[Federal Register Volume 69, Number 11 (Friday, January 16, 2004)]
[Rules and Regulations]
[Pages 2504-2506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-955]


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NATIONAL INDIAN GAMING COMMISSION

25 CFR Part 514

RIN 3141-AA16


Fees

AGENCY: National Indian Gaming Commission.

ACTION: Final rule.

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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 202/
632-7066 (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

[[Page 2505]]

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.

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Accordingly, 25 CFR Part 514 is amended as follows:

PART 514--FEES

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

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

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


Sec.  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

[[Page 2506]]

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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[FR Doc. 04-955 Filed 1-15-04; 8:45 am]
BILLING CODE 7565-01-P