At the time of drafting our comments, there is a total of one (1) comment in response to these Proposed Rules – combined – on www.regulations.gov. In addition, given the holidays and recent Covid-19 Omicron surge, it is difficult to canvass our member Tribes for their thoughts and comments on the Proposed Rules. While we understand that not every Tribal government or TGRA may publish its comments on NIGC’s site, we believe this demonstrates the consequences of publishing these Proposed Rules during the holiday season, especially with three of the four Proposed Rules having comment deadlines on the Monday following a U.S. federal holiday. It is not that Tribal governments and TGRAs are agnostic or apathetic to these Proposed Rules, on the contrary, if promulgated, these rules would alter the regulatory structures governing a major source of revenue that Tribal governments rely on to provide important services to their members. Instead, the NIGC should recognize that a thirty (30) day commenting period that spans over the holidays is a difficult time frame in order to draft and submit thoughtful comments on issues of vital importance to the tribal gaming industry. We respectfully request that the deadline be extended until at least January 31 st , 2022, if not longer. 25 C.F.R. § 514.4 As for the actual content of the NIGC’s Proposed Rules, the National Indian Gaming Association opposes the proposed revisions to the discretionary exclusion of free play or promotional credits from the “total amount of money wagered” for the purposes of calculating Assessable Gross Revenues (“AGR”). Instead, it is established industry practice, throughout both commercial and Tribal gaming, that amounts wagered which are “promotional credits” should be automatically excluded for the purposes of calculating AGR, rather than merely discretionary. We cannot ascertain any reasonable explanation as to why a Tribal gaming operation would intentionally choose to include amounts wagered from promotional credits in its calculation of AGR under Part 514 in order to pay the NIGC more in annual fees than it otherwise owes. While the NIGC introduces this idea under the banner of increased discretion provided to Tribal governments, that seems insincere since Tribal governments would only be afforded the discretion to pay the NIGC a greater amount in fees than would otherwise be required. We also agree with the concerns expressed at the July 28, 2021, Consultation, in which one commentator stated that the “may be excluded” language was too flexible and created uncertainty. A definitive standard of “shall” or “must” puts all parties on notice of this standard and creates the same level of expectations of every Tribal gaming operation. The language in the Proposed Rule regarding excluding amounts wagered that the gaming operation “can demonstrate” were issued as promotional credits is also concerning. No other examples of how a Tribal gaming operation “can demonstrate” such amounts were issued as promotional credits are provided, and accordingly, we fear that this standard will be inequitably applied, or worse. Additionally, NIGC regulations do not address whether “promotional credits” should be considered in the total amount of money wagered. While we believe that promotional credits or free play credits should be excluded from the total amount of wagered for the purposes of calculating Assessable Gross Revenues, we do not believe that this should be addressed in a
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