Amendments to Vague Parameters In reviewing the proposed revisions, perhaps most concerning to IGA is the lack of clarity in the language discussing the standards of review. Namely, § 1021.210 requires Casinos to “establish, implement, and maintain an effective risk based, and reasonably designed AML/CFT program” (emphasis added). The use of the term “reasonable” creates a subjective standard that has the potential to leave Tribal gaming facilities unsure as to whether their programs comply with FinCEN’s requirements. In doing so, a Tribal gaming facility may believe it is in compliance with program requirements and later learn that it is not, forcing the business board or governing body to repeat the onerous process of drafting, submitting for approval, and implementing a program that FinCEN deems “reasonable.” While we do understand that the proposed rule does provide some guidance by requiring that the AML or CFT program be tailored to the Casino’s risk profile, in the effort to best avoid confusion we urge FinCEN to include a list of factors that may be deemed reasonable by the agency. This would serve to create a clearer path to compliance for tribally-owned Casinos. Similarly, IGA is concerned that the standards for risk assessment processes do not provide sufficient clarification for Tribal governing bodies and business boards seeking to comply with these requirements. Because the risk assessment process will serve as a basis for the AML and CFT processes, we feel that it is vital that FinCEN provide technical assistance in determining the factors necessary to comply with the risk assessment requirements. Further, by requiring Casinos to perform and consistently update the required risk assessments, the proposed rule places a significant financial burden upon Tribal Nations, who must employ further resources to compile such reports. Amendments to Decrease Time and Money Burdens IGA is further concerned by the burden that certain provisions places upon Tribal governments. The requirement in § 1021.210(b) that the AML and CFT programs, including each of their components, must be approved by the Casino’s business board creates a considerable time burden. The proposed revisions will likely already prove to be incredibly costly by requiring the implementation of the updated technology and training associated with the updated AML and CFT programs. Not only must the Casino go through the process of re-drafting and re-implementing the programs, but by requiring the board’s review and formal approval, the updated rule forces the Casino to expend time and resources on the steps involved in the drafting and meeting processes required to approve a resolution that would adopt program change. Further, many Tribal Nations do not have a business board, so their governing bodies would thereby be responsible for this task. While this step may seem small for business boards of larger entities, Tribal governments are
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