Rule2022-19217
Annual Fee Calculation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 6, 2022
Effective
October 6, 2022
Issuing agencies
Interior DepartmentNational Indian Gaming Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 171 (Tuesday, September 6, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
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</html>Indexed from Federal Register on September 6, 2022.
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