[Federal Register: October 24, 2007 (Volume 72, Number 205)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Department of the Interior
National Indian Gaming Commission
25 CFR Parts 502, 542, 543, et al.
Indian Gaming Regulatory Act: Definitions and Classification Standards;
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 502
Definition for Electronic or Electromechanical Facsimile
AGENCY: National Indian Gaming Commission (``NIGC'' or ``Commission'').
ACTION: Proposed rule.
SUMMARY: The proposed rule revises the definition of a term Congress
used to define Class II gaming. Specifically, the proposed rule revises
the definition for ``electronic or electromechanical facsimile'' that
appears in the Commission's regulations. The Commission defined these
terms in 1992 and revised the definitions in 2002. The proposed rule
offers further revision.
DATES: Submit comments on or before December 10, 2007.
ADDRESSES: Mail comments to ``Comments on Electronic or
Electromechanical Facsimile Definition,'' National Indian Gaming
Commission, Suite 9100, 1441 L Street, NW., Washington, DC 20005, Attn:
Penny Coleman, Acting General Counsel. Comments may be transmitted by
facsimile to 202-632-0045, or mailed or submitted to the above address.
Comments may also be submitted electronically to
FOR FURTHER INFORMATION CONTACT: Penny Coleman or John Hay, Office of
General Counsel, Telephone 202-632-7003. This is not a toll free call.
The Indian Gaming Regulatory Act (``IGRA''), 25 U.S.C. 2701-21,
enacted by the Congress in 1988, establishes the NIGC and sets out a
comprehensive framework for the regulation of gaming on Indian lands.
The Act establishes three classes of Indian gaming.
``Class I gaming'' means social games played solely for prizes of
minimal value or traditional forms of Indian gaming played in
connection with tribal ceremonies or celebrations. 25 U.S.C. 2703(6).
Indian tribes regulate Class I gaming exclusively. 25 U.S.C.
``Class II gaming'' means the game of chance commonly known as
bingo, whether or not electronic, computer, or other technologic aids
are used in connection therewith, including, if played in the same
location, pull-tabs, lotto, punch boards, tip jars, instant bingo, and
other games similar to bingo, and various card games so long as they
are not house banking games. 25 U.S.C. 2703(7)(A). Specifically
excluded from Class II gaming, however, are banking card games such as
blackjack and electronic or electromechanical facsimiles of any game of
chance or slot machines of any kind. 25 U.S.C. 2703(7)(B). Indian
tribes and the NIGC share regulatory authority over Class II gaming. 25
U.S.C. 2710(a)(2). Indian tribes can engage in such gaming without any
``Class III gaming'' includes all forms of gaming that are not
Class I gaming or Class II gaming. 25 U.S.C. 2703(8). Class III gaming
thus includes all other games of chance, including most forms of
casino-type gaming such as slot machines of any kind, electronic or
electromechanical facsimiles of any game of chance, roulette, banking
card games such as blackjack, and pari-mutuel wagering. Class III
gaming may be conducted lawfully only if the state in which the tribe
is located and the tribe reach an agreement called a tribal-state
compact. Alternatively, a tribe may operate Class III gaming under
gaming procedures issued by the Secretary of the Interior if the tribe
and the state have not reached agreement or if the state has refused to
negotiate in good faith toward an agreement. The tribal-state compact
or Secretarial procedures may contain provisions for concurrent state
and tribal regulation of Class III gaming. In addition, the United
States Department of Justice possesses exclusive criminal jurisdiction
over Class III gaming on Indian lands and also possesses certain civil
jurisdiction over such gaming.
As a legal matter, Congress defined the parameters for game
classification when it enacted IGRA. As a practical matter, however,
the congressional definitions were general in nature and specific terms
within the broad gaming classifications were not explicitly defined.
The Commission adopted regulations in 1992 that included definitions
for many terms used in the statutory classification scheme, including
``electronic or electromechanical facsimile,'' 25 CFR 502.7, and
``electronic computer or other technologic aid,'' 25 CFR 502.8. The
Commission revised the definitions in 2002. See 67 FR 41166 (Jun. 17,
2002) for an extensive discussion of the reasons for the Commission's
decision to revise these key terms.
A recurring question as to the proper scope of Class II gaming
involves the use of electronics and other technology in conjunction
with bingo and lotto as well as pull tabs, instant bingo, and other
games similar to bingo that may be Class II if played in a location
where Class II bingo is played. In IGRA, Congress recognized the right
of tribes to use ``electronic, computer or other technologic aids'' in
connection with these forms of Class II gaming. Congress provided,
however, that ``electronic or electromechanical facsimiles of any game
of chance or slot machines of any kind'' constitute Class III gaming.
Because a tribe wishing to conduct Class III gaming may do so only in
accordance with an approved tribal-state compact, it is important to
distinguish the two classes.
As the Commission worked through a process to develop
classification standards, it became apparent that the revised
definitions issued by a divided Commission in June 2002, See 67 FR
41166 (Jun. 17, 2002), did not provide the clarity that had been a goal
in that rulemaking. Accordingly, the Commission proposes to revise the
definition of the term ``electronic or electromechanical facsimile.''
Purpose and Scope
The definition for ``electronic or electromechanical facsimile''
has been misconstrued by some as allowing for bingo facsimiles. The
Commission is convinced that there needs to be a distinction with a
difference between Class II and Class III gaming. Under IGRA, a
facsimile is Class III. Courts have taken a plain meaning approach to
defining facsimile finding that facsimiles are exact copies or
duplicates. Sycuan Band of Mission Indians v. Roach, 54 F.3d 535 (9th
Cir. 1995); U.S. v. 162 Megamania Gambling Devices, 231 F.3d 713, 724
(10th Cir. 2000). It has also been recognized that facsimiles of Class
II games would be considered a Class III game under IGRA. Diamond Game
v. Reno, 230 F.3d 365, 366 (D.C. Cir 2000). It has likewise been
affirmed that facsimiles of games of chance including bingo would be
violations of IGRA. U.S. v. 103 Electronic Gambling Devices, 223 F.3d
1091, 1102 (9th Cir. 2000). Finally, it has been determined that even
if a player is playing against another player and not simply the
machine that the game may nonetheless be a facsimile. Sycuan Band, 54
F.3d at 542-43 (concluding that an electronic pull-tab game in which
one player played with a machine, though not against it, was a class
III electronic facsimile thereof). The proposed change to the
definition for the term ``electronic or electromechanical facsimile''
clarify that facsimiles of bingo are not permissible Class II games
Changes to the Definition of ``Electronic or Electromechanical
Facsimile'' in Part 502
a. ``Electronic or electromechanical facsimile''
The Commission proposes to revise the definition for ``electronic
or electromechanical facsimile'' contained in Sec. 502.8. Some have
misinterpreted the 2002 revision and argued that facsimiles of bingo
were properly classified as Class II. The revision makes clear that all
games including bingo, lotto and ``other games similar to bingo,'' when
played in an electronic medium, are facsimiles when they incorporate
all of the fundamental characteristics of the game. In making this
change, the Commission also wishes to emphasize that even bingo, lotto,
and ``other games similar to bingo'' are ``electronic or
electromechanical facsimiles'' of a game of chance when the format for
the game either has players playing against a machine rather than
broadening participation among multiple players, or fully incorporates
all of the fundamental characteristics of these games electronically
and requires no competitive action or decision making.
Regulatory Flexibility Act
This proposed rule will not have a significant economic effect on a
substantial number of small entities as defined under the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. Indian tribes are not considered
to be small entities for the purposes of the Regulatory Flexibility
Unfunded Mandates Reform Act
The Commission, as an independent regulatory agency within the
Department of the Interior, is exempt from compliance with the Unfunded
Mandates Reform Act. 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule does not
have an annual effect on the economy of $100 million or more. This rule
will not cause a major increase in costs or prices for consumers,
individual industries, federal, state or local government agencies or
geographic regions and does not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S. based enterprises to compete with foreign-based
In accordance with Executive Order 12630, the Commission has
determined that this proposed rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of General
Counsel has determined that the proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Executive Order.
Paperwork Reduction Act
This proposed rule does not require information collection under
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., and is
therefore not subject to review by the Office of Management and Budget.
National Environmental Policy Act
The Commission has determined that this proposed rule does not
constitute a major federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.
4321, et seq.
List of Subjects in 25 CFR Part 502
Gambling, Indian--lands, Indian--tribal government, Reporting and
Accordingly, for the reasons described in the preamble, the
Commission proposes to amend its regulations in 25 CFR part 502 as
PART 502--DEFINITIONS OF THIS CHAPTER
1. The authority citation for part 502 continues to read as
Authority: 25 U.S.C. 2071, et seq.
2. Revise Sec. 502.8 to read as follows:
Sec. 502.8 Electronic or electromechanical facsimile.
(a) Electronic or electromechanical facsimile means a game played
in an electronic or electromechanical format that replicates a game of
chance by incorporating all the fundamental characteristics of the
(b) Bingo, lotto, other games similar to bingo, pull-tabs, and
instant bingo games that comply with part 546 of this chapter are not
electronic or electromechanical facsimiles of any games of chance.
Dated: October 17, 2007.
Philip N. Hogen,
Norman H. DesRosiers,
Cloyce V. Choney,
[FR Doc. E7-20781 Filed 10-23-07; 8:45 am]
BILLING CODE 7565-01-P