subsection separate from the Assessable Gross Revenues formula contained in 25 C.F.R. § 514.4 (c). It appears to us that including the language that excludes promotional credits in the paragraph with the general formula for calculating Assessable Gross Revenues increases the predictability of the formula and puts all TGRAs on notice of a single unwavering standard. We are also unsure whether the NIGC considered its comments made during the NIGC’s Series A Consultation about including the exclusion of promotional credits language in the AGR formula in § 514.4 (c), as this Proposed Rule only generally responded to one comment about whether such exclusion should be mandatory or discretionary. In response to this question posed at the July 28, 2021, Consultation, the NIGC representative stated that language in the fee worksheets will be very clear and will take each submitter through the formula. However, we are much more comfortable relying on the specific text of the relevant regulatory provisions. Because promotional credits are so vitally important to smaller gaming operations in attracting new patrons, we would be much more comfortable with this provision being included in the AGR formula found at 25 C.F.R. 514.4 (c). Thus, we recommend that the following sentence be added to the end of 25 C.F.R. § 514.4 (c): “The amounts wagered issued by the gaming operation as promotional credits shall be excluded from the total amount of money wagered.” Alternatively, 25 C.F.R. § 514.4 (c) could be revised to read: “For purposes of computing fees, assessable gross revenues for each gaming operation are the total amount of money wagered on class II and class III games, plus entry fees (including table or card fees), less any amounts paid out as prizes or paid for prizes awarded, less any promotional credits, and less an allowance for capital expenditures for structures as reflected in the gaming operation’s audited financial statements.” (Emphasis added). Emphasizing that promotional credits will be excluded from the calculation of AGR in the regulatory provision providing the formula for calculating AGR creates a standard that is predictable, easily discernable, and creates fewer avenues for any other interpretations of As for the NIGC’s Proposed Rule seeking to revise the submission requirements for the approval of gaming ordinances and ordinance amendments, the National Indian Gaming Association strongly opposes the proposed 25 C.F.R. § 522.2 insofar as it would require a Tribal government to submit “a copy of the tribe’s constitution, governing document(s), or an accurate and true description of the Tribe’s governmental entity and authority to enact the submitted ordinance or resolution.” This proposed change was first introduced at the NIGC’s Series A Consultation in July 2021; and during the virtual consultations, the NIGC stated that this proposed submission requirement was necessary to ensure that any submitted gaming ordinance or resolution, or amendment thereto, was appropriately authorized pursuant to Tribal law. Among other things, the AGR formula. 25 C.F.R. § 522.2
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