04-955. Fees

AGENCY:

National Indian Gaming Commission.

ACTION:

Final rule.

SUMMARY:

The National Indian Gaming Commission (NIGC or Commission) is amending its fee regulations. The regulations are being amended to reflect changes in the statutory limit set by Congress.

DATES:

Effective date: February 16, 2004.

ADDRESSES:

The complete file for this rule is available for public inspection, by appointment, during normal business hours at the NIGC, 1441 L Street, NW., Suite 9100, Washington, DC, 20005.

FOR FURTHER INFORMATION CONTACT:

John R. Hay at 202/632-7003; fax [phone] (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION:

The Indian Gaming Regulatory Act (IGRA), enacted on October 17, 1988, established the National Indian Gaming Commission (Commission). The Commission is funded primarily from fees collected from Indian gaming operations. The Commission is changing its current regulations to reflect changes in the statutory limit imposed by Congress. This regulation is being amended so that the amount of fees imposed by the Commission is directly related to congressional action. Under the current regulations, the Commission may only impose fees not exceeding $8,000,000, during any fiscal year. For fiscal year, 2004 and 2005 Congress has increased that amount to a maximum of $12,000,000. The change will allow the Commission to collect up to the statutory maximum and will eliminate the need to regularly amend this regulation as Congress raises or lowers the fee level.

The Commission received comments in response to a Notice of Proposed Rulemaking. All of the comments received came from Indian tribes. Due consideration has been given to each of the comments received. A discussion of the comments follows.

Issue 1: One commenter expressed a preference for having the monetary cap included in the regulation so that tribes will know how much NIGC is authorized to collect. They also commented that amending the regulation every six years was not a great burden.

Response: Congress has set the monetary cap for the next two fiscal years. Therefore, the NIGC would be required to change its regulations whenever Congress adjusts that cap. The NIGC's position is that the time and money spent on amending its regulations could be better spent in performing its primary duties.

Issue 2: The commenter stated that while Congress has authorized NIGC to collect an additional $4,000,000 in overall fees, the Commission should not increase the individual fees paid by existing gaming enterprises but rather the increase should come from new gaming enterprises.

Response: It is the Commission's position that while small and large operations should be treated differently in regards to fee assessment, that new gaming operations should be treated the same as existing ones. This position is consistent with the guidelines established by IGRA.

Issue 3: One commenter suggested an additional change to the regulations since they felt there was an ambiguity in the regulation as to whether the Commission is required to credit amounts in excess the total amount of fees imposed or anything over the statutory maximum.

Response: The Commission does not see an ambiguity in the regulation. The Commission is only required to credit pro-rata any fees collected in excess of the statutory maximum. As the NIGC does not impose fees in specific dollar amounts (or a specific total fee for all tribes), but rather imposes fees as a percentage of gross tribal gaming revenues, until all the tribes have submitted their fee payments, the total amount of fees collected is not a sum certain. Only if the total so collected exceeds the statutory maximum do pro-rata credits become necessary, and the Commission strives to avoid that necessity as it establishes the fee rate.

Regulatory Flexibility Act

The Commission certifies that the rule will not have a significant economic impact on a substantial number of small business entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The factual basis for this certification is as follows:

Of the 330 Indian gaming operations across the country, approximately 150 have revenues under 10 million. Of these, approximately 90 operations have gross revenues under 3 million. Those operations that gross less than 1.5 million are exempt from fees. Since fee assessments are based on a percentage of gross revenues until the maximum allowed by Congress is reached, and new gaming operations continue to open, the amount individual tribal gaming operations will pay in fees will likely only increase slightly or may in fact decrease. For these reasons, the Commission has concluded that the rule will not have a significant economic impact on those small entities subject to the rule.

Small Business Regulatory Enforcement Fairness Act

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule will not result in an annual effect on the economy of more than $100 million per year; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S. based enterprises.

Unfunded Mandates Reform Act

The Commission is an independent regulatory agency, and, as such, is not subject to the Unfunded Mandates Reform Act. Even so, the Commission has determined that this final rule does not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, of more than $100 million per year. Thus, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.

Takings

In accordance with Executive Order 12630, the Commission has determined that this rule does not have significant takings implications. A takings implication assessment is not required.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of General Counsel has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

The rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501-3520) would be required.

National Environmental Policy Act

The Commission has determined that this rule does not constitute a major Federal Action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969.

Dated: January 12, 2004.

Philip N. Hogen,

Chairman, National Indian Gaming Commission.

Regulation Promulgation

List of Subjects in 25 CFR Part 514

• Gambling
• Indian-lands
• Reporting and recordkeeping requirements

Accordingly, 25 CFR Part 514 is amended as follows:

PART 514—FEES

1. The authority citation for part 514 continues to read as follows:

Authority: 25 U.S.C. 2702 et seq.

2. Section 514.1(d) is revised to read as follows:

§ 514.1

Annual Fees.

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(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 at the end of the quarter following the quarter during which the Commission makes such determination.

(1) The Commission will notify each gaming operation as to the amount of overpayment, if any, and therefore the amount of credit to be taken against the next quarterly payment otherwise due.

(2) The notification required in paragraph (d)(1) of this section shall be made in writing addressed to the gaming operation.

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