[Federal Register Volume 77, Number 22 (Thursday, February 2, 2012)]
[Rules and Regulations]
[Pages 5178-5183]
From the Federal Register Online via the Government Publishing 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: [email protected].
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