[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Rules and Regulations]
[Pages 54366-54367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19217]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 514

RIN 3141-AA77


Annual Fee Calculation

AGENCY: National Indian Gaming Commission.

ACTION: Final rule.

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SUMMARY: The National Indian Gaming Commission is amending agency 
procedures for calculating the amount of annual fee a gaming operation 
owes the National Indian Gaming Commission. The amendment excludes 
certain promotional credits from the calculation of the annual fee a 
gaming operation owes.

DATES: Effective October 6, 2022.

FOR FURTHER INFORMATION CONTACT: Austin Badger, National Indian Gaming 
Commission; 1849 C Street NW, MS 1621, Washington, DC 20240. Telephone: 
202-632-7003.

SUPPLEMENTARY INFORMATION:

I. Background

    The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The 
Act establishes the National Indian Gaming Commission (NIGC or 
Commission) and sets out a comprehensive framework for the regulation 
of gaming on Indian lands. The IGRA established an agency funding 
framework whereby gaming operations licensed by tribes pay a fee to the 
Commission for each gaming operation that conducts Class II or Class 
III gaming activity that is regulated pursuant to IGRA. 25 U.S.C. 
2717(a)(1). These fees are used to fund the Commission in carrying out 
its regulatory authority. On August 15 1991, the NIGC published a final 
rule in the Federal Register called Annual Fees Payable By Class II 
Gaming Operations. 58 FR 5831. The rule added a new part to the 
Commission's regulations to provide direction and guidance to Class II 
gaming operations to enable them to compute and pay the annual fees as 
authorized by the Indian Gaming Regulatory Act. The Commission has 
substantively amended them numerous times, most recently in 2018 (83 FR 
2903).

II. Development of the Rule

    On, June 9, 2021, the National Indian Gaming Commission sent a 
Notice of Consultation announcing that the Commission intended to 
consult on a number of topics, including proposed changes to the fee 
regulations. Prior to consultation, the Commission released proposed 
discussion drafts of the regulations for review. The proposed amendment 
to the fee regulations were intended to provide clarity as to whether a 
tribal gaming operation must include certain promotional credits, 
commonly referred to as ``free play,'' as ``money wagered'' for 
purposes of calculating the annual fee. The Commission held two virtual 
consultation sessions in July of 2021 to receive tribal input on the 
possible changes.
    The Commission reviewed all comments received as part of the 
consultation process. After considering the comments received from the 
public and through tribal consultations, the Commission published a 
notice of proposed rulemaking on December 2, 2021. 86 FR 68445.

III. Review of Public Comments

    The Commission received the following comments in response to our 
notice of proposed rulemaking.
    Comment: Commenters recommended that the exclusion for promotional 
credits be mandatory rather than at the discretion of the tribal gaming 
operation. Commenters believe that the exclusion must be mandatory to 
prevent tribal gaming operations from paying fees on revenues that are 
not recognized under Generally Accepted Accounting Principles. 
Commenters also believe that discretionary language permits the NIGC to 
determine whether to accept the exclusion of promotional credits from 
the calculation of assessable gross revenues by tribal gaming 
operations on a discretionary basis. Finally, commenters believe that 
discretionary language may prompt reconsideration of promotional credit 
treatment in tribal-state compacts.
    Response: The Commission accepts this recommendation to provide a 
uniform calculation of the annual fee. The Commission initially made 
the deduction discretionary because it noted that a sizeable percentage 
of tribe

[[Page 54367]]

gaming operations were not deducting promotional credits from the 
calculation of fees. The Commission had hoped that through consultation 
it would gain insight into those tribes' reasons for including free 
play in the calculation of fees. When the subject was not addressed by 
any tribes during consultation, the Commission drafted a notice of 
proposed rulemaking that maintained the discretionary nature of the 
withholding. Again, Commenters unanimously called for the deduction to 
be made mandatory. The Commission agrees that promotional credits 
should not be included in the calculation of fees. To ensure that fees 
are calculated uniformly across the Tribal gaming industry, it has 
adopted language as set forth below. The Commission further clarifies, 
however, that this regulation is limited to NIGC fee calculations and 
is not intended to affect revenue calculations for any other purposes.
    Comment: Commenters are concerned that the phrase ``can 
demonstrate'' does not provide a clear standard for the deduction.
    Response: The Commission agrees that the phrase ``can demonstrate'' 
is redundant and has removed the phrase. The Commission notes that 
``promotional gaming credits'' means Gaming credits issued to patrons 
for wagering that have no cash redemption value; typically used as 
``Free Play'' for gaming machine, table games, and other gaming 
activity promotions. The Commission further notes that all fee 
calculations must continue to be reconciled with a tribe's audited or 
reviewed financial statements pursuant to 25 CFR 514.6.
    Comment: Commenters recommended incorporating the promotional 
credit exclusion provision within the text of 25 CFR 514.4(c) rather 
than as a new paragraph.
    Response: The Commission agrees that the simplified promotional 
credit exclusion provision may be included within 25 CFR 514.4(c).

Regulatory Matters

Regulatory Flexibility Act

    The rule will not have a significant impact on a substantial number 
of small entities as defined under the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be 
small entities for the purposes of the Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

    The rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The rule does not have an 
effect on the economy of $100 million or more. The rule will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, local government agencies or geographic 
regions, nor will the rule have a significant adverse effect on 
competition, employment, investment, productivity, innovation, or the 
ability of the enterprises, to compete with foreign based enterprises.

Unfunded Mandate Reform Act

    The Commission, as an independent regulatory agency, is exempt from 
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 
U.S.C. 658(1).

Takings

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

Civil Justice Reform

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

National Environmental Policy Act

    The Commission has determined that the rule does not constitute a 
major federal action significantly affecting the quality of the human 
environment and that no detailed statement is required pursuant to the 
National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

Paperwork Reduction Act

    The information collection requirements contained in this rule were 
previously approved by the Office of Management and Budget (OMB) as 
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 
3141-0007.

Tribal Consultation

    The National Indian Gaming Commission is committed to fulfilling 
its tribal consultation obligations--whether directed by statute or 
administrative action such as Executive Order (E.O.) 13175 
(Consultation and Coordination with Indian Tribal Governments)--by 
adhering to the consultation framework described in its Consultation 
Policy published July 15, 2013. The NIGC's consultation policy 
specifies that it will consult with tribes on Commission Action with 
Tribal Implications, which is defined as: Any Commission regulation, 
rulemaking, policy, guidance, legislative proposal, or operational 
activity that may have a substantial direct effect on an Indian tribe 
on matters including, but not limited to the ability of an Indian tribe 
to regulate its Indian gaming; an Indian Tribe's formal relationship 
with the Commission; or the consideration of the Commission's trust 
responsibilities to Indian tribes. As discussed above, the NIGC engaged 
in extensive consultation on this topic and received and considered 
comments in developing this rule.

List of Subjects in 25 CFR Part 514

    Gambling, Indian--lands, Indian--tribal government, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, the Commission amends 25 
CFR part 514 as follows:

PART 514--FEES

0
1. The authority citation for part 514 continues to read:

    Authority: 25 U.S.C. 2706, 2710, 2717, 2717a.


0
2. Amend Sec.  514.4 by revising paragraph (c) to read as follows:


Sec.  514.4  How does a gaming operation calculate the amount of the 
annual fee it owes?

* * * * *
    (c) For purposes of computing fees, assessable gross revenues for 
each gaming operation are the total amount of money wagered on class II 
and III games, plus entry fees (including table or card fees), less any 
amounts paid out as prizes or paid for prizes awarded, less any amounts 
wagered that the gaming operation issued as promotional credits, and 
less an allowance for capital expenditures for structures as reflected 
in the gaming operation's audited financial statements.
* * * * *

    Dated: August 31, 2022, Washington, DC.
E. Sequoyah Simermeyer,
Chairman.

Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-19217 Filed 9-2-22; 8:45 am]
BILLING CODE 7565-01-P