As for Option 1, we believe that this proposal is better than Option 2 for new charitable gaming operations. Option 1 would enable new charitable gaming operations to receive the benefits from this third tier of financial reporting since there is no requirement for strict compliance with § 571.13 for the previous three years. However, the proposed subsection (f)(4) in Option 1 which states that “the Chair of the NIGC may, at his or her discretion, require any gaming operation subject to this paragraph (f) to comply with the annual audit requirement of paragraph (b)” is objectionable. This language appears to open the door for patchworked enforcement of this regulatory provision and would permit a future Chair to eliminate this third tier of financial reporting altogether without going through notice and comment rulemaking. Further, from a business perspective, it is our opinion that creating a benefit that will assuredly be relied upon but that can be taken away at any time for any reason (or no reason) is not much better than never having received the benefit in the first place. Accordingly, we oppose granting the Chair this untethered discretion in subsection (f)(4) of Option 1. As for Option 2, we believe that the proposed subsection (f) here is far more beneficial to charitable gaming operations that have been in existence, and in strict compliance with § 571.13, for at least the three previous years. We are concerned with this proposal because until there has been compliance with § 571.13 for three years, a charitable gaming operation will have to comply with the more onerous § 571.12 (b) until it qualifies for the third tier under proposed subsection (f) under Option 2. It is our view that this concern could be alleviated if the NIGC adopted a no noncompliance with § 571.13 for the previous three years standard, rather than requiring strict compliance with § 571.13 for the previous three years in order to qualify. We are also concerned that the language in proposed § (f)(2) may lead to inadvertent noncompliance with this section due to the vagueness of the requirement that “the tribe or TGRA informs the NIGC of such permission ” to submit a review of financial statements. Ultimately, however, we believe that the NIGC’s goal to create a third tier of financial reporting would be better served if both Options 1 and 2 were included in part 571. Because one option is particularly useful for charitable gaming operations that have been in existence and in compliance with § 571.13 for three years, while the other is beneficial to all charitable gaming operations no matter how long they have been in existence, we believe having both options at a Tribe’s disposal will provide the most benefit to a wider variety of tribal governments. F. Self-Regulation (25 C.F.R. Part 518) 1. “Section 518.7(f) currently states, “The Commission shall issue a final determination 30 days after issuance of its preliminary findings or after the conclusion of a hearing, if one is held. The decision of the Commission to approve or deny a petition shall be a final agency action.” A certificate is valid beginning the next calendar year. Section 518.7(f) does not clearly state whether the Commission can issue its final decision before the end of the 30- day deadline. To ensure an eligible tribe receives a certificate before the end of a calendar year, the Commission is considering revising § 518.7(f) to clarify that the Commission may issue its final decision within 30 days (as opposed to waiting the full 30 days) if it is clear that the tribe does not want a hearing before the Commission.”
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