversity Visa Lottery selecteeapplicants and will amend the Schedule
of Fees to so reflect.
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Analysis of Comments
In the additional 60 day period since
the publication of the interim final rule,
four additional comments were
received. Three commenters expressed
concern over the fee increase for extra
passport visa pages. Two of those
commenters traveled frequently for
work and noted that this would be an
additional cost. The third commenter,
an American citizen living overseas,
expressed concern over the large cost to
his family to receive additional visa
pages. A suggestion was made by one of
the commenters to waive the additional
visa pages fee every other year for
business people who travel frequently.
As explained in the supplementary
notice, 75 FR 14111, 14113, the cost of
this service includes not only the pages
themselves, but the employee time
spent affixing the pages into a passport,
endorsing the passport, and performing
a quality-control check on the expanded
passport; also the costs of trained labor,
supervisors, and overhead; of
performing a name check of the
applicant prior to providing the service;
and a share of the overall costs of nofee emergency services provided to
Americans overseas—costs incorporated
into and assigned across all passport
book services. The Department does
offer a larger passport for travelers who
anticipate that they will need more visa
pages. Any passport applicant may
request a larger book (52 pages, instead
of the standard 28 pages) at the time of
application for no additional fee.
Information about this option is widely
available to customers both
domestically and overseas. Because the
Department’s passport processing
operations must be self-sustaining as
much as possible and has accordingly
set these fees at a level that will allow
cost recovery, the Department is not in
a position to grant a fee waiver to
frequent business travelers.
The final comment was directed
toward the fee increase for the passport
book. The commenter stated that the fee
increase influenced whether she would
renew her passport book and her
decision to travel abroad. The
Department is aware of the financial
impact this fee increase may have on
individuals and businesses; however,
the Department must recover its costs
from the passport services it provides.
The Department also maintains that the
increase in passport fees is not
significant in comparison with the
overall costs of international travel.
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Conclusion
The Department has adjusted the fees
to ensure that sufficient resources are
available to meet the costs of providing
consular services in light of the CoSM’s
findings that the U.S. Government was
not fully covering its costs for providing
these consular services. Pursuant to
OMB guidance, the Department
endeavors to recover the cost of
providing services that benefit specific
individuals, as opposed to the general
public. See OMB Circular A–25,
¶ 6(a)(1), (a)(2)(a). For this reason, the
Department has adjusted the Schedule.
Regulatory Findings
For a summary of the regulatory
findings and analyses regarding this
rulemaking, please refer to the findings
and analyses published with the interim
final rule, which can be found at 75 FR,
at 36529, which are adopted herein. The
rule became effective July 13, 2010. As
noted above, the Department has
considered the comments submitted in
response to the interim final rule, and
does not adopt them. Thus, the rule
remains in effect without modification.
In addition, as noted in the interim
final rule, this rule was submitted to
and reviewed by OMB pursuant to E.O.
12866. The Department of State has also
considered this rule in light of
Executive Order 13563, dated January
18, 2011, and affirms that this regulation
is consistent with the guidance therein.
Accordingly, the Interim Rule
amending 22 CFR parts 22 and 51,
which was published in the Federal
Register, 75 FR 36522, on June 28, 2010
(Public Notice 7068), is adopted as final
without change.
Dated: January 23, 2012.
Patrick F. Kennedy,
Under Secretary of State for Management,
Department of State.
[FR Doc. 2012–2075 Filed 2–1–12; 8:45 am]
BILLING CODE 4710–06–P
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 514
Fees
National Indian Gaming
Commission, Interior.
ACTION: Final rule.
AGENCY:
The National Indian Gaming
Commission (NIGC or Commission) is
amending its fee regulation. The Indian
Gaming Regulatory Act (IGRA) requires
Tribal gaming operations to pay a fee to
SUMMARY:
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the Commission for each gaming
operation regulated by IGRA that
conducts Class II or Class III gaming
activity. IGRA also requires that ‘‘[t]he
Commission, by a vote of not less than
two of its members, shall annually
adopt the rate of the fees authorized by
this section which shall be payable to
the Commission on a quarterly basis.’’
Pursuant to the Commission’s authority
to ‘‘promulgate such regulations and
guidelines as it deems appropriate to
implement the provisions of [IGRA],’’
the Commission is amending its
regulations to provide for the submittal
of fees and fee worksheets on a quarterly
basis rather than bi-annually; to provide
for operations to calculate fees based on
the gaming operation’s fiscal year rather
than a calendar year; to amend certain
language in the regulation to better
reflect industry usage; to establish an
assessment for fees and fee worksheets
submitted one to ninety days late; and
to establish a fingerprinting fee payment
process.
DATES: Effective Date: October 1, 2012.
Compliance Date: Submitting fee
worksheets and payments on a quarterly
basis under §§ 514.5 and 514.6 is not
required until January 1, 2013.
FOR FURTHER INFORMATION CONTACT:
Michael Hoenig, National Indian
Gaming Commission, 1441 L Street
NW., Suite 9100, Washington, DC
20005. Telephone: (202) 632–7009;
email: michael_hoenig@nigc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act
(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 by IGRA. 25
U.S.C. 2717(a)(1). These fees are used to
fund the Commission in carrying out its
statutory duties. Fees are based on the
gaming operation’s assessable gross
revenues, which are defined as the
annual total amount of money wagered,
less any amounts paid out as prizes or
paid for prizes awarded and less
allowance for amortization of capital
expenditures for structures. 25 U.S.C.
2717(a)(6). The rate of fees is established
annually by the Commission and shall
be 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 .08% 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
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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 potential consequences for failure to
pay the fees.
II. Previous Rulemaking Activity
On November 18, 2010, the National
Indian Gaming Commission (NIGC)
issued a Notice of Inquiry and Notice of
Consultation advising the public that
the NIGC was conducting a
comprehensive review of its regulations
and requesting public comment on
which of its regulations were most in
need of revision, in what order the
Commission should review its
regulations, and the process NIGC
should utilize to make revisions. 75 FR
70680. On April 4, 2011, after holding
eight consultations and reviewing all
comments, NIGC published a Notice of
Regulatory Review Schedule (NRR)
setting out a consultation schedule and
process for review. 76 FR 18457. Part
514 was included in the first regulatory
group reviewed pursuant to the NRR.
The Commission conducted a total of
16 tribal consultations as part of its
review of Part 514. Tribal consultations
were held in every region of the country
and were attended by many tribal
leaders or their representatives. In
addition to tribal consultations, on May
10, 2011, the Commission requested
public comment on a Preliminary Draft
of amendments to Part 514. 76 FR
26967. After considering the comments
received from the public and through
tribal consultations, the Commission
published a Notice of Proposed
Rulemaking, proposing five
amendments to Part 514: changing the
fee calculation from a calendar year to
a fiscal year basis; changing the
payment schedule to a quarterly
payment system; ensuring language is
consistent with industry standards;
creating a ticketing system for late fee
and fee worksheet submissions; and
formalizing the fingerprinting fee
system. 76 FR 62684.
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III. Review of Public Comments
In response to our Notice of Proposed
Rulemaking, published October 11,
2011, 76 FR 62684, we received the
following comments.
514.3 What is the maximum fee rate?
Comment: One commenter noted that
the proposed rule reiterates the
maximum fee rate of 5% of amounts in
excess of the $1.5 million of assessable
gross revenue. The comment
acknowledges that the proposed rule
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does not propose an increase in the fee
rate, but states nonetheless that such an
increase could have a serious effect on
any Tribe’s ability to retain revenues.
The comment recommends that prior to
any amendment in fee rates mandated
by the Commission, the Commission
should consult with all Tribes paying
fees under IGRA.
Response: The National Indian
Gaming Commission fee rate is limited
by the Indian Gaming Regulatory Act
(25 U.S.C. 2717) to 2.5% of the first $1.5
million of a facility’s gross gaming
revenue, and no more than 5% of
amounts in excess of $1.5 million of a
facility’s gross gaming revenue.
Additionally, the Native American
Technical Corrections Act of 2006 (Pub.
L. 109–221) mandated that fees imposed
by the Commission during any fiscal
year shall not exceed 0.080% of the
gross gaming revenues of all gaming
operations subject to regulation under
IGRA.
514.4 What are ‘‘assessable gross
revenues’’ and how does a tribe
calculate the amount of the annual fee
it owes?
Comment: One commenter suggested
that the regulation include a definition
of ‘‘gross gaming revenue,’’ whether as
defined in GAAP or through some other
internationally accepted accounting
standard.
Response: The GAAP definition of
‘‘Gross Gaming Revenue,’’ as well as
other internationally accepted
standards, may provide a standard
definition, but are also subject to change
and may be inconsistent with the
definition contained in IGRA at 25
U.S.C. 2717(a)(6). The Commission
therefore declines to further define
‘‘Gross Gaming Revenue’’ through a
regulation.
Comment: Another commenter
suggests that the regulation should be
changed to allow the deduction of
promotional items as ‘‘amounts paid out
as prizes or paid for prizes awarded.’’
Response: Pursuant to IGRA, gross
gaming revenue constitutes ‘‘the annual
total amount of money wagered, less
any amounts paid out as prizes or paid
for prizes awarded and less allowance
for amortization of capital expenditures
for structures.’’ In accordance with
GAAP and industry standard practices,
promotional items given to patrons that
are not the result of winning wagers are
not considered prizes paid or prizes
awarded. The Commission, therefore,
declines to allow the deduction of
promotional items as prizes paid or
prizes awarded as it would be
inconsistent with the plain language of
IGRA.
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Comment: One commenter stated that
the computation of gross revenue
example in the proposed rule does not
reflect the intent of the regulation. In
support of this, the commenter cited to
the regulation’s example that separates
gross gaming revenues into two
categories—money wagered and entry
fees. The commenter suggests that
regulation text directing tribes to ‘‘show
the amount derived from each type of
game’’ is inconsistent with the
regulation and leads to confusion and
potential miscalculation of fees. The
Commission should review the
examples and promulgate a bulletin
providing guidance on the matter.
Response: Although the sub-section
referenced in the comment was
intended only as an example, and
nothing in the regulation requires the
segregation of types of games and entry
fees, we have removed it from this rule.
As for guidance on the computation of
gross gaming revenue, the Commission
intends to offer a broad array of
technical assistance and training in
conjunction with this rule.
The Commission also notes that it is
amending Part 514 to change the term
‘‘admission fees’’ to ‘‘entry fees’’ in
section 514.4(a). ‘‘Entry fee’’ is a term
commonly used in the gaming industry
and the Commission believes the
clarification will eliminate concern that
an ‘‘admission fee’’ includes admission
to concerts or other non-gaming activity.
514.5 When must a tribe pay its
annual fees? and 514.6 What are the
quarterly statements that must be
submitted with the fee payments?
Comment: While two commenters
stated their support for changing from a
bi-annual submission requirement to a
quarterly submission requirement, one
commenter opposes the change, stating
that it makes it more difficult for Tribes
to calculate fees and will result in more
instances of late or inaccurate quarterly
statements and/or fee payments.
Response: The recommendation to
maintain a bi-annual fee was not
adopted. The Commission finds that
changing the submission requirement
back to quarterly is consistent with the
requirements of the Indian Gaming
Regulatory Act, 25 U.S.C. 2717(f), which
states that ‘‘[t]he Commission, by a vote
of not less than two of its members,
shall annually adopt the rate of the fees
authorized by this section which shall
be payable to the Commission on a
quarterly basis.’’ Further, this rule does
not prohibit pre-payment of fees. Fee
worksheets, however, must be
submitted on a quarterly basis, even if
the fee has been prepaid.
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This rule also changes the timeframe
of the fee calculation from a gaming
operation’s calendar year to its fiscal
year. Though there were no comments
in opposition to this change, it is
important to note that this rule does not
mandate that a tribe change its fiscal
year, but rather requires that a tribe base
its fee calculation on its fiscal year.
Thus, if a tribe’s fiscal year is based on
its calendar year, there is no need to
change. The Commission believes that
the use of a fiscal year for calculating
annual fees and completing fee
worksheets will result in fewer
inaccuracies in fee calculations.
514.9 What happens if a tribe submits
its fee payment or quarterly statement
late?
Comment: The Commission is
amending Part 514 to add a ‘‘ticket’’
system which assesses a fine for a late
fee payment. The proposed Rule
distinguishes between ‘‘late payments’’
and ‘‘failure to pay annual fees.’’ A
payment received between one and
ninety days late is a ‘‘late payment’’ and
is subject to a late payment fine. A
payment received after 90 days
constitutes a ‘‘failure to pay annual
fees’’ and subjects the tribe to a
potential notice of violation (NOV) and
civil fine assessment. The Chair shall
consider any mitigating circumstances
surrounding the late payments and, at
the Chair’s discretion, reduce the late
fee or the civil fine due. Per federal law,
any fines are payable to U.S. Treasury,
not the NIGC.
The comments were overwhelmingly
supportive of the proposed rule’s
implementation of a late payment
system. There were, however two
comments on how to implement the
system. One commenter stated that the
proposed late fee structure is too severe.
According to the commenter, an
assessment of 10% is too harsh,
especially for a payment that may only
be a few days late. Another commenter
stated that the late payment penalties
should start at 1% for statements/
payments one to thirty days late, 2% for
statements/payments thirty-one to sixty
days late, 5% for statements/payments
sixty-one to ninety days late, and 25%
for statements/payments more than
ninety days late.
Response: The Commission believes
that a late-fee structure of 10%, 15%,
and 20% properly emphasizes the
importance of annual fees to the
continued operation of the NIGC.
Timely submission of fee worksheets
and payments is vital to the NIGC’s
ability to fulfill is regulatory duties and
provide technical assistance and
training to the tribal gaming operations.
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Accordingly, any late fee must provide
incentive to gaming operations to pay
fees in a timely manner. The
Commission is concerned that setting
late fees too low could discourage
timely payment. Therefore, it did not
adopt the suggestions to lower the late
fee percentages.
Comment: Two commenters suggested
the Commission consider the inclusion
of a grace period, such as no late fees
for payments 1–7 days late, and/or
reduce the percentage rate for a late
payment of thirty days or less.
Response: The recommendation to
provide a grace period before a late fee
may be assessed is not adopted. The
Commission is concerned that the
inclusion of a grace period may have the
effect of constructively pushing back the
fee deadline to the point that the grace
period ends. The Commission also notes
that the purpose of changing the basis
for fee calculation to the fiscal year is to
make timely fee payments easier.
Further, the Commission’s use of the
‘‘mailbox rule’’ gives gaming operations
the maximum amount of time to prepare
and submit fee payments and fee
worksheets. According to the mail-box
rule, a submission is considered
received by the Commission when it is
postmarked, not when it is received by
the NIGC.
Comment: One commenter asked that
the NIGC consider adding language to
the effect that the NIGC will take factors
such as the size of the tribe’s gaming
operation, as well as other equitable
considerations, into account when
assessing late fees.
Response: The suggestion to specify
that the above listed factors be
considered by the Chair when assessing
a late fee is not adopted. Pursuant to
this rule, the Chair will take into
consideration any information
submitted by a tribe in its response to
the notice of late fees. See 514.9(b). This
information may include the size of the
Tribe’s gaming operation and other
equitable considerations. Specifying
what those considerations may be
would effectively limit the factors the
Chair may consider when determining
whether to issue a late fee and the
amount of the fee. The Commission
does not want to limit what the Chair
may consider.
Comment: One commenter stated that
the Commission should clarify whether
late fees will run concurrently with any
enforcement action taken under 514.10
of the proposed rule and, if so, suggests
a cap on any late fees assessed in
conjunction with a NOV or enforcement
action.
Response: The recommendation to
further clarify the regulation is not
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adopted. A late fee and civil fine
assessment will likely not be issued
concurrently. Under this rule, the first
step is to issue a notice of late fee. If the
fee payment or fee worksheet is
submitted within 90 days of the due
date, the Chair may propose a late fee.
The proposed late fee will depend on
the timeliness of the submission. If,
however, the fee or fee worksheet is not
submitted within the initial 90 days, the
lateness becomes a failure to pay and
rather than a late fee, the Chair could
instead issue a NOV or closure order.
Even if a late fee and civil fine
assessment were to issue
simultaneously though, the late fee
would have to be incorporated into a
proposed civil fine. Pursuant to IGRA,
the late fee and civil fine cannot
collectively exceed the statutory limit.
Comment: One commenter stated that
the regulation should require that before
the NIGC can find a tribe has failed to
pay its fees and issue a NOV or
temporary closure order, it must issue
two notices to the tribe during the initial
90 days. Another commenter
recommended that the NIGC engage in
consultation with a tribe before
initiating the NOV process.
Response: The recommendations to
require two notices or engage in
consultation before a NOV or temporary
closure order may be issued are not
adopted. The Chair and NIGC staff will
continue to work with Tribes and
gaming operations to ensure that
enforcement is the last option, to be
used only if assistance and compliance
have failed. Typically, the NIGC will
have been in informal discussions with
a tribe or gaming operation long before
a NOV is issued. The Commission
chooses not to add to the NOV
requirements already mandated by
IGRA and NIGC regulations.
Comment: Another commenter stated
that the term proposed late fees is
inaccurate and should be changed to
late fees assessed.
Response: The recommendation is not
adopted. Late fees do not become final
unless the recipient of the fee fails to
appeal or, on appeal, the fee is upheld
by the full Commission.
Comment: One commenter stated that
late fees assessed are, in fact, operating
expenses. The commenter suggested
that if the Commission’s intent is to
prohibit tribes from deducting the
amount of late penalty from the fee
calculation, the regulation should be
clarified to state as much.
Response: This rule requires late fees
to be paid by the person assessed and
that they not be treated as an operating
expense of a gaming operation. These
changes ensure that other parties will
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not be responsible for the late fee.
Further, the calculation of operating
expenses is not relevant to the fee
calculation. Fees are based on assessable
gross revenues, which are defined by 25
U.S.C. 2717(a)(6) and section 514.4 of
this rule as ‘‘the annual total amount of
money wagered, less any amounts paid
out as prizes or paid for prizes awarded
and less allowance for amortization of
capital expenditures for structures.’’
Because operating expenses are not part
of the fee calculation, the suggestion to
clarify the rule to prohibit tribes from
deducting the late penalty from the fee
calculation is not adopted.
514.17 How are fingerprint processing
fees collected by the Commission?
Comment: Two commenters objected
to fingerprint fees being included as a
separate section of the regulation on the
grounds that fees should be covered by
the annual fee already collected by the
Commission.
Response: This comment is not
adopted. IGRA does not require the
NIGC to process fingerprints and not all
tribes utilize the service. The service
will continue to be charged as a separate
fee only to those tribes that utilize the
NIGC’s fingerprint processing service.
The Commission believes formalizing
the procedures for assessing fingerprint
card processing fees in a regulation
provides transparency and clarity.
IV. Regulatory Matters
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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
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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 (OMB) as
required by 44 U.S.C. 3501 et seq. and
assigned OMB Control Number 3141–
0007, which expired in August of 2011.
The NIGC is in the process of reinstating
that Control Number.
Although the rule changes the
collection from bi-annually to quarterly,
the proposed rule does not require any
significant changes in information
collection previously approved under
the Paperwork Reduction Act of 1995.
44 U.S.C. 3501 et seq. At the time OMB
Control Number 3141–0007 was
assigned, Part 514 required quarterly
submissions. This was changed to a biannually submission requirement on
August 26, 2009 without obtaining a
new OMB Control Number. 74 FR
36926. Accordingly, no significant
changes in information will occur since
the last OMB Control Number was
assigned.
List of Subjects in 25 CFR Part 514
Gambling, Indians—Lands, Indians—
Tribal Government, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, the Commission revises 25
CFR part 514 to read as follows:
■
PART 514—FEES
Sec.
514.1
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What is the purpose of this part?
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5181
514.2 When will the annual rates be
published?
514.3 What is the maximum fee rate?
514.4 What are ‘‘assessable gross revenues’’
and how does a tribe calculate the
amount of the annual fees it owes?
514.5 When must a tribe pay its annual
fees?
514.6 What are the quarterly statements
that must be submitted with the fee
payments?
514.7 What should a tribe do if it changes
its fiscal year?
514.8 Where should fees, quarterly
statements, and other communications
about fees be sent?
514.9 What happens if a tribe 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 tribe or gaming operation
appeal a proposed late fee?
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 a tribe overpays its
fees 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 NIGC 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, 2710,
2717, 2717a.
§ 514.1
What is the purpose of this part?
Each gaming operation under the
jurisdiction of the Commission,
including 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.
§ 514.2 When will the annual rates be
published?
(a) The Commission shall adopt
preliminary rates for each calendar year
no later than March 1st of each year,
and, if considered necessary, shall
modify those rates no later than June 1st
of that year.
(b) The Commission shall publish the
rates of fees in a notice in the Federal
Register.
§ 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 (1st tier), and
(2) No more than 5% of amounts in
excess of the first $1,500,000 (2nd tier)
of the assessable gross revenues from
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each gaming operation subject to the
jurisdiction of the Commission.
(b) If a tribe has a certificate of selfregulation, the rate of fees imposed shall
be no more than .25% of assessable
gross revenues from self-regulated class
II gaming operations.
§ 514.4 What are ‘‘assessable gross
revenues’’ and how does a tribe calculate
the amount of the annual fee it owes?
(a) For purposes of computing fees,
assessable gross revenues for each
gaming operation are the annual total
amount of money wagered on class II
and III games, entry fees (including table
or card fees), less any amounts paid out
as prizes or paid for prizes awarded, and
less an allowance for amortization of
capital expenditures for structures as
reflected in the gaming operation’s
audited financial statements.
(b) Each gaming operation subject to
these regulations shall calculate the
annual fee based on the gaming
operation’s fiscal year.
(c) Unless otherwise provided by the
regulations, generally accepted
accounting principles shall be used.
(d) The allowance for amortization of
capital expenditures for structures shall
be either:
(1) An amount not to exceed 5% of
the cost of structures in use throughout
the year and 2.5% of the cost of
structures in use during only a part of
the year; or
(2) An amount not to exceed 10% of
the total amount of depreciation
expenses for the year.
(e) All class II and III revenues from
gaming operations are to be included.
§ 514.5
fees?
When must a tribe pay its annual
Each gaming operation shall calculate
the amount of fees to be paid and remit
them with the quarterly statement
required in § 514.6. The fees payable
shall be computed using:
(a) The most recent rates of fees
adopted by the Commission pursuant to
§ 514.2,
(b) The assessable gross revenues for
the previous fiscal year as calculated
using § 514.4, and
(c) The amounts paid and credits
received during the fiscal year, if
applicable.
tkelley on DSK3SPTVN1PROD with RULES
§ 514.6 What are the quarterly statements
that must be submitted with the fee
payments?
(a) Each gaming operation subject to
the jurisdiction of the Commission shall
file with the Commission quarterly
statements showing its assessable gross
revenues for the previous fiscal year.
(b) These statements shall show the
amounts derived from each type of
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15:14 Feb 01, 2012
Jkt 226001
game, the amounts deducted for prizes,
and the amounts deducted for the
amortization of structures.
(c) The quarterly statements shall be
sent to the Commission within three (3)
months, six (6) months, nine (9) months,
and twelve (12) months of the end of the
gaming operation’s fiscal year.
(d) The quarterly statements shall
identify an individual or individuals to
be contacted should the Commission
need to communicate further with the
gaming operation. The telephone
numbers of the individual(s) shall be
included.
(e) Each quarterly statement shall
include the computation of the fees
payable, showing all amounts used in
the calculations. The required
calculations are as follows:
(1) Multiply the 1st tier assessable
gross revenues, as calculated using
§ 514.4, by the rate for those revenues
adopted by the Commission.
(2) Multiply the 2nd tier assessable
gross revenues, as calculated using
§ 514.4, by the rate for those revenues
adopted by the Commission.
(3) Add (total) the results (products)
obtained in paragraphs (e)(1) and (2) of
this section.
(4) Multiply the total obtained in
paragraph (e)(3) of this section by 1⁄4.
(5) The amount computed in
paragraph (e)(4) of this section is the
amount to be remitted.
(f) Examples of fee computations
follow:
(1) Where a filing is made for the first
quarter of the fiscal year, the previous
year’s assessable gross revenues as
calculated using section 514.4 of this
part are $2,000,000, the fee rates
adopted by the Commission are 0.0% on
the first $1,500,000 and .08% on the
remainder, the amounts to be used and
the computations to be made are as
follows:
Commission of the change within thirty
(30) days. The Commission may request
that the tribe prepare and submit to the
Commission the fees and statements
required by this subsection for the stub
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.
§ 514.8 Where should fees, quarterly
statements, and other communications
about fees be sent?
The statements, remittances and
communications about fees shall be
transmitted to the Commission at the
following address: Comptroller,
National Indian Gaming Commission,
1441 L Street NW., Suite 9100,
Washington, DC 20005. Checks should
be made payable to the National Indian
Gaming Commission (do not remit
cash).
§ 514.9 What happens if a tribe 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 part 577 of this chapter.
(b) Within fifteen (15) days of service
of the notice, a respondent may submit
written information about the notice to
the Chair. The Chair shall consider any
1st tier revenues—$1,500,000 ×
information submitted by the
0.0% = ............................................
0 respondent as well as the respondent’s
2nd tier revenues—$500,000 × .08%
history of untimely submissions or
= ......................................................
$400 failure to file statements and/or fee
Annual fees ........................................
$400
Multiply for fraction of year—1⁄4 or
.25 payments over the preceding five (5)
Fees for first payment .......................
$100 years in determining the amount of the
Amount to be remitted ......................
$100 late fee, if any.
(c) When practicable, within thirty
(2) [Reserved]
(30) days of issuing the notice described
(g) As required by part 571 of this
in paragraph (a) of this section to a
chapter, quarterly statements must be
respondent, the Chair of the
reconciled with a tribe’s audited or
Commission may assess a proposed late
reviewed financial statements for each
fee against a respondent for each failure
gaming location. These reconciliations
to file a timely quarterly statement and/
must be made available upon the
request of any authorized representative or fee payment:
(1) For statements and/or fee
of the NIGC.
payments one (1) to thirty (30) calendar
§ 514.7 What should a tribe do if it
days late, the Chair may propose a late
changes its fiscal year?
fee of up to, but not more than 10% of
the fee amount for that quarter, as
If a gaming operation changes its
calculated in § 514.6(e);
fiscal year, it shall notify the
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Federal Register / Vol. 77, No. 22 / Thursday, February 2, 2012 / Rules and Regulations
(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, as calculated in § 514.6(e);
(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, as calculated in § 514.6(e).
§ 514.10 When does a late payment or
quarterly statement submission become a
failure to pay?
(a) 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)(3), and NIGC regulations, 25
CFR 573.6(a)(2). In accordance with 25
U.S.C. 2717(a)(3), 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.
(b) In accordance with § 573.6(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.
final order of the Commission and final
agency action.
§ 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.
§ 514.14 What happens if a tribe overpays
its fees 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
excess of this amount against amounts
otherwise due according to § 514.4.
(b) To the extent that revenue derived
from fees imposed under the schedule
established under this paragraph 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.
§ 514.15 May tribes submit fingerprint
cards to the NIGC for processing?
(a) Proposed late fees assessed by the
Chair may be appealed under part 577
of this chapter.
(b) At any time prior to the filing of
a notice of appeal under part 577 of this
chapter, the Chair and the respondent
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
respondent. If a settlement agreement is
executed, the respondent 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, the respondent may contest
the proposed late fee before the
Commission in accordance with part
577 of this chapter.
tkelley on DSK3SPTVN1PROD with RULES
§ 514.11 Can a tribe or gaming operation
appeal a proposed late fee?
Tribes may submit fingerprint cards to
the Commission for processing by the
Federal Bureau of Investigation (FBI)
and the Commission may charge a fee to
process fingerprint cards on behalf of
the tribes.
§ 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?
15:14 Feb 01, 2012
Jkt 226001
(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 preliminary rates for each
calendar year no later than March 1st of
that year, and, if considered necessary,
shall modify those rates no later than
June 1st of that year.
(b) The fingerprint fee charge 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.
§ 514.17 How are fingerprint processing
fees collected by the Commission?
If the respondent fails to appeal under
part 577 of this chapter, the notice and
the proposed late fee shall become a
VerDate Mar<15>2010
§ 514.16 How does the Commission adopt
the fingerprint processing fee?
(a) Fees for processing fingerprint
cards will be billed monthly to each
Tribe for cards processed during the
PO 00000
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5183
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 fortyfive (45) days.
(c) Fingerprint fees shall be sent to the
following address: Comptroller,
National Indian Gaming Commission,
1441 L Street NW., Suite 9100,
Washington, DC 20005. Checks should
be made payable to the National Indian
Gaming Commission (do not remit
cash).
Dated: January 27, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012–2254 Filed 2–1–12; 8:45 am]
BILLING CODE 7565–01–P
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 523
RIN 3141–AA45
Review and Approval of Existing
Ordinances or Resolutions; Repeal
National Indian Gaming
Commission.
ACTION: Final rule.
AGENCY:
The National Indian Gaming
Commission is repealing obsolete
regulations relating to tribal gaming
ordinances enacted prior to 1993 that
have not yet been submitted to the NIGC
Chair. The repealed regulations apply
only to gaming ordinances enacted by
Tribes prior to January 22, 1993, and not
yet submitted to the Chairwoman. Based
upon comments received, the
Commission believes that all gaming
ordinances enacted prior to January 22,
1993, have been submitted to the Chair
for review. Therefore, this regulation is
no longer necessary, and the
Commission removes it in its entirety.
DATES: This rule is effective on March 5,
2012.
FOR FURTHER INFORMATION CONTACT:
Jennifer Ward, Staff Attorney, Office of
General Counsel, at (202) 632–7003; fax
(202) 632–7066.
SUPPLEMENTARY INFORMATION: The
Indian Gaming Regulatory Act (IGRA or
Act), Public Law 100–497, 25 U.S.C.
2701 et seq., authorizes the NIGC to
promulgate such regulations and
SUMMARY:
E:\FR\FM\02FER1.SGM
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Agencies
[Federal Register Volume 77, Number 22 (Thursday, February 2, 2012)]
[Rules and Regulations]
[Pages 5178-5183]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2254]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 514
Fees
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Indian Gaming Commission (NIGC or Commission) is
amending its fee regulation. The Indian Gaming Regulatory Act (IGRA)
requires Tribal gaming operations to pay a fee to the Commission for
each gaming operation regulated by IGRA that conducts Class II or Class
III gaming activity. IGRA also requires that ``[t]he Commission, by a
vote of not less than two of its members, shall annually adopt the rate
of the fees authorized by this section which shall be payable to the
Commission on a quarterly basis.'' Pursuant to the Commission's
authority to ``promulgate such regulations and guidelines as it deems
appropriate to implement the provisions of [IGRA],'' the Commission is
amending its regulations to provide for the submittal of fees and fee
worksheets on a quarterly basis rather than bi-annually; to provide for
operations to calculate fees based on the gaming operation's fiscal
year rather than a calendar year; to amend certain language in the
regulation to better reflect industry usage; to establish an assessment
for fees and fee worksheets submitted one to ninety days late; and to
establish a fingerprinting fee payment process.
DATES: Effective Date: October 1, 2012.
Compliance Date: Submitting fee worksheets and payments on a
quarterly basis under Sec. Sec. 514.5 and 514.6 is not required until
January 1, 2013.
FOR FURTHER INFORMATION CONTACT: Michael Hoenig, National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005.
Telephone: (202) 632-7009; email: michael_hoenig@nigc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (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 by IGRA. 25 U.S.C.
2717(a)(1). These fees are used to fund the Commission in carrying out
its statutory duties. Fees are based on the gaming operation's
assessable gross revenues, which are defined as the annual total amount
of money wagered, less any amounts paid out as prizes or paid for
prizes awarded and less allowance for amortization of capital
expenditures for structures. 25 U.S.C. 2717(a)(6). The rate of fees is
established annually by the Commission and shall be 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 .08% 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
[[Page 5179]]
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 potential consequences for failure to pay
the fees.
II. Previous Rulemaking Activity
On November 18, 2010, the National Indian Gaming Commission (NIGC)
issued a Notice of Inquiry and Notice of Consultation advising the
public that the NIGC was conducting a comprehensive review of its
regulations and requesting public comment on which of its regulations
were most in need of revision, in what order the Commission should
review its regulations, and the process NIGC should utilize to make
revisions. 75 FR 70680. On April 4, 2011, after holding eight
consultations and reviewing all comments, NIGC published a Notice of
Regulatory Review Schedule (NRR) setting out a consultation schedule
and process for review. 76 FR 18457. Part 514 was included in the first
regulatory group reviewed pursuant to the NRR.
The Commission conducted a total of 16 tribal consultations as part
of its review of Part 514. Tribal consultations were held in every
region of the country and were attended by many tribal leaders or their
representatives. In addition to tribal consultations, on May 10, 2011,
the Commission requested public comment on a Preliminary Draft of
amendments to Part 514. 76 FR 26967. After considering the comments
received from the public and through tribal consultations, the
Commission published a Notice of Proposed Rulemaking, proposing five
amendments to Part 514: changing the fee calculation from a calendar
year to a fiscal year basis; changing the payment schedule to a
quarterly payment system; ensuring language is consistent with industry
standards; creating a ticketing system for late fee and fee worksheet
submissions; and formalizing the fingerprinting fee system. 76 FR
62684.
III. Review of Public Comments
In response to our Notice of Proposed Rulemaking, published October
11, 2011, 76 FR 62684, we received the following comments.
514.3 What is the maximum fee rate?
Comment: One commenter noted that the proposed rule reiterates the
maximum fee rate of 5% of amounts in excess of the $1.5 million of
assessable gross revenue. The comment acknowledges that the proposed
rule does not propose an increase in the fee rate, but states
nonetheless that such an increase could have a serious effect on any
Tribe's ability to retain revenues. The comment recommends that prior
to any amendment in fee rates mandated by the Commission, the
Commission should consult with all Tribes paying fees under IGRA.
Response: The National Indian Gaming Commission fee rate is limited
by the Indian Gaming Regulatory Act (25 U.S.C. 2717) to 2.5% of the
first $1.5 million of a facility's gross gaming revenue, and no more
than 5% of amounts in excess of $1.5 million of a facility's gross
gaming revenue. Additionally, the Native American Technical Corrections
Act of 2006 (Pub. L. 109-221) mandated that fees imposed by the
Commission during any fiscal year shall not exceed 0.080% of the gross
gaming revenues of all gaming operations subject to regulation under
IGRA.
514.4 What are ``assessable gross revenues'' and how does a tribe
calculate the amount of the annual fee it owes?
Comment: One commenter suggested that the regulation include a
definition of ``gross gaming revenue,'' whether as defined in GAAP or
through some other internationally accepted accounting standard.
Response: The GAAP definition of ``Gross Gaming Revenue,'' as well
as other internationally accepted standards, may provide a standard
definition, but are also subject to change and may be inconsistent with
the definition contained in IGRA at 25 U.S.C. 2717(a)(6). The
Commission therefore declines to further define ``Gross Gaming
Revenue'' through a regulation.
Comment: Another commenter suggests that the regulation should be
changed to allow the deduction of promotional items as ``amounts paid
out as prizes or paid for prizes awarded.''
Response: Pursuant to IGRA, gross gaming revenue constitutes ``the
annual total amount of money wagered, less any amounts paid out as
prizes or paid for prizes awarded and less allowance for amortization
of capital expenditures for structures.'' In accordance with GAAP and
industry standard practices, promotional items given to patrons that
are not the result of winning wagers are not considered prizes paid or
prizes awarded. The Commission, therefore, declines to allow the
deduction of promotional items as prizes paid or prizes awarded as it
would be inconsistent with the plain language of IGRA.
Comment: One commenter stated that the computation of gross revenue
example in the proposed rule does not reflect the intent of the
regulation. In support of this, the commenter cited to the regulation's
example that separates gross gaming revenues into two categories--money
wagered and entry fees. The commenter suggests that regulation text
directing tribes to ``show the amount derived from each type of game''
is inconsistent with the regulation and leads to confusion and
potential miscalculation of fees. The Commission should review the
examples and promulgate a bulletin providing guidance on the matter.
Response: Although the sub-section referenced in the comment was
intended only as an example, and nothing in the regulation requires the
segregation of types of games and entry fees, we have removed it from
this rule. As for guidance on the computation of gross gaming revenue,
the Commission intends to offer a broad array of technical assistance
and training in conjunction with this rule.
The Commission also notes that it is amending Part 514 to change
the term ``admission fees'' to ``entry fees'' in section 514.4(a).
``Entry fee'' is a term commonly used in the gaming industry and the
Commission believes the clarification will eliminate concern that an
``admission fee'' includes admission to concerts or other non-gaming
activity.
514.5 When must a tribe pay its annual fees? and 514.6 What are the
quarterly statements that must be submitted with the fee payments?
Comment: While two commenters stated their support for changing
from a bi-annual submission requirement to a quarterly submission
requirement, one commenter opposes the change, stating that it makes it
more difficult for Tribes to calculate fees and will result in more
instances of late or inaccurate quarterly statements and/or fee
payments.
Response: The recommendation to maintain a bi-annual fee was not
adopted. The Commission finds that changing the submission requirement
back to quarterly is consistent with the requirements of the Indian
Gaming Regulatory Act, 25 U.S.C. 2717(f), which states that ``[t]he
Commission, by a vote of not less than two of its members, shall
annually adopt the rate of the fees authorized by this section which
shall be payable to the Commission on a quarterly basis.'' Further,
this rule does not prohibit pre-payment of fees. Fee worksheets,
however, must be submitted on a quarterly basis, even if the fee has
been prepaid.
[[Page 5180]]
This rule also changes the timeframe of the fee calculation from a
gaming operation's calendar year to its fiscal year. Though there were
no comments in opposition to this change, it is important to note that
this rule does not mandate that a tribe change its fiscal year, but
rather requires that a tribe base its fee calculation on its fiscal
year. Thus, if a tribe's fiscal year is based on its calendar year,
there is no need to change. The Commission believes that the use of a
fiscal year for calculating annual fees and completing fee worksheets
will result in fewer inaccuracies in fee calculations.
514.9 What happens if a tribe submits its fee payment or quarterly
statement late?
Comment: The Commission is amending Part 514 to add a ``ticket''
system which assesses a fine for a late fee payment. The proposed Rule
distinguishes between ``late payments'' and ``failure to pay annual
fees.'' A payment received between one and ninety days late is a ``late
payment'' and is subject to a late payment fine. A payment received
after 90 days constitutes a ``failure to pay annual fees'' and subjects
the tribe to a potential notice of violation (NOV) and civil fine
assessment. The Chair shall consider any mitigating circumstances
surrounding the late payments and, at the Chair's discretion, reduce
the late fee or the civil fine due. Per federal law, any fines are
payable to U.S. Treasury, not the NIGC.
The comments were overwhelmingly supportive of the proposed rule's
implementation of a late payment system. There were, however two
comments on how to implement the system. One commenter stated that the
proposed late fee structure is too severe. According to the commenter,
an assessment of 10% is too harsh, especially for a payment that may
only be a few days late. Another commenter stated that the late payment
penalties should start at 1% for statements/payments one to thirty days
late, 2% for statements/payments thirty-one to sixty days late, 5% for
statements/payments sixty-one to ninety days late, and 25% for
statements/payments more than ninety days late.
Response: The Commission believes that a late-fee structure of 10%,
15%, and 20% properly emphasizes the importance of annual fees to the
continued operation of the NIGC. Timely submission of fee worksheets
and payments is vital to the NIGC's ability to fulfill is regulatory
duties and provide technical assistance and training to the tribal
gaming operations. Accordingly, any late fee must provide incentive to
gaming operations to pay fees in a timely manner. The Commission is
concerned that setting late fees too low could discourage timely
payment. Therefore, it did not adopt the suggestions to lower the late
fee percentages.
Comment: Two commenters suggested the Commission consider the
inclusion of a grace period, such as no late fees for payments 1-7 days
late, and/or reduce the percentage rate for a late payment of thirty
days or less.
Response: The recommendation to provide a grace period before a
late fee may be assessed is not adopted. The Commission is concerned
that the inclusion of a grace period may have the effect of
constructively pushing back the fee deadline to the point that the
grace period ends. The Commission also notes that the purpose of
changing the basis for fee calculation to the fiscal year is to make
timely fee payments easier. Further, the Commission's use of the
``mailbox rule'' gives gaming operations the maximum amount of time to
prepare and submit fee payments and fee worksheets. According to the
mail-box rule, a submission is considered received by the Commission
when it is postmarked, not when it is received by the NIGC.
Comment: One commenter asked that the NIGC consider adding language
to the effect that the NIGC will take factors such as the size of the
tribe's gaming operation, as well as other equitable considerations,
into account when assessing late fees.
Response: The suggestion to specify that the above listed factors
be considered by the Chair when assessing a late fee is not adopted.
Pursuant to this rule, the Chair will take into consideration any
information submitted by a tribe in its response to the notice of late
fees. See 514.9(b). This information may include the size of the
Tribe's gaming operation and other equitable considerations. Specifying
what those considerations may be would effectively limit the factors
the Chair may consider when determining whether to issue a late fee and
the amount of the fee. The Commission does not want to limit what the
Chair may consider.
Comment: One commenter stated that the Commission should clarify
whether late fees will run concurrently with any enforcement action
taken under 514.10 of the proposed rule and, if so, suggests a cap on
any late fees assessed in conjunction with a NOV or enforcement action.
Response: The recommendation to further clarify the regulation is
not adopted. A late fee and civil fine assessment will likely not be
issued concurrently. Under this rule, the first step is to issue a
notice of late fee. If the fee payment or fee worksheet is submitted
within 90 days of the due date, the Chair may propose a late fee. The
proposed late fee will depend on the timeliness of the submission. If,
however, the fee or fee worksheet is not submitted within the initial
90 days, the lateness becomes a failure to pay and rather than a late
fee, the Chair could instead issue a NOV or closure order. Even if a
late fee and civil fine assessment were to issue simultaneously though,
the late fee would have to be incorporated into a proposed civil fine.
Pursuant to IGRA, the late fee and civil fine cannot collectively
exceed the statutory limit.
Comment: One commenter stated that the regulation should require
that before the NIGC can find a tribe has failed to pay its fees and
issue a NOV or temporary closure order, it must issue two notices to
the tribe during the initial 90 days. Another commenter recommended
that the NIGC engage in consultation with a tribe before initiating the
NOV process.
Response: The recommendations to require two notices or engage in
consultation before a NOV or temporary closure order may be issued are
not adopted. The Chair and NIGC staff will continue to work with Tribes
and gaming operations to ensure that enforcement is the last option, to
be used only if assistance and compliance have failed. Typically, the
NIGC will have been in informal discussions with a tribe or gaming
operation long before a NOV is issued. The Commission chooses not to
add to the NOV requirements already mandated by IGRA and NIGC
regulations.
Comment: Another commenter stated that the term proposed late fees
is inaccurate and should be changed to late fees assessed.
Response: The recommendation is not adopted. Late fees do not
become final unless the recipient of the fee fails to appeal or, on
appeal, the fee is upheld by the full Commission.
Comment: One commenter stated that late fees assessed are, in fact,
operating expenses. The commenter suggested that if the Commission's
intent is to prohibit tribes from deducting the amount of late penalty
from the fee calculation, the regulation should be clarified to state
as much.
Response: This rule requires late fees to be paid by the person
assessed and that they not be treated as an operating expense of a
gaming operation. These changes ensure that other parties will
[[Page 5181]]
not be responsible for the late fee. Further, the calculation of
operating expenses is not relevant to the fee calculation. Fees are
based on assessable gross revenues, which are defined by 25 U.S.C.
2717(a)(6) and section 514.4 of this rule as ``the annual total amount
of money wagered, less any amounts paid out as prizes or paid for
prizes awarded and less allowance for amortization of capital
expenditures for structures.'' Because operating expenses are not part
of the fee calculation, the suggestion to clarify the rule to prohibit
tribes from deducting the late penalty from the fee calculation is not
adopted.
514.17 How are fingerprint processing fees collected by the
Commission?
Comment: Two commenters objected to fingerprint fees being included
as a separate section of the regulation on the grounds that fees should
be covered by the annual fee already collected by the Commission.
Response: This comment is not adopted. IGRA does not require the
NIGC to process fingerprints and not all tribes utilize the service.
The service will continue to be charged as a separate fee only to those
tribes that utilize the NIGC's fingerprint processing service. The
Commission believes formalizing the procedures for assessing
fingerprint card processing fees in a regulation provides transparency
and clarity.
IV. Regulatory Matters
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.
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 (OMB) as
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number
3141- 0007, which expired in August of 2011. The NIGC is in the process
of reinstating that Control Number.
Although the rule changes the collection from bi-annually to
quarterly, the proposed rule does not require any significant changes
in information collection previously approved under the Paperwork
Reduction Act of 1995. 44 U.S.C. 3501 et seq. At the time OMB Control
Number 3141-0007 was assigned, Part 514 required quarterly submissions.
This was changed to a bi-annually submission requirement on August 26,
2009 without obtaining a new OMB Control Number. 74 FR 36926.
Accordingly, no significant changes in information will occur since the
last OMB Control Number was assigned.
List of Subjects in 25 CFR Part 514
Gambling, Indians--Lands, Indians--Tribal Government, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, the 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 be published?
514.3 What is the maximum fee rate?
514.4 What are ``assessable gross revenues'' and how does a tribe
calculate the amount of the annual fees it owes?
514.5 When must a tribe pay its annual fees?
514.6 What are the quarterly statements that must be submitted with
the fee payments?
514.7 What should a tribe do if it changes its fiscal year?
514.8 Where should fees, quarterly statements, and other
communications about fees be sent?
514.9 What happens if a tribe 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 tribe or gaming operation appeal a proposed late fee?
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 a tribe overpays its fees 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 NIGC 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, 2710, 2717, 2717a.
Sec. 514.1 What is the purpose of this part?
Each gaming operation under the jurisdiction of the Commission,
including 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 be published?
(a) The Commission shall adopt preliminary rates for each calendar
year no later than March 1st of each year, and, if considered
necessary, shall modify those rates no later than June 1st of that
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 (1st tier), and
(2) No more than 5% of amounts in excess of the first $1,500,000
(2nd tier) of the assessable gross revenues from
[[Page 5182]]
each gaming operation subject to the jurisdiction of the Commission.
(b) If a tribe has a certificate of self-regulation, the rate of
fees imposed shall be no more than .25% of assessable gross revenues
from self-regulated class II gaming operations.
Sec. 514.4 What are ``assessable gross revenues'' and how does a
tribe calculate the amount of the annual fee it owes?
(a) For purposes of computing fees, assessable gross revenues for
each gaming operation are the annual total amount of money wagered on
class II and III games, entry fees (including table or card fees), less
any amounts paid out as prizes or paid for prizes awarded, and less an
allowance for amortization of capital expenditures for structures as
reflected in the gaming operation's audited financial statements.
(b) Each gaming operation subject to these regulations shall
calculate the annual fee based on the gaming operation's fiscal year.
(c) Unless otherwise provided by the regulations, generally
accepted accounting principles shall be used.
(d) The allowance for amortization of capital expenditures for
structures shall be either:
(1) An amount not to exceed 5% of the cost of structures in use
throughout the year and 2.5% of the cost of structures in use during
only a part of the year; or
(2) An amount not to exceed 10% of the total amount of depreciation
expenses for the year.
(e) All class II and III revenues from gaming operations are to be
included.
Sec. 514.5 When must a tribe pay its annual fees?
Each gaming operation shall calculate the amount of fees to be paid
and remit them with the quarterly statement required in Sec. 514.6.
The fees payable shall be computed using:
(a) The most recent rates of fees adopted by the Commission
pursuant to Sec. 514.2,
(b) The assessable gross revenues for the previous fiscal year as
calculated using Sec. 514.4, and
(c) The amounts paid and credits received during the fiscal year,
if applicable.
Sec. 514.6 What are the quarterly statements that must be submitted
with the fee payments?
(a) Each gaming operation subject to the jurisdiction of the
Commission shall file with the Commission quarterly statements showing
its assessable gross revenues for the previous 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 amortization of structures.
(c) The quarterly statements shall be sent to the Commission within
three (3) months, six (6) months, nine (9) months, and twelve (12)
months of the end of the gaming operation's fiscal year.
(d) The quarterly statements shall identify an individual or
individuals to be contacted should the Commission need to communicate
further with the gaming operation. The telephone numbers of the
individual(s) shall be included.
(e) Each quarterly statement shall include the computation of the
fees payable, showing all amounts used in the calculations. The
required calculations are as follows:
(1) Multiply the 1st tier assessable gross revenues, as calculated
using Sec. 514.4, by the rate for those revenues adopted by the
Commission.
(2) Multiply the 2nd tier assessable gross revenues, as calculated
using Sec. 514.4, by the rate for those revenues adopted by the
Commission.
(3) Add (total) the results (products) obtained in paragraphs
(e)(1) and (2) of this section.
(4) Multiply the total obtained in paragraph (e)(3) of this section
by \1/4\.
(5) The amount computed in paragraph (e)(4) of this section is the
amount to be remitted.
(f) Examples of fee computations follow:
(1) Where a filing is made for the first quarter of the fiscal
year, the previous year's assessable gross revenues as calculated using
section 514.4 of this part are $2,000,000, the fee rates adopted by the
Commission are 0.0% on the first $1,500,000 and .08% on the remainder,
the amounts to be used and the computations to be made are as follows:
1st tier revenues--$1,500,000 x 0.0% =.......................... 0
2nd tier revenues--$500,000 x .08% =............................ $400
Annual fees..................................................... $400
Multiply for fraction of year--\1/4\ or......................... .25
Fees for first payment.......................................... $100
Amount to be remitted........................................... $100
(2) [Reserved]
(g) 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
NIGC.
Sec. 514.7 What should a tribe do if it changes its fiscal year?
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 tribe prepare and submit to the Commission the fees
and statements required by this subsection for the stub 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.
Sec. 514.8 Where should fees, quarterly statements, and other
communications about fees be sent?
The statements, remittances and communications about fees shall be
transmitted to the Commission at the following address: Comptroller,
National Indian Gaming Commission, 1441 L Street NW., Suite 9100,
Washington, DC 20005. Checks should be made payable to the National
Indian Gaming Commission (do not remit cash).
Sec. 514.9 What happens if a tribe 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 part 577 of this
chapter.
(b) Within fifteen (15) days of service of the notice, a respondent
may submit written information about the notice to the Chair. The Chair
shall consider any information submitted by the respondent as well as
the respondent'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 respondent, the Chair
of the Commission may assess a proposed late fee against a respondent
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, as calculated in
Sec. 514.6(e);
[[Page 5183]]
(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, as calculated in
Sec. 514.6(e);
(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, as calculated in
Sec. 514.6(e).
Sec. 514.10 When does a late payment or quarterly statement
submission become a failure to pay?
(a) 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)(3), and NIGC regulations, 25 CFR 573.6(a)(2). In
accordance with 25 U.S.C. 2717(a)(3), 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.
(b) In accordance with Sec. 573.6(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 tribe or gaming operation appeal a proposed late
fee?
(a) Proposed late fees assessed by the Chair may be appealed under
part 577 of this chapter.
(b) At any time prior to the filing of a notice of appeal under
part 577 of this chapter, the Chair and the respondent 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
respondent. If a settlement agreement is executed, the respondent 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, the respondent may contest the proposed late fee
before the Commission in accordance with part 577 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 respondent fails to appeal under part 577 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 a tribe overpays its fees 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 excess of this
amount against amounts otherwise due according to Sec. 514.4.
(b) To the extent that revenue derived from fees imposed under the
schedule established under this paragraph 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 NIGC for
processing?
Tribes may submit fingerprint cards to the Commission for
processing by the Federal Bureau of Investigation (FBI) 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 preliminary rates for each calendar year no later
than March 1st of that year, and, if considered necessary, shall modify
those rates no later than June 1st of that year.
(b) The fingerprint fee charge 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) Fingerprint fees shall be sent to the following address:
Comptroller, National Indian Gaming Commission, 1441 L Street NW.,
Suite 9100, Washington, DC 20005. Checks should be made payable to the
National Indian Gaming Commission (do not remit cash).
Dated: January 27, 2012, Washington, DC.
Tracie L. Stevens,
Chairwoman.
Steffani A. Cochran,
Vice-Chairwoman.
Daniel J. Little,
Associate Commissioner.
[FR Doc. 2012-2254 Filed 2-1-12; 8:45 am]
BILLING CODE 7565-01-P