[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]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 514


Fees

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Final rule.

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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