without an intermediate investigative step. A tribal government, now compelled to submit an adverse opinion, appears to be open to the same penalty as if it forwent any submission whatsoever. 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. Accordingly, as currently written, we remain deeply troubled by this proposed revision. Additionally, it is unclear to us how the NIGC will treat disclaimed opinions. During the consultation period last year, disclaimed and adverse opinions were lumped together in terms of treatment. Now, adverse opinions are addressed, but we are unable to find any mention of disclaimed opinions. Are they required to be submitted, like adverse opinions, or does the NIGC plan to allow tribal governments to choose whether to submit disclaimed opinions? If a tribal government does submit a disclaimed opinion, are there any instances in which a disclaimed opinion can satisfy the financial reporting requirements? We would greatly appreciate more explanation on how the NIGC plans to treat disclaimed opinions. a. Part 571.12(d) states “If a gaming operation has multiple gaming places, facilities or locations on the tribe's Indian lands, the annual audit requirement of paragraph (b) of this section is satisfied if:…” (emphasis added) Prior to the 2021 Series B consultation period, the NIGC released a summary of proposed changes to 571, which included explanations behind the intent of some of the changes. In regard to the definition of “gaming operation” and “gaming facility,” it was stated that the Audit Department saw these terms as being synonymous and it was the intent of the NIGC to relay that through its proposed changes. It is not clear to us that the terms “gaming operation” and “gaming 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 distinct 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. B. Small and Charitable Gaming (25 C.F.R. Part 571) While not necessarily bound solely to small and charitable gaming, due to the disproportionate potential impact, we question the proposed elimination of a “waiver requirement.” We do appreciate that there seems to be a more uniform approach to this waiver, though we also question whether there was a “requirement” in the first place. However, the new proposed language still provides a lot of ambiguity that small operations will have to navigate. First, per § 571.12 (c)(2), theses small operations may submit reviewed financial statements, rather than audited ones, only if the TGRA has given them permission and the NIGC is notified of said permission. But it is currently unclear of how the NIGC should be notified and when it should be notified if permission is given. We would greatly appreciate more clarity on that issue. Second, per § 571.12 (c)(3), the Chair has sole, and rather undefined, discretion to request additional information “if the Chair of the NIGC has reason to believe that the assets of a gaming operation are not being appropriately safeguarded or the revenues are being misused under IGRA….” Based on our reading of this provision, it appears that the Chair is not bound by any standard in these provisions outside an ambiguous and overbroad “reason to believe.” We strongly urge the NIGC to either strike this provision or, at the minimum, provide a clear standard on how such a standard would be decided. We are generally in favor the creation of a third tier of financial reporting for charitable gaming operations. However, we urge the NIGC to consider raising its $50,000 gross revenues threshold in its proposal. We would recommend at least a threshold of $100,000.
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