[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2012 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 25
Indians
________________________
Part 300 to End
Revised as of April 1, 2012
Containing a codification of documents of general
applicability and future effect
As of April 1, 2012
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 25:
Chapter II--Indian Arts and Crafts Board, Department
of the Interior 3
Chapter III--National Indian Gaming Commission,
Department of the Interior 19
Chapter IV--The Office of Navajo and Hopi Indian
Relocation 215
Chapter V--Bureau of Indian Affairs, Department of
the Interior, and Indian Health Service, Department
of Health and Human Services 303
Chapter VI--Office of the Assistant Secretary,
Indian Affairs, Department of the Interior 367
Chapter VII--Office of the Special Trustee for
American Indians, Department of the Interior 431
Finding Aids:
Table of CFR Titles and Chapters........................ 443
Alphabetical List of Agencies Appearing in the CFR...... 463
List of CFR Sections Affected........................... 473
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 25 CFR 301.1 refers
to title 25, part 301,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2012), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.ofr.gov. For more
information, contact the GPO Customer Contact Center, U.S. Government
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
Michael L. White,
Acting Director,
Office of the Federal Register.
April 1, 2012.
[[Page ix]]
THIS TITLE
Title 25--Indians is composed of two volumes. The parts in these
volumes are arranged in the following order: Parts 1--299, and part 300
to end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of April 1, 2012.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L.
White, assisted by Ann Worley.
[[Page 1]]
TITLE 25--INDIANS
(This book contains part 300 to End)
--------------------------------------------------------------------
Part
chapter ii--Indian Arts and Crafts Board, Department of the
Interior.................................................. 301
chapter iii--National Indian Gaming Commission, Department
of the Interior........................................... 501
chapter iv--The Office of Navajo and Hopi Indian Relocation. 700
chapter v--Bureau of Indian Affairs, Department of the
Interior, and Indian Health Service, Department of Health
and Human Services........................................ 900
chapter vi--Office of the Assistant Secretary, Indian
Affairs, Department of the Interior....................... 1000
chapter vii--Office of the Special Trustee for American
Indians, Department of the Interior....................... 1200
[[Page 3]]
CHAPTER II--INDIAN ARTS AND CRAFTS BOARD, DEPARTMENT OF THE INTERIOR
--------------------------------------------------------------------
Part Page
300
[Reserved]
301 Navajo, Pueblo, and Hopi silver and
turquoise products; standards........... 5
304 Navajo, Pueblo, and Hopi silver, use of
Government mark......................... 5
307 Navajo all-wool woven fabrics; use of
Government certificate of genuineness... 6
308 Regulations for use of certificates of the
Indian Arts and Crafts Board to be
attached to their trade-marks by Indian
enterprises concerned with the
production and sale of genuine
handicrafts............................. 8
309 Protection of Indian arts and crafts
products................................ 9
310 Use of Government marks of genuineness for
Alaskan Indian and Alaskan Eskimo hand-
made products........................... 15
[[Page 5]]
PART 300 [RESERVED]
PART 301_NAVAJO, PUEBLO, AND HOPI SILVER AND TURQUOISE PRODUCTS;
STANDARDS--Table of Contents
Sec.
301.1 Eligibility for use of Government stamp.
301.2 Specifications of material.
301.3 Specifications of dies.
301.4 Application of dies.
301.5 Applique elements in design.
301.6 Stone for ornamentation.
301.7 Stonecutting.
301.8 Finish.
Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.
Source: The provisions of this part 301 contained in standards for
Navajo, Pueblo, and Hopi silver and turquoise products, Mar. 9, 1937,
unless otherwise noted.
Sec. 301.1 Eligibility for use of Government stamp.
Subject to the detailed requirements that follow, the Government
stamp shall be affixed only to work individually produced and to work
entirely hand-made. No object produced under conditions resembling a
bench work system, and no object in whose manufacture any power-driven
machinery has been used, shall be eligible for the use of the Government
stamp.
Sec. 301.2 Specifications of material.
Silver slugs of 1 ounce weight or other silver objects may be used,
provided their fineness is at least 900, and provided further that no
silver sheet shall be used. Unless cast, the slug or other object is to
be hand hammered to thickness and shape desired. The only exceptions
here are pins on brooches or similar objects; ear screws for earrings;
backs for tie clasps and chains which may be of silver of different
fineness and mechanically made.
Sec. 301.3 Specifications of dies.
Dies used are to be entirely hand-made, with no tools more
mechanical than hand tools and vise. Dies shall contain only a single
element of the design.
Sec. 301.4 Application of dies.
Dies are to be applied to the object with the aid of nothing except
hand tools.
Sec. 301.5 Applique elements in design.
All such parts of the ornament are to be hand-made. If wire is used,
it is to be hand-made with no tool other than a hand-made draw plate.
These requirements apply to the boxes for stone used in the design.
Sec. 301.6 Stone for ornamentation.
In addition to turquoise, the use of other local stone is permitted.
Turquoise, if used, must be genuine stone, uncolored by any artificial
means.
Sec. 301.7 Stonecutting.
All stone used, including turquoise, is to be hand-cut and polished.
This permits the use of hand- or foot-driven wheels.
Sec. 301.8 Finish.
All silver is to be hand polished.
PART 304_NAVAJO, PUEBLO, AND HOPI SILVER, USE OF GOVERNMENT MARK--Table
of Contents
Sec.
304.1 Penalties for imitation or unauthorized use.
304.2 Marking and ownership of dies.
304.3 Classifying and marking of silver.
304.4 Standards and additional requirements.
304.5 Dies to identify tribe.
304.6 Responsibility of dealer.
304.7 Eligibility of silver meeting standards.
304.8 Use of label by dealer.
304.9 Placards; display of regulations.
Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.
Source: The provisions of this part 304 contained in regulations
governing use of Government mark on Navajo, Pueblo, and Hopi silver,
April 2, 1937, unless otherwise noted.
Sec. 304.1 Penalties for imitation or unauthorized use.
The use of Government trade-marks in an unauthorized manner, or the
colorable imitation of such marks, is
[[Page 6]]
subject to the criminal penalties imposed by section 5 of the said act
(49 Stat. 892; 25 U.S.C. 305d).
Sec. 304.2 Marking and ownership of dies.
All dies used to mark silver will be provided by and owned by the
Indian Arts and Crafts Board.
Sec. 304.3 Classifying and marking of silver.
For the present the Indian Arts and Crafts Board reserves to itself
the sole right to judge what silver complying with its standards shall
bear the Government mark. All such marking of silver shall, for the
present, be done by an agent of the Indian Arts and Crafts Board.
Sec. 304.4 Standards and additional requirements.
No piece of silver, though made in compliance with the standards set
forth by the Indian Arts and Crafts Board, shall bear the Government
mark unless:
(a) Its weight is substantially in accord with Indian usage and
custom.
(b) Its design elements are substantially in accord with Indian
usage and tradition.
(c) Its workmanship is substantially that expected in good hand
craftsmanship.
Sec. 304.5 Dies to identify tribe.
Dies are marked with name of tribe. A Navajo stamp will be used
where the marker is a Navajo Indian; similarly, for Zuni, Hopi, and Rio
Grande Pueblo.
Sec. 304.6 Responsibility of dealer.
All dies will be numbered, and each wholesaler or dealer will be
held responsible for any violation of standards in silver that bears his
mark. Until such time as the Board relinquishes its sole right to mark
silver, the responsibility of the dealer for whom silver is marked will
be confined to misrepresentations as to quality of silver and of stones
used for ornament and to methods of production.
Sec. 304.7 Eligibility of silver meeting standards.
In addition to silver currently made in compliance with the
standards of the Indian Arts and Crafts Board, other silver products
made prior to the promulgation of the regulations in this part may be
stamped, provided the maker thereof is known to be an Indian, and the
product satisfies the requirements in Sec. 304.4.
Sec. 304.8 Use of label by dealer.
Any dealer offering for sale silver bearing the Government mark may,
if he wishes, attach to silver so marked a label or ticket calling
attention to the Government mark.
Sec. 304.9 Placards; display of regulations.
Every dealer offering for sale silver bearing the Government mark
may display in a prominent place a placard setting forth the standards
and the regulations in this part, such placard to be furnished by the
Indian Arts and Crafts Board.
[Regs., Apr. 2, 1937, as amended Feb. 21, 1938]
PART 307_NAVAJO ALL-WOOL WOVEN FABRICS; USE OF GOVERNMENT CERTIFICATE
OF GENUINENESS--Table of Contents
Sec.
307.1 Penalties.
307.2 Certificates of genuineness; by whom affixed.
307.3 Granting of licenses, contract, and bond requirements.
307.4 Standards for fabrics.
307.5 Hand seal press and certificates to be furnished.
307.6 Fees.
307.7 Suspension of license.
307.8 Revocation of license.
307.9 Surrender of license.
307.10 Period of license.
307.11 Certificates fastened to fabrics.
307.12 Certificates, dating, and signing thereof.
307.13 Licensee's responsibility.
Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).
Source: The provisions of this part 307 contained in regulations
governing the use of Government certificate of genuineness for Navajo
all-wool woven fabrics, Oct. 20, 1937, unless otherwise noted.
[[Page 7]]
Sec. 307.1 Penalties.
The use of Government trade-marks in an unauthorized manner, or the
colorable imitation of such marks, is subject to the criminal penalties
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d),
which provides:
Any person who shall counterfeit or colorably imitate any Government
trade-mark used or devised by the Board as provided in section 305a of
this chapter, or shall, except as authorized by the Board, affix any
such Government trade-mark, or shall knowingly, willfully, and corruptly
affix any reproduction, counterfeit, copy, or colorable imitation
thereof upon any products, Indian or otherwise, or to any labels, signs,
prints, packages, wrappers, or receptacles intended to be used upon or
in connection with the sale of such products, or any person who shall
knowingly make any false statement for the purpose of obtaining the use
of any such Government trade-mark shall be guilty of a misdemeanor, and
upon conviction thereof shall be enjoined from further carrying on the
act or acts complained of and shall be subject to a fine not exceeding
$20,000, or imprisonment not exceeding six months, or both such fine and
imprisonment.
Sec. 307.2 Certificates of genuineness; by whom affixed.
Government certificates of genuineness for Navajo all-wool woven
fabrics may be affixed to fabrics meeting the conditions specified in
Sec. 307.4 by persons duly authorized to affix such certificates, under
license issued by the Indian Arts and Crafts Board.
Sec. 307.3 Granting of licenses, contract, and bond requirements.
A license may be granted to any person desiring to use the
Government certificate of genuineness for Navajo all-wool woven fabrics
who shall make application therefor and shall execute a contract
acceptable to the Indian Arts and Crafts Board providing for the use of
such certificates in conformity with the regulations in this part, which
contract shall be accompanied by an indemnity bond acceptable to the
Indian Arts and Crafts Board, in the amount of $500, conditioned upon
faithful performance of such contract.
Sec. 307.4 Standards for fabrics.
No fabric may carry the Government certificate of genuineness for
Navajo all-wool woven fabric unless all of the following conditions are
met:
(a) The fabric is made entirely of local wool that is locally hand-
spun and is entirely woven on a native Navajo loom;
(b) The fabric is made by a member of the Navajo Tribe working under
conditions not resembling a workshop or factory system;
(c) The size of the fabric is indicated in the certificate;
(d) The licensee signs the certificate.
[Regs., Oct. 20, 1937, as amended at 4 FR 2436, June 17, 1939]
Sec. 307.5 Hand seal press and certificates to be furnished.
Each licensee will be furnished, upon payment of the registration
and license fees specified in Sec. 307.6 one hand seal press and a
supply of blank Government certificates, which shall be used only in
accordance with this license, and shall remain at all times the property
of the Board.
Sec. 307.6 Fees.
Each licensee shall pay a registration fee of $2, together with a
license fee which shall be determined on the basis of $1 for each 40
Government certificates ordered by the licensee from the Board.
Sec. 307.7 Suspension of license.
In the event that complaint is made to the Board that any provision
of any license or of the regulations in this part has been violated by
any licensee, the Board may suspend the license and all authority
conferred thereby, in its discretion, for a period of 30 days, by
notifying the licensee of such suspension, by mail, by telegraph, or in
any other manner.
Sec. 307.8 Revocation of license.
In the event that the Board, after giving a licensee written notice
of charges and affording an opportunity to reply to such charges, orally
or in writing, is satisfied that any provision of any license or of the
regulations in this part has been violated by any licensee, the Board
may revoke the license by notifying the licensee of such revocation, by
mail, by telegraph, or in any other manner. Upon notice of such
[[Page 8]]
revocation all authority conferred by the license so revoked shall
forthwith terminate, but the validity of actions taken while the license
was in force shall not be affected.
Sec. 307.9 Surrender of license.
Any license may be surrendered by the licensee at any time by
surrendering to the Board the Government hand seal press and unused
certificates of genuineness entrusted to the licensee, accompanied by a
copy of the license marked ``surrendered'' and signed by the licensee.
Such surrender shall take effect as of the time that such property and
document have been received by the Board.
Sec. 307.10 Period of license.
Each license shall be in effect from the date of execution thereof
and until 1 year thereafter, unless sooner surrendered or canceled in
accordance with the foregoing provisions.
Sec. 307.11 Certificates fastened to fabrics.
Certificates shall be fastened to the woven fabric by wire caught in
a lead seal disc that shall be impressed and made fast with the hand
seal press furnished by the Indian Arts and Crafts Board.
Sec. 307.12 Certificates, dating, and signing thereof.
When the certificate is first affixed the lower of the two spaces
provided for the purpose shall be signed by the licensee. In the event
the ultimate retailer of any fabric so marked is not the person who
originally attached the certificate, that ultimate retailer may sign the
upper of the two spaces provided for the purpose and detach the original
signature.
[4 FR 2436, June 17, 1939]
Sec. 307.13 Licensee's responsibility.
Certificates may be attached only to products which are in the
ownership or possession of the licensee. Certificates will be
consecutively numbered and records of the allocation of such
certificates will be maintained by the Indian Arts and Crafts Board.
Each licensee will be held responsible for the proper use of such
certificates and of the Government hand seal press furnished to such
licensee.
PART 308_REGULATIONS FOR USE OF CERTIFICATES OF THE INDIAN ARTS AND
CRAFTS BOARD TO BE ATTACHED TO THEIR TRADE-MARKS BY INDIAN ENTERPRISES
CONCERNED WITH THE PRODUCTION AND SALE OF GENUINE HANDICRAFTS--Table
of Contents
Sec.
308.1 Penalties.
308.2 Certificates of genuineness to be attached to trade-marks.
308.3 Conditions of eligibility to attach certificates.
308.4 Revocation of privilege of attaching certificates.
Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).
Source: 8 FR 8736, June 26, 1943, unless otherwise noted.
Sec. 308.1 Penalties.
The use of Government trade-marks in an unauthorized manner, or the
colorable imitation of such marks, is subject to the criminal penalties
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d),
which provides:
Any person who shall counterfeit or colorably imitate any Government
trade-mark used or devised by the Board as provided in section 305a of
this chapter, or shall, except as authorized by the Board, affix any
such Government trade-mark, or shall knowingly, willfully, and corruptly
affix any reproduction, counterfeit, copy, or colorable imitation
thereof upon any products Indian or otherwise, or to any labels, signs,
prints, packages, wrappers, or receptacles intended to be used upon or
in connection with the sale of such products, or any person who shall
knowingly make any false statement for the purpose of obtaining the use
of any such Government trade-mark, shall be guilty of a misdemeanor, and
upon conviction thereof shall be enjoined from further carrying on the
act or acts complained of and shall be subject to a fine not exceeding
$2,000, or imprisonment not exceeding six months, or both such fine and
imprisonment.
[[Page 9]]
Sec. 308.2 Certificates of genuineness to be attached to trade-marks.
(a) To insure the widest distribution of genuine Indian handicraft
products, and to protect the various enterprises organized by individual
Indian craftsmen, or by groups of Indian craftsmen, for the purpose of
the production and sale of such handicraft products, the Indian Arts and
Crafts Board offers each such enterprise the privilege of attaching to
its trademark a certificate declaring that it is recognized by the
Indian Arts and Crafts Board as an Indian enterprise dealing in genuine
Indian-made handicraft products, and that its trade-mark has the
approval of the Board.
(b) The certificate shall consist of a border around the trade-mark
bearing the words ``Certified Indian Enterprise Genuine Handicrafts,
U.S. Indian Arts and Crafts Board, Department of the Interior,'' and
these words may be used wherever the trade-mark appears.
Sec. 308.3 Conditions of eligibility to attach certificates.
To be eligible to attach the certificate, an enterprise must meet
the following conditions:
(a) It must offer for sale only Indian-made genuine handicraft
products, i.e., objects produced by Indian craftsmen with the help of
only such devices as allow the manual skill of the maker to condition
the shape and design of each individual product.
(b) It must be entirely Indian owned and organized either by
individual Indians or by groups of Indians.
(c) It must agree to apply certificates of genuineness only to such
products as meet the standards of quality prescribed by the Indian Arts
and Crafts Board at the time of the application of the enterprise for
the privilege of attaching the certificate.
(d) It must agree to obtain the approval of the Indian Arts and
Crafts Board as to the manner of production of the certificates.
Sec. 308.4 Revocation of privilege of attaching certificates.
If an enterprise, after securing the privilege of attaching the
certificates, should fail to meet the above-named conditions, the Board
reserves the right to revoke the privilege.
PART 309_PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS--Table of
Contents
Sec.
309.1 How do the regulations in this part carry out the Indian Arts and
Crafts Act of 1990?
309.2 What are the key definitions for purposes of the Act?
309.6 When does a commercial product become an Indian product?
309.7 How should a seller disclose the nature and degree of Indian labor
when selling, offering, or displaying art and craft work for
sale?
309.8 For marketing purposes, what is the recommended method of
identifying authentic Indian products?
309.9 When can non-Indians make and sell products in the style of Indian
arts and crafts?
309.10 What are some sample categories and examples of Indian products?
309.11 What are examples of jewelry that are Indian products?
309.12 What are examples of basketry that are Indian products?
309.13 What are examples of other weaving and textiles that are Indian
products?
309.14 What are examples of beadwork, quillwork, and moose hair tufting
that are Indian products?
309.15 What are examples of apparel that are Indian products?
309.16 What are examples of regalia that are Indian products?
309.17 What are examples of woodwork that are Indian products?
309.18 What are examples of hide, leatherwork, and fur that are Indian
products?
309.19 What are examples of pottery and ceramics that are Indian
products?
309.20 What are examples of sculpture, carving, and pipes that are
Indian products?
309.21 What are examples of dolls and toys that are Indian products?
309.22 What are examples of painting and other fine art forms that are
Indian products?
309.23 Does this part apply to products made before 1935?
309.24 How will statements about Indian origin of art or craft products
be interpreted?
309.25 How can an individual be certified as an Indian artisan?
309.26 What penalties apply?
309.27 How are complaints filed?
Authority: 18 U.S.C. 1159, 25 U.S.C. 305 et seq.
Source: 61 FR 54555, Oct. 21, 1996, unless otherwise noted.
[[Page 10]]
Sec. 309.1 How do the regulations in this part carry out the Indian
Arts and Crafts Act of 1990?
These regulations define the nature and Indian origin of products
protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25
U.S.C. 305 et seq.) from false representations, and specify how the
Indian Arts and Crafts Board will interpret certain conduct for
enforcement purposes. The Act makes it unlawful to offer or display for
sale or sell any good in a manner that falsely suggests it is Indian
produced, an Indian product, or the product of a particular Indian, or
Indian tribe, or Indian arts and crafts organization resident within the
United States.
Sec. 309.2 What are the key definitions for purposes of the Act?
(a) Indian as applied to an individual means a person who is a
member of an Indian tribe or for purposes of this part is certified by
an Indian tribe as a non-member Indian artisan (in accordance with the
provisions of Sec. 309.4).
(b) Indian artisan means an individual who is certified by an Indian
tribe as a non-member Indian artisan.
(c) Indian arts and crafts organization means any legally
established arts and crafts marketing organization composed of members
of Indian tribes.
(d) Indian product--(1) In general. The term ``Indian product''
means any art or craft product made by an Indian. For this purpose, the
term ``made by an Indian'' means that an Indian has provided the
artistic or craft work labor necessary to implement an artistic design
through a substantial transformation of materials to produce the art or
craft work. This may include more than one Indian working together. The
labor component of the product, however, must be entirely Indian for the
Indian art or craft object to be an ``Indian product.''
(2) Illustrations. The term ``Indian product'' includes, but is not
limited to:
(i) Art made by an Indian that is in a traditional or non-
traditional style or medium;
(ii) Craft work made by an Indian that is in a traditional or non-
traditional style or medium;
(iii) Handcraft made by an Indian, i.e. an object created with the
help of only such devices as allow the manual skill of the maker to
condition the shape and design of each individual product.
(3) Examples of non-qualifying products. An ``Indian product'' under
the Act does not include any of the following, for example:
(i) A product in the style of an Indian art or craft product made by
non-Indian labor;
(ii) A product in the style of an Indian art or craft product that
is designed by an Indian but produced by non-Indian labor;
(iii) A product in the style of an Indian art or craft product that
is assembled from a kit;
(iv) A product in the style of an Indian art or craft product
originating from a commercial product, without substantial
transformation provided by Indian artistic or craft work labor;
(v) Industrial products, which for this purpose are defined as goods
that have an exclusively functional purpose, do not serve as a
traditional artistic medium, and that do not lend themselves to Indian
embellishment, such as appliances and vehicles. An industrial product
may not become an Indian product.
(vi) A product in the style of an Indian art or craft product that
is produced in an assembly line or related production line process using
multiple workers not all whom are Indians. For example, if twenty people
make up the labor to create the product(s), and one person is not
Indian, the product is not an ``Indian product.''
(e) Indian tribe means--
(1) Any Indian tribe, band, nation, Alaska Native village, or any
organized group or community which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians; or
(2) Any Indian group that has been formally recognized as an Indian
tribe by a State legislature or by a State commission or similar
organization legislatively vested with State tribal recognition
authority.
(f) Product of a particular Indian tribe or Indian arts and crafts
organization means that the origin of a product is identified as a named
Indian tribe or
[[Page 11]]
named Indian arts and crafts organization.
[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996, as amended at 68
FR 35169, June 12, 2003]
Sec. 309.6 When does a commercial product become an Indian product?
In addressing Indian embellishments to originally commercial
products, the Indian labor expended to add art or craft work to those
objects must be sufficient to substantially transform the qualities and
appearance of the original commercial item. ``Commercial products,''
under this part, are consumer goods designed for profit and mass
distribution that lend themselves to Indian embellishment, for example
clothing and accessories. Through substantial transformation due to
Indian labor, a product changes from a commercial product to an Indian
product. Examples of formerly commercial products that become Indian
products include tennis shoes to which an Indian applies beadwork and
denim jackets to which an Indian applies ribbon appliqu[eacute]s.
[68 FR 35170, June 12, 2003]
Sec. 309.7 How should a seller disclose the nature and degree of Indian
labor when selling, offering, or displaying art and craft work for sale?
The Indian Arts and Crafts Act is a truth-in-marketing law. Those
who produce and market art and craft work should honestly represent and
clarify the degree of Indian involvement in the production of the art
and craft work when it is sold, displayed or offered for sale. The
following guidelines illustrate the way in which art and craft work may
be characterized for marketing purposes and gives examples of products
that may be marketed as Indian products.
------------------------------------------------------------------------
If . . . then . . .
------------------------------------------------------------------------
(a) An Indian conceives, designs, and it is an ``Indian product.''
makes the art or craft work.
(b) An Indian produces a product that is it can be marketed as such
``handcrafted,'' as explained in and it meets the definition
309.3(d)(iii). of ``Indian product.''
(c) An Indian makes an art or craft work it is ``Indian made'' and
using some machine made parts. meets the definition of
``Indian product.''
(d) An Indian designs a product, such as a it does not meet the
bracelet, which is then produced by non- definition of ``Indian
Indians. product'' under the Act.
(e) A product, such as jewelry, is made it does not meet the
with non-artistic Indian labor, from definition of ``Indian
assembled or ``fit together parts''. product'' under the Act.
\1\
(f) A product in the style of an Indian it does not meet the
product is assembled by non-Indian labor definition of ``Indian
from a kit. product'' under the Act.
(g) A product is in the style of an Indian it does not meet the
art or craft product, but not made by an definition of ``Indian
Indian. product'' under the Act.
(h) An Indian and a non-Indian jointly less than all of the labor
undertake the art or craft work to is Indian and hence it does
produce an art or craft product, for not meet the definition of
example a concho belt. ``Indian product'' under
the Act. \2\
------------------------------------------------------------------------
\1\ For example, a necklace strung with overseas manufactured fetishes
or heshi. If an Indian assembled the necklace, in keeping with the
truth-in-marketing focus of the Act, it can be marketed as ``Indian
assembled.'' It does not meet the definition of ``Indian product''
under the Act. Similarly, if a product, such as a dream catcher is
assembled by an Indian from a kit, it can be marketed as ``Indian
assembled.'' It does not meet the definition of ``Indian product''
under the Act.
\2\ In order to be an ``Indian product,'' the labor component of the
product must be entirely Indian. In keeping with this truth-in-
marketing law, a collaborative work should be marketed as such.
Therefore, it should be marketed as produced by ``X'' (name of artist
or artisan), ``Y'' (Tribe of individual's enrollment) or (name of
Tribe providing official written certification the individual is a non-
member Indian artisan and date upon which such certification was
issued by the Tribe), and ``Z'' (name of artist or artisan with no
Tribe listed) to avoid providing false suggestions to consumers.
[68 FR 35170, June 12, 2003]
Sec. 309.8 For marketing purposes, what is the recommended method of
identifying authentic Indian products?
(a) The recommended method of marketing authentic Indian products is
to include the name of the artist or artisan, the name of the Tribe in
which the artist or artisan is enrolled, and the individual's Tribal
enrollment number. If the individual is a certified non-member Indian
artisan, rather than an enrolled Tribal member, the product
identification should include the name of the Tribe providing official
written certification that the individual is a non-member Indian artisan
and the date upon which such certification was issued by the Tribe. In
order for an individual to be certified by an Indian Tribe as a non-
member Indian artisan, the individual must be of Indian lineage of one
or more members of such Indian Tribe and the certification must be
issued in writing by the governing
[[Page 12]]
body of an Indian Tribe or by a certifying body delegated this function
by the governing body of the Indian Tribe.
(b) For example, the Indian product should include a label, hangtag,
provenance card, or similar identification that includes W (name of the
artist or artisan), and X (name of the Tribe in which the individual is
enrolled) and Y (individual's Tribal enrollment number), or a statement
that the individual is a certified non-member Indian artisan of Z (name
of the Tribe providing certification and the date upon which the
certification was issued by the Tribe).
[68 FR 35170, June 12, 2003]
Sec. 309.9 When can non-Indians make and sell products in the style
of Indian arts and crafts?
A non-Indian can make and sell products in the style of Indian art
or craft products only if the non-Indian or other seller does not
falsely suggest to consumers that the products have been made by an
Indian.
[68 FR 35170, June 12, 2003]
Sec. 309.10 What are some sample categories and examples of Indian
products?
What constitutes an Indian product is potentially very broad.
However, to provide guidance to persons who produce, market, or purchase
items marketed as Indian products, Sec. Sec. 309.11 through 309.22
contain a sample listing of ``specific examples'' of objects that meet
the definition of Indian products. There is some repetition, due to the
interrelated nature of many Indian products when made by Indian artistic
labor. The lists in these sections contain examples and are not intended
to be all-inclusive. Additionally, although the Indian Arts and Crafts
Act of 1990 and the Indian Arts and Crafts Enforcement Act of 2000 do
not address materials used in Indian products, some materials are
included for their descriptive nature only. This is not intended to
restrict materials used or to exclude materials not listed.
[68 FR 35170, June 12, 2003]
Sec. 309.11 What are examples of jewelry that are Indian products?
(a) Jewelry and related accessories made by an Indian using a wide
variety of media, including, but not limited to, silver, gold,
turquoise, coral, lapis, jet, nickel silver, glass bead, copper, wood,
shell, walrus ivory, whale baleen, bone, horn, horsehair, quill, seed,
and berry, are Indian products.
(b) Specific examples include, but are not limited to: ivory and
baleen scrimshaw bracelets, abalone shell necklaces, nickel silver
scissortail pendants, silver sand cast bracelets, silver overlay bolos,
turquoise channel inlay gold rings, cut glass bead rosette earrings,
wooden horse stick pins, and medicine wheel quilled medallions.
[68 FR 35170, June 12, 2003]
Sec. 309.12 What are examples of basketry that are Indian products?
(a) Basketry and related weavings made by an Indian using a wide
variety of media, including, but not limited to, birchbark, black ash,
brown ash, red cedar, yellow cedar, alder, vine maple, willow, palmetto,
honeysuckle, river cane, oak, buck brush, sumac, dogwood, cattail, reed,
raffia, horsehair, pine needle, spruce root, rye grass, sweet grass,
yucca, bear grass, beach grass, rabbit brush, fiber, maidenhair fern,
whale baleen, seal gut, feathers, shell, devil's claw, and porcupine
quill, are Indian products.
(b) Specific examples include, but are not limited to: double weave
river cane baskets, yucca winnowing trays, willow burden baskets,
honeysuckle sewing baskets, black ash picnic baskets, cedar capes and
dresses, pine needle/raffia effigy baskets, oak splint and braided sweet
grass fancy baskets, birchbark containers, baleen baskets, rye grass
dance fans, brown ash strawberry baskets, sumac wedding baskets, cedar
hats, fiber basket hats, yucca wicker basketry plaques, and spruce root
tobacco pouches.
[68 FR 35170, June 12, 2003]
Sec. 309.13 What are examples of other weaving and textiles that are
Indian products?
(a) Weavings and textiles made by an Indian using a wide variety of
media,
[[Page 13]]
including, but not limited to, cornhusk, raffia, tule, horsehair,
cotton, wool, fiber, linen, rabbit skin, feather, bison fur, and qiviut
(musk ox) wool, are Indian products.
(b) Specific examples include, but are not limited to: corn husk
bags, twined yarn bags, cotton mantas, willow cradle boards, horsehair
hatbands, Chiefs Blankets, Two Grey Hills rugs, horse blankets, finger
woven sashes, brocade table runners, star quilts, pictorial
appliqu[eacute] wall hangings, fiber woven bags, embroidered dance
shawls, rabbit skin blankets, and feather blankets.
[68 FR 35170, June 12, 2003]
Sec. 309.14 What are examples of beadwork, quillwork, and moose hair
tufting that are Indian products?
(a) Beadwork, quillwork, and moose hair tufting made by an Indian to
decorate a wide variety of materials, including, but not limited to,
bottles, baskets, bags, pouches, and other containers; belts, buckles,
jewelry, hatbands, hair clips, barrettes, bolos, and other accessories;
moccasins, vests, jackets, and other articles of clothing; and dolls and
other toys and collectibles, are Indian products.
(b) Specific examples include, but are not limited to: quilled pipe
stems, loom beaded belts, pictorial bags adorned with cut glass beads,
deer skin moccasins decorated with moose hair tufting, beaded miniature
dolls, and quilled and beaded amulets.
[68 FR 35170, June 12, 2003]
Sec. 309.15 What are examples of apparel that are Indian products?
(a) Apparel made or substantially decorated by an Indian, including,
but not limited to, parkas, jackets, coats, moccasins, boots, slippers,
mukluks, mittens, gloves, gauntlets, dresses, and shirts, are Indian
products.
(b) Specific examples include, but are not limited to: seal skin
parkas, ribbon appliqu[eacute] dance shawls, smoked moose hide slippers,
deer skin boots, patchwork jackets, calico ribbon shirts, wing dresses,
and buckskin shirts.
[68 FR 35170, June 12, 2003]
Sec. 309.16 What are examples of regalia that are Indian products?
(a) Regalia are ceremonial clothing, modern items with a traditional
theme, and accessories with historical significance made or
significantly decorated by an Indian, including, but not limited to,
that worn to perform traditional dances, participate in traditional
socials, used for dance competitions, and worn on special occasions of
tribal significance. If these items are made or significantly decorated
by an Indian, they are Indian products.
(b) Specific examples include, but are not limited to: hide
leggings, buckskin dresses, breech cloths, dance shawls, frontlets,
shell dresses, button blankets, feather bustles, porcupine roaches,
beaded pipe bags, nickel silver stamped armbands, quilled breast plates,
coup sticks, horse sticks, shields, headdresses, dance fans, and
rattles.
[68 FR 35170, June 12, 2003]
Sec. 309.17 What are examples of woodwork that are Indian products?
(a) Woodwork items made by an Indian, including, but not limited to,
sculpture, drums, furniture, containers, hats, and masks, are Indian
products.
(b) Specific examples include, but are not limited to: hand drums,
totem poles, animal figurines, folk carvings, kachinas, embellished long
house posts, clan house carved doors, chairs, relief panels, bentwood
boxes, snow goggles, red and yellow cedar seagoing canoe paddles,
hunting hats, spirit masks, bows and arrows, atlatls, redwood dug out
canoes, war clubs, flutes, dance sticks, talking sticks, shaman staffs,
cradles, decoys, spiral pipe stems, violins, Native American Church
boxes, and maple ladles, spoons, and soup bowls.
[68 FR 35170, June 12, 2003]
Sec. 309.18 What are examples of hide, leatherwork, and fur that are
Indian products?
(a) Hide, leatherwork, and fur made or significantly decorated by an
Indian, including, but not limited to, parfleches, tipis, horse
trappings and
[[Page 14]]
tack, pouches, bags, and hide paintings, are Indian products.
(b) Specific examples include, but are not limited to: narrative
painted hides, martingales, saddles, bonnet cases, drapes, quirts,
forelocks, rosettes, horse masks, bridles, head stalls, cinches, saddle
bags, side drops, harnesses, arm bands, belts, and other hand crafted
items with studs and tooling.
[68 FR 35170, June 12, 2003]
Sec. 309.19 What are examples of pottery and ceramics that are Indian
products?
(a) Pottery, ceramics, and related arts and crafts items made or
significantly decorated by an Indian, including, but not limited to, a
broad spectrum of clays and ceramic material, are Indian products.
(b) Specific examples include, but are not limited to: ollas, pitch
vessels, pipes, raku bowls, pitchers, canteens, effigy pots, wedding
vases, micaceous bean pots, seed pots, masks, incised bowls, blackware
plates, redware bowls, polychrome vases, and storytellers and other
figures.
[68 FR 35170, June 12, 2003]
Sec. 309.20 What are examples of sculpture, carving, and pipes that
are Indian products?
(a) Sculpture, carving, and pipes made by an Indian, including, but
not limited to, wood, soapstone, alabaster, pipestone, argillite,
turquoise, ivory, baleen, bone, antler, and shell, are Indian products.
(b) Specific examples include, but are not limited to: kachina
dolls, fetishes, animal figurines, pipestone pipes, moose antler combs,
argillite bowls, ivory cribbage boards, whalebone masks, elk horn
purses, and clamshell gorgets.
[68 FR 35170, June 12, 2003]
Sec. 309.21 What are examples of dolls and toys that are Indian products?
Dolls, toys, and related items made by an Indian, including, but not
limited to, no face dolls, corn husk dolls, patchwork and palmetto
dolls, reindeer horn dolls, lacrosse sticks, stick game articles,
gambling sticks, gaming dice, miniature cradle boards, and yo-yos, are
Indian products.
[68 FR 35170, June 12, 2003]
Sec. 309.22 What are examples of painting and other fine art forms
that are Indian products?
Painting and other fine art forms made by an Indian including but,
not limited to, works on canvas, photography, sand painting, mural,
computer generated art, graphic art, video art work, printmaking,
drawing, bronze casting, glasswork, and art forms to be developed in the
future, are Indian products.
[68 FR 35170, June 12, 2003]
Sec. 309.23 Does this part apply to products made before 1935?
The provisions of this part do not apply to any art or craft
products made before 1935.
[68 FR 35170, June 12, 2003]
Sec. 309.24 How will statements about Indian origin of art or craft
products be interpreted?
(a) In general. The unqualified use of the term ``Indian'' or of the
term ``Native American'' or the unqualified use of the name of an Indian
tribe, in connection with an art or craft product, is interpreted to
mean for purposes of this part that--
(1) The maker is a member of an Indian tribe, is certified by an
Indian tribe as a non-member Indian artisan, or is a member of the
particular Indian tribe named; and
(2) The art or craft product is an Indian product.
(b) Products of Indians of foreign tribes--(1) In general. The
unqualified use of the term ``Indian'' or of the term ``Native
American'' or the unqualified use of the name of a foreign tribe, in
connection with an art or craft product, regardless of where it is
produced and regardless of any country-of-origin marking on the product,
is interpreted to mean for purposes of this part that--
(i) The maker is a member of an Indian tribe, is certified by an
Indian tribe as a non-member Indian artisan, or is a member of the
particular Indian tribe named;
[[Page 15]]
(ii) The tribe is resident in the United States; and
(iii) The art or craft product is an Indian product.
(2) Exception where country of origin is disclosed. Paragraph (b) of
this section does not apply to any art or craft for which the name of
the foreign country of tribal ancestry is clearly disclosed in
conjunction with marketing of the product.
Example. X is a lineal descendant of a member of Indian Tribe A.
However, X is not a member of Indian Tribe A, nor is X certified by
Indian Tribe A as a non-member Indian artisan. X may not be described in
connection with the marketing of an art or craft product made by X as an
Indian, a Native American, a member of an Indian tribe, a member of
Tribe A, or as a non-member Indian artisan of an Indian tribe. However,
the true statement may be used that X is of Indian descent, Native
American descent, or Tribe A descent.
[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996. Redesignated at
68 FR 35170, June 12, 2003]
Sec. 309.25 How can an individual be certified as an Indian artisan?
(a) In order for an individual to be certified by an Indian tribe as
a non-member Indian artisan for purposes of this part--
(1) The individual must be of Indian lineage of one or more members
of such Indian tribe; and
(2) The certification must be documented in writing by the governing
body of an Indian tribe or by a certifying body delegated this function
by the governing body of the Indian tribe.
(b) As provided in section 107 of the Indian Arts and Crafts Act of
1990, Public Law 101-644, a tribe may not impose a fee for certifying an
Indian artisan.
[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]
Sec. 309.26 What penalties apply?
A person who offers or displays for sale or sells a good, with or
without a Government trademark, in a manner that falsely suggests it is
Indian produced, an Indian product, or the product of a particular
Indian or Indian tribe or Indian arts and crafts organization, resident
within the United States:
(a) Is subject to the criminal penalties specified in section 1159,
title 18, United States Code; and
(b) Is subject to the civil penalties specified in section 305e,
title 25, United States Code.
[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]
Sec. 309.27 How are complaints filed?
Complaints about protected products alleged to be offered or
displayed for sale or sold in a manner that falsely suggests they are
Indian products should be made in writing and addressed to the Director,
Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the
Interior, 1849 C Street, NW, Washington, DC 20240.
[61 FR 54555, Oct. 21, 1996. Redesignated at 68 FR 35170, June 12, 2003]
PART 310_USE OF GOVERNMENT MARKS OF GENUINENESS FOR ALASKAN INDIAN AND
ALASKAN ESKIMO HAND-MADE PRODUCTS--Table of Contents
Sec.
310.1 Penalties.
Alaskan Indian
310.2 Certificates of genuineness, authority to affix.
310.3 Conditions.
310.4 Application of mark.
Alaskan Eskimo
310.5 Certificates of genuineness, authority to affix.
310.6 Conditions.
310.7 Application of mark.
Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.
Source: 4 FR 515, Feb. 4, 1939, unless otherwise noted.
Sec. 310.1 Penalties.
The use of Government trade-marks in an unauthorized manner, or the
colorable imitation of such marks, is subject to the criminal penalties
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C., 305d),
which provides:
Any person who shall counterfeit or colorably imitate any Government
trade-
[[Page 16]]
mark used or devised by the Board as provided in section 305a of this
chapter, or shall, except as authorized by the Board, affix any such
Government trade-mark, or shall knowingly, willfully, and corruptly
affix any reproduction, counterfeit, copy, or colorable imitation
thereof upon any products, Indian or otherwise, or to any labels, signs,
prints, packages, wrappers, or receptacles intended to be used upon or
in connection with the sale of such products, or any person who shall
knowingly make any false statement for the purpose of obtaining the use
of any such Government trade-mark, shall be guilty of a misdemeanor, and
upon conviction thereof shall be enjoined from further carrying on the
act or acts complained of and shall be subject to a fine not exceeding
$2,000 or imprisonment not exceeding six months or both such fine and
imprisonment.
Alaskan Indian
Sec. 310.2 Certificates of genuineness, authority to affix.
Government marks of genuineness for Alaskan Indian hand-made
products may be affixed to articles meeting the conditions specified in
Sec. 310.3 by persons duly authorized by the Indian Arts and Crafts
Board to affix such marks.
Sec. 310.3 Conditions.
No article may carry the Government mark of genuineness for Alaskan
Indian hand-made products unless all of the following conditions are
met:
(a) The article is hand-made by an Alaskan Indian.
(b) The article is hand-made under conditions not resembling a
workshop or factory system.
(c) All raw materials used in carving, basketry and mat making, and
all furs and hides used in the manufacture of hand-made artifacts, must
be of native origin.
Sec. 310.4 Application of mark.
All marks shall be applied to the article with a rubber stamp to be
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a
distinctive letter and may be used only by the person to whom it has
been issued. With the addition of the distinctive letter, each stamp
shall read:
( )
Hand-Made
Alaskan Indian
U S
Indian Arts & Crafts Board
I D
or, in the case of articles too small to carry this stamp:
( )
U S I D
Alaskan Indian
On baskets and fabrics which offer no surface for the application of
such a rubber stamp, the stamp shall be placed on a paper tag attached
to the article by a wire caught in a lead seal disc that shall be
impressed and made fast with a hand seal press furnished by the Indian
Arts and Crafts Board.
Alaskan Eskimo
Sec. 310.5 Certificates of genuineness, authority to affix.
Government marks of genuineness for Alaskan Eskimo hand-made
products may be affixed to articles meeting the conditions specified in
Sec. 310.6 by persons duly authorized by the Indian Arts and Crafts
Board to affix such marks.
Sec. 310.6 Conditions.
No article may carry the Government mark of genuineness for Alaskan
Eskimo hand-made products unless all of the following conditions are
met:
(a) The article is hand-made by an Alaskan Eskimo.
(b) The article is hand-made under conditions not resembling a
workshop or factory system.
(c) All raw materials used in the making of the articles are of
native origin except:
(1) Commercial fasteners.
(2) Calfskin trimmings for decorative borders on parkas and mukluks.
(3) Tops for mukluks made of commercial fabric.
(4) Commercially made draw-cords for mukluks.
[[Page 17]]
(5) Commercial fabrics for parka linings.
(6) Sewing thread and glass beads.
Sec. 310.7 Application of mark.
All marks shall be applied to the article with a rubber stamp to be
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a
distinctive letter and may be used only by the person to whom it has
been issued. With the addition of the distinctive letter, each stamp
shall read:
( )
Hand-Made
Alaskan Eskimo
U S
Indian Arts & Crafts Board
I D
or, in the case of articles too small to carry this stamp:
( )
U S I D
Alaskan Eskimo
On baskets and fabrics which offer no surface for the application of
such a rubber stamp, the stamp shall be placed on a paper tag attached
to the article by a wire caught in a lead seal disc that shall be
impressed and made fast with a hand seal press furnished by the Indian
Arts and Crafts Board.
[[Page 19]]
CHAPTER III--NATIONAL INDIAN GAMING COMMISSION, DEPARTMENT OF THE
INTERIOR
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL PROVISIONS
Part Page
501 Purpose and scope of this chapter........... 21
502 Definitions of this chapter................. 21
503 Commission information collection
requirements under the Paperwork
Reduction Act: OMB control numbers and
expiration dates........................ 25
504-512
[Reserved]
513 Debt collection............................. 25
514 Fees (Eff. until 10-1-12)................... 32
514 Fees (Eff. 10-1-12)......................... 35
515 Privacy Act procedures...................... 38
516 Testimony of commissioners and employees and
former commissioners and former
employees respecting official duties;
response to subpoena.................... 41
517 Freedom of Information Act procedures....... 43
518 Self regulation of class II gaming.......... 50
519 Service..................................... 56
SUBCHAPTER B--APPROVAL OF CLASS II AND CLASS III ORDINANCES AND
RESOLUTIONS
520-521
[Reserved]
522 Submission of gaming ordinance or resolution 58
523
[Reserved]
524 Appeals..................................... 60
525-529
[Reserved]
SUBCHAPTER C--MANAGEMENT CONTRACT PROVISIONS
530
[Reserved]
531 Content of management contracts............. 62
532
[Reserved]
533 Approval of management contracts............ 63
534
[Reserved]
535 Post-approval procedures.................... 65
536
[Reserved]
[[Page 20]]
537 Background investigations for persons or
entities with a financial interest in,
or having management responsibility for,
a management contract................... 67
538
[Reserved]
539 Appeals..................................... 69
SUBCHAPTER D--HUMAN SERVICES
540-541
[Reserved]
542 Minimum internal control standards.......... 71
543 Minimum internal control standards for class
II gaming............................... 161
544-546
[Reserved]
547 Minimum technical standards for gaming
equipment used with the play of class II
games................................... 178
548-549
[Reserved]
SUBCHAPTER E--GAMING LICENSES AND BACKGROUND INVESTIGATIONS FOR KEY
EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS
550-555
[Reserved]
556 Background investigations for primary
management officials and key employees.. 197
557
[Reserved]
558 Gaming licenses for key employees and
primary management officials............ 199
559 Facility license notifications, renewals,
and submissions......................... 200
SUBCHAPTER F [RESERVED]
560-569
[Reserved]
SUBCHAPTER G--COMPLIANCE AND ENFORCEMENT PROVISIONS
570
[Reserved]
571 Monitoring and investigations............... 203
572
[Reserved]
573 Enforcement................................. 206
574
[Reserved]
575 Civil fines................................. 208
576
[Reserved]
577 Appeals before the Commission............... 209
578-579
[Reserved]
SUBCHAPTER H [RESERVED]
580-589
[Reserved]
SUBCHAPTER I [RESERVED]
590-599
[Reserved]
[[Page 21]]
SUBCHAPTER A_GENERAL PROVISIONS
PART 501_PURPOSE AND SCOPE OF THIS CHAPTER--Table of Contents
Sec.
501.1 Purpose.
501.2 Scope.
Authority: 25 U.S.C. 2706, 2710.
Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.
Sec. 501.1 Purpose.
This chapter implements the Indian Gaming Regulatory Act (Pub. L.
100-497, 102 Stat. 2467).
Sec. 501.2 Scope.
(a) Tribes and other operators of class II and class III gaming
operations on Indian lands shall conduct gaming operations according to
the requirements of the Indian Gaming Regulatory Act, the regulations of
this chapter, tribal law and, where applicable, the requirements of a
compact or procedures prescribed by the Secretary under 25 U.S.C.
2710(d).
(b) Class I gaming on Indian lands is within the exclusive
jurisdiction of the Indian tribes and shall not be subject to the
provisions of the Indian Gaming Regulatory Act or this chapter.
(c) Class II gaming on Indian lands shall continue to be within the
jurisdiction of an Indian tribe, but shall be subject to the provisions
of the Indian Gaming Regulatory Act and this chapter.
(d) Nothing in the Indian Gaming Regulatory Act or this chapter
shall impair the right of an Indian tribe to regulate class III gaming
on its Indian lands concurrently with a State, except to the extent that
such regulation is inconsistent with, or less stringent than, the State
laws and regulations made applicable by a Tribal-State compact that is
entered into by an Indian tribe under the Indian Gaming Regulatory Act
and that is in effect.
PART 502_DEFINITIONS OF THIS CHAPTER--Table of Contents
Sec.
502.1 Chairman.
502.2 Class I gaming.
502.3 Class II gaming.
502.4 Class III gaming.
502.5 Collateral agreement.
502.6 Commission.
502.7 Electronic, computer or other technologic aid.
502.8 Electronic or electromechanical facsimile.
502.9 Other games similar to bingo.
502.10 Gaming operation.
502.11 House banking game.
502.12 Indian lands.
502.13 Indian tribe.
502.14 Key employee.
502.15 Management contract.
502.16 Net revenues.
502.17 Person having a direct or indirect financial interest in a
management contract.
502.18 Person having management responsibility for a management
contract.
502.19 Primary management official.
502.20 Secretary.
502.21 Tribal-State compact.
502.22 Construction and maintenance of the gaming facility, and the
operation of that gaming is conducted in a manner which
adequately protects the environment and the public health and
safety.
502.23 Facility license.
Authority: 25 U.S.C. 2701 et seq.
Source: 57 FR 12392, Apr. 9, 1992, unless otherwise noted.
Sec. 502.1 Chairman.
Chairman means the Chairman of the National Indian Gaming Commission
or his or her designee.
Sec. 502.2 Class I gaming.
Class I gaming means:
(a) Social games played solely for prizes of minimal value; or
(b) Traditional forms of Indian gaming when played by individuals in
connection with tribal ceremonies or celebrations.
Sec. 502.3 Class II gaming.
Class II gaming means:
(a) Bingo or lotto (whether or not electronic, computer, or other
technologic aids are used) when players:
(1) Play for prizes with cards bearing numbers or other
designations;
(2) Cover numbers or designations when object, similarly numbered or
[[Page 22]]
designated, are drawn or electronically determined; and
(3) Win the game by being the first person to cover a designated
pattern on such cards;
(b) If played in the same location as bingo or lotto, pull-tabs,
punch boards, tip jars, instant bingo, and other games similar to bingo;
(c) Nonbanking card games that:
(1) State law explicitly authorizes, or does not explicitly
prohibit, and are played legally anywhere in the state; and
(2) Players play in conformity with state laws and regulations
concerning hours, periods of operation, and limitations on wagers and
pot sizes;
(d) Card games played in the states of Michigan, North Dakota, South
Dakota, or Washington if:
(1) An Indian tribe actually operates the same card games as played
on or before May 1, 1988, as determined by the Chairman; and
(2) The pot and wager limits remain the same as on or before May 1,
1988, as determined by the Chariman;
(e) Individually owned class II gaming operations--
(1) That were operating on September 1, 1986;
(2) That meet the requirements of 25 U.S.C. 2710(b)(4)(B);
(3) Where the nature and scope of the game remains as it was on
October 17, 1988; and
(4) Where the ownership interest or interests are the same as on
October 17, 1988.
Sec. 502.4 Class III gaming.
Class III gaming means all forms of gaming that are not class I
gaming or class II gaming, including but not limited to:
(a) Any house banking game, including but not limited to--
(1) Card games such as baccarat, chemin de fer, blackjack (21), and
pai gow (if played as house banking games);
(2) Casino games such as roulette, craps, and keno;
(b) Any slot machines as defined in 15 U.S.C. 1171(a)(1) and
electronic or electromechanical facsimiles of any game of chance;
(c) Any sports betting and parimutuel wagering including but not
limited to wagering on horse racing, dog racing or jai alai; or
(d) Lotteries.
Sec. 502.5 Collateral agreement.
Collateral agreement means any contract, whether or not in writing,
that is related, either directly or indirectly, to a management
contract, or to any rights, duties or obligations created between a
tribe (or any of its members, entities, or organizations) and a
management contractor or subcontractor (or any person or entity related
to a management contractor or subcontractor).
Sec. 502.6 Commission.
Commission means the National Indian Gaming Commission.
Sec. 502.7 Electronic, computer or other technologic aid.
(a) Electronic, computer or other technologic aid means any machine
or device that:
(1) Assists a player or the playing of a game;
(2) Is not an electronic or electromechanical facsimile; and
(3) Is operated in accordance with applicable Federal communications
law.
(b) Electronic, computer or other technologic aids include, but are
not limited to, machines or devices that:
(1) Broaden the participation levels in a common game;
(2) Facilitate communication between and among gaming sites; or
(3) Allow a player to play a game with or against other players
rather than with or against a machine.
(c) Examples of electronic, computer or other technologic aids
include pull tab dispensers and/or readers, telephones, cables,
televisions, screens, satellites, bingo blowers, electronic player
stations, or electronic cards for participants in bingo games.
[67 FR 41172, June 17, 2002]
Sec. 502.8 Electronic or electromechanical facsimile.
Electronic or electromechanical facsimile means a game played in an
electronic or electromechanical format that replicates a game of chance
by incorporating all of the characteristics of the game, except when,
for bingo,
[[Page 23]]
lotto, and other games similar to bingo, the electronic or
electromechanical format broadens participation by allowing multiple
players to play with or against each other rather than with or against a
machine.
[67 FR 41172, June 17, 2002]
Sec. 502.9 Other games similar to bingo.
Other games similar to bingo means any game played in the same
location as bingo (as defined in 25 USC 2703(7)(A)(i)) constituting a
variant on the game of bingo, provided that such game is not house
banked and permits players to compete against each other for a common
prize or prizes.
[67 FR 41172, June 17, 2002]
Sec. 502.10 Gaming operation.
Gaming operation means each economic entity that is licensed by a
tribe, operates the games, receives the revenues, issues the prizes, and
pays the expenses. A gaming operation may be operated by a tribe
directly; by a management contractor; or, under certain conditions, by
another person or other entity.
Sec. 502.11 House banking game.
House banking game means any game of chance that is played with the
house as a participant in the game, where the house takes on all
players, collects from all losers, and pays all winners, and the house
can win.
Sec. 502.12 Indian lands.
Indian lands means:
(a) Land within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power and
that is either--
(1) Held in trust by the United States for the benefit of any Indian
tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction by
the United States against alienation.
Sec. 502.13 Indian tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community of Indians that the Secretary recognizes
as--
(a) Eligible for the special programs and services provided by the
United States to Indians because of their status as Indians; and
(b) Having powers of self-government.
Sec. 502.14 Key employee.
Key employee means:
(a) A person who performs one or more of the following functions:
(1) Bingo caller;
(2) Counting room supervisor;
(3) Chief of security;
(4) Custodian of gaming supplies or cash;
(5) Floor manager;
(6) Pit boss;
(7) Dealer;
(8) Croupier;
(9) Approver of credit; or
(10) Custodian of gambling devices including persons with access to
cash and accounting records within such devices;
(b) If not otherwise included, any other person whose total cash
compensation is in excess of $50,000 per year; or,
(c) If not otherwise included, the four most highly compensated
persons in the gaming operation.
(d) Any other person designated by the tribe as a key employee.
[57 FR 12392, Apr. 9, 1992, as amended at 74 FR 36932, July 27, 2009]
Sec. 502.15 Management contract.
Management contract means any contract, subcontract, or collateral
agreement between an Indian tribe and a contractor or between a
contractor and a subcontractor if such contract or agreement provides
for the management of all or part of a gaming operation.
Sec. 502.16 Net revenues.
Net revenues means gross gaming revenues of an Indian gaming
operation less--
(a) Amounts paid out as, or paid for, prizes; and
(b) Total gaming-related operating expenses, including all those
expenses of the gaming operation commonly known as operating expenses
and non-
[[Page 24]]
operating expenses consistent with professional accounting
pronouncements, excluding management fees.
[74 FR 36932, July 27, 2009]
Sec. 502.17 Person having a direct or indirect financial interest
in a management contract.
Person having a direct or indirect financial interest in a
management contract means:
(a) When a person is a party to a management contract, any person
having a direct financial interest in such management contract;
(b) When a trust is a party to a management contract, any
beneficiary or trustee;
(c) When a partnership is a party to a management contract, any
partner;
(d) When a corporation is a party to a management contract, any
person who is a director or who holds at least 5% of the issued and
outstanding stock alone or in combination with another stockholder who
is a spouse, parent, child or sibling when the corporation is publicly
traded or the top ten (10) shareholders for a privately held
corporation;
(e) When an entity other than a natural person has an interest in a
trust, partnership or corporation that has an interest in a management
contract, all parties of that entity are deemed to be persons having a
direct financial interest in a management contract; or
(f) Any person or entity who will receive a portion of the direct or
indirect interest of any person or entity listed above through
attribution, grant, pledge, or gift.
[74 FR 36932, July 27, 2009]
Sec. 502.18 Person having management responsibility for a management
contract.
Person having management responsibility for a management contract
means the person designated by the management contract as having
management responsibility for the gaming operation, or a portion
thereof.
Sec. 502.19 Primary management official.
Primary management official means:
(a) The person having management responsibility for a management
contract;
(b) Any person who has authority:
(1) To hire and fire employees; or
(2) To set up working policy for the gaming operation; or
(c) The chief financial officer or other person who has financial
management responsibility.
(d) Any other person designated by the tribe as a primary management
official.
[57 FR 12392, Apr. 9, 1992, as amended at 74 FR 36933, July 27, 2009]
Sec. 502.20 Secretary.
Secretary means the Secretary of the Interior.
Sec. 502.21 Tribal-State compact.
Tribal-State compact means an agreement between a tribe and a state
about class III gaming under 25 U.S.C. 2710(d).
Sec. 502.22 Construction and maintenance of the gaming facility, and
the operation of that gaming is conducted in a manner which adequately
protects the environment and the public health and safety.
Construction and maintenance of the gaming facility, and the
operation of that gaming is conducted in a manner which adequately
protects the environment and the public health and safety means a tribe
has identified and enforces laws, resolutions, codes, policies,
standards or procedures applicable to each gaming place, facility or
location that protect the environment and the public health and safety,
including standards under a tribal-state compact or Secretarial
procedures. Laws, resolutions, codes, policies, standards or procedures
in this area shall cover, at a minimum:
(a) Emergency preparedness, including but not limited to fire
suppression, law enforcement, and security;
(b) Food and potable water;
(c) Construction and maintenance;
(d) Hazardous materials;
(e) Sanitation (both solid waste and wastewater); and
(f) Other environmental or public health and safety standards
adopted by the tribe in light of climate, geography, and other local
conditions and applicable to its gaming facilities, places or locations.
[73 FR 6029, Feb. 1, 2008]
[[Page 25]]
Sec. 502.23 Facility license.
Facility license means a separate license issued by a tribe to each
place, facility, or location on Indian lands where the tribe elects to
allow class II or III gaming.
[73 FR 6029, Feb. 1, 2008]
PART 503_COMMISSION INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS AND EXPIRATION
DATES--Table of Contents
Sec.
503.1 Purpose of this part.
503.2 Display of control numbers and expiration dates.
Authority: 44 U.S.C. 3501 et seq.
Source: 58 FR 16495, Mar. 29, 1993, unless otherwise noted.
Sec. 503.1 Purpose of this part.
This part displays the control numbers and expiration dates assigned
to information collection requirements of the National Indian Gaming
Commission (NIGC, or the Commission) assigned by the Director of the
Office of Management and Budget (OMB) pursuant to the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
Sec. 503.2 Display of control numbers and expiration dates.
------------------------------------------------------------------------
Currently
assigned OMB Expiration
Part or section number of title 25 CFR control date
numbers
------------------------------------------------------------------------
Sec. 514.1 (submission of fee reports) 3141-0007 6/30/94
Sec. 515.3 (request for access to 3141-0002 10/31/95
records)...............................
Sec. 515.5 (request for amendment to 3141-0002 10/31/95
records)...............................
Sec. 515.7 (appeals).................. 3141-0002 10/31/95
Part 519 (designation of agent for 3141-0003 10/31/95
service)...............................
Sec. 522.2 (submission and approval of 3141-0003 10/31/95
new ordinances)........................
Sec. 522.3 (amendment)................ 3141-0003 10/31/95
Sec. 522.12 (revocation of class III 3141-0003 10/31/95
gaming)................................
Sec. 523.2 (submission and approval of 3141-0003 10/31/95
existing ordinances)...................
Sec. 523.4 (amendment)................ 3141-0003 10/31/95
Part 524 (appeals)...................... 3141-0003 10/31/95
Sec. 533.3 (approval of management 3141-0004 10/31/95
contracts).............................
Sec. 533.5 (modifications)............ 3141-0004 10/31/95
Sec. 535.1 (post-approval procedures). 3141-0004 10/31/95
Part 537 (background investigations).... 3141-0004 10/31/95
Part 539 (appeals)...................... 3141-0004 10/31/95
Sec. 556.4 (background investigations 3141-0003 10/31/95
for class II gaming)...................
Sec. 556.5 (background investigations) 3141-0003 10/31/95
Part 558 (gaming licenses).............. 3141-0003 10/31/95
Sec. 571.7 (maintenance of records)... 3141-0001 7/31/95
Sec. 571.12 (audits).................. 3141-0001 7/31/95
Sec. 571.13 (audits).................. 3141-0001 7/31/95
Sec. 571.14 (audit reconciliation).... 3141-0001 7/31/95
Sec. 575.5 (information to Chairman).. 3141-0001 7/31/95
Sec. 575.6 (penalty reduction)........ 3141-0001 7/31/95
Sec. 577.3 (notice of appeal)......... 3141-0001 7/31/95
Sec. 577.8 (confidentiality).......... 3141-0001 7/31/95
Sec. 577.12 (intervention)............ 3141-0001 7/31/95
Sec. 577.14 (objections).............. 3141-0001 7/31/95
------------------------------------------------------------------------
PARTS 504 512 [RESERVED]
PART 513_DEBT COLLECTION--Table of Contents
Subpart A_General Provisions
Sec.
513.1 What definitions apply to the regulations in this part?
513.2 What is the Commission's authority to issue these regulations?
[[Page 26]]
513.3 What happens to delinquent debts owed to the Commission?
513.4 What notice will the Commission give to a debtor of the
Commission's intent to collect debts?
513.5 What is the Commission's policy on interest, penalty charges, and
administrative costs?
513.6 What are the requirements for offset review?
513.7 What is the Commission's policy on revoking a debtor's ability to
engage in Indian gaming for failure to pay a debt?
Subpart B_Administrative and Tax Refund Offset
513.20 What debts can the Commission refer to Treasury for collection by
administrative and tax refund offset?
513.21 What notice will a debtor be given of the Commission's intent to
collect a debt through administrative and tax refund offset?
Subpart C_Salary Offset
513.30 When may the Commission use salary offset to collect debts?
513.31 What notice will the Commission, as the creditor agency, give a
debtor that salary offset will occur?
513.32 What are the hearing procedures when the Commission is the
creditor agency?
513.33 Will the Commission issue a certification when the Commission is
the creditor agency?
513.34 What opportunity is there for a voluntary repayment agreement
when the Commission is the creditor agency?
513.35 What special review is available when the Commission is the
creditor agency?
513.36 Under what conditions will the Commission refund amounts
collected by salary offset?
513.37 What will the Commission do as the paying agency?
Subpart D_Administrative Wage Garnishment
513.40 How will the Commission handle debt collection through
administrative wage garnishment?
Authority: 31 U.S.C. 3711, 3716-3718, 3720A, 3720D; 5 U.S.C. 5514;
25 U.S.C. 2713(a)(1).
Source: 66 FR 58057, Nov. 20, 2001, unless otherwise noted.
Subpart A_General Provisions
Sec. 513.1 What definitions apply to the regulations in this part?
As used in this part:
(a) Administrative offset means the withholding of funds payable by
the United States (including funds payable by the United States on
behalf of a State government) to any person, or the withholding of funds
held by the United States for any person, in order to satisfy a debt
owed to the United States.
(b) Agency means a department, agency, court, court administrative
office, or instrumentality in the executive, judicial, or legislative
branch of government, including a government corporation.
(c) Chairman means the Chairman of the Commission, or his or her
designee.
(d) Commission means the National Indian Gaming Commission.
(e) Creditor agency means a Federal agency that is owed a debt.
(f) Day means calendar day. To count days, include the last day of
the period unless it is a Saturday, Sunday, or Federal legal holiday.
(g) Debt and claim are synonymous and interchangeable. They refer
to, among other things, fines, fees, and penalties that a Federal agency
has determined are due the United States from any person, organization,
or entity, except another Federal agency. For the purposes of
administrative offset under 31 U.S.C. 3716 and subpart B of this part,
the terms ``debt'' and ``claims'' include money, funds, or property owed
to a State, the District of Columbia, American Samoa, Guam, the U.S.
Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the
Commonwealth of Puerto Rico.
(h) Debtor means a person, contractor, Tribe, or other entity that
owes a debt to the Commission.
(i) Delinquent debt means a debt that has not been paid within the
time limit prescribed by the applicable Act, law, or contract.
(j) Disposable pay means the part of an employee's pay that remains
after deductions that must be withheld by law have been made (other than
deductions to execute garnishment orders for child support and/or
alimony, in accordance with 5 CFR part 581, and for commercial
garnishment of federal employees' pay, in accordance with 5 CFR part
582). ``Pay'' includes current basic
[[Page 27]]
pay, special pay, incentive pay, retired pay, and retainer pay.
(k) Employee means a current employee of an agency, including a
current member of the Armed Forces or Reserve of the Armed Forces of the
United States.
(l) DOJ means the U.S. Department of Justice.
(m) FCCS means the Federal Claims Collection Standards, which are
published at 31 CFR parts 900-904.
(n) FMS means the Federal Management Service, a bureau of the U.S.
Department of the Treasury.
(o) Paying agency means the agency that makes payment to an
individual who owes a debt to the United States.
(p) Payroll office means the office in an agency that is primarily
responsible for payroll records and the coordination of pay matters with
the appropriate personnel office.
(q) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium,
tribe, or other entity that owes a debt to the United States, excluding
the United States.
(r) Salary offset means a payroll procedure to collect debt under 5
U.S.C. 5514 and 31 U.S.C. 3716 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee,
without the employee's consent.
(s) Tax refund offset means the reduction of a tax refund by the
amount of a past-due legally enforceable debt.
Sec. 513.2 What is the Commission's authority to issue these
regulations?
(a) The Commission has authority to issue these regulations under 25
U.S.C. 2713(a)(1) of the Indian Gaming Regulatory Act. The Commission is
issuing the regulations in this part under the authority of: The FCCS,
the Debt Collection Act of 1982 and the Debt Collection Improvement Act
of 1996, 31 U.S.C. 3711, 3716-3718, and 3720A. In addition, the salary
offset provisions are issued in conformity with 5 U.S.C. 5514 and its
implementing regulations published at 5 CFR part 550, subpart K.
(b) The Commission hereby adopts the provisions of the FCCS (31 CFR
parts 900-904). The Commission's regulations supplement the FCCS as
necessary.
Sec. 513.3 What happens to delinquent debts owed to the Commission?
(a) The Commission will collect debts in accordance with these
regulations in this part.
(b) The Commission will transfer to the Department of the Treasury
any past due, legally enforceable nontax debt that has been delinquent
for 180 days or more so that Treasury may take appropriate action to
collect the debt or terminate collection action in accordance with 5
U.S.C. 5514, 26 U.S.C. 6402, 31 U.S.C. 3711 and 3716, the FCCS, 5 CFR
550.1108, and 31 CFR part 285.
(c) The Commission may transfer any past due, legally enforceable
nontax debt that has been delinquent for fewer than 180 days to the
Department of Treasury for collection in accordance with 5 U.S.C. 5514,
26 U.S.C. 6402, 31 U.S.C. 3711 and 3716, the FFCS, 5 CFR 550.1108, and
31 CFR part 285.
Sec. 513.4 What notice will the Commission give to a debtor of the
Commission's intent to collect debts?
(a) When the Chairman determines that a debt is owed to the
Commission, the Chairman will send a written notice (Notice), also known
as a demand letter. The Notice will be sent by facsimile or mail to the
most current address known to the Commission. The Notice will inform the
debtor of the following:
(1) The amount, nature, and basis of the debt;
(2) The methods of offset that may be employed;
(3) The debtor's opportunity to inspect and copy agency records
related to the debt;
(4) The debtor's opportunity to enter into a written agreement with
the Commission to repay the debt;
(5) The Commission's policy concerning interest, penalty charges,
and administrative costs, as set out in Sec. 513.5, including a
statement that such assessments must be made against the debtor unless
excused in accordance with the FCCS and this part;
(6) The date by which payment should be made to avoid late charges
and enforced collection;
[[Page 28]]
(7) The name, address, and telephone number of a contact person or
office at the Commission that is available to discuss the debt; and
(8) The debtor's opportunity for review.
(b) A debtor whose debt arises from a notice of violation and/or
civil fine assessment that has become a final order and that was subject
to the Commission's appeal procedures at 25 CFR part 577 may not re-
litigate matters that were the subject of the final order.
Sec. 513.5 What is the Commission's policy on interest, penalty
charges, and administrative costs?
(a) Interest.
(1) The Commission will assess interest on all delinquent debts
unless prohibited by statute, regulation, or contract.
(2) Interest begins to accrue on all debts from the date that the
debt becomes delinquent. The Commission will assess interest at the rate
established annually by the Secretary of the Treasury under 31 U.S.C.
3717.
(b) Penalties. The Commission will assess a penalty charge of 6
percent a year on any portion of a delinquent debt.
(c) Administrative costs. The Commission will assess charges to
cover administrative costs incurred as a result of the debtor's failure
to pay a debt before it becomes delinquent. Administrative costs include
the cost of providing a copy of the file to the debtor and costs
incurred in processing and handling the debt because it became
delinquent, such as costs incurred in obtaining a credit report or in
using a private collection contractor, or service fees charged by a
Federal agency for collection activities undertaken on behalf of the
Commission.
(d) Interest, penalties, and administrative costs will continue to
accrue throughout any appeal process.
(e) Allocation of payments. A partial or installment payment by a
debtor will be applied first to outstanding penalty assessments, second
to administrative costs, third to accrued interest, and fourth to the
outstanding debt principal.
(f) Additional authority. The Commission may assess interest,
penalty charges, and administrative costs on debts that are not subject
to 31 U.S.C. 3717 to the extent authorized under common law or other
applicable statutory authority.
(g) Waiver. (1) Regardless of the amount of the debt, the Chairman
may decide to waive collection of all or part of the accrued interest,
penalty charges, or administrative costs if collection of these charges
would be against equity and good conscience or not in the Commission's
best interest.
(2) A decision to waive interest, penalty charges, or administrative
costs may be made at any time before a debt is paid. However, when
charges have been collected before the waiver decision, they will not be
refunded. The Chairman's decision whether to waive collection of these
charges is final and not subject to further review.
Sec. 513.6 What are the requirements for offset review?
(a) The Commission will provide the debtor with a reasonable
opportunity for an oral hearing when the debtor requests reconsideration
of the debt and the Commission determines that the question of
indebtedness cannot be resolved by review of the documentary evidence.
(b) Unless otherwise required by law, an oral hearing is not
required to be a formal evidentiary hearing, although the Commission
will carefully document all significant matters discussed at the
hearing.
(c) When an oral hearing is not required, the Commission will review
the request for reconsideration based on the written record.
Sec. 513.7 What is the Commission's policy on revoking a debtor's
ability to engage in Indian gaming for failure to pay a debt?
The Chairman of the Commission may revoke a debtor's ability to
operate, manage, or otherwise participate in the operation of an Indian
gaming facility if the debtor inexcusably or willfully fails to pay a
debt. The revocation of ability to engage in gaming may last only as
long as the debtor's indebtedness.
[[Page 29]]
Subpart B_Administrative and Tax Refund Offset
Sec. 513.20 What debts can the Commission refer to Treasury for
collection by administrative and tax refund offset?
(a) The Commission may refer any past due, legally enforceable
nonjudgment debt of a person to the Treasury for administrative and tax
refund offset if the debt:
(1) Has been delinquent for at least three months and will not have
been delinquent more than 10 years at the time the offset is made;
(2) Is at least $25.00 or another amount established by Treasury.
(b) Debts reduced to judgment may be referred to Treasury for tax
refund offset at any time.
Sec. 513.21 What notice will a debtor be given of the Commission's
intent to collect a debt through administrative and tax refund offset?
(a) The Commission will give the debtor written notice of its intent
to offset before initiating the offset. Notice will be mailed to the
debtor at the debtor's last known address as determined by the
Commission.
(b) The notice will state the amount of the debt and notify the
debtor that:
(1) The debt is past due and, unless repaid within 60 days after the
date of the notice, the Commission will refer the debt to Treasury for
administrative and tax refund offset;
(2) The debtor has 60 calendar days to present evidence that all or
part of the debt is not past-due or legally enforceable; and
(3) The debtor has an opportunity to make a written agreement to
repay the debt.
Subpart C_Salary Offset
Sec. 513.30 When may the Commission use salary offset to collect
debts?
(a) The Commission collects debts owed by employees to the Federal
Government by means of salary offset under the authority of: 5 U.S.C.
5514; 31 U.S.C. 3716; 5 CFR part 550, subpart K; 31 CFR 285.7; and this
subpart. Salary offset is applicable when the Commission is attempting
to collect a debt owed by an individual employed by the Commission or
another agency.
(b) Nothing in the regulations in this subpart precludes the
compromise, suspension, or termination of collection actions under the
Federal Claims Collection Act of 1966, as amended, or the Federal Claims
Collection Standards.
(c) A levy pursuant to the Internal Revenue Code takes precedence
over a salary offset under this subpart, as provided in 5 U.S.C. 5514(d)
and 31 U.S.C. 3716.
(d) The regulations in this subpart do not apply to any case where
collection of a debt by salary offset is explicitly prohibited by
another statute.
(e) This subpart's regulations covering notice, hearing, written
responses, and final decisions do not apply to:
(1) Any routine intra-agency adjustment in pay that is attributable
to clerical or administrative error or delay in processing pay documents
that have occurred within the four pay periods preceding the adjustment,
or any adjustment to collect a debt amounting to $50 or less. However,
at the time of any adjustment, or as soon thereafter as possible, the
Commission's payroll agency will provide the employee with a written
notice of the nature and amount of the adjustment and a contact point
for appealing the adjustment.
(2) Any negative adjustment to pay that arises from the debtor's
election of coverage or a change in coverage under a Federal benefits
program requiring periodic deductions from pay, if the amount to be
recovered was accumulated over four or fewer pay periods. However, at
the time of the adjustment, the Commission's payroll agent will provide
in the debtor's earnings statement a clear statement informing the
debtor of the previous overpayment.
(f) An employee's involuntary payment of all or any of the debt
through salary offset will not be construed as a waiver of any rights
that the employee may have under the law, unless there are statutory or
contractual provisions to the contrary.
[[Page 30]]
Sec. 513.31 What notice will the Commission, as the creditor agency,
give a debtor that salary offset will occur?
(a) Deductions from a debtor's salary will not be made unless the
Commission sends the debtor a written Notice of Intent at least 30
calendar days before the salary offset is initiated.
(b) The Notice of Intent will include the following:
(1) Notice that the Commission has reviewed the records relating to
the debt and has determined that the employee owes the debt;
(2) Notice that, after a 30-day period, the Commission will begin to
collect the debt by deductions from the employee's current disposable
pay account and the date on which deductions from salary will start;
(3) The amount of the debt and the facts giving rise to it;
(4) The frequency and the amount of the intended deduction stated as
a fixed dollar amount or as a percentage of pay not to exceed 15 percent
of the disposable pay, and the intention to continue the deductions
until the debt and all accumulated interest are paid in full or
resolved;
(5) The name, address, and telephone number of the person to whom
the debtor may propose a written alternative schedule for voluntary
repayment in lieu of salary offset. The debtor must include a
justification for the alternative schedule in the proposal;
(6) The Commission's policy concerning interest, penalties, and
administrative costs, set out at Sec. 513.5, and a statement that
assessments will be made unless excused in accordance with the FCCS;
(7) Notice of the employee's right to inspect and copy all
Commission records pertaining to the debt and the name, address, and
telephone number of the Commission employee to whom requests for access
must be made;
(8) Notice of the employee's opportunity to a hearing conducted by
an individual who does not work for the Commission on the Commission's
determination of the existence or amount of the debt and the terms of
the repayment schedule;
(9) Notice that filing a request for a hearing on or before the 15th
calendar day following the debtor's receiving the Notice of Intent will
stay collection proceedings and that a final decision will be issued at
the earliest practical date, but not later than 60 days after the filing
of the petition for hearing, unless the employee requests, and a hearing
official grants, a delay in proceedings;
(10) An explanation of the effect of submitting knowingly false or
frivolous statements; and
(11) Notice that amounts paid on or deducted from debts that are
later waived or found not to be owed will be promptly refunded to the
employee.
Sec. 513.32 What are the hearing procedures when the Commission is
the creditor agency?
(a) To request a hearing, the debtor must file, within 15 days of
receiving the Commission's notice of intent to offset, a written
petition signed by the debtor and addressed to the Commission stating
why the debtor believes the Commission's determination of the existence
or amount of the debt is in error. The Commission may waive the 15-day
time limit for filing a request for hearing if the employee shows that
the delay was due to circumstances beyond his or her control or because
the employee did not receive notice of the 15-day time limit. A debtor
who has previously obtained a hearing to contest a debt that arose from
a notice of violation or proposed civil fine assessment matters under 25
CFR part 577 may not re-litigate matters that were at issue in that
hearing.
(b) Regardless of whether the debtor is a Commission employee, the
Commission will provide a prompt and appropriate hearing before a
hearing official who is not from the Commission.
(c) The hearing will be conducted according to the FCCS review
requirements at 31 CFR 901.3(e).
(d) Unless the employee requests, and a hearing official grants, a
delay in proceedings, within 60 days after the petition for hearing the
hearing official will issue a written decision on:
(1) The determination of the creditor agency concerning the
existence or amount of the debt; and
[[Page 31]]
(2) The repayment schedule, if a schedule was not established by
written agreement between the employee and the creditor agency.
(e) If the hearing official determines that a debt may not be
collected by salary offset but the Commission has determined that the
debt is valid, the Commission may seek collection of the debt through
other means in accordance with applicable law and regulations.
(f) The form of hearings, written responses, and final decisions
will be according to the Commission's review requirements at Sec.
513.7. Written decisions regarding salary offset that are provided after
a request for hearing must state: The facts purported to evidence the
nature and origin of the alleged debt; the hearing official's analysis,
findings, and conclusions as to the employee's or creditor agency's
grounds; the amount and validity of the alleged debt; and, where
applicable, the repayment schedule.
Sec. 513.33 Will the Commission issue a certification when the
Commission is the creditor agency?
Yes. Upon completion of the procedures established in this subpart
and pursuant to 5 U.S.C. 5514, the Commission will submit a
certification to Treasury or to a paying agency in the form prescribed
by the paying agency.
Sec. 513.34 What opportunity is there for a voluntary repayment
agreement when the Commission is the creditor agency?
(a) In response to a Notice of Intent, an employee may propose to
repay the debt voluntarily in lieu of salary offset by submitting a
written proposed repayment schedule to the Commission. A proposal must
be received by the Commission within 15 calendar days after the employee
is sent the Notice of Intent.
(b) The Commission will notify the employee whether, within the
Commission's discretion, the proposed repayment schedule is acceptable.
(c) If the proposed repayment schedule is unacceptable, the employee
will have 15 calendar days from the date the notice of the decision is
received in which to file a request for a hearing.
(d) If the proposed repayment schedule is acceptable or the employee
agrees to a modification proposed by the Commission, the agreement will
be put in writing and signed by the employee and the Commission.
Sec. 513.35 What special review is available when the Commission is
the creditor agency?
(a)(1) An employee subject to salary offset or a voluntary repayment
agreement may, at any time, request a special review by the Commission
of the amount of the salary offset or voluntary repayment, based on
materially changed circumstances, including, but not limited to,
catastrophic illness, divorce, death, or disability.
(2) The request for special review must include an alternative
proposed offset or payment schedule and a detailed statement, with
supporting documents, that shows why the current salary offset or
payment results in extreme financial hardship to the employee, spouse,
or dependents. The statement must indicate:
(i) Income from all sources;
(ii) Assets;
(iii) Liabilities;
(iv) Number of dependents;
(v) Expenses for food, housing, clothing, and transportation;
(vi) Medical expenses; and
(vii) Exceptional expenses, if any.
(b) The Commission will evaluate the statement and documentation and
determine whether the current offset or repayment schedule imposes
extreme financial hardship on the employee. The Commission will notify
the employee in writing within 30 calendar days of its determination,
including, if appropriate, a revised offset or payment schedule. If the
special review results in a revised offset or repayment schedule, the
Commission will provide a new certification to the paying agency.
Sec. 513.36 Under what conditions will the Commission refund amounts
collected by salary offset?
(a) As the creditor agency, the Commission will promptly refund any
amount deducted under the authority of 5 U.S.C. 5514, when:
(1) The Commission determines that the debt is not owed; or
[[Page 32]]
(2) An administrative or judicial order directs the Commission to
make a refund.
(b) Unless required or permitted by law or contract, refunds under
this section will not bear interest.
Sec. 513.37 What will the Commission do as the paying agency?
(a) When the Commission receives a certification from a creditor
agency that has complied with the Office of Personnel Management's
requirements set out at 5 CFR 550.1109, the Commission will send the
employee a written notice of salary offset.
(b) If the Commission receives an incomplete certification from a
creditor agency, the Commission will return the certification with
notice that the procedures under 5 U.S.C. 5514 and 5 CFR 550.1104 must
be followed and a properly certified claim submitted before the
Commission will take action to collect the debt from the employee's
current pay account.
(c) Notice to a debtor will include:
(1) The Commission's receipt of a certification from a creditor
agency;
(2) The amount of the debt and the deductions to be made, which may
be stated as a percentage of disposable pay; and
(3) The date and pay period when the salary offset will begin.
(d) The Commission will provide a copy of the notice of salary
offset to a creditor agency.
(e) The Commission will coordinate salary deductions under this
subpart as appropriate.
(f) The Commission's payroll officer will determine the amount of
the debtor's disposable pay and will implement the salary offset.
(g) The Commission may use the following types of salary debt
collection:
(1) Lump sum offset. If the amount of the debt is equal to or less
than 15 percent of disposable pay, the debt generally will be collected
through one lump sum offset.
(2) Installment deductions. The amount deducted from any period will
not exceed 15 percent of the disposable pay from which the deduction is
made unless the debtor has agreed in writing to the deduction of a
greater amount. If possible, installment payments will liquidate the
debt in three years or less.
(3) Deductions from final check. A deduction exceeding the 15
percent of disposable pay limitation may be made from any final salary
payment under 31 U.S.C. 3716 and the Federal Claims Collection
Standards, in order to liquidate the debt, whether the employee is
leaving voluntarily or involuntarily.
(4) Deductions from other sources. If an employee subject to salary
offset is leaving the Commission and the balance of the debt cannot be
liquidated by offset of the final salary check, then the Commission may
offset later payments of any kind against the balance of the debt, as
allowed by 31 U.S.C. 3716 and the Federal Claims Collection Standards.
(h) When two or more creditor agencies are seeking salary offsets,
the Commission's payroll office may, in its discretion, determine
whether one or more debts should be offset simultaneously within the 15
percent limitation.
(i) The Commission is not authorized to review the merits of the
creditor agency's determination with respect to the amount or validity
of the debt certified by the creditor agency.
Subpart D_Administrative Wage Garnishment
Sec. 513.40 How will the Commission handle debt collection through
administrative wage garnishment?
This part adopts all the provisions of the administrative wage
garnishment regulations contained in 31 CFR 285.11, promulgated by
Treasury, which allow Federal agencies to collect debts from a debtor's
non-Federal pay by means of administrative wage garnishment authorized
by 31 U.S.C. 3720D, and in 5 CFR parts 581 and 582, promulgated by the
Office of Personnel Management, which provides for garnishment orders
for child support and/or alimony and commercial garnishment of federal
employees' pay.
PART 514_FEES (Eff. until 10-1-12)--Table of Contents
Authority: 25 U.S.C. 2706, 2708, 2710, 2717, 2717a.
[[Page 33]]
Effective Date Note: At 77 FR 5181, Feb. 2, 2012, part 514 was
revised, effective Oct. 1, 2012. For the convenience of the user, the
revised text follows this part.
Sec. 514.1 Annual fees.
(a) Each gaming operation under the jurisdiction of the Commission
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.
(1) The Commission shall adopt preliminary rates for each calendar
year no later than February 1st of that year, and, if considered
necessary, shall modify those rates no later than July 1st of that year.
(2) The Commission shall publish the rates of fees in a notice in
the Federal Register.
(3) The rates of fees imposed shall be--
(i) No more than 2.5 percent of the first $ 1,500,000 (1st tier),
and
(ii) No more than 5 percent of amounts in excess of the first
$1,500,000 (2nd tier) of the assessable gross revenues from each gaming
operation subject to the jurisdiction of the Commission.
(4) If a tribe has a certificate of self-regulation, the rate of
fees imposed shall be no more than .25 percent of assessable gross
revenues from self-regulated class II gaming operations.
(b) 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, admission 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.
(1) Unless otherwise provided by the regulations, generally accepted
accounting principles shall be used.
(2) The allowance for amortization of capital expenditures for
structures shall be either:
(i) An amount not to exceed 5% of the cost of structures in use
throughout the year and 2.5% (two and one-half percent) of the cost of
structures in use during only a part of the year; or
(ii) An amount not to exceed 10% of the cost of the total amount of
amortization/depreciation expenses for the year.
(3) Examples of computations follow:
(i) For paragraph (2)(i) of this section:
Gross gaming revenues:
Money wagered....................... $1,000,000
Admission fees...................... 5,000
.............. 1,005,000
Less:
Prizes paid in cash................. $500,000
Cost of other prizes awarded........ 10,000 510,000
Gross gaming profit............. 495,000
Less allowance for amortization of
capital expenditures for
structures:
Capital expenditures for structures
made in--
Prior years..................... 750,000
Current year.................... 50,000
Maximum allowance:
$750,000 x .05 =................ 37,500
50,000 x .025 =................. 1,250 38,750
Assessable gross revenues........... .............. 456,250
(ii) For paragraph (2)(ii) of this section:
Gross gaming revenues:
Money wagered....................... .............. $1,000,000
Admission fees...................... 5,000 1,005,000
[[Page 34]]
Less:
Prizes paid in cash................. $500,000
Cost of other prizes awarded........ 10,000 510,000
Gross gaming profit................. 495,000
Less allowance for amortization of
capital expenditures for
structures:
Total amount of amortization/ 400,000
depreciation per books
Maximum allowance:
$400,000 x .10 =................ .............. 40,000
Gross gaming revenues............... 455,000
Assessable gross revenues........... 455,000
(4) All class II and III revenues from gaming operations are to be
included.
(c) Each gaming operation subject to the jurisdiction of the
Commission and not exempt from paying fees pursuant to the self-
regulation provisions shall file with the Commission a statement showing
its assessable gross revenues for the previous calendar year.
(1) 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;
(2) These statements shall be sent to the Commission on or before
June 30th and December 31st of each calendar year.
(3) The 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.
(4) Each gaming operation shall determine the amount of fees to be
paid and remit them with the statement required in paragraph (c) of this
section. The fees payable shall be computed using--
(i) The most recent rates of fees adopted by the Commission pursuant
to paragraph (a)(1) of this section,
(ii) The assessable gross revenues for the previous calendar year as
reported pursuant to this paragraph, and
(iii) The amounts paid and credits received during the year.
(5) Each statement shall include the computation of the fees
payable, showing all amounts used in the calculations. The required
calculations are as follows:
(i) Multiply the previous calendar year's 1st tier assessable gross
revenues by the rate for those revenues adopted by the Commission.
(ii) Multiply the previous calendar year's 2nd tier assessable gross
revenues by the rate for those revenues adopted by the Commission.
(iii) Add (total) the results (products) obtained in paragraphs
(c)(5)(i) and (ii) of this section.
(iv) Multiply the total obtained in paragraph (c)(5)(iii) of this
section by \1/2\.
(v) The amount computed in paragraph (c)(5)(iv) of this section is
the amount to be remitted.
(6) Examples of fee computations follow:
(i) Where a filing is made for June 30th of the calendar year, the
previous year's assessable gross revenues 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% = ......
2nd tier revenues--500,000 x $400
.08% =
Annual fees................................................... 400
Multiply for fraction of year--\1/2\ or......................... .50
Fees for first payment........................................ 200
Amount to be remitted....................................... 200
(7) The statements, remittances and communications about fees shall
be transmitted to the Commission at the following address: Office of
Finance, 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).
[[Page 35]]
(8) The Commission may assess a penalty for failure to file timely a
statement.
(9) 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.
(d) 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 by June 30th and December 31st of
each calendar year.
(e) Failure to pay fees, any applicable penalties, and interest
related thereto may be grounds for:
(1) Closure, or
(2) Disapproving or revoking the approval of the Chairman of any
license, ordinance, or resolution required under this Act for the
operation of gaming.
(f) 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.
[74 FR 36933, July 27, 2009; 75 FR 2795, Jan. 19, 2010]
Effective Date Note: At 77 FR 5181, Feb. 2, 2012, part 514 was
revised, effective Oct. 1, 2012. For the convenience of the user, the
revised text is set forth as follows:
PART 514_FEES (Eff. 10-1-12)
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 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
[[Page 36]]
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);
(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
[[Page 37]]
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
[[Page 38]]
should be made payable to the National Indian Gaming Commission (do not
remit cash).
PART 515_PRIVACY ACT PROCEDURES--Table of Contents
Sec.
515.1 Purpose and scope.
515.2 Definitions.
515.3 Identification of individuals making requests.
515.4 Procedures for requests and disclosures.
515.5 Request for amendment to record.
515.6 Review of request for amendment of record by the Records Manager.
515.7 Appeal to the Commission of initial adverse agency determination
on access or amendment to records.
515.8 Disclosure of record to a person other than the individual to whom
it pertains.
515.9 Fees.
515.10 Penalties.
515.11 General exemptions. [Reserved]
515.12 Specific exemptions.
Authority: 5 U.S.C. 552a.
Source: 58 FR 5815, Jan. 22, 1993, unless otherwise noted.
Sec. 515.1 Purpose and scope.
(a) The purpose of this part is to inform the public of records
maintained by the Commission about identifiable individuals and to
inform those individuals how they may gain access to and amend records
concerning themselves.
(b) This part carries out the requirements of the Privacy Act of
1974 (Pub. L. 93-579) codified at 5 U.S.C. 552a.
(c) The regulation applies only to records disclosed or requested
under the Privacy Act of 1974, and not to requests for information made
pursuant to 5 U.S.C. 552, the Freedom of Information Act.
Sec. 515.2 Definitions.
As defined in the Privacy Act of 1974 and for the purposes of this
part, unless otherwise required by the context, the following terms
shall have these meanings:
(a) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(b) Maintain means maintain, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information
about an individual that is maintained by the Commission, including
education, financial transactions, medical history, and criminal or
employment history, and that contains the individual's name, or the
identifying number, symbol, or other identifier assigned to the
individual, such as social security number, finger or voice print, or a
photograph.
(d) System of records means a group of any records under the control
of the Commission from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifier
assigned to the individual.
(e) Routine use means, with respect to the disclosure of a record,
the use of such record for a purpose that is compatible with the purpose
for which it was collected.
Sec. 515.3 Identification of individuals making requests.
(a) Any individual may request that the Commission inform him or her
whether a particular record system named by the individual contains a
record pertaining to him or her and the contents of such record. Such
requests shall conform to the requirements of Sec. 515.4 of this part.
The request may be made in person or in writing at the NIGC, suite 250,
1850 M Street, NW., Washington, DC 20036-5803 during the hours of 9 a.m.
to 12 noon and 2 p.m. to 5 p.m. Monday through Friday.
(b)(1) Requests made in writing shall include a statement, signed by
the individual and either notarized or witnessed by two persons
(including witnesses' addresses). If the individual appears before a
notary, the individual shall submit adequate proof of identity in the
form of a driver's license, birth certificate, passport, or other
identification acceptable to the notary. If the statement is witnessed,
it shall include a statement above the witnesses' signatures that they
personally know the individual or that the individual has submitted
proof of his or her identity to their satisfaction. In any case in
which, because of the extreme sensitivity of the record sought to be
seen or copied, the Commission determines that the identification is not
adequate,
[[Page 39]]
it may request the individual to submit additional proof of identity.
(2) If the request is made in person, the requester shall submit
proof of identity similar to that described in paragraph (b)(1) of this
section, and that is acceptable to the Commission. The individual may
have a person of his or her own choosing accompany him or her when the
record is disclosed.
(c) Requests made by an agent, parent, or guardian shall be in
accordance with the procedures described in paragraph (b) of this
section.
Sec. 515.4 Procedures for requests and disclosures.
(a) Requests for a determination under Sec. 515.3(a) of this part
shall be acknowledged by the Commission within ten (10) days (excluding
Saturdays, Sundays and Federal holidays) after the date on which the
Commission receives the request. If the Commission is unable to locate
the information requested, it shall so notify the individual within ten
(10) days (excluding Saturdays, Sundays and Federal holidays) after
receipt of the request, Such acknowledgement may request additional
information to assist the Commission in locating the record, or it may
advise the individual that no record exists about that individual.
(b)(1) Upon submission of proof of identity as required by Sec.
515.3(b)(1) or (2) of this part, the Commission shall respond within ten
(10) days (excluding Saturdays, Sundays and Federal holidays). The
Commission shall decide whether to make a record available to the record
subject and shall immediately convey its determination to the requester.
If the individual asks to see the record, the Commission may make the
record available at the location where the record is maintained.
(2) The Commission shall furnish each record requested by an
individual under this section in a form intelligible to that individual.
(3) If the Commission denies access to a record to an individual,
that person shall be advised of the reason for the denial and of the
appeal procedures provided in Sec. 515.7 of this part.
(4) Upon request, an individual shall be provided access to the
accounting of disclosures from his or her record under the same
procedures as provided above and in Sec. 515.3 of this part.
Sec. 515.5 Request for amendment to record.
(a) Any individual who has reviewed a record pertaining to him or
her that was furnished under this part, may request that the Commission
amend all or any part of that record.
(b) Each individual requesting an amendment shall send the request
to the Records Manager.
(c) Each request for an amendment of a record shall contain the
following information:
(1) The name of the individual requesting the amendment;
(2) The name of the system of records in which the record sought to
be amended is maintained;
(3) The location of the system of records from which the individual
record was obtained;
(4) A copy of the record sought to be amended or a sufficiently
detailed description of that record:
(5) A statement of the material in the record that the individual
desires to amend;
(6) A statement of the basis for the requested amendment, including
any material that the individual can furnish to substantiate the reasons
for the amendment sought.
Sec. 515.6 Review of request for amendment of record by the Records
Manager.
(a) The Records Manager shall, not later than ten (10) days
(excluding Saturdays, Sundays and Federal holidays) after the receipt of
a request for an amendment of a record under Sec. 515.5 of this part,
acknowledge receipt of the request and inform the individual whether
more information is required before the amendment can be considered.
(b) If more information is not required, within ten (10) days after
receipt of the request (excluding Saturdays, Sundays and Federal
holidays), the Records Manager shall either make the requested amendment
or notify the individual of the Commission's refusal to do so, including
in the notification
[[Page 40]]
the reasons for the refusal, and the appeal procedures provided in Sec.
515.7 of this part.
(c) The Records Manager shall make each requested amendment to a
record if such amendment will tend to negate inaccurate, irrelevant,
untimely, or incomplete material in the record.
(d) The Records Manager shall inform prior recipients of any
amendment or notation of dispute of such individual's record. The
individual may request a list of prior recipients if there exists an
accounting of the disclosures.
Sec. 515.7 Appeal to the Commission of initial adverse agency
determination on access or amendment to records.
(a) Any individual whose request for access or an amendment has been
denied in whole or in part, may appeal the decision to the Commission no
later than one hundred eighty (180) days after the adverse decision is
rendered.
(b) The appeal shall be in writing and shall contain all of the
following information:
(1) The name of the individual making the appeal;
(2) Identification of the record sought to be amended;
(3) The record system in which such record is contained;
(4) A short statement describing the amendment sought; and
(5) The name and location of the agency official who initially
denied the amendment.
(c) Not later than thirty (30) days (excluding Saturdays, Sundays
and Federal holidays) after the date on which the Commission receives
the appeal, the Commission shall complete its review of the appeal and
make a final decision thereon. For good cause shown, however, the
Commission may extend such thirty (30) day period. If the Commission
extends the period, the individual requesting the review shall be
promptly notified of the extension and the anticipated date of a
decision.
(d) After review of an appeal, the Commission shall send a written
notice to the requester containing the following information:
(1) The decision and, if the denial is upheld, the reasons for the
decision;
(2) The right of the requester to file with the Commission a concise
statement setting forth the reasons for his or her disagreement with the
Commission's denial of access or amendment. The Commission shall make
this statement available to any person to whom the record is later
disclosed, together with a brief statement, if appropriate, of the
Commission's reasons for denying requested access or amendment. The
Commission shall also send a copy of the statement to prior recipients
of the individual's record; and
(3) The right of the requester to institute a civil action in a
Federal district court for judicial review of the decision.
Sec. 515.8 Disclosure of record to a person other than the individual
to whom it pertains.
(a) Any individual who desires to have a record covered by this part
disclosed to or mailed to another person may designate such person and
authorize such person to act as his or her agent for that specific
purpose. The authorization shall be in writing, signed by the
individual, and notarized or witnessed as provided in Sec. 515.3 of
this part.
(b) The parent of any minor individual or the legal guardian of any
individual who has been declared by a court of competent jurisdiction to
be incompetent, due to physical or mental incapacity or age, may act on
behalf of that individual in any matter covered by this section. A
parent or guardian who desires to act on behalf of such an individual
shall present suitable evidence of parentage or guardianship, by birth
certificate, certified copy of court order, or similar documents, and
proof of the individual's identity in a form that complies with Sec.
515.3(b) of this part.
(c) An individual to whom a record is to be disclosed in person,
pursuant to this section, may have a person of his or her own choosing
accompany him or her when the record is disclosed.
Sec. 515.9 Fees.
The Commission shall not charge an individual for the costs of
making a
[[Page 41]]
search for a record or the costs of reviewing the record. When the
Commission makes a copy of a record as a necessary part of reviewing the
record, the Commission shall not charge the individual for the cost of
making that copy. Otherwise, the Commission may charge a fee sufficient
to cover the cost of duplication.
Sec. 515.10 Penalties.
Any person who makes a false statement in connection with any
request for a record, or an amendment thereto, under this part, is
subject to the penalties prescribed in 18 U.S.C. 494 and 495.
Sec. 515.11 General exemptions. [Reserved]
Sec. 515.12 Specific exemptions.
(a) The following system of records is exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1) and (f):
Indian Gaming Individuals Records System
(b) The exemptions under paragraph (a) of this section apply only to
the extent that information in this system is subject to exemption under
5 U.S.C. 552a(k)(2). When compliance would not appear to interfere with
or adversely affect the overall responsibilities of the Commission with
respect to licensing of key employees and primary management officials
for employment in an Indian gaming operation, the applicable exemption
may be waived by the Commission.
(c) Exemptions from the particular sections are justified for the
following reasons:
(1) From 5 U.S.C. 552a(c)(3), because making available the
accounting of disclosures to an individual who is the subject of a
record could reveal investigative interest. This would permit the
individual to take measures to destroy evidence, intimidate potential
witnesses, or flee the area to avoid the investigation.
(2) From 5 U.S.C. 552a(d), (e)(1), and (f) concerning individual
access to records, when such access could compromise classified
information related to national security, interfere with a pending
investigation or internal inquiry, constitute an unwarranted invasion of
privacy, reveal a sensitive investigative technique, or pose a potential
threat to the Commission or its employees or to law enforcement
personnel. Additionally, access could reveal the identity of a source
who provided information under an express promise of confidentiality.
(3) From 5 U.S.C. 552a(d)(2), because to require the Commission to
amend information thought to be incorrect, irrelevant, or untimely,
because of the nature of the information collected and the length of
time it is maintained, would create an impossible administrative and
investigative burden by continually forcing the Commission to resolve
questions of accuracy, relevance, timeliness, and completeness.
(4) From 5 U.S.C. 552a(e)(1) because:
(i) It is not always possible to determine relevance or necessity of
specific information in the early stages of an investigation.
(ii) Relevance and necessity are matters of judgment and timing in
that what appears relevant and necessary when collected may be deemed
unnecessary later. Only after information is assessed can its relevance
and necessity be established.
(iii) In any investigation the Commission may receive information
concerning violations of law under the jurisdiction of another agency.
In the interest of effective law enforcement and under 25 U.S.C.
2716(b), the information could be relevant to an investigation by the
Commission.
(iv) In the interviewing of individuals or obtaining evidence in
other ways during an investigation, the Commission could obtain
information that may or may not appear relevant at any given time;
however, the information could be relevant to another investigation by
the Commission.
PART 516_TESTIMONY OF COMMISSIONERS AND EMPLOYEES AND FORMER
COMMISSIONERS AND FORMER EMPLOYEES RESPECTING OFFICIAL DUTIES;
RESPONSE TO SUBPOENA--Table of Contents
Sec.
516.1 What is the purpose of this part and to whom does it apply?
[[Page 42]]
516.2 When may a person to whom this part applies give testimony, make a
statement or submit to interview?
516.3 When may a person to whom this part applies produce records?
516.4 How are records certified or authenticated?
Authority: 5 U.S.C. 301; 25 U.S.C. 2706; 25 U.S.C. 2716(a); 18
U.S.C. 1905.
Source: 64 FR 54542, Oct. 7, 1999, unless otherwise noted.
Sec. 516.1 What is the purpose of this part and to whom does it apply?
(a) The purpose of this part is to promulgate regulations regarding
the release of official National Indian Gaming Commission information
and provision of testimony by National Indian Gaming Commission
personnel with respect to litigation or potential litigation and to
prescribe conduct on the part of National Indian Gaming Commission
personnel in response to a litigation-related request or demand.
(b) This part applies to requests or demands that are litigation-
related or otherwise arise out of judicial, administrative or other
legal proceedings (including subpoena, order or other demand) for
interview, testimony (including by deposition) or other statement, or
for production of documents relating to the business of the National
Indian Gaming Commission, whether or not the National Indian Gaming
Commission or the United States is a party to the litigation. It does
not, however, apply to document requests covered by 25 CFR parts 515 and
517.
(c) To the extent the request or demand seeks official information
or documents, the provisions of this part are applicable to
Commissioners, employees, and former Commissioners and former employees,
of the National Indian Gaming Commission.
Sec. 516.2 When may a person to whom this part applies give testimony,
make a statement or submit to interview?
(a) No person to whom this part applies, except as authorized by the
Chairman or the General Counsel pursuant to this regulation, shall
provide testimony, make a statement or submit to interview.
(b) Whenever a subpoena commanding the giving of any testimony has
been lawfully served upon a person to whom this part applies, such
individual shall, unless otherwise authorized by the Chairman or the
General Counsel, appear in response thereto and respectfully decline to
testify on the grounds that it is prohibited by this regulation.
(c) A person who desires testimony or other statement from any
person to whom this part applies may make written request therefor,
verified by oath, directed to the Chairman setting forth his or her
interest in the matter to be disclosed and designating the use to which
such statement or testimony will be put in the event of compliance with
such request: provided, that a written request therefor by an official
of any federal, state or tribal entity, acting in his or her official
capacity need not be verified by oath. If it is determined by the
Chairman or the General Counsel that such statement or testimony will be
in the public interest, the request may be granted. Where a request for
a statement or testimony is granted, one or more persons to whom this
part applies may be authorized or designated to appear and testify or
give a statement with respect thereto.
Sec. 516.3 When may a person to whom this part applies produce records?
(a) Any request for records of the National Indian Gaming Commission
shall be handled pursuant to the procedures established in 25 CFR parts
515 and 517 and shall comply with the rules governing public disclosure
as provided in 25 CFR parts 515 and 517.
(b) Whenever a subpoena duces tecum commanding the production of any
record has been lawfully served upon a person to whom this part applies,
such person shall forward the subpoena to the General Counsel. If
commanded to appear in response to any such subpoena, a person to whom
this part applies shall respectfully decline to produce the record on
the ground that production is prohibited by this part and state that the
production of the record(s) of the National Indian Gaming Commission is
a matter to be determined by the Chairman or the General Counsel.
[[Page 43]]
Sec. 516.4 How are records certified or authenticated?
(a) Upon request, the person having custody and responsibility for
maintenance of records which are to be released under this part or 25
CFR parts 515 or 517 may certify the authenticity of copies of records
that are requested to be provided in such format.
(b) A request for certified copies of records or for authentication
of copies of records shall be sent to the National Indian Gaming
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005,
Attention: Freedom of Information Act Officer.
PART 517_FREEDOM OF INFORMATION ACT PROCEDURES--Table of Contents
Sec.
517.1 General provisions.
517.2 Public reading room.
517.3 Definitions.
517.4 Requirements for making requests.
517.5 Responsibility for responding to requests.
517.6 Timing of responses to requests.
517.7 Confidential commercial information.
517.8 Appeals.
517.9 Fees.
Authority: 5 U.S.C. 552, as amended.
Source: 71 FR 20007, Apr. 19, 2006, unless otherwise noted.
Sec. 517.1 General provisions.
This part contains the regulations the National Indian Gaming
Commission (Commission) follows in implementing the Freedom of
Information Act (FOIA) (5 U.S.C. 552) as amended. These regulations
provide procedures by which you may obtain access to records compiled,
created, and maintained by the Commission, along with procedures the
Commission must follow in response to such requests for records. These
regulations should be read together with the FOIA, which provides
additional information about access to records maintained by the
Commission.
Sec. 517.2 Public reading room.
Records that are required to be maintained by the Commission shall
be available for public inspection and copying at 1441 L Street, NW.,
Suite 9100 Washington, DC. Reading room records created on or after
November 1, 1996, shall be made available electronically via the Web
site.
Sec. 517.3 Definitions.
(a) Commercial use requester means a requester seeking information
for a use or purpose that furthers the commercial, trade, or profit
interests of himself or the person on whose behalf the request is made,
which can include furthering those interests through litigation. In
determining whether a request properly belongs in this category, the
FOIA Officer shall determine the use to which the requester will put the
documents requested. Where the FOIA Officer has reasonable cause to
doubt the use to which the requester will put the records sought, or
where that use is not clear from the request itself, the FOIA Officer
shall contact the requester for additional clarification before
assigning the request to a specific category.
(b) Confidential commercial information means records provided to
the government by a submitter that arguably contains material exempt
from disclosure under Exemption 4 of the FOIA, because disclosure could
reasonably be expected to cause substantial competitive harm.
(c) Direct costs mean those expenditures by the Commission actually
incurred in searching for and duplicating records in response to the
FOIA request. Direct costs include the salary of the employee or
employees performing the work (the basic rate of pay for the employee
plus a percentage of that rate to cover benefits) and the cost of
operating duplicating machinery. Direct costs do not include overhead
expenses, such as the cost of space, heating, or lighting of the
facility in which the records are stored.
(d) Duplication refers to the process of making a copy of a document
necessary to fulfill the FOIA request. Such copies can take the form of,
among other things, paper copy, microfilm, audio-visual materials, or
machine readable documentation. The copies provided shall be in a form
that is reasonably usable by the requester.
(e) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institute of undergraduate
higher education, an
[[Page 44]]
institute of graduate higher education, an institute of professional
education, or an institute of vocational education which operates a
program of scholarly research. To qualify for this category, the
requester must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are not
sought for a commercial use, but are sought to further scholarly
research.
(f) Freedom of Information Act Officer means the person designated
by the Chairman to administer the FOIA.
(g) Non-commercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis as that term is used in
paragraph (a) of this section, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry. To qualify for
this category, the requester must show that the request is authorized by
and is made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but are sought to further
scholarly research.
(h) Record means all books, papers, maps, photographs, machine
readable materials, or other documentary materials, regardless of
physical form or characteristics, made or received by the Commission
under Federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by the Commission
or its legitimate successor as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of the
Government or because of the informational value of data in them.
Library and museum material made or acquired and preserved solely for
reference or exhibition purposes, extra copies of documents preserved
only for convenience of reference, and stocks of publications and of
processed documents are not included.
(i) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to the
public. For a ``freelance journalist'' to be regarded as working for a
news organization, the requester must demonstrate a solid basis for
expecting publication through that organization, such as a publication
contract. Absent such showing, the requester may provide documentation
establishing the requester's past publication record. To qualify for
this category, the requester must not be seeking the requested records
for a commercial use. However, a request for records supporting a news-
dissemination function shall not be considered to be for a commercial
use.
(j) Requester means any person, including an individual, Indian
tribe, partnership, corporation, association, or public or private
organization other than a Federal agency, that requests access to
records in the possession of the Commission.
(k) Review means the process of examining a record in response to a
FOIA request to determine if any portion of that record may be withheld
under one or more of the FOIA Exemptions. It also includes processing
any record for disclosure, for example, redacting information that is
exempt from disclosure under the FOIA. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under Sec. 517.7 (c). Review time does not include time spent
resolving general legal or policy issues regarding the use of FOIA
Exemptions.
(l) Search refers to the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within a document and also includes
reasonable efforts to locate and retrieve information from records
maintained in electronic form or format. The FOIA Officer shall ensure
that searches are conducted in the most efficient and least expensive
manner reasonably possible.
(m) Submitter means any person or entity who provides information
directly or indirectly to the Commission. The term includes, but is not
limited to, corporations, Indian tribal governments, state governments
and foreign governments.
[[Page 45]]
(n) Working day means a Federal workday that does not include
Saturdays, Sundays, or Federal holidays.
Sec. 517.4 Requirements for making requests.
(a) How to make a FOIA request. Requests for records made pursuant
to the FOIA must be in writing. Requests should be sent to the National
Indian Gaming Commission, Attn: FOIA Officer, 1441 L Street, NW., Suite
9100, Washington, DC 20005. Requests may be mailed, dropped off in
person, or faxed to (202) 632-7066 (not a toll free number). If the
requester is making a request for records about himself/herself, the
requester should see 25 CFR 515.3 for additional information. If the
requester is making a request for records about another individual, the
requester must provide either a written authorization signed by that
individual authorizing disclosure of the records to the requester or
provide proof that the individual is deceased (for example, a copy of
the death certificate or a copy of the obituary).
(b) Description of records sought. Requests for records shall
describe the records requested with as much specificity as possible to
enable Commission employees to locate the information requested with a
reasonable amount of effort.
(c) Agreement to pay fees. Requests shall also include a statement
indicating the maximum amount of fees the requester is willing to pay to
obtain the requested information, or a request for a waiver or reduction
of fees. If the requester is requesting a waiver or reduction of fees
the requester must include justification for such waiver or reduction
(see Sec. 517.9 (c) for more information). If the request for a fee
waiver is denied, the requester will be notified of this decision and
advised that fees associated with the processing of the request will be
assessed. The requester must send an acknowledgment to the FOIA Officer
indicating his/her willingness to pay the fees. Absent such
acknowledgment within the specified time frame, the request will be
considered incomplete, no further work shall be done, and the request
will be administratively closed.
(d) Types of records not available. The FOIA does not require the
Commission to:
(1) Compile or create records solely for the purpose of satisfying a
request for records;
(2) Provide records not yet in existence, even if such records may
be expected to come into existence at some future time; or
(3) Restore records destroyed or otherwise disposed of, except that
the FOIA Officer must notify the requester that the requested records
have been destroyed or disposed.
Sec. 517.5 Responsibility for responding to requests.
(a) In general. In determining which records are responsive to a
request, the Commission ordinarily will include only records in its
possession as of the date it begins its search for records. If any other
date is used, the FOIA Officer shall inform the requester of that date.
(b) Authority to grant or deny requests. The FOIA Officer shall make
initial determinations either to grant or deny in whole or in part a
request for records.
(c) Consultations and referrals. (1) When a requested record has
been created by another Federal Government agency that record shall be
referred to the originating agency for direct response to the requester.
The requester shall be informed of the referral. As this is not a denial
of a FOIA request, no appeal rights accrue to the requester.
(2) When a requested record is identified as containing information
originating with another Federal Government agency, the record shall be
referred to the originating agency for review and recommendation on
disclosure.
Sec. 517.6 Timing of responses to requests.
(a) In general. The FOIA Officer ordinarily shall respond to
requests according to their order of receipt.
(b) Multitrack processing. (1) The FOIA Officer may use multi-track
processing in responding to requests. Multi-track processing means
placing simple requests requiring rather limited review in one
processing track and placing
[[Page 46]]
more voluminous and complex requests in one or more other tracks.
Request in either track are processed on a first-in/first-out basis.
(2) The FOIA Officer may provide requesters in its slower track(s)
with an opportunity to limit the scope of their requests in order to
qualify for faster processing within the specified limits of faster
track(s). The FOIA Officer will do so either by contacting the requester
by letter or telephone, whichever is more efficient in each case.
(c) Initial determinations. (1) The FOIA Officer shall make an
initial determination regarding access to the requested information and
notify the requester within twenty (20) working days after receipt of
the request. This 20 day period may be extended if unusual circumstances
arise. If an extension is necessary, the FOIA Officer shall promptly
notify the requester of the extension, briefly stating the reasons for
the extension, and estimating when the FOIA Officer will respond.
Unusual circumstances warranting extension are:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of records which are demanded in a single request; or
(iii) The need for consultation with another agency having a
substantial interest in the determination of the request, which
consultation shall be conducted with all practicable speed.
(2) If the FOIA Officer decides that an initial determination cannot
be reached within the time limits specified in paragraph (c)(1) of this
section, the FOIA Officer shall notify the requester of the reasons for
the delay and include an estimate of when a determination will be made.
The requester will then have the opportunity to modify the request or
arrange for an alternative time frame for completion of the request.
(3) If the FOIA Officer has a reasonable basis to conclude that a
requester or group of requesters has divided a request into a series of
requests on a single subject or related subjects to avoid fees, the
requests may be aggregated and fees charged accordingly. Multiple
requests involving unrelated matters will not be aggregated.
(4) If no initial determination has been made at the end of the 20
day period provided for in paragraph (a)(1) of this section, including
any extension, the requester may appeal the action to the FOIA Appeals
Officer.
(5) If the FOIA Officer determines that another agency is
responsible for the records, the FOIA Officer shall refer such records
to the appropriate agency for direct response to the requester. The FOIA
Officer shall inform the requester of the referral and of the name and
address of the agency or agencies to which the request has been
referred.
(d) Granting of requests. When the FOIA Officer determines that the
requested records shall be made available, the FOIA Officer shall notify
the requester in writing and provide copies of the requested records in
whole or in part once any fees charged under Sec. 517.9 have been paid
in full. Records disclosed in part shall be marked or annotated to show
the exemption applied to the withheld information and the amount of
information withheld unless to do so would harm the interest protected
by an applicable exemption. If a requested record contains exempted
material along with nonexempt material, all reasonable segregable
material shall be disclosed.
(e) Denial of requests. When the FOIA Officer determines that access
to requested records should be denied, the FOIA Officer shall notify the
requester of the denial, the grounds for the denial, and the procedures
for appeal of the denial.
(f) Expedited processing of request. The FOIA Officer must determine
whether to grant the request for expedited processing within (10)
calendar days of its receipt. Requests will receive expedited processing
if one of the following compelling needs is met:
(1) The requester can establish that failure to receive the records
quickly could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(2) The requester is primarily engaged in disseminating information
[[Page 47]]
and can demonstrate that an urgency to inform the public concerning
actual or alleged Federal Government activity exists.
Sec. 517.7 Confidential commercial information.
(a) Notice to submitters. The FOIA Officer shall, to the extent
permitted by law, provide a submitter who provides confidential
commercial information to the FOIA Officer, with prompt notice of a FOIA
request or administrative appeal encompassing the confidential
commercial information if the Commission may be required to disclose the
information under the FOIA. Such notice shall either describe the exact
nature of the information requested or provide copies of the records or
portions thereof containing the confidential commercial information. The
FOIA Officer shall also notify the requester that notice and an
opportunity to object has been given to the submitter.
(b) Where notice is required. Notice shall be given to a submitter
when:
(1) The information has been designated by the submitter as
confidential commercial information protected from disclosure.
Submitters of confidential commercial information shall use good faith
efforts to designate, either at the time of submission or a reasonable
time thereafter, those portions of their submissions they deem protected
from disclosure under Exemption 4 of the FOIA because disclosure could
reasonably be expected to cause substantial competitive harm. Such
designation shall be deemed to have expired ten years after the date of
submission, unless the requester provides reasonable justification for a
designation period of greater duration; or
(2) The FOIA Officer has reason to believe that the information may
be protected from disclosure under Exemption 4 of the FOIA.
(c) Opportunity to object to disclosure. The FOIA Officer shall
afford a submitter a reasonable period of time to provide the FOIA
Officer with a detailed written statement of any objection to
disclosure. The statement shall specify all grounds for withholding any
of the information under any exemption of the FOIA, and if Exemption 4
applies, shall demonstrate the reasons the submitter believes the
information to be confidential commercial information that is exempt
from disclosure. Whenever possible, the submitter's claim of
confidentiality shall be supported by a statement or certification by an
officer or authorized representative of the submitter. In the event a
submitter fails to respond to the notice in the time specified, the
submitter will be considered to have no objection to the disclosure of
the information. Information provided by the submitter that is received
after the disclosure decision has been made will not be considered.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
(d) Notice of intent to disclose. The FOIA Officer shall carefully
consider a submitter's objections and specific grounds for nondisclosure
prior to determining whether to disclose the information requested.
Whenever the FOIA Officer determines that disclosure is appropriate, the
FOIA Officer shall, within a reasonable number of days prior to
disclosure, provide the submitter with written notice of the intent to
disclose which shall include a statement of the reasons for which the
submitter's objections were overruled, a description of the information
to be disclosed, and a specific disclosure date. The FOIA Officer shall
also notify the requester that the requested records will be made
available.
(e) Notice of lawsuit. If the requester files a lawsuit seeking to
compel disclosure of confidential commercial information, the FOIA
Officer shall promptly notify the submitter of this action. If a
submitter files a lawsuit seeking to prevent disclosure of confidential
commercial information, the FOIA Officer shall notify the requester.
(f) Exceptions to the notice requirements under this section. The
notice requirements under paragraphs (a) and (b) of this section shall
not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed pursuant to Exemption 4 and/or any other exemption of the
FOIA;
(2) The information lawfully has been published or officially made
available to the public;
[[Page 48]]
(3) Disclosure of the information is required by law (other than the
FOIA);
(4) The information requested is not designated by the submitter as
exempt from disclosure in accordance with this part, when the submitter
had the opportunity to do so at the time of submission of the
information or within a reasonable time thereafter, unless the agency
has substantial reason to believe that disclosure of the information
would result in competitive harm; or
(5) The designation made by the submitter in accordance with this
part appears obviously frivolous. When the FOIA Officer determines that
a submitter was frivolous in designating information as confidential,
the FOIA Officer must provide the submitter with written notice of any
final administrative disclosure determination within a reasonable number
of days prior to the specified disclosure date, but no opportunity to
object to disclosure will be offered.
Sec. 517.8 Appeals.
(a) Right of appeal. The requester has the right to appeal to the
FOIA Appeals Officer any adverse determination.
(b) Notice of appeal--(1) Time for appeal. An appeal must be
received no later than thirty (30) working days after notification of
denial of access or after the time limit for response by the FOIA
Officer has expired. Prior to submitting an appeal any outstanding fees
associated with FOIA requests must be paid in full.
(2) Form of appeal. An appeal shall be initiated by filing a written
notice of appeal. The notice shall be accompanied by copies of the
original request and initial denial. To expedite the appellate process
and give the requester an opportunity to present his/her arguments, the
notice should contain a brief statement of the reasons why the requester
believes the initial denial to have been in error. The appeal shall be
addressed to the National Indian Gaming Commission, Attn: FOIA Appeals
Officer, 1441 L Street, NW., Suite 9100, Washington, DC 20005.
(c) Final agency determinations. The FOIA Appeals Officer shall
issue a final written determination, stating the basis for its decision,
within twenty (20) working days after receipt of a notice of appeal. If
the determination is to provide access to the requested records, the
FOIA Officer shall make those records immediately available to the
requester. If the determination upholds the denial of access to the
requested records, the FOIA Appeals Officer shall notify the requester
of the determination and his/her right to obtain judicial review in the
appropriate Federal district court.
Sec. 517.9 Fees.
(a) In general. Fees pursuant to the FOIA shall be assessed
according to the schedule contained in paragraph (b) of this section for
services rendered by the Commission in response to requests for records
under this part. All fees shall be charged to the requester, except
where the charging of fees is limited under paragraph (d) of this
section or where a waiver or reduction of fees is granted under
paragraph (c) of this section. Payment of fees should be by check or
money order made payable to the Treasury of the United States.
(b) Charges for responding to FOIA requests. The following fees
shall be assessed in responding to requests for records submitted under
this part, unless a waiver or reduction of fees has been granted
pursuant to paragraph (c) of this section:
(1) Copies. The FOIA Officer shall charge $0.15 per page for copies
of documents up to 8\1/2\ x 14. For copies prepared by computer, the
FOIA Officer will charge actual costs of production of the computer
printouts, including operator time. For other methods of reproduction,
the FOIA Officer shall charge the actual costs of producing the
documents.
(2) Searches. (i) Manual searches. Whenever feasible, the FOIA
Officer will charge at the salary rate (basic pay plus a percent for
benefits) of the employee or employees performing the search. However,
where a homogenous class of personnel is used exclusively in a search
(e.g. all administrative/clerical or all professional/executive), the
FOIA Officer shall charge $4.45 per quarter hour for clerical time and
$7.75 per quarter hour for professional time. Charges for search time
less than a full
[[Page 49]]
hour will be in increments of quarter hours.
(ii) Computer searches. The FOIA Officer will charge the actual
direct costs of conducting computer searches. These direct costs shall
include the cost of operating the central processing unit for that
portion of operating time that is directly attributable to searching for
requested records, as well as the costs of operator/programmer salary
apportionable to the search. The Commission is not required to alter or
develop programming to conduct searches.
(3) Review fees. Review fees shall be assessed only with respect to
those requesters who seek records for a commercial use under paragraph
(d)(1) of this section. Review fees shall be assessed at the same rates
as those listed under paragraph (b)(2)(i) of this section. Review fees
shall be assessed only for the initial record review, for example,
review undertaken when the FOIA Officer analyzes the applicability of a
particular exemption to a particular record or portion thereof at the
initial request level. No charge shall be assessed at the administrative
appeal level of an exemption already applied.
(c) Statutory waiver. Documents shall be furnished without charge or
at a charge below that listed in paragraph (b) of this section where it
is determined, based upon information provided by a requester or
otherwise made known to the FOIA Officer, that disclosure of the
requested information is in the public interest. Disclosure is in the
public interest if it is likely to contribute significantly to public
understanding of government operations and is not primarily for
commercial purposes. Requests for a waiver or reduction of fees shall be
considered on a case by case basis. In order to determine whether the
fee waiver requirement is met, the FOIA Officer shall consider the
following six factors:
(1) The subject of the request. Whether the subject of the requested
records concerns the operations or activities of the government;
(2) The informative value of the information to be disclosed.
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure. Whether disclosure of
the requested information will contribute to public understanding;
(4) The significance of the contribution to public understanding.
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities;
(5) The existence and magnitude of commercial interest. Whether the
requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(6) The primary interest in disclosure. Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
primarily in the commercial interest of the requester.
(d) Types of requesters. There are four categories of FOIA
requesters: Commercial use requesters, educational and non-commercial
scientific institutional requesters; representative of the news media;
and all other requesters. These terms are defined in Sec. 517.3. The
following specific levels of fees are prescribed for each of these
categories:
(1) Commercial use requesters. The FOIA Officer shall charge
commercial use requesters the full direct costs of searching for,
reviewing, and duplicating requested records.
(2) Educational and non-commercial scientific institution
requesters. The FOIA Officer shall charge educational and non-commercial
scientific institution requesters for document duplication only, except
that the first 100 pages of copies shall be provided without charge.
(3) News media requesters. The FOIA Officer shall charge news media
requesters for document duplication costs only, except that the first
100 pages of paper copies shall be provided without charge.
(4) All other requesters. The FOIA Officer shall charge requesters
who do not fall into any of the categories in paragraphs (d)(1) through
(3) of this section fees which recover the full reasonable direct costs
incurred for searching for and reproducing records if that total
[[Page 50]]
costs exceeds $15.00, except that the first 100 pages and the first two
hours of manual search time shall not be charged. To apply this term to
computer searches, the FOIA Officer shall determine the total hourly
cost of operating the central processing unit and the operator's salary
(plus 16 percent for benefits). When the cost of the search equals the
equivalent dollar amount of two hours of the salary of the person
performing the search, the FOIA Officer will begin assessing charges for
the computer search.
(e) Charges for unsuccessful searches. Ordinarily, no charges will
be assessed when requested records are not found or when records located
are withheld as exempt. However, if the requester has been notified of
the estimated cost of the search time and has been advised specifically
that the requested records may not exist or may be withheld as exempt,
fees may be charged.
(f) Charges for interest. The FOIA Officer may assess interest
charges on an unpaid bill, accrued under previous FOIA request(s),
starting the 31st day following the day on which the bill was sent to
you. A fee received by the FOIA Officer, even if not processed, will
result in a stay of the accrual of interest. The Commission shall follow
the provisions of the Debt Collection Act of 1982, as amended, and the
implementing procedures to recover any indebtedness owed to the
Commission.
(g) Aggregating requests. The requester or a group of requesters may
not submit multiple requests at the same time, each seeking portions of
a document or documents solely in order to avoid payment of fees. When
the FOIA Officer reasonably believes that a requester is attempting to
divide a request into a series of requests to evade an assessment of
fees, the FOIA Officer may aggregate such request and charge
accordingly.
(h) Advance payment of fees. Fees may be paid upon provision of the
requested records, except that payment may be required prior to that
time if the requester has previously failed to pay fees or if the FOIA
Officer determines the total fee will exceed $250.00. When payment is
required in advance of the processing of a request, the time limits
prescribed in Sec. 517.6 shall not be deemed to begin until the FOIA
Officer has received payment of the assessed fee.
(i) Payment of fees. Where it is anticipated that the cost of
providing the requested record will exceed $25.00 after the free
duplication and search time has been calculated, and the requester has
not indicated in advance a willingness to pay a fee greater than $25.00,
the FOIA Officer shall promptly notify the requester of the amount of
the anticipated fee or a portion thereof, which can readily be
estimated. The notification shall offer the requester an opportunity to
confer with agency representatives for the purpose of reformulating the
request so as to meet the requester's needs at a reduced cost.
PART 518_SELF REGULATION OF CLASS II GAMING--Table of Contents
Sec.
518.1 What does this part cover?
518.2 Who may petition for a certificate of self-regulation?
518.3 What must a tribe submit to the Commission as part of its
petition?
518.4 What criteria must a tribe meet to receive a certificate of self-
regulation?
518.5 What process will the Commission use to review petitions?
518.6 When will a certificate of self-regulation become effective?
518.7 If a tribe holds a certificate of self-regulation, is it required
to report information to the Commission to maintain its self-
regulatory status?
518.8 Does a tribe that holds a certificate of self-regulation have a
continuous duty to advise the Commission of any information?
518.9 Are any of the investigative or enforcement powers of the
Commission limited by the issuance of a certificate of self-
regulation?
518.10 Under what circumstances may the Commission remove a certificate
of self-regulation?
518.11 May a tribe request a hearing on the Commission's proposal to
remove its certificate?
518.12 May a tribe request reconsideration by the Commission of a denial
of a petition or a removal of a certificate of self-
regulation?
Authority: 25 U.S.C. 2706(b)(10), 2710(c)(3)-(6).
Source: 63 FR 41969, Aug. 6, 1998, unless otherwise noted.
[[Page 51]]
Sec. 518.1 What does this part cover?
This part sets forth requirements for obtaining, and procedures
governing, the Commission's issuance of certificates of self-regulation
of class II gaming operations under 25 U.S.C. 2710(c). When the
Commission issues a certificate of self-regulation, the certificate is
issued to the tribe, not to a particular gaming operation; the
certificate will apply to all class II gaming operations operated by the
tribe that holds the certificate.
Sec. 518.2 Who may petition for a certificate of self-regulation?
A tribe may submit to the Commission a petition for self-regulation
of class II gaming if, for the three (3) year period immediately
preceding the date of its petition:
(a) The tribe has continuously conducted the gaming activity for
which it seeks self-regulation;
(b) All gaming that the tribe has engaged in, or licensed and
regulated, on Indian lands within the tribe's jurisdiction, is located
within a State that permits such gaming for any purpose by any person,
organization or entity (and such gaming is not otherwise specifically
prohibited on Indian lands by federal law), in accordance with 25 U.S.C.
2710(b)(1)(A);
(c) The governing body of the tribe has adopted an ordinance or
resolution that the Chairman has approved, in accordance with 25 U.S.C.
2710(b)(1)(B);
(d) The tribe has otherwise complied with the provisions of 25
U.S.C. 2710; and
(e) The gaming operation and the tribal regulatory body have, for
the three years immediately preceding the date of the petition,
maintained all records required to support the petition for self-
regulation.
Sec. 518.3 What must a tribe submit to the Commission as part of its
petition?
(a) A petition for a certificate of self-regulation under this part
shall contain:
(1) Two copies on 8-1/2x11 paper of a petition
for self-regulation approved by the governing body of the tribe and
certified as authentic by an authorized tribal official, which includes:
(i) A brief history of each gaming operation(s), including the
opening dates and periods of voluntary or involuntary closure;
(ii) An organizational chart of the independent tribal regulatory
body;
(iii) A description of the process by which all employee and
regulator positions at the independent tribal regulatory body are
filled, including qualifying and disqualifying criteria;
(iv) A description of the process by which the independent tribal
regulatory body is funded and the funding level for the three years
immediately preceding the date of the petition;
(v) A list of the current regulators and employees of the
independent tribal regulatory body, their titles, the dates they began
employment, and, if serving limited terms, the expiration date of such
terms;
(vi) A list of the current gaming operation division heads; and
(vii) A report, with supporting documentation, including a sworn
statement signed by an authorized tribal official, which explains how
tribal net gaming revenues were used in accordance with the requirements
of 25 U.S.C. 2710(b)(2)(B);
(2) A descriptive list of the documents maintained by the tribe,
together with an assurance that the listed documents or records are
available for the Commission's review for use in determining whether the
tribe meets the eligibility criteria of Sec. 518.2 and the approval
criteria of Sec. 518.4, which shall include but is not limited to:
(i) The tribe's constitution or other governing documents;
(ii) If applicable, the tribe's revenue allocation plan pursuant to
25 U.S.C. 2710(b)(3);
(iii) A description of the accounting system(s) at both the gaming
operation and the tribe that account for the flow of the gaming revenues
from receipt to their ultimate use, consistent with IGRA;
(iv) Manual(s) of the internal control systems of the gaming
operation(s);
(v) A description of the record keeping system for all allegations
of criminal or dishonest activity for the three (3)-year period
immediately preceding the date of the petition, and measures taken to
resolve the allegations;
[[Page 52]]
(vi) A description of the record keeping system for all
investigations, enforcement actions, and prosecutions of violations of
the tribal gaming ordinance or regulations, for the three (3)-year
period immediately preceding the date of the petition, including
dispositions thereof;
(vii) A description of the personnel record keeping system of all
current employees of the gaming operation(s);
(viii) The dates of issuance, and criteria for the issuance of
tribal gaming licenses issued for each place, facility or location at
which gaming is conducted; and
(ix) The tribe's current set of gaming regulations; and
(3) A copy of the public notice required under 25 CFR 518.5(d) and a
certification, signed by a tribal official, that it has been posted.
Upon publication of the notice in a local newspaper, the tribe shall
forward an affidavit of publication to the Commission.
Sec. 518.4 What criteria must a tribe meet to receive a certificate of
self-regulation?
(a) The Commission shall issue a certificate of self-regulation if
it determines that the tribe has, for the three years immediately
preceding the petition:
(1) Conducted its gaming activity in a manner that:
(i) Has resulted in an effective and honest accounting of all
revenues;
(ii) Has resulted in a reputation for safe, fair, and honest
operation of the activity; and
(iii) Has been generally free of evidence of criminal or dishonest
activity;
(2) Adopted and is implementing adequate systems for:
(i) Accounting of all revenues from the activity;
(ii) Investigation, licensing and monitoring of all employees of the
gaming activity; and
(iii) Investigation, enforcement and prosecution of violations of
its gaming ordinance and regulations;
(3) Conducted the operation on a fiscally and economically sound
basis; and
(4) The gaming activity has been conducted in compliance with the
IGRA, NIGC regulations in this chapter, and the tribe's gaming ordinance
and gaming regulations.
(b) Indicators that a tribe has met the criteria set forth in
paragraph (a) of this section may include, but are not limited to:
(1) Adoption and implementation of minimum internal control
standards which are at least as stringent as those promulgated by the
Commission, or until such standards are promulgated by the Commission,
minimum internal control standards at least as stringent as those
required by the State of Nevada or the State of New Jersey;
(2) Evidence that suitability determinations are made with respect
to tribal gaming regulators which are at least as stringent as those
required for key employees and primary management officials of the
gaming operation(s);
(3) Evidence of an established independent regulatory body within
the tribal government which:
(i) Monitors gaming activities to ensure compliance with federal and
tribal laws and regulations;
(ii) Promulgates tribal gaming regulations pursuant to tribal law;
(iii) Ensures that there is an adequate system for accounting of all
revenues from the activity and monitors such system for continued
effectiveness;
(iv) Performs routine operational or other audits of the gaming
operation(s);
(v) Routinely receives and reviews accounting information from the
gaming operation(s);
(vi) Has access to and may inspect, examine, photocopy and audit all
papers, books, and records of the gaming operation(s);
(vii) Provides ongoing information to the tribe on the status of the
tribe's gaming operation(s);
(viii) Monitors compliance with minimum internal control standards
for the gaming operation;
(ix) Adopts and implements an adequate system for investigation,
licensing, and monitoring of all employees of the gaming activity;
(x) Maintains records on licensees and on persons denied licenses
including persons otherwise prohibited from
[[Page 53]]
engaging in gaming activities within the tribe's jurisdiction;
(xi) Inspects and examines all premises where gaming is conducted;
(xii) Establishes standards for and issues vendor licenses or
permits to persons or entities who deal with the gaming operation, such
as manufacturers and suppliers of services, equipment and supplies;
(xiii) Establishes or approves, and requires the posting of, rules
of games;
(xiv) Inspects games, tables, equipment, cards, and chips or tokens
used in the gaming operation(s);
(xv) Establishes standards for technological aids and tests such for
compliance with standards;
(xvi) Establishes or approves video surveillance standards;
(xvii) Adopts and implements an adequate system for the
investigation of possible violations of the tribal gaming ordinance and
regulations and takes appropriate enforcement actions;
(xviii) Determines that there are adequate dispute resolution
procedures for gaming operation employees and customers, and ensures
that such system is adequately implemented; and
(xix) Takes testimony and conducts hearings on regulatory matters,
including matters related to the revocation of primary management
officials and key employee licenses;
(4) Documentation of a sufficient source of permanent and stable
funding for the independent tribal regulatory body which is allocated
and appropriated by the tribal governing body;
(5) Adoption of a conflict of interest policy for the regulators/
regulatory body and their staff;
(6) Evidence that the operation is financially stable;
(7) Adoption and implementation of a system for adequate prosecution
of violations of the tribal gaming ordinance and regulations, which may
include the existence of a tribal court system authorized to hear and
decide gaming related cases;
(8) Evidence that the operation is being conducted in a safe manner,
which may include, but not be limited to:
(i) The availability of medical, fire, and emergency services;
(ii) The existence of an evacuation plan; and
(iii) Proof of compliance with applicable building, health, and
safety codes; and
(9) Evidence that reports are produced or received by the tribe, the
tribal regulatory body, or the gaming operation based on an evaluation
of the internal controls of the gaming operation during the three (3)
year period immediately preceding the date of the petition.
(c) The burden of establishing self-regulation is upon the tribe
filing the petition.
(d) During the review of the petition, the Commission shall have
complete access to all areas of and all papers, books, and records of
the tribal regulatory body, the gaming operation, and any other entity
involved in the regulation or oversight of the gaming operation. The
Commission shall be allowed to inspect and photocopy any relevant
materials. The tribe shall take no action to prohibit the Commission
from soliciting information from any current or former employees of the
tribe, the tribal regulatory body, or the gaming operation. Failure to
adhere to this paragraph may be grounds for denial of a petition for
self-regulation.
Sec. 518.5 What process will the Commission use to review petitions?
(a) The Chairman shall appoint one Commissioner to administer the
Office of Self Regulation. The Office of Self Regulation shall undertake
an initial review of the petition to determine whether the tribe meets
all of the eligibility criteria of Sec. 518.2. If the tribe fails to
meet any of the eligibility criteria, the Office of Self Regulation
shall deny the petition and so notify the tribe. If the tribe meets all
of the eligibility criteria, the Office of Self Regulation shall review
the petition and accompanying documents for completeness. If the Office
of Self Regulation finds the petition incomplete, it shall immediately
notify the tribe by letter, certified mail, return receipt requested, of
any obvious deficiencies or significant omissions apparent in the
petition and provide the tribe with an opportunity to submit additional
information and/or clarification.
[[Page 54]]
(b) The Office of Self Regulation shall notify a tribe, by letter,
when it considers a petition to be complete.
(c) Upon receipt of a complete petition, the Office of Self
Regulation shall conduct a review and investigation to determine whether
the tribe meets the approval criteria under Sec. 518.4. During the
course of this review, the Office of Self Regulation may request from
the tribe any additional material it deems necessary to assess whether
the tribe has met the requirements for self-regulation. The tribe shall
provide all information requested by the Office of Self Regulation in a
timely manner. The Office of Self Regulation may consider any evidence
which may be submitted by interested or informed parties. The Office of
Self Regulation shall make all such information on which it relies in
making its determination available to the Tribe and shall afford the
Tribe an opportunity to respond.
(d) The tribe shall post a notice, contemporaneous with the filing
of the petition, advising the public that it has petitioned the
Commission for a certificate of self regulation. Such notice shall be
posted in conspicuous places in the gaming operation and the tribal
government offices. Such notice shall remain posted until the Commission
either issues a certificate or declines to do so. The tribe shall also
publish such notice, once a week for four weeks, in a local newspaper
with a broad based circulation. Both notices shall state that one of the
criteria for the issuance of a certificate is that the tribe has a
reputation for safe, fair, and honest operation of the gaming activity,
and shall solicit comments in this regard. The notices shall instruct
commentors to submit their comments directly to the Office of Self
Regulation, shall provide the mailing address of the Commission and
shall request that commentors include their name, address and day time
telephone number.
(e) After making an initial determination on the petition, the
Office of Self Regulation shall issue a report of its findings to the
tribe.
(1) If the Office of Self Regulation determines that the tribe has
satisfied the criteria for a certificate of self regulation, it shall so
indicate in its report and shall issue a certificate in accordance with
25 CFR 518.6.
(2) If the Office of Self Regulation's initial determination is that
a tribe has not met the criteria for a certificate of self regulation,
it shall so advise the tribe in its report and the tribe shall have 60
days from the date of service of the report to submit to the Office of
Self Regulation a written response to the report. This response may
include additional materials which:
(i) The tribe deems necessary to adequately respond to the findings;
and
(ii) The tribe believes supports its petition.
(f) At the time of the submission of its response the tribe may
request a hearing before the Office of Self Regulation. This request
shall specify the issues to be addressed by the tribe at such hearing,
and any proposed oral or written testimony the tribe wishes to present.
The Office of Self Regulation may limit testimony.
(g) The Office of Self Regulation shall notify the tribe, within 10
days of receipt of such request, of the date and place of the hearing.
The Office of Self Regulation shall also set forth the schedule for the
conduct of the hearing, including the specification of all issues to be
addressed at the hearing, the identification of any witnesses, the time
allotted for testimony and oral argument, and the order of the
presentation.
(h) Following review of the tribe's response and the conduct of the
hearing, the Office of Self Regulation shall issue a decision on the
petition. The decision shall set forth with particularity the findings
with respect to the tribe's compliance with standards for self-
regulation set forth in this part. If the Office of Self Regulation
determines that a certificate will issue, it will do so in accordance
with 25 CFR 518.6.
(i) The decision to deny a petition shall be appealable to the full
Commission. Such appeal shall be received by the Commission within
thirty (30) days of service of the decision and shall include a
supplemental statement that states with particularity the relief desired
and the grounds therefor. The full Commission shall decide the appeal
[[Page 55]]
based only on a review of the record before it. The decision on appeal
shall require a majority vote of the Commissioners.
(j) The decision of the Commission to approve or deny a petition
shall be a final agency action. A denial shall be appealable under 25
U.S.C. 2714, subject to the provisions of Sec. 518.12. The Commission
decision shall be effective when the time for the filing of a request
for reconsideration pursuant to Sec. 518.12 has expired and no request
has been filed.
Sec. 518.6 When will a certificate of self-regulation become effective?
A certificate of self-regulation shall become effective on January 1
of the year following the year in which the Commission determines that a
certificate will issue. Complete petitions are due no later than June
30. No petitions will be considered for the following January 1
effective date that have not been received by June 30 of the previous
year. Petitions will be reviewed and investigated in chronological order
based on the date of receipt of a complete petition. The Commission will
announce its determinations on December 1 for all those reviews and
investigations it completes.
Sec. 518.7 If a tribe holds a certificate of self-regulation, is it
required to report information to the Commission to maintain its
self-regulatory status?
Yes. Each tribe that holds a certificate of self-regulation shall be
required to submit a self-regulation report annually to the Commission
in order to maintain its self-regulatory status. Such report shall set
forth information to establish that the tribe has continuously met the
eligibility requirements of Sec. 518.2 and the approval requirements of
Sec. 518.4 and shall include a report, with supporting documentation,
including a sworn statement signed by an authorized tribal official,
which explains how tribal net gaming revenues were used in accordance
with the requirements of 25 U.S.C. 2710(b)(2)(B)''. The annual report
shall be filed with the Commission on April 15th of each year following
the first year of self-regulation. Failure to file such report shall be
grounds for the removal of a certificate under Sec. 518.8.
Sec. 518.8 Does a tribe that holds a certificate of self-regulation
have a continuing duty to advise the Commission of any information?
Yes. A tribe that holds a certificate of self-regulation has a
continuing duty to advise immediately the Commission of any
circumstances that may reasonably cause the Commission to review the
tribe's certificate of self-regulation. Failure to do so is grounds for
removal of a certificate of self-regulation. Such circumstances may
include, but are not limited to: a change in management contractor;
financial instability; or any other factors that are material to the
decision to grant a certificate of self regulation.
Sec. 518.9 Are any of the investigative or enforcement powers of the
Commission limited by the issuance of a certificate of self-regulation?
No. Subject to the provisions of 25 U.S.C. 2710(c)(5)(A) the
Commission retains its investigative and enforcement powers over all
class II gaming tribes notwithstanding the issuance of a certificate of
self-regulation. The Commission shall retain its powers to investigate
and bring enforcement actions for violations of the Indian Gaming
Regulatory Act, accompanying regulations, and violations of tribal
gaming ordinances.
Sec. 518.10 Under what circumstances may the Commission remove a
certificate of self-regulation?
The Commission may, after an opportunity for a hearing, remove a
certificate of self-regulation by a majority vote of its members if it
determines that the tribe no longer meets the eligiblity criteria of
Sec. 518.2, the approval criteria of Sec. 518.4, the requirements of
Sec. 518.7 or the requirements of Sec. 518.8. The Commission shall
provide the tribe with prompt notice of the Commission's intent to
remove a certificate of self-regulation under this Part. Such notice
shall state the reasons for the Commission's action and shall advise the
tribe of its right to a hearing under Sec. 518. 11. The decision to
remove a certificate is appealable to
[[Page 56]]
Federal District Court pursuant to 25 U.S.C. 2714.
Sec. 518.11 May a tribe request a hearing on the Commission's proposal
to remove its certificate?
Yes. A tribe may request a hearing regarding the Commission's
proposal to remove a certificate of self regulation under Sec. 518.10.
Such a request shall be filed with the Commission within thirty (30)
days after the tribe receives notice of the Commission's action. Failure
to request a hearing within the time provided by this section shall
constitute a waiver of the right to a hearing.
Sec. 518.12 May a tribe request reconsideration by the Commission of a
denial of a petition or a removal of a certificate of self-regulation?
Yes. A tribe may file a request for reconsideration of a denial of a
petition or a removal of a certificate of self-regulation within 30 days
of receipt of the denial or removal. Such request shall set forth the
basis for the request, specifically identifying those Commission
findings which the tribe believes to be erroneous. The Commission shall
issue a final decision within 30 days of receipt of the request. If the
Commission fails to issue a decision within 30 days, the request shall
be considered to be disapproved.
PART 519_SERVICE--Table of Contents
Sec.
519.1 Designation of an agent by a tribe.
519.2 Designation of an agent by a management contractor or a tribal
operator.
519.3 Methods of service.
519.4 Copy of any official determination, order, or notice of violation.
Authority: 25 U.S.C. 2706(b)(10).
Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.
Sec. 519.1 Designation of an agent by a tribe.
By written notification to the Commission, a tribe shall designate
an agent for service of any official determination, order, or notice of
violation.
Sec. 519.2 Designation of an agent by a management contractor or a
tribal operator.
By written notification to the Commission, a management contractor
or a tribal operator shall designate an agent for service of any
official determination, order, or notice of violation.
Sec. 519.3 Methods of service.
(a) The Chairman shall serve any official determination, order, or
notice of violation by:
(1) Delivering a copy to a designated agent;
(2) Delivering a copy to the person who is the subject of the
official determination, order, or notice of violation;
(3) Delivering a copy to the individual who, after reasonable
inquiry, appears to be in charge of the gaming operation that is the
subject of the official determination, order, or notice of violation;
(4) Mailing to the person who is the subject of the official
determination, order, or notice of violation or to his or her designated
agent at the last known address. Service by mail is complete upon
mailing; or
(5) Transmitting a facsimile to the person who is the subject of the
official determination, order, or notice of violation or to his or her
designated agent at the last known facsimile number. Service by
facsimile is complete upon transmission.
(b) Delivery of a copy means: Handing it to the person or designated
agent (or attorney for either); leaving a copy at the person's, agent's
or attorney's office with a clerk or other person in charge thereof; if
there is no one in charge, leaving it in a conspicuous place therein;
or, if the office is closed or the person to be served has no office,
leaving it at the person's dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein.
(c) Service shall not be deemed incomplete because of refusal to
accept.
Sec. 519.4 Copy of any official determination, order, or notice of
violation.
The Commission shall transmit a copy of any official determination,
order, or notice of violation to the tribal chairman, the designated
tribal
[[Page 57]]
agent under Sec. 519.1, and to the relevant tribal gaming authority.
The Commission shall transmit such copy as expeditiously as possible.
Service under Sec. 519.3 shall not depend on a copy being sent to the
appropriate tribal chairman, the designated tribal agent or to the
relevant tribal gaming authority.
[[Page 58]]
SUBCHAPTER B_APPROVAL OF CLASS II AND CLASS III ORDINANCES AND
RESOLUTIONS
PARTS 520 521 [RESERVED]
PART 522_SUBMISSION OF GAMING ORDINANCE OR RESOLUTION--Table of Contents
Sec.
522.1 Scope of this part.
522.2 Submission requirements.
522.3 Amendment.
522.4 Approval requirements for class II ordinances.
522.5 Disapproval of a class II ordinance.
522.6 Approval requirements for class III ordinances.
522.7 Disapproval of a class III ordinance.
522.8 Publication of class III ordinance and approval.
522.9 Substitute approval.
522.10 Individually owned class II and class III gaming operations other
than those operating on September 1, 1986.
522.11 Individually owned class II gaming operations operating on
September 1, 1986.
522.12 Revocation of class III gaming.
Authority: 25 U.S.C. 2706, 2710, 2712
Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.
Sec. 522.1 Scope of this part.
This part applies to any gaming ordinance or resolution adopted by a
tribe after February 22, 1993. Part 523 of this chapter applies to all
existing gaming ordinances or resolutions.
[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]
Sec. 522.2 Submission requirements.
A tribe shall submit to the Chairman all of the following
information with a request for approval of a class II or class III
ordinance or resolution:
(a) One copy on 8\1/2\x11 paper of an
ordinance or resolution certified as authentic by an authorized tribal
official and that meets the approval requirements in Sec. 522.4(b) or
522.6 of this part;
(b) A description of procedures to conduct or cause to be conducted
background investigations on key employees and primary management
officials and to ensure that key employees and primary management
officials are notified of their rights under the Privacy Act as
specified in Sec. 556.2 of this chapter;
(c) A description of procedures to issue tribal licenses to primary
management officials and key employees;
(d) Copies of all tribal gaming regulations;
(e) When an ordinance or resolution concerns class III gaming, a
copy of the tribal-state compact or procedures as prescribed by the
Secretary;
(f) A description of procedures for resolving disputes between the
gaming public and the tribe or the management contractor;
(g) Designation of an agent for service under Sec. 519.1 of this
chapter; and
(h) Identification of a law enforcement agency that will take
fingerprints and a description of procedures for conducting a criminal
history check by a law enforcement agency. Such a criminal history check
shall include a check of criminal history records information maintained
by the Federal Bureau of Investigation.
(i) A tribe shall provide Indian lands or environmental and public
health and safety documentation that the Chairman may in his or her
discretion request as needed.
[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993; 73
FR 6029, Feb. 1, 2008]
Sec. 522.3 Amendment.
(a) Within 15 days after adoption, a tribe shall submit for the
Chairman's approval any amendment to an ordinance or resolution.
(b) A tribe shall submit for the Chairman's approval any amendment
to the submissions made under Sec. Sec. 522.2(b) through (h) of this
part within 15 days after adoption of such amendment.
Sec. 522.4 Approval requirements for class II ordinances.
No later than 90 days after the submission to the Chairman under
Sec. 522.2 of this part, the Chairman shall approve the class II
ordinance or resolution if the Chairman finds that--
[[Page 59]]
(a) A tribe meets the submission requirements contained in Sec.
522.2 of this part; and
(b) The class II ordinance or resolution provides that--
(1) The tribe shall have the sole proprietary interest in and
responsibility for the conduct of any gaming operation unless it elects
to allow individually owned gaming under either Sec. 522.10 or Sec.
522.11 of this part;
(2) A tribe shall use net revenues from any tribal gaming or from
any individually owned games only for one or more of the following
purposes:
(i) To fund tribal government operations or programs;
(ii) To provide for the general welfare of the tribe and its members
(if a tribe elects to make per capita distributions, the plan must be
approved by the Secretary of the Interior under 25 U.S.C. 2710(b)(3));
(iii) To promote tribal economic development;
(iv) To donate to charitable organizations; or
(v) To help fund operations of local government agencies;
(3) A tribe shall cause to be conducted independent audits of gaming
operations annually and shall submit the results of those audits to the
Commission;
(4) All gaming related contracts that result in purchases of
supplies, services, or concessions for more than $25,000 in any year
(except contracts for professional legal or accounting services) shall
be specifically included within the scope of the audit conducted under
paragraph (b)(3) of this section;
(5) A tribe shall perform background investigations and issue
licenses for key employees and primary management officials according to
requirements that are at least as stringent as those in parts 556 and
558 of this chapter;
(6) A tribe shall issue a separate license to each place, facility,
or location on Indian lands where a tribe elects to allow class II
gaming; and
(7) A tribe shall construct, maintain and operate a gaming facility
in a manner that adequately protects the environment and the public
health and safety.
Sec. 522.5 Disapproval of a class II ordinance.
No later than 90 days after a tribe submits an ordinance for
approval under Sec. 522.2 of this part, the Chairman may disapprove an
ordinance if he or she determines that a tribe failed to comply with the
requirements of Sec. 522.2 or Sec. 522.4(b) of this part. The Chairman
shall notify a tribe of its right to appeal under part 524 of this
chapter. A disapproval shall be effective immediately unless appealed
under part 524 of this chapter.
Sec. 522.6 Approval requirements for class III ordinances.
No later than 90 days after the submission to the Chairman under
Sec. 522.2 of this part, the Chairman shall approve the class III
ordinance or resolution if--
(a) A tribe follows the submission requirements contained in Sec.
522.2 of this part;
(b) The ordinance or resolution meets the requirements contained in
Sec. 522.4(b) (2), (3), (4), (5), (6), and (7) of this part; and
(c) The tribe shall have the sole proprietary interest in and
responsibility for the conduct of any gaming operation unless it elects
to allow individually owned gaming under Sec. 522.10 of this part.
Sec. 522.7 Disapproval of a class III ordinance.
(a) Notwithstanding compliance with the requirements of Sec. 522.6
of this part and no later than 90 days after a submission under Sec.
522.2 of this part, the Chairman shall disapprove an ordinance or
resolution and notify a tribe of its right of appeal under part 524 of
this chapter if the Chairman determines that--
(1) A tribal governing body did not adopt the ordinance or
resolution in compliance with the governing documents of a tribe; or
(2) A tribal governing body was significantly and unduly influenced
in the adoption of the ordinance or resolution by a person having a
direct or indirect financial interest in a management contract, a person
having management responsibility for a management contract, or their
agents.
[[Page 60]]
(b) A disapproval shall be effective immediately unless appealed
under part 524 of this chapter.
Sec. 522.8 Publication of class III ordinance and approval.
The Chairman shall publish a class III tribal gaming ordinance or
resolution in the Federal Register along with the Chairman's approval
thereof.
Sec. 522.9 Substitute approval.
If the Chairman fails to approve or disapprove an ordinance or
resolution submitted under Sec. 522.2 of this part within 90 days after
the date of submission to the Chairman, a tribal ordinance or resolution
shall be considered to have been approved by the Chairman but only to
the extent that such ordinance or resolution is consistent with the
provisions of the Act and this chapter.
Sec. 522.10 Individually owned class II and class III gaming operations
other than those operating on September 1, 1986.
For licensing of individually owned gaming operations other than
those operating on September 1, 1986 (addressed under Sec. 522.11 of
this part), a tribal ordinance shall require:
(a) That the gaming operation be licensed and regulated under an
ordinance or resolution approved by the Chairman;
(b) That income to the tribe from an individually owned gaming
operation be used only for the purposes listed in Sec. 522.4(b)(2) of
this part;
(c) That not less than 60 percent of the net revenues be income to
the Tribe;
(d) That the owner pay an assessment to the Commission under Sec.
514.1 of this chapter;
(e) Licensing standards that are at least as restrictive as those
established by State law governing similar gaming within the
jurisdiction of the surrounding State; and
(f) Denial of a license for any person or entity that would not be
eligible to receive a State license to conduct the same activity within
the jurisdiction of the surrounding State. State law standards shall
apply with respect to purpose, entity, pot limits and hours of
operation.
Sec. 522.11 Individually owned class II gaming operations operating on
September 1, 1986.
For licensing of individually owned gaming operations operating on
September 1, 1986, under Sec. 502.3(e) of this chapter, a tribal
ordinance shall contain the same requirements as those in Sec.
522.10(a)-(d) of this part.
Sec. 522.12 Revocation of class III gaming.
A governing body of a tribe, in its sole discretion and without the
approval of the Chairman, may adopt an ordinance or resolution revoking
any prior ordinance or resolution that authorizes class III gaming.
(a) A tribe shall submit to the Chairman on 8\1/
2\x11 paper one copy of any revocation ordinance
or resolution certified as authentic by an authorized tribal official.
(b) The Chairman shall publish such ordinance or resolution in the
Federal Register and the revocation provided by such ordinance or
resolution shall take effect on the date of such publication.
(c) Notwithstanding any other provision of this section, any person
or entity operating a class III gaming operation on the date of
publication in the Federal Register under paragraph (b) of this section
may, during a one-year period beginning on the date of publication,
continue to operate such operation in conformance with a tribal-state
compact.
(d) A revocation shall not affect--
(1) Any civil action that arises during the one-year period
following publication of the revocation; or
(2) Any crime that is committed during the one-year period following
publication of the revocation.
PART 523 [RESERVED]
PART 524_APPEALS--Table of Contents
Sec.
524.1 Appeals by a tribe.
524.2 Limited participation by an entity other than a tribe.
524.3 Decisions on appeals.
Authority: 25 U.S.C. 2706, 2710, 2712.
[[Page 61]]
Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.
Sec. 524.1 Appeal by a tribe.
A tribe may appeal disapproval of a gaming ordinance, resolution or
amendment under part 522 or 523 of this chapter. An appeal shall be
filed with the Commission within 30 days after the Chairman serves his
or her determination under part 519 of this chapter. Such an appeal
shall state succinctly why the tribe believes the Chairman's
determination to be erroneous, and shall include supporting
documentation, if any. Failure to file an appeal within the time
provided by this section shall result in a waiver of the opportunity for
an appeal.
Sec. 524.2 Limited participation by an entity other than a tribe.
(a) An entity other than a tribe may request to participate in an
appeal of a disapproval under part 522 or part 523 of this chapter by
filing a written submission. Such written submission shall:
(1) State the property, financial, or other interest of the party in
the appeal; and
(2) The reasons why the action of the Chairman in disapproving an
ordinance, resolution or amendment may be in error or the reasons why
the Chairman's disapproval should be upheld by the Commission. The
reasons shall address the approval requirements under Sec. Sec. 522.4,
522.5, 522.6, 522.7, 523.2 of this chapter.
(b) The Commission shall forward a copy of a request under paragraph
(a) of this section to the party of record under Sec. 524.1 of this
part.
(c) The Commission shall review a request under this section and
timely notify the requester of its determination. Such notification
shall supply the reasons for the determination. The Commission shall
also notify the party of record on appeal under Sec. 524.1 of its
determination.
(d) The Commission shall limit the extent of participation by an
entity other than a tribe to one written submission as described under
paragraph (a) of this section, unless the Commission determines further
participation would substantially contribute to the record.
Sec. 524.3 Decisions on appeals.
(a) Within 90 days after it receives the appeal, the Commission
shall render its decision on the appeal.
(b) The Commission shall notify the party of record under Sec.
524.1 of this part and any limited participant under Sec. 524.2 of this
part of its final decision and the reasons supporting it.
PARTS 525 529 [RESERVED]
[[Page 62]]
SUBCHAPTER C_MANAGEMENT CONTRACT PROVISIONS
PART 530 [RESERVED]
PART 531_CONTENT OF MANAGEMENT CONTRACTS--Table of Contents
Sec.
531.1 Required provisions.
531.2 Prohibited provisions.
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
Source: 58 FR 5828, Jan. 22, 1993, unless otherwise noted.
Sec. 531.1 Required provisions.
Management contracts shall conform to all of the requirements
contained in this section in the manner indicated.
(a) Governmental authority. Provide that all gaming covered by the
contract will be conducted in accordance with the Indian Gaming
Regulatory Act (IGRA, or the Act) and governing tribal ordinance(s).
(b) Assignment of responsibilities. Enumerate the responsibilities
of each of the parties for each identifiable function, including:
(1) Maintaining and improving the gaming facility;
(2) Providing operating capital;
(3) Establishing operating days and hours;
(4) Hiring, firing, training and promoting employees;
(5) Maintaining the gaming operation's books and records;
(6) Preparing the operation's financial statements and reports;
(7) Paying for the services of the independent auditor engaged
pursuant to Sec. 571.12 of this chapter;
(8) Hiring and supervising security personnel;
(9) Providing fire protection services;
(10) Setting advertising budget and placing advertising;
(11) Paying bills and expenses;
(12) Establishing and administering employment practices;
(13) Obtaining and maintaining insurance coverage, including
coverage of public liability and property loss or damage;
(14) Complying with all applicable provisions of the Internal
Revenue Code;
(15) Paying the cost of any increased public safety services; and
(16) If applicable, supplying the National Indian Gaming Commission
(NIGC, or the Commission) with all information necessary for the
Commission to comply with the regulations of the Commission issued
pursuant to the National Environmental Policy Act (NEPA).
(c) Accounting. Provide for the establishment and maintenance of
satisfactory accounting systems and procedures that shall, at a minimum:
(1) Include an adequate system of internal accounting controls;
(2) Permit the preparation of financial statements in accordance
with generally accepted accounting principles;
(3) Be susceptible to audit;
(4) Allow a gaming operation, the tribe, and the Commission to
calculate the annual fee under Sec. 514.1 of this chapter;
(5) Permit the calculation and payment of the manager's fee; and
(6) Provide for the allocation of operating expenses or overhead
expenses among the tribe, the tribal gaming operation, the contractor,
and any other user of shared facilities and services.
(d) Reporting. Require the management contractor to provide the
tribal governing body not less frequently than monthly with verifiable
financial reports or all information necessary to prepare such reports.
(e) Access. Require the management contractor to provide immediate
access to the gaming operation, including its books and records, by
appropriate tribal officials, who shall have:
(1) The right to verify the daily gross revenues and income from the
gaming operation; and
(2) Access to any other gaming-related information the tribe deems
appropriate.
[[Page 63]]
(f) Guaranteed payment to tribe. Provide for a minimum guaranteed
monthly payment to the tribe in a sum certain that has preference over
the retirement of development and construction costs.
(g) Development and construction costs. Provide an agreed upon
maximum dollar amount for the recoupment of development and construction
costs.
(h) Term limits. Be for a term not to exceed five (5) years, except
that upon the request of a tribe, the Chairman may authorize a contract
term that does not exceed seven (7) years if the Chairman is satisfied
that the capital investment required, and the income projections, for
the particular gaming operation require the additional time. The time
period shall begin running no later than the date when the gaming
activities authorized by an approved management contract begin.
(i) Compensation. Detail the method of compensating and reimbursing
the management contractor. If a management contract provides for a
percentage fee, such fee shall be either:
(1) Not more than thirty (30) percent of the net revenues of the
gaming operation if the Chairman determines that such percentage is
reasonable considering the circumstances; or
(2) Not more than forty (40) percent of the net revenues if the
Chairman is satisfied that the capital investment required and income
projections for the gaming operation require the additional fee.
(j) Termination provisions. Provide the grounds and mechanisms for
amending or terminating the contract (termination of the contract shall
not require the approval of the Chairman).
(k) Dispute provisions. Contain a mechanism to resolve disputes
between:
(1) The management contractor and customers, consistent with the
procedures in a tribal ordinance;
(2) The management contractor and the tribe; and
(3) The management contractor and the gaming operation employees.
(l) Assignments and subcontracting. Indicate whether and to what
extent contract assignments and subcontracting are permissible.
(m) Ownership interests. Indicate whether and to what extent changes
in the ownership interest in the management contract require advance
approval by the tribe.
(n) Effective date. State that the contract shall not be effective
unless and until it is approved by the Chairman, date of signature of
the parties notwithstanding.
[74 FR 36934, July 27, 2009]
Sec. 531.2 Prohibited provisions.
A management contract shall not transfer or, in any other manner,
convey any interest in land or other real property, unless specific
statutory authority exists and unless clearly specified in writing in
the contract.
PART 532 [RESERVED]
PART 533_APPROVAL OF MANAGEMENT CONTRACTS--Table of Contents
Sec.
533.1 Requirement for review and approval.
533.2 Time for submitting management contracts and amendments.
533.3 Submission of management contract for approval.
533.4 Action by the Chairman.
533.5 [Reserved]
533.6 Approval and disapproval.
533.7 Void agreements.
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
Source: 58 FR 5829, Jan. 22, 1993, unless otherwise noted.
Sec. 533.1 Requirement for review and approval.
Subject to the Chairman's approval, an Indian tribe may enter into a
management contract for the operation of a class II or class III gaming
activity.
(a) Such contract shall become effective upon approval by the
Chairman.
(b) Contract approval shall be evidenced by a Commission document
dated and signed by the Chairman. No other means of approval shall be
valid.
[58 FR 5829, Jan. 22, 1993, as amended at 74 FR 36935, July 27, 2009]
[[Page 64]]
Sec. 533.2 Time for submitting management contracts and amendments.
A tribe or a management contractor shall submit a management
contract to the Chairman for review within sixty (60) days of execution
by the parties. The Chairman shall notify the parties of their right to
appeal the approval or disapproval of the management contract under part
539 of this chapter.
[74 FR 36935, July 27, 2009]
Sec. 533.3 Submission of management contract for approval.
A tribe shall include in any request for approval of a management
contract under this part:
(a) A contract containing:
(1) Original signatures of an authorized official of the tribe and
the management contractor;
(2) A representation that the contract as submitted to the Chairman
is the entirety of the agreement among the parties; and
(b) A letter, signed by the tribal chairman, setting out the
authority of an authorized tribal official to act for the tribe
concerning the management contract.
(c) Copies of documents evidencing the authority under paragraph (b)
of this section.
(d) A list of all persons and entities identified in Sec. Sec.
537.1(a) and 537.1(c)(1) of this chapter, and either:
(1) The information required under Sec. 537.1(b)(1) of this chapter
for class II gaming contracts and Sec. 537.1(b)(1)(i) of this chapter
for class III gaming contracts; or
(2) The dates on which the information was previously submitted.
(e)(1) For new contracts and new operations, a three (3)-year
business plan which sets forth the parties' goals, objectives, budgets,
financial plans, and related matters; or
(2) For new contracts for existing operations, a three (3)-year
business plan which sets forth the parties' goals, objectives, budgets,
financial plans, and related matters, and income statements and sources
and uses of funds statements for the previous three (3) years.
(f) If applicable, a justification, consistent with the provisions
of Sec. 531.1(h) of this chapter, for a term limit in excess of five
(5) years, but not exceeding seven (7) years.
(g) If applicable, a justification, consistent with the provisions
of Sec. 531.1(i) of this chapter, for a fee in excess of thirty (30)
percent, but not exceeding forty (40) percent.
(h) A legal description for the site on which the gaming operation
to be managed is, or will be, located.
[74 FR 36935, July 27, 2009]
Sec. 533.4 Action by the Chairman.
(a) The Chairman shall approve or disapprove a management contract,
applying the standards contained in Sec. 533.6 of this part, within 180
days of the date on which the Chairman receives a complete submission
under Sec. 533.3 of this part, unless the Chairman notifies the tribe
and management contractor in writing of the need for an extension of up
to ninety (90) days.
(b) A tribe may bring an action in a U.S. district court to compel
action by the Chairman:
(1) After 180 days following the date on which the Chairman receives
a complete submission if the Chairman does not approve or disapprove the
contract under this part; or
(2) After 270 days following the Chairman's receipt of a complete
submission if the Chairman has told the tribe and management contractor
in writing of the need for an extension and has not approved or
disapproved the contract under this part.
[74 FR 36935, July 27, 2009]
Sec. 533.5 [Reserved]
Sec. 533.6 Approval and disapproval.
(a) The Chairman may approve a management contract if it meets the
standards of part 531 of this chapter and Sec. 533.3 of this part.
Failure to comply with the standards of part 531 of this chapter or
Sec. 533.3 may result in the Chairman's disapproval of the management
contract.
(b) The Chairman shall disapprove a management contract for class II
gaming if he or she determines that--
(1) Any person with a direct or indirect financial interest in, or
having management responsibility for, a management contract:
[[Page 65]]
(i) Is an elected member of the governing body of the tribe that is
party to the management contract;
(ii) Has been convicted of any felony or any misdemeanor gaming
offense;
(iii) Has knowingly and willfully provided materially false
statements or information to the Commission or to a tribe;
(iv) Has refused to respond to questions asked by the Chairman in
accordance with his or her responsibilities under this part; or
(v) Is determined by the Chairman to be a person whose prior
activities, criminal record, if any, or reputation, habits, and
associations pose a threat to the public interest or to the effective
regulation and control of gaming, or create or enhance the dangers of
unsuitable, unfair, or illegal practices, methods, and activities in the
conduct of gaming or the carrying on of related business and financial
arrangements;
(2) The management contractor or its agents have unduly interfered
with or influenced for advantage, or have tried to unduly interfere with
or influence for advantage, any decision or process of tribal government
relating to the gaming operation;
(3) The management contractor or its agents has deliberately or
substantially failed to follow the terms of the management contract or
the tribal gaming ordinance or resolution adopted and approved pursuant
to this Act; or
(4) A trustee, exercising the skill and diligence to which a trustee
is commonly held, would not approve the contract.
(c) The Chairman may disapprove a management contract for class III
gaming if he or she determines that a person with a financial interest
in, or management responsibility for, a management contract is a person
whose prior activities, criminal record, if any, or reputation, habits,
and associations pose a threat to the public interest or to the
effective regulation and control of gaming, or create or enhance the
dangers of unsuitable, unfair, or illegal practices, methods, and
activities in the conduct of gaming or the carrying on of related
business and financial arrangements.
[74 FR 36935, July 27, 2009]
Sec. 533.7 Void agreements.
Management contracts and changes in persons with a financial
interest in or management responsibility for a management contract, that
have not been approved by the Chairman in accordance with the
requirements of part 531 of this chapter and this part, are void.
[74 FR 36936, July 27, 2009]
PART 534 [RESERVED]
PART 535_POST-APPROVAL PROCEDURES--Table of Contents
Sec.
535.1 Amendments.
535.2 Assignments.
535.3 Post-approval noncompliance.
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
Source: 58 FR 5830, Jan. 22, 1993, unless otherwise noted.
Sec. 535.1 Amendments.
(a) Subject to the Chairman's approval, a tribe may enter into an
amendment of a management contract for the operation of a class II or
class III gaming activity.
(b) A tribe shall submit an amendment to the Chairman within thirty
(30) days of its execution.
(c) A tribe shall include in any request for approval of an
amendment under this part:
(1) An amendment containing original signatures of an authorized
official of the tribe and the management contractor and terms that meet
the applicable requirements of part 531 of this chapter;
(2) A letter, signed by the tribal chairman, setting out the
authority of an authorized tribal official to act for the tribe
concerning the amendment;
(3) Copies of documents evidencing the authority under paragraph
(c)(2) of this section;
(4) A list of all persons and entities identified in Sec. 537.1(a)
and Sec. 537.1(c)(1) of this chapter:
(i) If the amendment involves a change in person(s) having a direct
or
[[Page 66]]
indirect financial interest in the management contract or having
management responsibility for the management contract, a list of such
person(s) and either:
(A) The information required under Sec. 537.1(b)(1) of this chapter
for class II gaming contracts or Sec. 537.1(b)(1)(i) of this chapter
for class III gaming contracts; or
(B) The dates on which the information was previously submitted;
(ii) [Reserved]
(5) If applicable, a justification, consistent with the provisions
of Sec. 531.1(h) of this chapter, for a term limit in excess of five
(5) years, but not exceeding seven (7) years; and
(6) If applicable, a justification, consistent with the provisions
of Sec. 531.1(i) of this chapter, for a management fee in excess of
thirty (30) percent, but not exceeding forty (40) percent.
(d)(1) The Chairman shall approve or disapprove an amendment within
thirty (30) days from receipt of a complete submission if the amendment
does not require a background investigation under part 537 of this
chapter, unless the Chairman notifies the parties in writing of the need
for an extension of up to thirty (30) days.
(2) The Chairman shall approve or disapprove an amendment as soon as
practicable but no later than 180 days from receipt of a complete
submission if the amendment requires a background investigation under
part 537 of this chapter;
(3) A party may appeal the Chairman's approval or disapproval of an
amendment under part 539 of this chapter. If the Chairman does not
approve or disapprove an amendment within the timelines of paragraph
(d)(1) or (d)(2) of this section, the amendment shall be deemed
disapproved and a party shall have thirty (30) days to appeal the
decision under part 539 of this chapter.
(e)(1) The Chairman may approve an amendment to a management
contract if the amendment meets the submission requirements of paragraph
(c) of this section. Failure to comply with the submission requirements
of paragraph (c) of this section may result in the Chairman's
disapproval of an amendment.
(2) The Chairman shall disapprove an amendment of a management
contract for class II gaming if he or she determines that the conditions
contained in Sec. 533.6(b) of this chapter apply.
(3) The Chairman may disapprove an amendment of a management
contract for class III gaming if he or she determines that the
conditions contained in Sec. 533.6(c) of this chapter apply.
(f) Amendments that have not been approved by the Chairman in
accordance with the requirements of this part are void.
[74 FR 36936, July 27, 2009]
Sec. 535.2 Assignments.
Subject to the approval of the Chairman, a management contractor may
assign its rights under a management contract to the extent permitted by
the contract. A tribe or a management contractor shall submit such
assignment to the Chairman upon execution. The Chairman shall approve or
disapprove an assignment applying the standards of, and within the time
provided by Sec. Sec. 535.1(d) and 535.1(e) of this part.
Sec. 535.3 Post-approval noncompliance.
If the Chairman learns of any action or condition that violates the
standards contained in parts 531, 533, 535, or 537 of this chapter, the
Chairman may require modifications of, or may void, a management
contract or amendment approved by the Chairman under such sections,
after providing the parties an opportunity for a hearing before the
Chairman and a subsequent appeal to the Commission as set forth in part
577 of this chapter. The Chairman will initiate modification or void
proceedings by serving the parties, specifying the grounds for the
modification or void. The parties will have thirty (30) days to request
a hearing or respond with objections. Within thirty (30) days of
receiving a request for a hearing, the Chairman will hold a hearing and
receive oral presentations and written submissions. The Chairman will
make a decision on the basis of the developed record and notify the
parties of the decision and of their right to appeal.
[74 FR 36936, July 27, 2009]
[[Page 67]]
PART 536 [RESERVED]
PART 537_BACKGROUND INVESTIGATIONS FOR PERSONS OR ENTITIES WITH A
FINANCIAL INTEREST IN, OR HAVING MANAGEMENT RESPONSIBILITY FOR, A
MANAGEMENT CONTRACT--Table of Contents
Sec.
537.1 Applications for approval.
537.2 Submission of background information.
537.3 Fees for background investigations.
537.4 Determinations.
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
Source: 58 FR 5831, Jan. 22, 1993, unless otherwise noted.
Sec. 537.1 Applications for approval.
(a) For each management contract for class II gaming, the Chairman
shall conduct or cause to be conducted a background investigation of:
(1) Each person with management responsibility for a management
contract;
(2) Each person who is a director of a corporation that is a party
to a management contract;
(3) The ten (10) persons who have the greatest direct or indirect
financial interest in a management contract;
(4) Any entity with a financial interest in a management contract
(in the case of institutional investors, the Chairman may exercise
discretion and reduce the scope of the information to be furnished and
the background investigation to be conducted); and
(5) Any other person with a direct or indirect financial interest in
a management contract otherwise designated by the Commission.
(b) For each natural person identified in paragraph (a) of this
section, the management contractor shall provide to the Commission the
following information:
(1) Required information. (i) Full name, other names used (oral or
written), social security number(s), birth date, place of birth,
citizenship, and gender;
(ii) A current photograph, driver's license number, and a list of
all languages spoken or written;
(iii) Business and employment positions held, and business and
residence addresses currently and for the previous ten (10) years; the
city, state and country of residence from age eighteen (18) to the
present;
(iv) The names and current addresses of at least three (3) personal
references, including one personal reference who was acquainted with the
person at each different residence location for the past five (5) years;
(v) Current business and residence telephone numbers;
(vi) A description of any existing and previous business
relationships with Indian tribes, including ownership interests in those
businesses;
(vii) A description of any existing and previous business
relationships with the gaming industry generally, including ownership
interests in those businesses;
(viii) The name and address of any licensing or regulatory agency
with which the person has filed an application for a license or permit
relating to gaming, whether or not such license or permit was granted;
(ix) For each gaming offense and for each felony for which there is
an ongoing prosecution or a conviction, the name and address of the
court involved, the charge, and the dates of the charge and of the
disposition;
(x) For each misdemeanor conviction or ongoing misdemeanor
prosecution (excluding minor traffic violations) within ten (10) years
of the date of the application, the name and address of the court
involved, and the dates of the prosecution and the disposition;
(xi) A complete financial statement showing all sources of income
for the previous three (3) years, and assets, liabilities, and net worth
as of the date of the submission; and
(xii) For each criminal charge (excluding minor traffic charges)
regardless of whether or not it resulted in a conviction, if such
criminal charge is within 10 years of the date of the application and is
not otherwise listed pursuant to paragraphs (b)(1)(ix) or (b)(1)(x) of
this section, the name and address of the court involved, the criminal
charge, and the dates of the charge and the disposition.
[[Page 68]]
(2) Fingerprints. The management contractor shall arrange with an
appropriate federal, state, or tribal law enforcement authority to
supply the Commission with a completed form FD-258, Applicant
Fingerprint Card, (provided by the Commission), for each person for whom
background information is provided under this section.
(3) Responses to Questions. Each person with a direct or indirect
financial interest in a management contract or management responsibility
for a management contract shall respond within thirty (30) days to
written or oral questions propounded by the Chairman.
(4) Privacy notice. In compliance with the Privacy Act of 1974, each
person required to submit information under this section shall sign and
submit the following statement:
Solicitation of the information in this section is authorized by 25
U.S.C. 2701 et seq. The purpose of the requested information is to
determine the suitability of individuals with a financial interest in,
or having management responsibility for, a management contract. The
information will be used by the National Indian Gaming Commission
members and staff and Indian tribal officials who have need for the
information in the performance of their official duties. The information
may be disclosed to appropriate federal, tribal, state, or foreign law
enforcement and regulatory agencies in connection with a background
investigation or when relevant to civil, criminal or regulatory
investigations or prosecutions or investigations of activities while
associated with a gaming operation. Failure to consent to the
disclosures indicated in this statement will mean that the Chairman of
the National Indian Gaming Commission will be unable to approve the
contract in which the person has a financial interest or management
responsibility.
The disclosure of a person's Social Security Number (SSN) is
voluntary. However, failure to supply a SSN may result in errors in
processing the information provided.
(5) Notice regarding false statements. Each person required to
submit information under this section shall sign and submit the
following statement:
A false statement knowingly and willfully provided in any of the
information pursuant to this section may be grounds for not approving
the contract in which I have a financial interest or management
responsibility, or for disapproving or voiding such contract after it is
approved by the Chairman of the National Indian Gaming Commission. Also,
I may be punished by fine or imprisonment (U.S. Code, title 18, section
1001).
(c) For each entity identified in paragraph (a)(4) of this section,
the management contractor shall provide to the Commission the following
information:
(1) List of individuals. (i) Each of the ten (10) largest
beneficiaries and the trustees when the entity is a trust;
(ii) Each of the ten (10) largest partners when the entity is a
partnership;
(iii) Each person who is a director or who is one of the ten (10)
largest holders of the issued and outstanding stock alone or in
combination with another stockholder who is a spouse, parent, child or
sibling when the entity is a corporation; and
(iv) For any other type of entity, the ten (10) largest owners of
that entity alone or in combination with any other owner who is a
spouse, parent, child or sibling and any person with management
responsibility for that entity.
(2) Required information. (i) The information required in paragraph
(b)(1)(i) of this section for each individual identified in paragraph
(c)(1) of this section;
(ii) Copies of documents establishing the existence of the entity,
such as the partnership agreement, the trust agreement, or the articles
of incorporation;
(iii) Copies of documents designating the person who is charged with
acting on behalf of the entity;
(iv) Copies of bylaws or other documents that provide the day-to-day
operating rules for the organization;
(v) A description of any existing and previous business
relationships with Indian tribes, including ownership interests in those
businesses;
(vi) A description of any existing and previous business
relationships with the gaming industry generally, including ownership
interest in those businesses;
(vii) The name and address of any licensing or regulatory agency
with which the entity has filed an application for a license or permit
relating to gaming, whether or not such license or permit was granted;
(viii) For each gaming offense and for each felony for which there
is an ongoing prosecution or a conviction, the
[[Page 69]]
name and address of the court involved, the charge, and the dates of the
charge and disposition;
(ix) For each misdemeanor conviction or ongoing misdemeanor
prosecution within ten (10) years of the date of the application, the
name and address of the court involved, and the dates of the prosecution
and disposition;
(x) Complete financial statements for the previous three (3) fiscal
years; and
(xi) For each criminal charge (excluding minor traffic charges)
whether or not there is a conviction, if such criminal charge is within
10 years of the date of the application and is not otherwise listed
pursuant to paragraph (c)(1)(viii) or (c)(1)(ix) of this section, the
criminal charge, the name and address of the court involved and the
dates of the charge and disposition.
(3) Responses to questions. Each entity with a direct or indirect
financial interest in a management contract shall respond within thirty
(30) days to written or oral questions propounded by the Chairman.
(4) Notice regarding false statements. Each entity required to
submit information under this section shall sign and submit the
following statement:
A false statement knowingly and willfully provided in any of the
information pursuant to this section may be grounds for not approving
the contract in which we have a financial interest, or for disapproving
or voiding such contract after it is approved by the Chairman of the
National Indian Gaming Commission. Also, we may be punished by fine or
imprisonment (U.S. Code, title 18, section 1001).
[74 FR 36937, July 27, 2009]
Sec. 537.2 Submission of background information.
A management contractor shall submit the background information
required in Sec. 537.1 of this part:
(a) In sufficient time to permit the Commission to complete its
background investigation by the time the individual is to assume
management responsibility for, or the management contractor is to begin
managing, the gaming operation; and
(b) Within ten (10) days of any proposed change in financial
interest.
Sec. 537.3 Fees for background investigations.
(a) A management contractor shall pay to the Commission or the
contractor(s) designated by the Commission the cost of all background
investigations conducted under this part.
(b) The management contractor shall post a bond, letter of credit,
or deposit with the Commission to cover the cost of the background
investigations as follows:
(1) Management contractor (party to the contract)--$25,000
(2) Each individual and entity with a financial interest in the
contract--$10,000
(c) The management contractor shall be billed for the costs of the
investigation as it proceeds; the investigation shall be suspended if
the unpaid costs exceed the amount of the bond, letter of credit, or
deposit available.
(1) An investigation will be terminated if any bills remain unpaid
for more than thirty (30) days.
(2) A terminated investigation will preclude the Chairman from
making the necessary determinations and result in a disapproval of a
management contract.
(d) The bond, letter of credit or deposit will be returned to the
management contractor when all bills have been paid and the
investigations have been completed or terminated.
[74 FR 36938, July 27, 2009]
Sec. 537.4 Determinations.
The Chairman shall determine whether the results of a background
investigation preclude the Chairman from approving a management contract
because of the individual disqualifying factors contained in Sec.
533.6(b)(1) of this chapter. The Chairman shall promptly notify the
tribe and management contractor if any findings preclude the Chairman
from approving a management contract or a change in financial interest.
PART 538 [RESERVED]
PART 539_APPEALS--Table of Contents
Sec.
539.1 Scope of this part.
[[Page 70]]
539.2 Appeals.
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
Source: 58 FR 5832, Jan. 22, 1993, unless otherwise noted.
Sec. 539.1 Scope of this part.
This part applies to appeals from the Chairman's decision to approve
or disapprove a management contract or amendment under this subchapter,
except that appeals from the Chairman's decision to require
modifications of or to void a management contract or amendment
subsequent to his or her initial approval are addressed in Sec. 535.3
and part 577 of this chapter.
[74 FR 36938, July 27, 2009]