60490 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 502 

Definition for Electronic or 

Electromechanical Facsimile 

AGENCY: National Indian Gaming 

Commission, Interior. 

ACTION: Notice of withdrawal of 

proposed rule. 

SUMMARY: The National Indian Gaming 

Commission is withdrawing the 

proposed modification to the definition 

of ‘‘Electronic or electromechanical 

facsimile’’ published in the Federal 

Register on October 24, 2007. (72 FR 

60482.) 

FOR FURTHER INFORMATION CONTACT: John 

Hay at 202–632–7003; fax 202–632– 

7066. These are not toll-free numbers. 

SUPPLEMENTARY INFORMATION: Under 

Chairman Phil Hogen, The National 

Indian Gaming Commission 

(Commission) began its effort to craft 

classification standards, of which this 

amended definition was a part, in early 

2004. The procedural mileposts leading 

up to the publication of the proposed 

rule, amended ‘‘Definition for Electronic 

or Electromechanical Facsimile’’ 72 FR 

60482 (October 24, 2007), are well 

known and need not be recounted again 

here. 

About the reasons for this long effort, 

much has been said and written, and 

many and varied motives have been 

ascribed to the Chairman and the 

Commissioners. These likewise need 

not be recited here. 

A brief response is, however, 

appropriate. 

The Commission’s motivation has 

always been the long-term health and 

well-being of Indian gaming, for gaming 

is the single greatest engine for 

economic development in Indian 

Country in history. As Chairman Hogen 

has consistently said—though his words 

have often been lost in the cacophony 

of criticism—he perceives a risk to the 

long-term well-being of Indian gaming 

in the exploitation of technology as an 

aid to the play of Class II games. IGRA, 

of course, permits tribes ‘‘maximum 

flexibility’’ in the use of technology in 

Class II gaming, but it also does make a 

distinction between Class II gaming and 

Class III gaming. The risk arises when 

the exploitation of technology erases, or 

is perceived to erase, that distinction. 

The risk itself is inchoate, but it could 

take any of the following forms, to the 

great detriment of Indian gaming. If 

states perceive that tribes are playing 

Class III games under the guise of Class 

II gaming, they may expand legalized 

gaming within their own borders, as the 

State of Alabama is doing now. Indian 

gaming operations located far from 

population centers will be greatly 

harmed as a result. Patrons will spend 

their money downtown and closer to 

home rather than driving out to the 

reservation. If a perception that tribes 

are not following IGRA becomes 

sufficiently widespread, the Department 

of Justice may bring Johnson Act 

gambling device actions against tribal 

gaming operations again. Tribes have 

been successful in past litigation, but 

those cases involved games that less 

resemble slot machine than do games in 

play today, and the outcome of litigation 

over today’s games might be different. 

Finally, Congress may choose to act, and 

the Commission would not want to see 

IGRA amended to restrict gaming or 

otherwise changed to the detriment of 

Indian tribes. 

Throughout the long process of 

crafting the Classification regulations 

and amending the definition of 

‘‘facsimile’’—throughout all of the 

advisory committee meetings; 

throughout all of the comment periods, 

both formal and informal; throughout all 

of the Congressional hearings—the 

Commissioners have repeatedly stated 

that it takes all comments to heart and 

that until the day the Commission takes 

final action, their minds are not made 

up. These statements too were lost in 

the cacophony. 

The Commission understands the 

terrific economic costs that the 

Classification regulations and amended 

definition will have on Indian gaming 

and Indian Country, as set out in its two 

economic impact reports, its cost-benefit 

analysis, and in comments it received. 

The Commission has heard from many 

tribal leaders and representatives that 

should the states, the Justice 

Department or the Congress seek to act 

against tribal gaming interests, the tribes 

stand ready, willing, and able to address 

those challenges head on. The 

Commission has also heard that it 

should seek alternatives to adopting 

Classification regulations, for any 

problems concerning classification are 

local, rather than national, in scope. In 

short, the Commission has heard that 

the risks about which is concerned are 

not as great as it fears and that the costs 

of the Commission’s proposed solution 

are too great. The Commission sincerely 

hopes that the voices that have so 

spoken are correct. 

As Chairman Hogen stated at the June 

5, 2008 Sovereignty Symposium in 

Oklahoma City, the proposed rule, 

‘‘Definition for Electronic or 

Electromechanical Facsimile’’ 72 FR 

60483, (October 24, 2007), is 

withdrawn. This withdrawal does not 

mean that the Commission believes 

‘‘one-touch’’ bingo games are Class II. 

Going forward, the Commission intends 

to address this and other classification 

issues through a combination of 

training, technical assistance, and 

enforcement actions. 

Dated: September 24, 2008. 

Philip N. Hogen, 

Chairman, National Indian Gaming 

Commission. 

Norman H. DesRosiers, 

Vice Chairman, National Indian Gaming 

Commission. 

[FR Doc. E8–23075 Filed 10–9–08; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 546 

Classification Standards for Bingo, 

Lotto, Other Games Similar to Bingo, 

Pull Tabs and Instant Bingo as Class 

II Gaming When Played Through an 

Electronic Medium Using ‘‘Electronic, 

Computer, or Other Technologic Aids’’ 

AGENCY: National Indian Gaming 

Commission, Interior. 

ACTION: Notice of withdrawal of 

proposed rule. 

SUMMARY: The National Indian Gaming 

Commission is withdrawing the 

proposed Classification standards 

published in the Federal Register on 

October 24, 2007. (72 FR 60483.) 

FOR FURTHER INFORMATION CONTACT: John 

Hay at 202–632–7003; fax 202–632– 

7066. These are not toll-free numbers. 

SUPPLEMENTARY INFORMATION: Under 

Chairman Phil Hogen, The National 

Indian Gaming Commission 

(Commission) began its effort to craft 

classification standards in early 2004. 

The procedural mileposts leading up to 

the publication of the proposed rule, 

Classification Standards for Bingo, 

Lotto, Etc. as Class II Gaming When 

Played Through an Electronic Medium 

Using ‘‘Electronic Computer, or Other 

Technologic Aids,’’ 72 FR 60483, 

(October 24, 2007), are well known and 

need not be recounted again here. 

About the reasons for this long effort, 

much has been said and written, and 

many and varied motives have been 

ascribed to the Chairman and the 

Commissioners. These likewise need 

not be recited here. 

A brief response is, however, 

appropriate. 


jlentini on PROD1PC65 with PROPOSALS3
Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Proposed Rules 60491 

The Commission’s motivation has 

always been the long-term health and 

well-being of Indian gaming, for gaming 

is the single greatest engine for 

economic development in Indian 

Country in history. As Chairman Hogen 

has consistently said—though his words 

have often been lost in the cacophony 

of criticism—he perceives a risk to the 

long-term well-being of Indian gaming 

in the exploitation of technology as an 

aid to the play of Class II games. IGRA, 

of course, permits tribes ‘‘maximum 

flexibility’’ in the use of technology in 

Class II gaming, but it also does make a 

distinction between Class II gaming and 

Class III gaming. The risk arises when 

the exploitation of technology erases, or 

is perceived to erase, that distinction. 

The risk itself is inchoate, but it could 

take any of the following forms, to the 

great detriment of Indian gaming. If 

states perceive that tribes are playing 

Class III games under the guise of Class 

II gaming, they may expand legalized 

gaming within their own borders, as the 

State of Alabama is doing now. Indian 

gaming operations located far from 

population centers will be greatly 

harmed as a result. Patrons will spend 

their money downtown and closer to 

home rather than driving out to the 

reservation. If a perception that tribes 

are not following IGRA becomes 

sufficiently widespread, the Department 

of Justice may bring Johnson Act 

gambling device actions against tribal 

gaming operations again. Tribes have 

been successful in past litigation, but 

those cases involved games that less 

resemble slot machine than do games in 

play today, and the outcome of litigation 

over today’s games might be different. 

Finally, Congress may choose to act, and 

the Commission would not want to see 

IGRA amended to restrict gaming or 

otherwise changed to the detriment of 

Indian tribes. 

Throughout the long process of 

crafting the Classification regulations— 

throughout all of the advisory 

committee meetings; throughout all of 

the comment periods, both formal and 

informal; throughout all of the 

Congressional hearings—the 

Commissioners have repeatedly stated 

that it takes all comments to heart and 

that until the day the Commission takes 

final action, their minds are not made 

up. These statements too were lost in 

the cacophony. 

The Commission understands the 

terrific economic costs that the 

Classification regulations will have on 

Indian gaming and Indian Country, as 

set out in its two economic impact 

reports, its cost-benefit analysis, and in 

comments it received. The Commission 

has heard from many tribal leaders and 

representatives that should the states, 

the Justice Department or the Congress 

seek to act against tribal gaming 

interests, the tribes stand ready, willing, 

and able to address those challenges 

head on. The Commission has also 

heard that it should seek alternatives to 

adopting Classification regulations, for 

any problems concerning classification 

are local, rather than national, in scope. 

In short, the Commission has heard that 

the risks about which is concerned are 

not as great as it fears and that the costs 

of the Commission’s proposed solution 

are too great. The Commission sincerely 

hopes that the voices that have so 

spoken are correct. 

As Chairman Hogen stated at the June 

5, 2008 Sovereignty Symposium in 

Oklahoma City, the proposed rule, 

Classification Standards for Bingo, 

Lotto, Etc. as Class II Gaming When 

Played Through an Electronic Medium 

Using ‘‘Electronic Computer, or Other 

Technologic Aids,’’ 72 FR 60483, 

(October 24, 2007), is withdrawn. This 

withdrawal does not mean that the 

Commission believes ‘‘one-touch’’ bingo 

games are Class II. Going forward, the 

Commission intends to address this and 

other classification issues through a 

combination of training, technical 

assistance, and enforcement actions. 

Dated: September 24, 2008. 

Philip N. Hogen, 

Chairman, National Indian Gaming 

Commission. 

Norman H. DesRosiers, 

Vice Chairman, National Indian Gaming 

Commission. 

[FR Doc. E8–23070 Filed 10–9–08; 8:45 am] 

BILLING CODE 7565–01–P 


jlentini on PROD1PC65 with PROPOSALS3