equally harsh result as would submitting nothing. We suggest that in these circumstances, the more appropriate first step would be to send a letter of concern and an offer of technical assistance.
2. “The proposed changes distinguish between the audit process and the final product to be submitted. An audit is the process of testing, inspecting, and observing that a CPA firm undertakes to verify an operation’s financial statements and controls. The audit report and opinion are the product of that process. The two are often interchangeable in parlance, but the regulation would benefit from more precise language clarifying that it is the product – the third-party verified information – that the agency requires for its regulatory decisions, not merely the knowledge that the gaming operation completed the process.” Similar to the previous response, we are concerned that the proposed amendments to 25 C.F.R. §§ 571.12 (b) and 571.13 (a) – (c) will increase all Tribes’ exposure to a formal enforcement action without any intermediate steps to remedy noncompliance with this new regulatory requirement. Accordingly, as currently written, we remain deeply troubled by this proposed revision. 3. “Prerequisites For Consolidated Audits.” i. “These proposed changes to § 571.12 (d)(1) and (e) make explicit the implicit auditing requirement that only operations with the same owner (i.e., the tribe) may be consolidated. Generally Accepted Accounting Principles prevent the consolidated audits of businesses with different owners. . . . Audits must be performed in accordance with GAAP (25 C.F.R. § 571.12 (b)(2)), the suggested changes clarify the ambiguity.” It is not clear to us the circumstances in which a non-tribally owned gaming operation and a tribally owned gaming operation would seek to file a consolidated audit report. Moreover, it appears that GAAP, compliance with which is mandatory, already addresses the issue. ii. “The second suggested change in § 571.12 (d) from [sic] “gaming operation” to “tribe” corrects an error and restores meaning to the regulation. The Audit Division takes the view that operation and facility are synonymous. Under that view, the current regulation is nonsensical: a gaming operation cannot have multiple facilities because a gaming operation is a facility.” It is not clear to us that the terms “operation” and “facility” are synonymous. We view an operation as the ownership structure operating one or more gaming facilities, which is where the gaming activity takes place. We do understand that the terms are often used interchangeably in the vernacular, but technically, we see each term as representing a related, but discrete concept. In fact, some tribal governments may create multiple gaming operations to operate one (or more) gaming facilities while the second operation may operate one or more other facilities.
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