[Federal Register Volume 74, Number 142 (Monday, July 27, 2009)]
[Rules and Regulations]
[Pages 36926-36940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17121]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Parts 502, 514, 531, 533, 535, 537, 539, 556, 558, 571, 573
RIN 3141-0001
Amendments to Various National Indian Gaming Commission
Regulations
AGENCY: National Indian Gaming Commission.
ACTION: Final Rule.
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SUMMARY: The final rule modifies various Commission regulations to
reduce by half the fee reporting burdens on tribes, remove obsolete
provisions, clarify existing appellate procedures, update and clarify
management contract procedures and costs for background investigations,
clarify various definitions and licensing notices, update audit
requirements to allow for simplified and consolidated reporting in
certain circumstances, and add gaming on ineligible lands to the class
of substantial violations warranting immediate closure.
DATES: Effective Date: This rule is effective on August 26, 2009.
Compliance Date: Submitting fee statements and payments twice per
year under sections 514.1(c)(2) and 514.1(d) is not required until
January 1, 2010.
FOR FURTHER INFORMATION CONTACT: Rebecca Chapman, Staff Attorney,
Office of General Counsel, at (202) 632-7003; fax (202) 632-7066 (not
toll-free numbers).
SUPPLEMENTARY INFORMATION:
I. Background
On October 17, 1988, Congress enacted the Indian Gaming Regulatory
Act (IGRA or Act), 25 U.S.C. 2701-21, creating the National Indian
Gaming Commission (NIGC or Commission) and developing a comprehensive
framework for the regulation of gaming on Indian lands. 25 U.S.C. 2702.
IGRA granted the NIGC, among other things, regulatory oversight and
enforcement authority over tribal gaming. This authority
[[Page 36927]]
includes the authority to monitor tribal compliance with IGRA, NIGC
regulations, and tribal gaming ordinances.
In 1992, the Commission adopted its initial regulations, and it has
worked under IGRA for almost 20 years. 25 U.S.C. 2706(b)(10). The
Commission undertakes this collection of regulation changes to better
carry out its statutory duties. The final rule modifies various
Commission regulations to (1) reduce by half the fee reporting burdens
on tribes, (2) remove obsolete provisions, (3) clarify existing
appellate procedures, (4) update and clarify management contract
procedures and costs for background investigations, (5) clarify various
definitions and licensing notices, (6) update audit requirements to
allow for simplified and consolidated reporting in certain
circumstances, and (7) add gaming on ineligible lands to the class of
substantial violations warranting immediate closure.
Development of the Proposed Rules Through Tribal Consultation
The Commission identified a need for minor changes to various parts
of its regulations, and in accordance with its government-to-government
consultation policy (69 FR 16973 (Mar. 31, 2004)), requested input from
Indian tribes. On March 26, 2007, the Commission prepared amendments to
the regulations and sent a copy to the leaders of all gaming tribes for
comment. Fifty-seven tribes provided written comments. The NIGC
carefully reviewed all comments and often incorporated suggested
changes that corrected grammar, clarified meaning, and better expressed
or implemented the Commission's regulatory intent.
In addition, the NIGC consulted with tribes and their gaming
commissions at regional gaming meetings around the country and at the
Washington, DC, headquarters. Since March 26, 2007, the NIGC held
consultations at 15 regional gaming conferences and consulted with more
than 110 tribes with the proposed rule as a possible topic for
discussion. Other than the previous 57 submissions, tribes gave no
further suggestions for improvement on the proposed rule.
The Commission published the regulations--updated and improved by
incorporation of tribal comments--as a proposed rule in the Federal
Register on December 22, 2008, 73 FR 78242, Dec. 22, 2008. The
Commission set a 45-day comment period, which would close on February
5, 2009. Nineteen tribal leaders requested more time to review the
proposed rule, and the Commission extended the comment period to March
9, 2009. See 74 FR 4363, Jan. 26, 2009.
The Commission received a total of 54 written comments on the
proposed rule. In addition, the Commission met with 56 tribes at six
regional conferences around the country after the proposed rule's
publication. The Commission invited all attending leaders to discuss
the proposed rule, and two leaders provided additional comments. These
comments were considered with the written comments received.
III. Purpose and Scope
The final rule modifies various Commission regulations to (1)
reduce by half the fee reporting burdens on tribes, (2) remove obsolete
provisions, (3) clarify existing appellate procedures, (4) update and
clarify management contract procedures and costs for background
investigations, (5) clarify various definitions and licensing notices,
(6) update audit requirements to allow for simplified and consolidated
reporting in certain circumstances, and (7) add gaming on ineligible
lands to the class of substantial violations warranting immediate
closure. The final rule is discussed below.
A. Definitions
NIGC regulations define ``key employee'' at 25 CFR 502.14.
Applicants for positions defined as key employees are, among other
things, subject to a background investigation as a condition of
licensure. Under present regulations, this list of key employees is
limited. With the addition of ``any other person designated by the
tribe as a key employee,'' this section will allow tribes to expand the
list and access the criminal history records held by the federal
government for the purpose of conducting background investigations on
these additional key employees.
IGRA and NIGC regulations define ``net revenue'' as ``gross gaming
revenues of an Indian gaming operation less amounts paid out as, or
paid for, prizes; and total gaming-related operating expenses,
excluding management fees.'' 25 U.S.C. 2703(9); 25 CFR 502.16. The
final rule amends 25 CFR 502.16 to define net revenues as previously
seen in the regulations but clarifying what constitutes operating
expenses and what does not.
The final rule incorporates the industry understanding of what
constitutes an operating expense in order to clarify what constitutes
net revenues for a gaming operation.
The NIGC's regulations define a ``person having a direct or
indirect financial interest in a management contract'' to include
holders of at least 10% of the issued and outstanding stock alone. The
final rule reduces the requisite financial interest to five percent for
publicly traded companies so as to be consistent with the Securities
and Exchange Commission's understanding of a ``significant
shareholder.'' This change is also consistent with similar requirements
in other gaming jurisdictions.
NIGC regulations define ``primary management official'' at 25 CFR
502.19. Applicants for positions defined as primary management
officials are, among other things, subject to a background
investigation as a condition of licensure. Under present regulations,
this list of primary management officials is limited. With the addition
of ``any other person designated by the tribe as a primary management
official,'' this section will allow tribes to expand the list and
access the criminal history records held by the federal government for
the purpose of conducting background investigations on these additional
primary management officials.
B. Annual Fees Required
IGRA requires the NIGC to set an annual funding rate. 25 U.S.C.
2717. NIGC implements this requirement under 25 CFR part 514, which
requires tribal submissions of fees four times per year. The final rule
reduces the number of fee submissions by half. That said, submitting
fee statements and payments twice per year under sections 514.1(c)(2)
and 514.1(d) is not required until January 1, 2010.
In addition, the final rule requires that fees be sent on or before
their due dates. This is a change from the previous requirement that
NIGC actually receive fees on or before their due dates. Fees and
statements must now be postmarked by their due dates. If using a
private delivery service, such as FedEx or UPS, then the shipping
receipt must be dated on or before the due date.
C. Content of Management Contracts
IGRA and NIGC regulations require specific provisions in a
management contract, and its accompanying submission package, before
the Chairman can approve it. 25 U.S.C. 2711; 25 CFR 531.1, 533.3. The
Chairman must also approve any amendment to a management contract. 25
CFR 535.1, 535.3. In applying for approval, all persons having a
financial interest in, or management responsibility for, a management
contract must be disclosed to the Commission and must undergo a
background investigation. 25 CFR 537.1. Management contractors must pay
for this investigation. 25 CFR 537.3. If the Chairman disapproves a
management
[[Page 36928]]
contract or amendment, the tribe or contractor may appeal. 25 CFR
539.1, 539.2.
The final rule updates 25 CFR 531.1, 533.1, 533.3, and 533.7 by
removing language regarding the Secretary of the Interior's approval of
management contracts. Because the Secretary no longer fulfills that
role, the NIGC is eliminating unnecessary references in sections 531.1,
533.1, 533.3, and 533.7 to the Secretary's former authority. Further,
section 533.5 permits the Chairman to take action on noncompliant
management contracts previously approved by the Secretary. Because no
management contracts approved by the Secretary remain active, section
533.5 is obsolete, and the final rule removes it.
Additionally, the final rule updates section 533.3 to reflect the
existing practice of providing a legal description for the land upon
which the gaming facility operates or will operate. This allows the
Commission to determine whether a management contract references a site
that is ``Indian lands'' eligible for gaming as required under IGRA.
The final rule changes Sec. 537.3 to increase the fee for
background investigations. This updates the fee and more accurately
reflects the Commission's actual costs.
Finally, the final rule replaces the words ``modification'' and
``modify'' with ``amendment'' and ``amend'' in Sec. Sec. 535.1, 535.3,
539.1, and 539.2 for purposes of internal consistency.
D. Background and Licensing for Primary Management Officials and Key
Employees
IGRA requires that tribes, through their gaming ordinances,
maintain an adequate system of background investigations. 25 U.S.C.
2710(b)(2)(F). NIGC regulations, 25 CFR parts 556 and 558, implement
this requirement. The final rule removes language in 25 CFR 556.2,
556.3 and 558.2 referring to the employment of individuals as key
employees and primary management officials and replaces it with
language referring to their licensure instead. The reason for this is
that a decision to license an applicant and a decision about an
applicant's suitability (or eligibility) for licensure is separate and
distinct from a decision to hire the applicant. The Commission believes
that these sections should be concerned with licensure and suitability
determinations, not employment decisions.
The granting of a license is a privilege and the burden of proving
suitability is on the applicant. In doing so, the applicant typically
provides much more comprehensive personal information on a license
application than is normally required on an employment application.
Thus, these changes redraw the distinction between employment and
licensure, making it clear when an applicant must provide more detailed
information and when this Commission may share applicant information.
As stated in the notice required by the proposed 25 CFR 556.2,
application information may be ``disclosed * * * in connection with the
issuance, denial, or revocation of a gaming license. * * *'' As such,
the information could not, without otherwise complying with the
requirements of the Privacy Act, 5 U.S.C. 552a, be provided to support
employment decisions by prospective or current employers of the license
applicant. This is a change from prior practice. Under the NIGC's
existing regulations, application information can be disclosed in
connection with the hiring and firing of an employee.
Finally, the amendments to 25 CFR 556.2, 556.3 and 558.2 will have
implications for tribal gaming ordinances, but not immediately. Upon
the effective date, tribes do not have to immediately amend their
gaming ordinances. However, following the effective date, whenever
tribes amend their gaming ordinances, they must also make amendments
conforming to the language in these sections.
E. Monitoring and Investigating
IGRA requires ordinances submitted for the Chairman's review to
contain a provision requiring an annual audit. 25 U.S.C. 2710(b)(2).
The NIGC's regulation, 25 CFR 571.12, creates standard procedures for
the submission of the annual audit to the Commission, and Sec. 571.13
deals with how and when a tribe submits an audit statement. The final
rule still requires tribes to contract with independent certified
public accountants that use Generally Accepted Accounting Principles
and Generally Accepted Accounting Standards to complete their audits.
However, the final rule allows tribes with multiple facilities to
consolidate their audit statements into one. Further, the final rule
allows operations earning less than $2 million in gross gaming revenue
to file an abbreviated statement. The final rule also allows a tribe to
submit an electronic version of an audit for so called ``stub periods''
of less than one year.
Finally, the final rule requires that audits and financial
statements be sent on or before their due dates. This is a change from
the previous requirement that NIGC actually receive the audits and
statements on or before their due dates. Audits and statements must now
be postmarked by their due dates. If using a private delivery service,
such as FedEx or UPS, then the shipping receipt must be dated on or
before the due date. The final rule reflects common sense practice and
reduces tribal costs and burden hours.
NIGC regulation 25 CFR 573.6 discusses the Chairman's ability to
close a gaming operation for any listed substantial IGRA violation. The
final rule adds one substantial violation to the list. The Chairman may
now issue a temporary closure order for a gaming operation that
operates on Indian land not eligible for gaming under IGRA. Indian
gaming under IGRA must occur on ``Indian lands,'' 25 U.S.C. 2710(a),
(b) and (d), as IGRA defines that term. 25 U.S.C. 2703(4). If Indian
land is trust land acquired after October 17, 1988 (``after-acquired
land''), then the land is eligible for gaming only if it meets one of
the exceptions provided in 25 U.S.C. 2719. A gaming operation that
operates on after-acquired trust land that does not meet one of the
exceptions in section 2719 is in violation of IGRA. Operating illegally
in this way is a substantial violation of IGRA that warrants immediate
closure.
Regulatory Matters
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that
an agency prepare a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities.
For purposes of assessing the impact of the final rule, ``small
entity'' is defined as: (1) A small business that meets the definition
of a small business found in the Small Business Act and codified at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
Indian tribes and tribal casinos do not meet this definition.
Tribes are excluded from the governmental jurisdictions listed under
(2), and tribally owned casinos are not ordinary commercial activities
but are tribal governmental operations.
[[Page 36929]]
As a practical matter here, the cost increases of the final rule
take the form of increased fees for management contractors' background
investigations. The economic impact of these is not significant as the
fees, currently below industry norms, are raised to meet them, and the
effect is limited to only management contracting entities. These are by
no means substantial in number, and, generally, do not fall within the
definition of ``small entity'' as defined by the Small Business Act.
Accordingly, the Commission certifies that this action will not have a
significant economic impact on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act
The final rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
annual effect on the economy of $100 million or more. The rule will not
cause a major increase in costs or prices for consumers, individual
industries, federal, state, local government agencies, or geographic
regions. Nor will the final rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of the enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
The Commission, as an independent regulatory agency within the
Department of the Interior, is exempt from compliance with the Unfunded
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1). Regardless, the
final rule does not impose an unfunded mandate on state, local, 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.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of General
Counsel has determined that the final rule does not unduly burden the
judicial system, and it meets the requirements of section 3(a) and
3(b)(2) of that order.
National Environmental Policy Act
The Commission has determined that the final rule does not
constitute a major federal action significantly affecting the quality
of the human environment and no detailed statement is required pursuant
to the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq.
Paperwork Reduction Act
The final rule does not require any significant changes in
information collection under the Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq. The information collections in the affected
regulations are included within OMB control numbers 3141-0001 for part
571; 3141-0003 for parts 556 and 558; 3141-0004 for parts 531, 533,
535, 537, 539; and 3141-0007 for part 514.
Review of Public Comments
A number of commenters made editorial suggestions that improved
consistency within the final rule. These changes were accepted and did
not change the substance of the final rule. Substantive changes and
suggestions are addressed below.
General Comments
Comment: Eight commenters objected generally to any promulgation of
regulations by the NIGC, stating that such action violated tribal
sovereignty. Further, the commenters also stated that the NIGC had
failed to consult tribes in crafting these changes. The commenters
requested complete withdrawal of these regulations, including
regulations passed in 1993 that the NIGC has not proposed to amend.
Response: The Commission does not agree that making these slight
modifications to its existing regulations violates tribal sovereignty.
Under IGRA, tribes and the NIGC share dual regulatory roles, and the
NIGC is statutorily authorized to issue regulations. Thus, the
Commission does not feel that it is appropriate to withdraw the final
rule. Further, as to those regulations passed in 1993 that were not
addressed in the proposed rule, they have served Indian gaming well for
16 years, and the Commission sees no reason to withdraw them now.
As to a failure of consultation, the Commission strongly disagrees.
The NIGC has spent the last two years consulting with tribes on the
updates. The Commission alerted tribes to the changes in March 2007,
has asked them for review and comment, and has incorporated tribal
suggestions into each successive draft. Further, the Commission has met
with tribes all over the country to discuss the regulations, or
anything else that tribal leaders desired to discuss. Comments from
those discussions were incorporated into the final rule.
Comment: The NIGC has received comments that are generally
supportive of these updated rules.
Response: The Commission appreciates the support and is grateful to
everyone who commented, both on the proposed rule and in response to
the earlier draft sent to tribal leaders.
Comment: Nine commenters cited to a White House memorandum signed
by Chief of Staff Rahm Emanuel on January 20, 2009, stating that it
advocated for the immediate withdrawal of all pending regulations.
Thus, the commenters insisted that the proposed rule could not go
forward.
Response: The Commission disagrees. The commenters incorrectly
refer to this memorandum as an executive order, which it is not.
Further, the memorandum does not ask agencies to withdraw all pending
regulations. Rather, it says something far narrower, asking for the
withdrawal of proposed regulations that had not already been published
in the Federal Register by January 20, 2009. This proposed rule was
published in the Federal Register on December 22, 2008, almost one
month prior to the memorandum.
Additionally, the memorandum asks agencies to extend the comment
periods for any proposed rules pending. The Commission had done just
that and extended the comment period for the proposed rule as published
in the Federal Register. See 74 FR 4363 (January 26, 2009). Finally,
the Commission continues to comply with the memorandum and keep the
Administration informed as to the final rule.
Specific Comments
Comment: Some commenters requested that the definition for ``net
revenues'' in 25 CFR 502.16 include the words ``gaming-related'' in
order to make clear that the Commission's jurisdiction extends only to
gaming revenues.
Response: The Commission agrees and incorporated this change into
the final rule.
Comment: Ten commenters claimed that the NIGC has no authority to
change the definition of ``net revenues'' in 25 CFR 502.16 because
Congress has already defined the term.
Response: The Commission is not changing the definition of net
revenue. It is, rather, preserving the original meaning of the term in
IGRA in light of changes in professional accounting pronouncements that
make the term ambiguous. What is more, that ambiguity has the potential
to improperly increase management contract fees.
When IGRA was enacted, the definition of net revenue reflected the
accounting profession's understanding of ``operating expenses'' as
including all expenses incurred by a business.
[[Page 36930]]
Subsequently, however, the accounting profession changed its
understanding of the term.
The American Institute of Certified Professional Accountants
(AICPA) reasoned that not all expenses are alike. Some expenses are
directly tied to increases and decreases in the economic activity of a
business, and hence its ability to produce revenue. Examples of these
include salaries, utilities, and advertising. Presumably, an increase
in these expenses--say, in a period of expansion for the business--
should ultimately result in the business producing more revenue. AICPA
called these expenses ``operating expenses,'' and thus the term has
come to refer to a smaller class of expenses than it did when IGRA was
adopted.
Other expenses are not so closely tied to a business's economic
activity and revenue production. For example, a business's interest
obligation on a loan may increase with a change in the prime rate, and
this does not represent an expansion of business activity at all. These
latter expenses AICPA now calls ``non-operating expenses.''
Under IGRA, ``net revenue'' is calculated by deducting prizes and
``operating expenses'' from gross revenue. ``Operating expenses,''
however, has become ambiguous because of the change in AICPA's
understanding of the term. Thus, the question arises whether to
calculate net revenues by deducting ``operating expenses'' as the term
was understood at the time IGRA was adopted or as the term is
understood now.
If you apply the current understanding and remove interest and the
like--the ``non-operating'' expenses--from the calculation of net
revenue, the result is improperly high management contract fees. The
expenses deducted from gross revenues become smaller, and net revenues,
which form the basis for calculating management fees, are overstated.
This is the result the Commission intends to prevent. The amendment
to 502.16 is intended to ensure that net revenues are calculated by
using AICPA's original understanding and deducting as ``operating
expenses'' all of the expenses incurred by a business--by deducting, in
other words, what AICPA now calls ``operating expenses'' and ``non-
operating expenses.''
Comment: Fifteen commenters objected to the definition of ``Person
having a direct or indirect financial interest in a management
contract,'' 25 CFR 502.17 as unduly burdensome to tribes. Tribal
commenters argued that the definition could make it impossible for
tribal entities to manage a gaming operation because the definition can
be read to include all tribal members. Thus, they argue, when a tribal
entity is the manager, all tribal members would be subject to
background investigations and suitability determinations.
Response: The Commission does not agree. The language in 502.17(e)
to which the commenters refer is the same language adopted in 1993. The
Commission has not proposed any changes to it, and it sees no reason to
change the language now. The Commission has never interpreted this
section to include the entire membership of a tribe for purposes of
determining who ``has an interest'' in a management contract and thus
who needs to undergo a background investigation.
The Commission proposed only two changes here. One was to lower the
threshold for corporate stockholders included in the definition of
``persons with a direct or indirect financial interest'' from persons
owning 10% of stocks to 5% of stocks. The other was to add persons
receiving gifts.
Comment: These same commenters objected to the change in section
502.17 that allows the agency to conduct background investigations on
persons with 5% or more interest in the management contract, a change
from the previous 10% interest. The commenters argued that this change
appeared arbitrary and would increase the time needed to complete the
approval process by increasing the number and costs of required
background investigations.
Response: The Commission disagrees. It feels that the changes do
not create significant cost increases for tribes because the management
contractor pays for the background investigations conducted on their
principals. While the change may require a greater number of background
investigations, the increased workload falls on the Commission staff
conducting the background investigations. The Commission feels that the
increase in workload is offset by the benefit of protecting the
integrity of Indian gaming. Finally, eight commenters expressly agreed
with the changes presented in this section.
Comment: Nine commenters objected to the changes in filing fee
statements under 25 CFR 514.1 and cited to Colorado River Indian Tribe
v. National Indian Gaming Commission (CRIT), 383 F. Supp 2d 123 (D.D.C.
2005), aff'd 466 F. 3d 134 (D.C. Cir. 2006), for the proposition that
the NIGC does not possess authority to apply these changes to Class III
gaming operations.
Response: The Commission disagrees. The commenters incorrectly
understand CRIT to hold that NIGC has no authority over Class III
gaming. CRIT, however, only holds that NIGC lacks the authority to
promulgate and enforce minimum internal control standards for most
Class III gaming operations. 383 F. Supp 2d 123, 132 (D.D.C. 2005).
CRIT did not strip the NIGC of the power to regulate Class III gaming
generally. Rather, it stands for the proposition that NIGC, like every
other administrative agency, has only those authorities Congress has
granted to it. The NIGC has continued to regulate the industry
consistent with IGRA's provisions, and IGRA specifically gives the
Commission the authority to assess fees on Class III gaming. 25 U.S.C
2717(a)(1). Finally, six commenters agreed with the changes to 514.1.
Comment: Nine commenters objected to the requirement in 25 CFR
514.1 that fees and fee statements actually be received by NIGC on or
before the due dates, preferring instead to apply the mailbox rule.
This would mean that fee payments and statements are timely so long as
they are mailed by their due dates, no matter how long those documents
take to arrive.
Response: The Commission agrees. The final rule now requires that
fees and fee statements be sent on or before their due dates. Fees and
fee statements must now be postmarked by their due dates. If using a
private delivery service, such as FedEx or UPS, then the shipping
receipt must be dated on or before the due date.
Comment: Six commenters objected to the requirements that
management contracts set operating days and hours as well as the
advertising and placing budgets under 25 CFR 531.1(b)(3) and (10).
Specifically, commenters asserted that these requirements were
indicative of NIGC overreaching its authority and asked too much of
tribes and potential contractors.
Response: The Commission disagrees. None of the language in
531.1(b) was changed from the original language adopted in 1993. The
requirements that management contracts must contain provisions
regarding days and hours of operation, as well as provisions on
advertising and placing budgets, has always existed in the Commission's
regulations. The Commission sees no reason to change that language now.
Finally, two commenters specifically agreed with the changes presented
in 531.1.
Comment: Five commenters noted that 25 CFR 533.2 gave tribes only
30 days to submit contracts for
[[Page 36931]]
management approval and felt that the timeline was too stringent.
Response: The Commission understands that the parties to a
management contract may desire more time and thinks that it is fair to
allow a longer time for submission. Thus, the Commission has changed
this section to allow for the submission of management contracts within
60 days of their execution.
Comment: Twelve commenters objected to the requirement in 25 CFR
533.3(h) that the parties to a management contract submit a legal
description of the land on which the gaming is to take place. The
requirement, they felt, was burdensome and unnecessary. Commenters
instead preferred the idea of having the Chairman approve management
contracts without a legal description in case the parties chose a
different site for construction or needed more time to finalize the
land-into-trust process.
Response: The Commission disagrees. The NIGC routinely requests
land descriptions for all management contracts. Since all management
contracts are site-specific, the Chairman needs to have this legal
description to determine whether the gaming operation will reside on
Indian lands as IGRA requires. The Chairman does not normally approve
management contracts prior to land being taken into trust.
Consequently, this change simply clarifies agency practice.
Comment: Seven commenters objected to the 90-day extension
permitted to the Chairman for his decision on a management contract
under 25 CFR 533.4 because it allows the Chairman too much time. The
commenters insisted that the standard 180 days for approval was long
enough.
Response: The Commission disagrees. The 90-day extension that the
commenters object to is the original language of the regulations
adopted in 1993. The changes to this section do not involve this
timeline, and the Commission feels no need to revisit the question now.
Comment: One commenter objected to 25 CFR 535.3 and 537.1 on
grounds that they violated tribal sovereignty and were too burdensome.
Response: The Commission disagrees. The commenter failed to explain
what changes were problematic or why these changes violate sovereignty
or burden the tribes. Further, the changes made to these two sections
do not impede tribal sovereignty. The changes to section 535.3 indicate
that the Chairman can void management contract amendments as well as
approve them, a power given to him by IGRA. 25 U.S.C. 2711. Thus, this
change merely clarifies the Chairman's existing authority.
Furthermore, the changes to section 537.1 merely require a
management contractor to disclose its ten largest stock holders, their
relations, and managers, regardless of corporate form. This is a
clarification of an existing obligation. In fact, much of the text of
these two sections remains unchanged from the original language adopted
in 1993. Finally, two commenters agreed with the changes.
Comment: Six commenters objected to the language in 25 CFR 535.1
that states: ``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.'' The commenters
asserted that the Chairman's failure to act on these contracts should
make them ``deemed approved'' by operation of law instead of ``deemed
disapproved.'' They requested that the NIGC make this change to this
section.
Response: The Commission disagrees. This language has not changed
from the language adopted in 1993 and has always read that the Chairman
can ``approve or disapprove'' the amendment at issue and that the
amendment will be ``deemed disapproved'' if he fails to act. The
Commission sees no reason to change this now.
Comment: Twelve commenters objected to the increase in fees for
background investigations from $10,000 to $25,000 under 25 CFR 537.3.
The commenters suggested that the fee was too high and caused too great
a burden on tribes. They advised that the fee should remain the same.
Response: The Commission disagrees. The change represents the
amount of the deposit made for the background investigations rather
than an increase in fees. Furthermore, typically, contractors pay for
their background investigations, and not the tribes. Furthermore, even
if a tribe chooses to reimburse a contractor for the costs, the deposit
presented in the final rule has been changed to reflect the actual
costs of performing this service.
Comment: One commenter objected to the ability of a party to appeal
the Chairman's approval of a management contract or amendment under 25
CFR 539.2. Originally, this section only permitted appeals for
disapprovals of management contracts and amendments. The commenter
requested that this language be removed for fear that state and local
governments might be considered a party for purposes of appealing under
this section and challenging an approved management contract or
amendment.
Response: The Commission disagrees. While the Commission
anticipates that this addition will be used infrequently, the amendment
was made to acknowledge the possibility that parties may question the
propriety of a contract approval. This section does not give standing
to an entity that was not a party to the management contract or
amendment. The amended section merely recognizes a practical necessity
and reflects existing practices.
Comment: Two commenters stated that 25 CFR 558.2 needed
clarification because the language appeared to indicate that someone
other than a gaming commission could license gaming employees.
Response: The Commission agrees and has altered the language in the
final rule accordingly.
Comment: Twenty-three commenters objected to the changes presented
in 25 CFR 556.2, 556.3, and 558.2. The commenters insisted that the
NIGC lacks the authority to change these sections because the changes
would require tribes to specifically amend their ordinances in
contravention of their status as a sovereign.
The commenters also asserted that in replacing the word
``employment'' with the word ``licensing'' throughout these sections,
the Commission was making a mistake. They argued that changing these
words incorrectly indicated that the Privacy Act and False Statement
Act now apply to tribes. Finally, the commenters argued that using
these sections for employment purposes was convenient for their needs.
Response: The Commission does not agree. The final rule is not
retroactive and does not require any tribe to immediately amend its
gaming ordinance. Rather, the amendments need only be made when a tribe
otherwise chooses to amend its gaming ordinance. Thus, the final rule
states that tribal gaming ordinances and ordinance amendments that have
been approved by the Chairman * * * and that reference this rulemaking
will not need to be amended to comply with this section. All future
ordinance submissions, however, must comply.
Furthermore, the Privacy Act notice and False Statement Act notice
have been required as part of NIGC regulations since they were adopted
in 1993. The Commission is only changing the word ``employment'' to
``licensing.'' None of the changes alter the application of these Acts.
Because tribes access personally identifiable information through the
NIGC, they
[[Page 36932]]
have agreed to the Privacy Act and False Statement Act restrictions.
Finally, the emphasis here is on licensing and not employment. A
decision to license an applicant and a decision about an applicant's
suitability (or eligibility) for licensure are separate and distinct
from a decision to hire the applicant. We have concluded that these
sections should be concerned with licensure and suitability
determinations, not employment decisions.
Comment: Ten commenters objected to the changes for filing audits
under 25 CFR 571.12 and cited the Colorado River Indian Tribe v.
National Indian Gaming Commission (CRIT), 383 F. Supp 2d 123 (D.D.C.
2005), aff'd 466 F. 3d 134 (D.C. Cir 2006), for the proposition that
the NIGC does not possess authority to apply these changes to Class III
gaming operations.
Response: The Commission disagrees. The commenters incorrectly
understand CRIT to hold that NIGC has no authority over Class III
gaming. CRIT, however, only holds that NIGC lacks the authority to
promulgate and enforce minimum internal control standards for Class III
gaming operations. 383 F. Supp 2d 123, 132 (D.D.C. 2005). CRIT did not
strip the NIGC of the power to regulate Class III gaming generally.
Rather, it stands for the proposition that NIGC, like every other
administrative agency, has only those authorities Congress has granted
to it. The NIGC has continued to regulate the industry consistent with
IGRA's provisions, and IGRA requires Class II and Class III operations
to file annual audits. 25 U.S.C. 2710(b)(2)(C); 2710(d)(1)(A)(ii).
Finally, five commenters agreed with the changes to 571.12.
Comment: Ten commenters objected to the requirement in 25 CFR
571.12 that audit statements actually be received by NIGC on or before
the due dates, preferring instead to apply the mailbox rule. This would
mean that audit statements are timely so long as they are mailed by the
due dates, no matter how long those documents take to arrive.
Response: The Commission agrees. The final rule now requires that
audits and financial statements be sent on or before their due dates.
Audit statements must now be postmarked by their due dates. If using a
private delivery service, such as FedEx or UPS, then the shipping
receipt must be dated on or before the due date.
Comment: Three commenters objected to the new requirement for a
written statement as requested under 25 CFR 571.12(c)(3), (d)(5), and
(e)(5). They insisted that the requirement was unnecessary and that the
requirement was vaguely worded. Without further explanation, the
requirement could cause further non-compliance as tribes attempt to
understand the scope of what is required in the statement.
Response: The Commission agrees. The Commission is convinced by the
arguments presented and has altered the final rule to delete these
section requirements.
Comment: One commenter noted that the word ``reports'' appeared in
the 1993 version of this section but no longer appears in the proposed
rule published in December 2008. The commenter suggested that 25 CFR
571.13 include the word ``reports'' again because it captures more
broadly the documents compiled by the certified public accountant when
conducting an audit.
Response: The Commission agrees. The Commission has altered the
final rule to put the word ``reports'' back in the relevant section.
Comment: Ten commenters objected to the addition of gaming on
ineligible lands as a substantial violation under 25 CFR 573.6.
Commenters argued that the Commission could not claim that gaming on
ineligible lands is a substantial IGRA violation when it routinely
permits operations to continue running after it is discovered that they
exist on ineligible lands. The commenters asserted that the regulation
was also duplicative because gaming occurring on ineligible lands is an
issue that could be handled by parties other than the NIGC. Further,
they suggested that the additional enforcement power for the Chairman
creates confusion as to authority between the NIGC and the Department
of the Interior (DOI) on this issue. A split decision between the
departments could cause problems for tribes.
Response: The Commission disagrees. First, the Chairman does not
routinely permit the operation of gaming on ineligible lands under
IGRA. Next, the addition is not duplicative, and there is no additional
power given to the Chairman. The Chairman already has the authority to
close an operation running on ineligible lands. Under existing
regulations, closure is a two-step process. The Chairman first has to
issue a notice of violation. He may subsequently order closure if the
operation on ineligible lands continues. Under the change here, the
Chairman may issue a notice of violation and closure order
simultaneously. The change thus merely adds operating on ineligible
lands to the list of serious violations that justify immediate closure.
Finally, there is no confusion between DOI and NIGC. Regardless of
which agency makes the decision as to whether lands qualify for gaming,
only the NIGC has the authority to close a gaming operation.
List of Subjects in 25 CFR Parts 502, 514, 531, 533, 535, 537, 539,
556, 558, 571
Gambling, Indians--lands, Indians--tribal government, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, the Commission amends its
regulations at 25 CFR Chapter III as follows:
PART 502--DEFINITIONS OF THIS CHAPTER
0
1. The authority citation for part 502 continues to read as follows:
Authority: 25 U.S.C. 2701 et seq.
0
2. Add new paragraph (d) to Sec. 502.14 to read as follows:
Sec. 502.14 Key employee.
* * * * *
(d) Any other person designated by the tribe as a key employee.
0
3. Revise Sec. 502.16 to read as follows:
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-operating expenses consistent with professional accounting
pronouncements, excluding management fees.
0
4. Revise Sec. 502.17 to read as follows:
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)
[[Page 36933]]
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.
0
5. Add new paragraph (d) to Sec. 502.19 to read as follows:
Sec. 502.19 Primary management official.
* * * * *
(d) Any other person designated by the tribe as a primary
management official.
PART 514--FEES
0
6. The authority citation for part 514 continues to read as follows:
Authority: 25 U.S.C. 2706, 2708, 2710, 2717, 2717a.
0
7. Revise Sec. 514.1 to read as follows:
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
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
[[Page 36934]]
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
March 1st and August 1st 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 March 1st 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).
(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 March 1st and August 1st 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.
PART 531--CONTENT OF MANAGEMENT CONTRACTS
0
8. The authority citation for part 531 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
0
9. Revise Sec. 531.1 to read as follows:
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:
[[Page 36935]]
(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.
(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.
PART 533--APPROVAL OF MANAGEMENT CONTRACTS
0
10. The authority citation for part 533 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
0
11. In Sec. 533.1, remove paragraph (c).
0
12. Revise Sec. 533.2 to read as follows:
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.
0
13. Revise Sec. 533.3 to read as follows:
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.
0
14. Revise Sec. 533.4 to read as follows:
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.
Sec. 533.5 [Removed and Reserved]
0
15. Remove and reserve Sec. 533.5.
0
16. Revise Sec. 533.6 to read as follows:
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:
(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
[[Page 36936]]
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.
0
17. Revise Sec. 533.7 to read as follows:
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.
PART 535--POST-APPROVAL PROCEDURES
0
18. The authority citation for part 535 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
0
19. Revise Sec. 535.1 to read as follows:
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 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.
0
20. Revise Sec. 535.3 to read as follows:
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.
[[Page 36937]]
PART 537--BACKGROUND INVESTIGATIONS FOR PERSONS OR ENTITIES WITH A
FINANCIAL INTEREST IN, OR HAVING MANAGEMENT RESPONSIBILITY FOR, A
MANAGEMENT CONTRACT
0
21. The authority citation to part 537 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
0
22. Revise Sec. 537.1 to read as follows:
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.
(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
[[Page 36938]]
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 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).
0
23. Revise Sec. 537.3 to read as follows:
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.
PART 539--APPEALS
0
24. The authority citation for part 539 continues to read as follows:
Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.
0
25. Revise Sec. 539.1 to read as follows:
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.
0
26. Revise Sec. 539.2 to read as follows:
Sec. 539.2 Appeals.
A party may appeal the Chairman's approval or disapproval of a
management contract or amendment under parts 533 or 535 of this chapter
to the Commission. Such an appeal shall be filed with the Commission
within thirty (30) days after the Chairman serves his or her
determination pursuant to part 519 of this chapter. Failure to file an
appeal within the time provided by this section shall result in a
waiver of the opportunity for an appeal. At the time of filing, an
appeal under this section shall specify the reasons why the party
believes the Chairman's determination to be erroneous, and shall
include supporting documentation, if any. Within thirty (30) days after
receipt of the appeal, the Commission shall render a decision unless
the appellant elects to provide the Commission additional time, not to
exceed an additional thirty (30) days, to render a decision. In the
absence of a decision within the time provided, the Chairman's decision
shall constitute a final decision of the Commission.
PART 556--BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT
OFFICIALS AND KEY EMPLOYEES
0
27. The authority citation for part 556 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
28. Revise Sec. 556.2 to read as follows:
Sec. 556.2 Privacy notice.
(a) A tribe shall place the following notice on the application
form for a key employee or a primary management official before that
form is filled out by an applicant:
In compliance with the Privacy Act of 1974, the following
information is provided: Solicitation of the information on this
form is authorized by 25 U.S.C. 2701 et seq. The purpose of the
requested information is to determine the eligibility of individuals
to be granted a gaming license. The information will be used by the
Tribal gaming regulatory authorities and by the National Indian
Gaming Commission members and staff who have need for the
information in the performance of their official duties. The
information may be disclosed to appropriate Federal, Tribal, State,
local, or foreign law enforcement and regulatory agencies when
relevant to civil, criminal or regulatory investigations or
prosecutions or when pursuant to a requirement by a tribe or the
National Indian Gaming Commission in connection with the issuance,
denial, or revocation of a gaming license, or investigations of
activities while associated with a tribe or a gaming operation.
Failure to consent to the disclosures indicated in this notice will
result in a tribe's being unable to license you for a primary
management official or key employee position.
The disclosure of your Social Security Number (SSN) is voluntary.
However, failure to supply a SSN may result in errors in processing
your application.
(b) A tribe shall notify in writing existing key employees and
primary
[[Page 36939]]
management officials that they shall either:
(1) Complete a new application form that contains a Privacy Act
notice; or
(2) Sign a statement that contains the Privacy Act notice and
consent to the routine uses described in that notice.
(c) All tribal gaming ordinances and ordinance amendments that have
been approved by the Chairman prior to the effective date of this
section and that reference this notice do not need to be amended to
comply with this section. All future ordinance submissions, however,
must comply.
(d) All license application forms used 180 days after the effective
date of this section shall contain notices in compliance with this
section.
0
29. Revise Sec. 556.3 to read as follows:
Sec. 556.3 Notice regarding false statements.
(a) A tribe shall place the following notice on the application
form for a key employee or a primary management official before that
form is filled out by an applicant:
A false statement on any part of your license application may be
grounds for denying a license or the suspension or revocation of a
license. Also, you may be punished by fine or imprisonment (U.S.
Code, title 18, section 1001).
(b) A tribe shall notify in writing existing key employees and
primary management officials that they shall either:
(1) Complete a new application form that contains a notice
regarding false statements; or
(2) Sign a statement that contains the notice regarding false
statements.
(c) All tribal gaming ordinances and ordinance amendments that have
been approved by the Chairman prior to the effective date of this
section and that reference this notice do not need to be amended to
comply with this section. All future ordinance submissions, however,
must comply.
(d) All license application forms used 180 days after the effective
date of this section shall contain notices in compliance with this
section.
PART 558--GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT
OFFICIALS
0
30. The authority citation for part 558 continues to read as follows:
Authority: 25 U.S.C. 2706, 2710, 2712.
0
31. Revise Sec. 558.2 to read as follows:
Sec. 558.2 Eligibility determination for granting a gaming license.
(a) An authorized tribal official shall review a person's prior
activities, criminal record, if any, and reputation, habits and
associations to make a finding concerning the eligibility of a key
employee or a primary management official for granting of a gaming
license. If the authorized tribal official, in applying the standards
adopted in a tribal ordinance, determines that licensing of the person
poses a threat to the public interest or to the effective regulation of
gaming, or creates or enhances the dangers of unsuitable, unfair, or
illegal practices and methods and activities in the conduct of gaming,
an authorizing tribal official shall not license that person in a key
employee or primary management official position.
(b) All tribal gaming ordinances and ordinance amendments that have
been approved by the Chairman prior to the effective date of this
section and that reference this section do not need to be amended to
comply with this section. All future ordinance submissions, however,
must comply.
PART 571--MONITORING AND INVESTIGATIONS
0
32. The authority citation for part 571 continues to read as follows:
Authority: 25 U.S.C. 2706(b), 2710(b)(2)(C), 2715, 2716.
0
33. Revise Sec. 571.12 to read as follows:
Sec. 571.12 Audit standards.
(a) Each tribe shall prepare comparative financial statements
covering all financial activities of each class II and class III gaming
operation on the tribe's Indian lands for each fiscal year.
(b) A tribe shall engage an independent certified public accountant
to provide an annual audit of the financial statements of each class II
and class III gaming operation on the tribe's Indian lands for each
fiscal year. The independent certified public accountant must be
licensed by a state board of accountancy. Financial statements prepared
by the certified public accountant shall conform to generally accepted
accounting principles and the annual audit shall conform to generally
accepted auditing standards.
(c) If a gaming operation has gross gaming revenues of less than
$2,000,000 during the prior fiscal year, the annual audit requirement
of paragraph (b) of this section is satisfied if:
(1) The independent certified public accountant completes a review
of the financial statements conforming to the statements on standards
for accounting and review services of the gaming operation; and
(2) Unless waived in writing by the Commission, the gaming
operation's financial statements for the three previous years were sent
to the Commission in accordance with Sec. 571.13.
(d) If a gaming operation has multiple gaming places, facilities or
locations on the tribe's Indian lands, the annual audit requirement of
paragraph (b) of this section is satisfied if:
(1) The tribe chooses to consolidate the financial statements of
the gaming places, facilities or locations;
(2) The independent certified public accountant completes an audit
conforming to generally accepted auditing standards of the consolidated
financial statements;
(3) The consolidated financial statements include consolidating
schedules for each gaming place, facility, or location;
(4) Unless waived in writing by the Commission, the gaming
operation's financial statements for the three previous years, whether
or not consolidated, were sent to the Commission in accordance with
Sec. 571.13; and
(5) The independent certified public accountant expresses an
opinion on the consolidated financial statement as a whole and subjects
the accompanying financial information to the auditing procedures
applicable to the audit of consolidated financial statements.
(e) If there are multiple gaming operations on a tribe's Indian
lands and each operation has gross gaming revenues of less than
$2,000,000 during the prior fiscal year, the annual audit requirement
of paragraph (b) of this section is satisfied if:
(1) The tribe chooses to consolidate the financial statements of
the gaming operations;
(2) The consolidated financial statements include consolidating
schedules for each operation;
(3) The independent certified public accountant completes a review
of the consolidated schedules conforming to the statements on standards
for accounting and review services for each gaming facility or
location;
(4) Unless waived in writing by the Commission, the gaming
operations' financial statements for the three previous years, whether
or not consolidated, were sent to the Commission in accordance with
Sec. 571.13; and
(5) The independent certified public accountant expresses an
opinion on the consolidated financial statements as a whole and
subjects the accompanying financial information to the auditing
procedures applicable to the audit of consolidated financial
statements.
0
34. Revise Sec. 571.13 to read as follows:
[[Page 36940]]
Sec. 571.13 Copies of audit reports.
(a) Each tribe shall prepare and submit to the Commission two paper
copies or one electronic copy of the financial statements and audits
required by Sec. 571.12, together with management letter(s), and other
documented auditor communications and/or reports as a result of the
audit setting forth the results of each fiscal year. The submission
must be sent to the Commission within 120 days after the end of each
fiscal year of the gaming operation.
(b) If a gaming operation changes its fiscal year, the tribe shall
prepare and submit to the Commission two paper copies or one electronic
copy of the financial statements, reports, and audits required by Sec.
571.12, together with management letter(s), setting forth the results
of 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 120 days after the end of the stub period, or a tribe
may incorporate the financial results of the stub period in the
financial statements for the new business year.
(c) When gaming ceases to operate and the tribal gaming regulatory
authority has terminated the facility license required by Sec. 559.6,
the tribe shall prepare and submit to the Commission two paper copies
or one electronic copy of the financial statements, reports, and audits
required by Sec. 571.12, together with management letter(s), setting
forth the results covering the period since the period covered by the
previous financial statements. The submission must be sent to the
Commission within 120 days after the cessation of gaming activity or
upon completion of the tribe's fiscal year.
0
35. Revise Sec. 571.14 to read as follows:
Sec. 571.14 Relationship of financial statements to fee assessment
reports.
A tribe shall reconcile its Commission fee assessment reports,
submitted under 25 CFR part 514, with its audited or reviewed financial
statements for each location and make available such reconciliation
upon request by the Commission's authorized representative.
PART 573--ENFORCEMENT
0
36. The authority citation for part 573 continues to read as follows:
Authority: 25 U.S.C. 2703 (4), 2705(a)(1), 2706, 2713, 2715,
2719.
0
37. Add new paragraph (a)(13) to Sec. 573.6 to read as follows:
Sec. 573.6 Order of temporary closure.
(a) * * *
(13) A gaming facility operates on Indian lands not eligible for
gaming under the Indian Gaming Regulatory Act.
* * * * *
Philip N. Hogen,
Chairman.
Norman H. DesRosiers,
Vice Chairman.
[FR Doc. E9-17121 Filed 7-24-09; 8:45 am]
BILLING CODE 7565-01-P