Federal Register / Vol. 72, No. 205 / Wednesday, October 24, 2007 / Proposed Rules 60483 

clarify that facsimiles of bingo are not 

permissible Class II games under IGRA. 

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 § 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 Matters 

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 Act. 

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 enterprises. 

Takings 

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 

recordkeeping requirements. 

Accordingly, for the reasons described 

in the preamble, the Commission 

proposes to amend its regulations in 25 

CFR part 502 as follows: 

PART 502—DEFINITIONS OF THIS 

CHAPTER 

1. The authority citation for part 502 

continues to read as follows: 

Authority: 25 U.S.C. 2071, et seq. 

2. Revise § 502.8 to read as follows: 

§ 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 game. 

(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, 

Chairman. 

Norman H. DesRosiers, 

Commissioner. 

Cloyce V. Choney, 

Commissioner. 

[FR Doc. E7–20781 Filed 10–23–07; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Parts 502 and 546 

RIN 3141–AA31 

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 (‘‘NIGC’’ or 

‘‘Commission’’). 

ACTION: Proposed rule. 

SUMMARY: The proposed rule clarifies 

the terms Congress used to define Class 

II gaming. First, the proposed rule 

further revises the definitions for 

‘‘electronic or electromechanical 

facsimile’’ and ‘‘other games similar to 

bingo.’’ The Commission defined these 

terms in 1992, revised the definitions in 

2002, and proposed further revisions to 

the term ‘‘electronic or 

electromechanical facsimile’’ separate 

from this proposed revision. The 

Commission adds a new Part to its 

regulations that explains the basis for 

determining whether a game of bingo or 

lotto, ‘‘other game similar to bingo,’’ or 

a game of pull-tabs or ‘‘instant bingo,’’

meets the IGRA statutory requirements 

for Class II gaming, when such games 

are played electronically, primarily 

through an ‘‘electronic, computer or 

other technologic aid,’’ while 

distinguishing them from Class III 

‘‘electronic or electromechanical 

facsimiles.’’ This new part also 

establishes a process for assuring that 

such games are Class II before 

placement of the games in a Class II 

tribal gaming operation. This process 

contains information collection 

requirements. The Commission has 

submitted the information collection 

request to OMB for approval. 

DATES: Submit comments on or before 

December 10, 2007. 

ADDRESSES: Mail comments to 

‘‘Comments on Class II Classification 

Standards’’ National Indian Gaming 


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60484 Federal Register / Vol. 72, No. 205 / Wednesday, October 24, 2007 / Proposed Rules 

Commission, Suite 9100, 1441 L Street, 

NW., Washington, DC 20005, Attn: 

Penny Coleman, Acting General 

Counsel. Comments may be transmitted 

by facsimile to 202–632–7066, or mailed 

or submitted to the above address. 

Comments may also be submitted 

electronically to 

classification_standards@nigc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Penny Coleman or John Hay, Office of 

General Counsel, Telephone 202–632–

7003. This is not a toll free call. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Introduction 

II. Background 

III. Development 

IV. New Proposal 

V. Changes 

I. Introduction 

In writing and proposing this rule, the 

Commission has attempted to be 

mindful of the language of IGRA, 

Congress’s intent, IGRA’s legislative 

history, relevant court cases, and the 

essential need of the tribes for a broad, 

flexible and legally sustainable scope of 

Class II gaming. Class II was the basis on 

which Indian gaming was built. Since 

the enactment of IGRA in 1988, Indian 

gaming has grown into a $26 billion 

business, perhaps far eclipsing any 

limits which Congress may have 

envisioned. Although an estimated 90% 

of this gross gaming revenue is 

generated by compacted Class III 

gaming, Class II remains significant to 

tribes throughout the country. 

For some tribes with Class III gaming 

compacts, Class II is a vital supplement, 

long patronized and preferred by some 

clientele. In other cases, sadly, some 

states fail and refuse to compact with 

their tribes for Class III play, 

notwithstanding their legal sanction of 

Class III gaming activities elsewhere 

within those states or their tolerance of 

widespread unsanctioned Class III 

activities. Tribes in that situation are left 

to make the most of Class II gaming and 

have operations that are, or were, places 

where the distinction between Class II 

and Class III has become the most 

blurred and where clarity is most 

needed. Further, as tribes negotiate with 

states for Class III compacts, they and 

the states need to know that there are 

viable Class II games that tribes may 

utilize if no agreement is reached. 

As observed below, the statutory 

language of IGRA lacks clarity when it 

makes ‘‘computer and electronic and 

technologic aids’’ Class II but places 

‘‘electronic facsimiles of games of 

chance’’ in Class III. However, some of 

the Act’s legislative history sheds light 

upon Congress’s intended goal. 

In the House and Senate floor debates 

on IGRA, several proponents of the 

legislation described the distinction as 

that between ‘‘bingo’’ (Class II) and 

‘‘casino gaming’’ (Class III). See 134 

Cong. Rec. H8157. While ‘‘casino 

gaming’’ likewise lacks a crystal-clear 

definition, those who spoke associated 

the term with gambling halls filled with 

slot machines, venues separate and 

distinct from the bingo halls of the 

1980’s. 

It further appears from the debates 

that a basis for making this the dividing 

line between Class II and Class III was 

the complexity and regulatory 

difficulties associated with slot 

machines and casino gaming. See 134 

Cong. Rec. H8157, 134 Cong. Rec. 

S12643. Some argued that only states—

then the only governments experienced 

with the conduct and regulation of such 

activity—were up to the task of 

regulating casino gaming, and thus 

casino gaming needed to be compacted. 

Much has changed, of course, since 

those debates in 1988, not the least of 

which is the sophistication and 

excellence of the tribes’ own gaming 

regulation. Tribes spend hundreds of 

millions of dollars annually regulating 

their gaming, both directly, through 

their own commissions, and indirectly, 

by funding the regulation done by states 

and the NIGC. Nonetheless, the 

distinctions and classifications 

established in IGRA in 1988 still bind 

the Commission, and the proposed rule 

seeks to identify and clarify the place at 

which Congress intended to separate 

Class II from Class III. 

What is abundantly clear from a study 

of the Act’s language and the Act’s 

legislative history is that Congress 

intended to distinguish between 

uncompacted and compacted gaming. If 

that separating line is not clear and 

identifiable, Congress’s intention will 

not be fulfilled. 

Since the Act’s adoption in 1988, the 

world has changed, and 

computerization has transformed whole 

sectors of our economy and society, 

including gaming. Those advances 

challenge the legislative language that 

pre-dates them. Nevertheless, that 

language continues to govern these 

distinctions. Unless or until that 

language or the mission of the NIGC—

in part to promulgate Federal standards 

for Indian gaming—is changed, the 

Commission’s interpretations must be 

based on them. 

The other legislation, of course, which 

applies to the use of gambling 

equipment on Indian lands is the 

Johnson Act. See 15 U.S.C. 1171. Since 

it was enacted in 1953, the Johnson Act 

has provided that there could be no 

‘‘gambling devices’’ in Indian Country, 

and the term ‘‘gambling devices’’ was 

thereafter broadly interpreted. 

The passage of IGRA in 1988 changed 

this in two ways. ‘‘Gambling devices’’

could be used on Indian lands if they 

were used pursuant to Class III tribalstate compacts, and tribes could use 

computers and electronic and 

technologic aids in the play of Class II 

bingo and similar games. 

As Indian gaming grew and the Indian 

gaming industry developed under 

IGRA’s framework, tribes increasingly 

turned to technology. When electronic 

and technologic features were 

introduced in the absence of a tribalstate compact, some were viewed by 

Federal investigators and prosecutors as 

‘‘gambling devices.’’ The Ninth Circuit 

held that an all-electronic form of pull 

tabs to be an electronic facsimile game 

of chance, notwithstanding the 

argument that players were playing 

against other players and not against the 

machine they were using. The electronic 

replication of the traditional Class II 

pull tab game was deemed a Class III 

electronic facsimile and hence 

prohibited on Indian lands in the 

absence of a compact. See Sycuan Band 

of Mission Indians v. Roach, 54 F.3d 

535 (9th Cir. 1995). 

By contrast, in a series of decisions 

involving an electronic bingo game 

called MegaMania, courts considered 

electronic, computerized player 

stations, which interconnected a 

minimum of 12 players and displayed 

bingo cards and bingo balls to them. 

Each game took from two to three 

minutes to play. Again, those 

responsible for enforcement of the 

Johnson Act challenged the player 

stations as ‘‘gambling devices’’ requiring 

a compact for play. These challenges 

failed. Accordingly, the player stations 

were indeed only ‘‘aids’’ to the play of 

bingo, which Congress provided for in 

IGRA as Class II, and not electronic 

facsimiles of a game of chance. Those 

courts, however, were careful to note 

that their conclusions were limited to 

the facts of the cases presented. See U.S. 

v. 162 Megamania Gambling Devices, 

231 F.3d 713, 725 (10th Cir. 2000), U.S. 

v. 103 Electronic Gambling Devices, 223 

F.3d 1091 (9th Cir. 2000). 

Similarly, in a series of cases dealing 

with dispensers of paper pull tabs 

known as Lucky Tab II and Magical 

Irish, the enforcers of the Johnson Act 

became concerned when the 

manufacturers of these machines added 

video displays to the machines. The 

video displayed winning and losing pull 

tabs by depicting slot machine-type 


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reels and showing winning and losing 

combinations. These dispensers, it was 

said, were ‘‘gambling devices’’ and 

could only be played in a compacted 

Class III arrangement. The courts 

disagreed. Notwithstanding the use of 

the entertaining displays to show slot 

machine-like results, those displays 

were not essential to the game. The play 

of the game was ‘‘in the paper’’—it was 

the pull tabs themselves, and only the 

pull tabs, that determined the outcome 

of the game. Thus, these courts 

concluded, the electronic dispensers 

were only aids to the play of the game 

of pull tabs and permissible without a 

Class III compact. Again, the courts 

limited their holdings to circumstances 

before them. See Diamond Game 

Enterprises v. Reno, 230 F.3d 365 (DC 

Cir. 2000), Seneca-Cayuga Tribe of 

Okla. v. NIGC, 327 F.3d 1019, 1031 

(10th Cir. 2003). 

Thereafter, these technologies—

interconnected bingo player stations 

and slot machine-type video displays 

(not determinative of results)—were 

coupled, and currently most electronic 

bingo systems employ such technology. 

Most such systems display the results of 

the bingo game in an electronic bingo 

card on the equipment’s video display. 

Such technological advances have 

greatly increased the speed with which 

bingo is played and have made the 

experience of playing very similar to the 

experience of playing conventional slot 

machines. 

In adopting IGRA, Congress observed 

that while computers, electronic and 

technologic aids may assist the play of 

Class II games, a Class III facsimile 

results if those electronic aids 

incorporate all of ‘‘the fundamental 

characteristics’’ of the Class II games. 

See S. Rep. No. 100–466, at 8 (1988). 

This, the Commission believes, is 

precisely the issue raised by the 

proliferation of so-called ‘‘one touch 

games’’—inter-connected electronic 

bingo player stations with which 

players initiate and complete play of a 

bingo game with the single touch of the 

screen or a button. 

In such instances, the equipment has 

ceased to be an ‘‘aid’’ to the play of the 

game, and has become one of those 

‘‘electronic facsimiles of games of 

chance’’ which Congress placed in Class 

III. When the equipment automatically, 

electronically automates the play of the 

game and the players’ participation in 

the game, the Commission believes that 

the play is no longer ‘‘outside’’ the 

equipment and that the electronic 

equipment can no longer be 

characterized as merely an aid. All 

player attention, discretion, and 

interface has been automated by the 

equipment. 

Beyond this, the full electronic 

automation of bingo creates distortions 

in the way bingo is played. There is 

considerable significance to being the 

first player to ‘‘win’’ the bingo game by 

getting a ‘‘bingo’’ or the game-ending 

pattern. Many current, fully electronic 

games, however, often place minimum 

significance on this important 

characteristic of bingo and rather award 

the principal prizes to interim or 

consolation patterns and winners. There 

is less competition among players—a 

fundamental characteristic of bingo—for 

these interim prizes than there is for the 

game-ending prize. If multiple players 

hit the game-ending prize 

simultaneously, the common practice is 

to split the prize among them. By 

contrast, it is often the case that players 

who hit interim prizes are awarded the 

full prize, without regard to the number 

of other players who have also hit it. 

II. Background 

The Indian Gaming Regulatory Act, 25 

U.S.C. 2701–21 (‘‘IGRA’’ or ‘‘Act’’), 

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 are the exclusive 

regulators of Class I gaming. 25 U.S.C. 

2710(a)(1). 

‘‘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, electronic 

or electromechanical facsimiles of any 

game of chance, and 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 state 

involvement. 

‘‘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 parimutuel 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 tribalstate 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 tribalstate compact or Secretarial procedures 

may contain provisions for concurrent 

state and tribal regulations of Class III 

gaming. In addition, the United States 

Department of Justice possesses 

exclusive criminal and certain civil 

jurisdiction over Class III gaming on 

Indian lands. 

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), ‘‘electronic computer or other 

technologic aid’’ (25 CFR 502.8), and 

‘‘other game similar to bingo’’ (25 CFR 

502.9). 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. However, the Commission 

did not define the many other terms 

used in conjunction with the various 

Class II games. 

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 


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is important to distinguish the two 

classes. 

Currently, the distinction between an 

electronic ‘‘aid’’ to a Class II game and 

an ‘‘electronic facsimile’’ of a game of 

chance, and therefore a Class III game, 

is often unclear. With advances in 

technology, the line between the two 

has blurred. When in IGRA, Congress 

defined ‘‘the game of chance commonly 

known as bingo,’’ 25 U.S.C. 2703(7)(A), 

it could not have foreseen the 

technological changes that would affect 

all games of chance. Likewise, by 

allowing electronic aids to the game of 

bingo, Congress could not have foreseen 

that some vendors and gaming operators 

would be unable or unwilling to 

distinguish between Class II games, 

which tribes regulate, and Class III 

facsimiles, which require compacts 

between tribes and states. The 

Commission is concerned that the 

industry is dangerously close to 

obscuring the line between Class II and 

Class III. It believes that the future 

success of Indian gaming under IGRA 

depends upon tribes, states, and 

manufacturers being able to recognize 

when games fall within the ambit of 

tribal-state compacts and when they do 

not. 

Against this backdrop, the 

Commission has determined that it is in 

the best long term interest of Indian 

gaming to issue classification standards 

clarifying the distinction between 

‘‘electronic, computer, and other 

technologic aids’’ used in the play of 

Class II games and other technologic 

devices that are ‘‘electronic or 

electromechanical facsimiles of a game 

of chance’’ or slot machines. 

As the Commission worked through a 

process to develop these 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 further revisions 

to the definitions for the terms 

‘‘electronic or electromechanical 

facsimile’’ in a separate rulemaking. 

III. Development 

On May 25, 2006, the NIGC published 

two Notices of Proposed Rulemaking in 

the Federal Register. The goal of these 

proposed rules was to clearly 

distinguish technologically-aided Class 

II games from Class III ‘‘electronic or 

electromechanical facsimiles of any 

game of chance’’ or ‘‘slot machines of 

any kind.’’

The first notice, 71 FR 30232, May 25, 

2006, detailed a proposed change to the 

definition for ‘‘electronic or 

electromechanical facsimile’’ that is 

contained in 25 CFR 502.8. The 

proposed change to the definition 

clarified that facsimiles of bingo are not 

permissible Class II games under the 

IGRA. 

The second notice, 71 FR 30238, May 

25, 2006, likewise further revised the 

definitions for ‘‘electronic or 

electromechanical facsimile’’ and ‘‘other 

games similar to bingo.’’ The proposed 

revision to the definition for ‘‘electronic 

or electromechanical facsimile’’

clarified that games under this section 

that comply with 25 CFR 546 would not 

be electronic or electromechanical 

facsimiles of any game of chance. The 

proposed revision to the definition for 

‘‘other games similar to bingo’’ shifted 

the focus for the classification 

determination from whether the game is 

house-banked to whether the game had 

players competing against other players 

for the prizes. The proposed revision 

removed the requirement, not present in 

IGRA, that these games not be housebanked. The proposed revision also 

strengthened the requirement that the 

games involve players competing 

against other players for a common 

prize or prizes. Additionally, the 

proposed rule defined other terms used 

in Class II games that had not been 

previously defined. The proposed rule 

defined the following terms: Game, 

lotto, bonus prize, progressive prize, 

sleep, game of pull-tabs, electronic pulltab, and instant bingo. 

The second notice also added a new 

part to the Commission’s regulations (25 

CFR 546) that explained the basis for 

determining whether a game of bingo or 

lotto, and ‘‘other game similar to bingo,’’

or a game of pull-tabs or ‘‘instant 

bingo,’’ meets the IGRA statutory 

requirements for Class II gaming, when 

these games are played electronically, 

primarily through an ‘‘electronic, 

computer or other technologic aid,’’

while distinguishing them from Class III 

‘‘electronic or electromechanical 

facsimiles.’’

Consultation/Comments 

The development of the proposed rule 

began formally with the March 31, 2004, 

appointment of an advisory committee 

comprised of tribal government 

representatives with substantial 

experience in gaming regulation and 

operations. A detailed history of the 

advisory committee’s work to that point 

is published in the preamble to the 

original proposed rule. 71 FR 30232, 

May 25, 2006. After publishing these 

notices the Commission embarked on an 

extensive consultation schedule, 

meeting with over 69 tribes in 

individual meetings. Additionally, the 

Commission held a day-long hearing 

and heard testimony from tribes, 

manufacturers, test labs, and state 

regulators. 

IV. New Proposal 

Despite the withdrawal of the 

regulations the Commission still 

believed that regulations distinguishing 

technologically-aided Class II games 

from Class III ‘‘electronic or 

electromechanical facsimiles of any 

game of chance’’ or ‘‘slot machines of 

any kind’’ were still needed. The 

Commission gave much thought to the 

direction it needed to take and is now 

proposing regulations that take into 

account many of the concerns voiced 

during the previous consultation and 

comment period. 

V. Changes from Original Proposal 

The new proposed regulations differ 

in some significant ways from the 

original proposal. When these 

regulations were first proposed there 

was considerable criticism that the 

proposed rules would result in great 

economic hardship to tribes and 

manufacturers. The economic impact 

study commissioned by the NIGC 

supported this proposition. The 

Commission withdrew the proposed 

regulations and after careful 

examination decided to make several 

changes. These changes, described 

below, have the added benefit of 

reducing the economic impact of 

compliance with the regulations. 

Player Interaction/Speed of Game 

One of the defining characteristics of 

the game of bingo is that the winner is 

the first person to cover a previously 

designated arrangement of numbers or 

patterns. Implicit in this requirement is 

the notion that a player must make some 

overt action to win the game. It is for 

this reason that the Commission has 

required that players cover/daub after 

the numbers or patterns have been 

released. Originally, the Commission 

felt it was necessary to have at least two 

releases of numbers or patterns to 

ensure that there was truly a 

competition among the players to be the 

first to cover. Further, the Commission 

felt that the release of numbers should 

be over a period of two seconds to 

ensure that players were fully engaged 

in the game. The Commission has given 

this great thought and has tentatively 

concluded that this goal may be 

achieved by requiring only that players 

press a button to start the game and then 

press at least one more time to cover 

and claim their prize. Therefore, the 

new proposed regulations eliminate a 


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required daub as well as the required 

time period for the release of objects. 

Patterns 

As stated above, essential to the play 

of bingo is that individuals are 

competing against each other to be the 

first to obtain a previously designated 

arrangement of numbers or 

designations. The original proposal 

placed a restriction on the use of 

different patterns reasoning that players 

must be competing for the same 

winning pattern. The Commission 

extended this reasoning to include not 

only the game-winning prize but also 

any prizes offered. Upon further 

consideration the Commission felt it 

could be less restrictive by allowing 

bonus patterns to differ and still achieve 

the goal that players play against each 

other for the game-winning pattern. 

Therefore the use of different patterns 

for bonus prizes is now permitted under 

the proposed regulations. 

Appearance 

One of the primary goals of these 

classification standards is to enable 

tribes and regulators to distinguish Class 

II and Class III. The original proposal 

required that each machine display the 

message ‘‘This is a Game of Bingo’’ or 

‘‘This is a Game of Pull-Tabs’’ in two 

inch letters. The Commission still 

believes that it is important to identify 

the game clearly but felt that a less 

intrusive method for doing so could 

accomplish this goal. The current 

proposed rule requires only that this 

message be prominently displayed 

giving manufacturers and tribal 

regulators more flexibility. 

Lab Certification 

For these regulations to be effective 

there must be a method for determining 

compliance with them before 

technologic aids are placed on the 

gaming floors. The easiest way to 

accomplish this goal is to have certified 

testing laboratories test the devices and 

certify that they comply with the criteria 

established by these standards. In the 

Commission’s original proposal it was 

the responsibility of the NIGC to 

determine which labs were suitable to 

conduct this testing. However, after 

further consideration the Commission 

has determined that tribal gaming 

regulatory authorities are better suited 

to this task and in many instances are 

already certifying labs as being suitable 

to conduct testing. These regulations 

place the responsibility for approving 

gaming laboratories on the tribal gaming 

regulatory authority with certain 

minimum criteria for determining 

suitability. 

Grandfather Provision 

Absent from the original proposal 

were any provisions allowing for the 

continued use of games that were 

currently in operation. During 

consultations great concern was 

expressed that the immediate 

compliance with the proposed 

regulations would cause economic 

devastation to some tribes as well as to 

some manufacturers. The present 

proposal includes a grandfather 

provision that allows for the continued 

use of currently existing Class II games 

for a period of five years. Within a 

period of 120 days after this rule is final 

each tribal gaming regulatory authority 

will submit a list to the Commission of 

the Class II game interfaces currently in 

use. These are the only game interfaces 

that will qualify under the grandfather 

provision. This requirement effectively 

freezes the number of grandfathered 

interfaces in use. This provision also 

allows for software changes that ensure 

the proper functioning, security, or 

integrity of the game. It also allows for 

changes to the software that do not 

detract from compliance with this part 

such as changes to pay tables or to game 

themes. The inclusion of a grandfather 

provision greatly mitigates the economic 

impact of these regulations. However, 

the proposed regulations make clear that 

this grandfather provision will not 

provide a safe harbor to those machines 

which could be considered Class III 

under any standards. 

To the extent that provisions are 

identical to the first proposed 

regulations, the Commission’s thinking 

has not changed. Under the proposed 

rules, the following steps describe the 

play of bingo, lotto, or ‘‘other games 

similar to bingo’’ in an electronic 

medium as Class II gaming. First, there 

is a request for entry into the game. The 

game can proceed when there are six 

players or a minimum of two players 

after two seconds have elapsed. There is 

a release of a group of numbers, one at 

a time. Then there is a cover 

opportunity for all competing players. 

Permissible Class II game play for 

bingo, lotto, or other games similar to 

bingo utilizing linked player stations as 

‘‘electronic, computer or other 

technologic aids’’ will proceed as 

follows: To enter and begin the game, 

each player selects the cards to be used 

by that player and requests entry into 

the game by selecting an amount to 

wager and touching a button. After the 

game begins, numbers must be 

randomly drawn or electronically 

determined. Numbers must be released 

one at a time and used immediately in 

real time by the competing players in 

the game. Selected numbers must be 

used in the sequence in which they are 

drawn in separate multiple rounds. 

Players may cover each card they 

have in play by touching the video 

screen at the player station or a button 

showing the word ‘‘cover’’ or other 

similar designation. A minimum time of 

two seconds, or a lesser time if all 

players have covered, must be available 

for each player to accomplish the cover 

action. Players must be notified that 

they should cover their cards when the 

numbers are revealed. For each cover 

opportunity, the game must wait until at 

least one player covers. A player wins 

the game by being the first player(s) in 

the game to cover a pre-designated 

game-winning pattern and claiming the 

win by touching the screen or a button 

within the time allowed by the rules of 

the game, which must be at least two 

seconds. 

A player who ‘‘sleeps’’ a potentially 

winning pattern forfeits the win based 

on that pattern. A player who fails to 

cover the numbers drawn within the 

time allowed may not later use those 

numbers in a prize-winning pattern 

other than the game-winning pattern. A 

bingo game cannot end until a player in 

the game wins the game-winning prize. 

The game may end at this point or other 

additional criteria for the end of the 

game may apply, such as the additional 

release(s) of numbers for a consolation 

prize(s). 

Each player in a game must take overt 

action to cover the player’s card(s) 

during play of the game by touching the 

screen or a designated button one time 

after each set of numbers is released. 

Each released number does not have to 

be covered individually by the player, 

i.e., the player need not touch each 

specific space on the electronic bingo 

card where the called number or 

designation is located, but the player 

must overtly touch the screen or a 

designated button at least one time to 

cover the numbers. 

The proposed regulations will also 

impact how these games are viewed by 

the player. First, the proposed rules 

require a notice to appear on the game 

cabinet informing the player that they 

are playing the game of bingo or a game 

similar to bingo. Second, a two inch by 

two inch card must be displayed at all 

times. 

Economic Impact 

It is likely that the proposed rule, 

considered separately and apart from 

the Commission’s proposed 25 CFR part 

547, ‘‘Technical Standards for 

Electronic, Computer, or Other 

Technologic Aids used in the Play of 

Class II Games,’’ is a major rule under 


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5 U.S.C. 804.2, the Small Business 

Regulatory Enforcement Fairness Act. In 

any event, the NIGC has commissioned 

an economic impact study of the two 

proposals taken together. The study 

makes clear that the cost to the Indian 

gaming industry of complying with the 

two proposed rules will have an annual 

effect on the economy of $100 million 

or more, at least for the first five years 

after adoption. Accordingly, the 

Commission treats the proposed rule as 

a major rule. The economic impact 

study is available for review at the 

Commission’s Web site, http:// 

www.nigc.gov, or by request using the 

addresses or telephone numbers above. 

Regulatory Matters 

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 Act. 

Small Business Regulatory Enforcement 

Fairness Act 

It is likely that the proposed rule is a 

major rule under 5 U.S.C. 804.2, the 

Small Business Regulatory Enforcement 

Fairness Act. The NIGC has 

commissioned an economic impact 

study of this proposed rule as well as a 

proposed rule for Technical Standards 

taken together. The study makes clear 

that the cost to the Indian gaming 

industry of complying with the two 

proposed rules will have an annual 

effect on the economy of $100 million 

or more, at least for the first 5 years after 

adoption. Accordingly, the Commission 

treats the proposed rule as a major rule. 

Paperwork Reduction Act 

This proposed rule requires 

information collection under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501, et seq., and is subject to 

review by the Office of Management and 

Budget. The title, description, and 

respondent categories are discussed 

below, together with an estimate of the 

annual information collection burden. 

With respect to the following 

collection of information, the 

Commission invites comments on: (1) 

Whether the proposed collection of 

information is necessary for proper 

performance of its functions, including 

whether the information would have 

practical utility; (2) the accuracy of the 

Commission’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on respondents, including the use of 

automated collection techniques, when 

appropriate, and other forms of 

information technology. 

Title: Process for Certification of 

games and ‘‘electronic, computer, and 

other technologic aids’’ as meeting the 

Classification Standards, proposed 25 

CFR 546.11. 

Summary of information and 

description of need: This provision in 

the proposed rule establishes a process 

for assuring that bingo, lotto, other 

games similar to bingo, pull tabs, and 

instant bingo, played through or using 

electronic aids, are in fact Class II before 

their placement on the casino floor in a 

Class II operation. 

This process requires a tribe’s gaming 

regulatory authority to require that all 

such games or aids, or modifications of 

such games or aids, be submitted to a 

qualified, independent testing 

laboratory for review and analysis. That 

submission includes a working 

prototype of the game or aid and 

pertinent software, all with functions 

and components completely 

documented and described. In turn, the 

laboratory will certify that the game or 

aids do or do not meet the requirements 

of the proposed rule, and any additional 

requirements adopted by the tribe’s 

gaming regulatory authority, for a Class 

II game. The laboratory will provide a 

written certification and report of its 

analysis and conclusions, both to the 

tribal gaming regulatory authority for its 

approval or disapproval of the game or 

aid, and to the Commission for its 

review. In the circumstance that a 

laboratory has misinterpreted the 

applicable regulations, the NIGC 

Chairman may object to a certifying 

laboratory report and require its 

withdrawal. This action may be 

reviewed by the full Commission on 

appeal from a tribe or manufacturer 

submitting the game for its certification. 

A Commission decision upholding the 

Chairman’s objection will constitute a 

‘‘final agency action’’ that may be 

appealed to federal court. 

This process is necessary because the 

distinction between an electronic ‘‘aid’’

to a Class II game and an ‘‘electronic 

facsimile’’ of a game of chance, and 

therefore a Class III game, is often 

unclear. With advances in technology, 

the line between the two has blurred. 

The Commission is concerned that the 

industry is dangerously close to 

obscuring the line between Class II and 

Class III and believes that the future 

success of Indian gaming under IGRA 

depends upon tribes, states, and 

manufacturers being able to recognize 

which games fall within the realm of 

tribal-state compacts and which do not. 

The information collection requirements 

are an essential component of the 

process. Laboratories cannot conduct 

meaningful evaluation and analyses of 

games without documentation from the 

manufacturers. Tribes cannot make 

meaningful classification 

determinations without reports from the 

laboratories. The Commission cannot 

meaningfully review the process and, if 

necessary, object to a laboratory’s 

findings, without reports. 

Respondents: The respondents are 

developers and manufacturers of Class II 

games and independent testing 

laboratories. The Commission estimates 

that there are approximately 226 gaming 

tribes, 20 manufacturers and developers 

and five laboratories. The frequency of 

responses to the information collection 

requirement will vary. 

Existing Class II games do not have to 

comply with this regulation for five 

years. After five years all existing games 

or aids in Class II operations that have 

not been classified and come within this 

rule must be submitted and reviewed if 

they are to continue in Class II 

operations. The useful life of such 

machines generally ranges between two 

to five years. Therefore, due to the five 

year grandfather provision, the 

Commission expects the 

implementation of these regulations to 

occur only as new Class II machines are 

developed and older machines replaced. 

The Commission expects that very few 

of the existing machines will be 

submitted to laboratories under these 

regulations. Consequently, the 

frequency of responses will be a 

function of the Class II market and the 

need or desire for new games or aids. 

All new Class II machines and 

platforms must go through this 

classification process. The Commission 

estimates a 20% turnover in machine 

games in most operations and that there 

are approximately 25 Class II gaming 

systems presently in use. Consequently, 

there should be one to five new 

submissions each year with three to ten 

modifications. The Commission also 

estimates that the frequency of 

responses will be infrequent and 

occasional submissions during periods 

when there are a few games, aids, or 

modifications brought to market, 

punctuated by fairly steady periods of 

submissions when new games and aids 

are introduced. In any event, the 

Commission estimates that submissions 

will number approximately four to 15 in 

total. 


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Modifications will not require the 

same level of employee hours to submit 

and review. The amount of 

documentation or size of a laboratory 

certification and report is a function of 

the complexity of the game, equipment, 

or software submitted for review. Minor 

modifications of software or hardware 

that a manufacturer has already 

submitted and that a laboratory has 

previously examined are a matter of 

little time both for manufacturer and 

laboratory, while the submission and 

review of an entirely new game platform 

can be more time consuming. Unless a 

tribe imposes additional standards, we 

expect that tribes will rely on 

classifications performed or requested 

by other tribes. This latter fact is borne 

out by tribes’ present reliance on NIGC 

classification opinions. 

Information Collection Burden: The 

preparation and submission of 

documentation supporting submissions 

by developers and manufacturers (as 

opposed to the game or aid hardware 

and software per se) is an information 

collection burden under the Paperwork 

Reduction Act, as is the preparation of 

certifications and reports of analyses by 

the test laboratories. The amount of 

documentation or size of a laboratory 

certification and report is a function of 

the complexity of the game, equipment, 

or software submitted for review. Minor 

modifications of software or hardware 

that a manufacturer has already 

submitted and that a laboratory has 

previously examined are a matter of 

little time both for manufacturer and 

laboratory, while the submission and 

review of an entirely new game platform 

can be quite time consuming. 

The practice of submission and 

review set out in the proposed rule, 

however, is not new. It is already part 

of the regulatory requirements in tribal, 

state, and provincial gaming 

jurisdictions throughout North America 

and the world. Manufacturers already 

have significant compliance personnel 

and infrastructure in place, and the very 

existence of private, independent 

laboratories is due to these 

requirements. 

Accordingly, the Commission 

estimates that gathering and preparing 

documentation for a single submission 

requires, on average, eight hours of an 

employee’s time for a requesting party 

and that following examination and 

analysis, writing a report and 

certification requires, on average, 10 

hours of an employee’s time for a 

laboratory. Modifications will take 

approximately half that time. Based on 

one to five new submissions each year 

and three to 10 modifications, the 

Commission estimates that the 

information collection requirements in 

the proposed rule will be a 20 to 80 

hour burden on requesting parties. The 

Commission estimates that the 

information collection requirements in 

the proposed rule will be a 50 to 100 

hour burden on laboratories. 

We estimate that the cost to 

requesting parties is approximately $50 

per hour and to laboratories $100 per 

hour. Based on these estimates 

requesting parties would pay in total an 

estimated $1000 to $4000. The total 

estimate for laboratory costs would 

range from $5000 to $10,000 per year. 

Comments: Pursuant to the Paperwork 

Reduction Act, 44 U.S.C. 3507(d), the 

Commission has submitted a copy of 

this proposed rule to OMB for its review 

and approval of this information 

collection. Interested persons are 

requested to send comments regarding 

the burden, estimates, or any other 

aspect of the information collection, 

including suggestions for reducing the 

burden (1) directly to the Office of 

Information and Regulatory Affairs, 

OMB, Attention: Desk Officer for 

National Indian Gaming Commission, 

725 17th St., NW., Washington DC, 

20503, and (2) to Penny J. Coleman, 

Acting General Counsel, National Indian 

Gaming Commission, 1441 L. Street, 

NW., Washington DC 20005. Comments 

must be provided by November 23, 

2007. 

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). 

Takings 

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 Order. 

List of Subjects in 25 CFR Parts 502 and 

546 

Gambling, Indian lands, Indian tribal 

government, Reporting and 

recordkeeping requirements. 

Accordingly, for the reasons described 

in the preamble, the Commission 

proposes to amend its regulations in 25 

CFR 502 and add a new Part 546 as 

follows: 

PART 502—DEFINITIONS OF THIS 

CHAPTER 

1. The authority citation for this for 

part 502 continues to read as follows: 

Authority: 25 U.S.C. 2701 et seq. 

2. Revise § 502.9 to read as follows: 

§ 502.9 Other games similar to bingo. 

Other games similar to bingo means 

any game played in the same location as 

bingo (as defined in 25 U.S.C. 2703(7) 

(A) (i)) that constitutes a variant on the 

game of bingo, provided that such game 

requires players to compete against each 

other for a common prize or prizes. 

3. Add a new part 546 to read as 

follows: 

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 

Sec. 

546.1 What is the purpose of this part? 

546.2 What is the scope of this part? 

546.3 What are the definitions for this part? 

546.4 What are the criteria for meeting the 

first statutory requirement that the game 

of bingo, lotto, or other games similar to 

bingo be played for prizes, including 

monetary prizes, with cards bearing 

numbers or other designations? 

546.5 What are the criteria for meeting the 

second statutory requirement that bingo, 

lotto, or other games similar to bingo be 

games in which the holder of the card 

covers such numbers or other 

designations when objects similarly 

numbered or designated are drawn or 

electronically determined? 

546.6 What are the criteria for meeting the 

third statutory requirement that bingo, 

lotto, or other games similar to bingo be 

won by the first person covering a 

previously designated arrangement of 

numbers or designations on such cards? 

546.7 What are the criteria for meeting the 

statutory requirement that Class II pulltabs or instant bingo not be electronic or 

electromechanical facsimiles? 

546.8 What is the process for approval, 

introduction, and verification of 

electronic, computer, or other 

technologic aids under the classification 

standards established by this part? 

546.9 What are the steps for a compliance 

program administered by a tribal gaming 

regulatory authority to ensure that 

electronic, computer, or other 

technologic aids in play in tribal gaming 

facilities meet the Class II certification 

requirements? 

546.10 When must a tribe comply with this 

part? 


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546.11 What is the effect on this part if a 

section is declared invalid? 

Authority: 25 U.S.C. 2701 et seq. 

§ 546.1 What is the purpose of this part? 

This part clarifies the terms Congress 

used to define Class II gaming under the 

Indian Gaming Regulatory Act, 25 

U.S.C. 2701, et seq. (‘‘IGRA’’ or ‘‘Act’’). 

Specifically, this part explains the 

criteria for determining whether a game 

of bingo or lotto, another game similar 

to bingo, or a game of pull-tabs or 

instant bingo, meets the statutory 

requirements when these games are 

played primarily through an electronic, 

computer or other technologic aid. This 

part also establishes a process for 

establishing Class II certification of 

electronic, computer, or other 

technologic aids and the games they 

facilitate. These standards for 

classification are intended to ensure that 

Class II gaming using electronic, 

computer, or other technologic aids can 

be distinguished from Class III 

electronic or electromechanical 

facsimiles. If the technologic aid meets 

the requirements of this part, then the 

fundamental characteristics of the game 

have not been incorporated and the aid 

is not an electronic or electromechanical 

facsimile. 

§ 546.2 What is the scope of this part? 

This part is intended to address only 

games played solely with electronic, 

computer, or other technologic aids as 

defined in part 502.7 of this chapter. 

§ 546.3 What are the definitions for this 

part? 

(a) What is a game of bingo or other 

game similar to bingo? A game of the 

game of chance commonly known as 

bingo or another game similar to bingo 

consists of the random draw or 

electronic determination and release or 

announcement of numbers or other 

designations necessary to form the predesignated game-winning pattern on a 

card held by the winning player and the 

participation of competing players to 

cover (daub) the numbers or other 

designations which appear on their 

card(s) when the selected numbers or 

other designations are released for play. 

A game ends when a participating 

player(s) claims the win after obtaining 

and covering (daubing) the predesignated game-winning pattern and 

consolation prizes, if any, are awarded 

in the game. 

(b) What is lotto? The term lotto 

means a game of chance played in the 

same manner as the game of chance 

commonly known as bingo. 

(c) What is a bonus prize in the game 

commonly known as bingo or other 

game similar to bingo? A bonus prize is 

a prize awarded in a game in addition 

to the game-winning prize. The prize 

may be based on different predesignated and pre-announced patterns 

from the game-winning pattern, may be 

based on achieving a winning pattern in 

a specified quantity of numbers or 

designations drawn or electronically 

determined and released, or a 

combination of these conditions. A 

bonus prize may be awarded as an 

interim prize while players are 

competing for the game-winning prize 

or as a consolation prize after a player 

has won the game-winning prize. 

(d) What is a progressive prize in the 

game commonly known as bingo? A 

progressive prize is an established prize 

for a game, funded by a percentage of 

each player’s purchase or wager, that is 

awarded to a player for obtaining a 

specified pre-designated and preannounced pattern within a specified 

quantity of numbers or designations 

randomly drawn and released or 

electronically determined, or randomly 

drawn and released or electronically 

determined in a specified sequence. If 

the progressive prize is not won in a 

particular game, the prize must be rolled 

over to each subsequent game until it is 

won. The progressive prize is thus 

increased from one game to the next 

based on player buy-in or wager 

contributions from each qualifying game 

played in which the prize is not won. 

All contributions to the progressive 

prize must be awarded to the players. A 

winning pattern for a progressive prize 

is not necessarily the same as the gamewinning prize pattern. 

(e) What does it mean to sleep in the 

game of bingo or another game similar 

to bingo? To sleep or to sleep a bingo 

means that a player fails, within the 

time allowed by the game: 

(1) To cover (daub) the previously 

released numbers or other designations 

on that player’s card(s) constituting a 

game-winning pattern or other predesignated winning pattern; and 

(2) To claim any prize to which the 

player is entitled, having covered 

(daubed) a previously designated 

winning pattern, thereby resulting in the 

forfeiture of the prize to which the 

player would otherwise be entitled. 

(f) What is the game of pull-tabs? In 

the game of pull-tabs, players purchase 

cards from a set of cards known as the 

deal. Each deal contains a finite number 

of pull-tab cards that includes a predetermined number of winning cards. 

Each individual pull-tab within a deal is 

a paper or other tangible card with 

hidden or covered symbols. When those 

symbols are revealed, there is an 

arrangement of numbers or symbols 

indicating whether the player has won 

a prize. Winning cards with preestablished prizes are randomly spaced 

within the pre-arranged deal. One deal 

consists of all of the pull-tabs in a given 

game that could be purchased. 

(g) What is an electronic pull-tab? An 

electronic pull-tab is an electronic 

facsimile of a pull-tab that is displayed 

on a video screen. 

(h) What is instant bingo? In instant 

bingo, a player purchases a card 

containing a pre-selected group of 

numbers or designations; the winning 

cards are those in which the preselected group of numbers or 

designations on the card matches the 

preprinted winning arrangement 

indicated elsewhere on the card. The 

game is functionally the same as pulltabs. 

§ 546.4 What are the criteria for meeting 

the first statutory requirement that the 

game of bingo, lotto, or other games similar 

to bingo be played for prizes, including 

monetary prizes, with cards bearing 

numbers or other designations? 

(a) Each player in the game must play 

with one or more cards. Each player in 

the game must obtain the card or cards 

to be used by that player in the game 

before numbers or other designations for 

the game are randomly drawn or 

electronically determined. Players 

cannot change cards once play of a 

particular bingo game has commenced. 

Electronic cards are permissible. 

(b) Electronic cards in use by a player 

must be displayed prominently and 

must be clearly visible to that player 

during game play. If multiple electronic 

cards are used by a player, the game 

must offer the player the capability of 

seeing each one of his or her cards. At 

the conclusion of the game, each player 

must see his or her card with the highest 

value prize or, if no prize was won, the 

card closest to a bingo win. At no time 

shall an electronic card measure less 

than two inches by two inches or four 

square inches if other than a square card 

is used. 

(c) For a game of bingo, each card 

must contain a five by five grid of 

spaces. Each space will contain a 

unique number or other designation 

which may not appear twice on the 

same card. The card may contain one 

free space without a specified number 

or other designation, provided the free 

space is in the same location on every 

card in play or available to be played in 

the game. 

(d) Each game shall prominently 

display the following message: ‘‘THIS IS 

A GAME OF BINGO’’ or ‘‘THIS IS A 

GAME SIMILAR TO BINGO.’’

(e) As a variant of bingo, in another 

game similar to bingo, each card must 


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contain at least three equally sized 

spaces. Each space will contain a 

unique number or other designation 

which may not appear twice on the 

same card. One space may be designated 

a free space provided the card has at 

least three other spaces. 

(f) When a number or other 

designation is covered, the covering 

must be indicated on the card by a 

change in the color of the space, a 

strike-out through the space, or some 

other readily apparent visual means. 

(g) All prizes in the game, except for 

progressive prizes, must be fixed in 

amount or established by formula and 

disclosed to all participating players in 

the game. Random or unpredictable 

prizes are not permitted. 

(h) Each game must have a winning 

player and a game-winning prize must 

be awarded in every game. The pattern 

designated as the game-winning pattern 

does not need to pay the highest prize 

available in the game. A game-winning 

prize may be less than the amount 

wagered, provided that the prize is no 

less than one cent. 

(i) Other patterns may be designated 

for the award of bonus prizes in 

addition to the prize to be awarded 

based on the game-winning pattern. 

Each such designated pattern or 

arrangement must also be disclosed to 

the players upon request before the 

game begins. 

(j) The designated winning patterns 

and the prizes available must be 

explained in the rules of the game, 

which must be made available to the 

players upon request. 

(k) A bonus prize in a game that is 

designated as an interim prize must be 

awarded in a random draw or electronic 

determination and release of numbers or 

other designations that is no more than 

the exact quantity of numbers or 

designations that are needed for the 

game-winning player to achieve the 

game-winning pattern. 

(l) A bonus prize in a game that is 

designated as a consolation prize may 

be awarded after the game-winning 

pattern is achieved and claimed by a 

player but only after a subsequent 

release of randomly drawn or 

electronically determined numbers or 

other designations has been made. 

(m) A progressive prize may be 

awarded only if the game also provides 

a game-winning prize as described 

elsewhere in this part. 

(n) All prizes in a game, including 

progressive prizes, must be awarded 

based on the outcome of the game of 

bingo and may not be based on events 

outside the selection and covering of 

numbers or other designations used to 

determine the winner in the game and 

the action of the competing players to 

cover the pre-designated winning 

patterns. The prize structure must not 

rely on an additional element of chance 

other than the play of bingo. 

(o) Bingo and other games similar to 

bingo may offer an alternative display of 

the results of the game in addition to the 

display of the game results on the 

electronic bingo card, provided that the 

player has the option to disable the 

alternative display and play using only 

the electronic card display. An 

alternative display may include game 

theme graphics, spinning reels, or other 

imagery. The results may also be 

displayed on mechanical reels. 

§ 546.5 What are the criteria for meeting 

the second statutory requirement that 

bingo, lotto, or other games similar to bingo 

be one in which the holder of the card 

covers such numbers or other designations 

when objects similarly numbered or 

designated are drawn or electronically 

determined? 

(a) In a game of bingo, the numbers or 

other designations used in the game 

must be randomly drawn or determined 

electronically from a non-replaceable 

pool containing 75 such numbers or 

other designations and used in the 

sequence in which they are drawn. Each 

game will permit the random draw and 

release or electronic determination of all 

numbers or designations in the pool. A 

common draw or electronic 

determination of numbers or 

designations may be utilized for 

separate games that are played 

simultaneously. 

(b) As a variant of bingo, in another 

game similar to bingo, the numbers or 

other designations used in the game 

must be randomly drawn or determined 

electronically from a non-replaceable 

pool of such numbers or other 

designations greater in number than the 

number of spaces on the card used in 

the game. 

(c) All numbers or other designations 

used in the game must be randomly 

drawn or electronically determined after 

the cards to be used in the game have 

been assigned to or selected by the 

players in the game. The cards cannot 

have pre-covered numbers or other 

designations. 

(d) The numbers or other designations 

randomly drawn or electronically 

determined must be used in real time 

and not stored for later use. The 

numbers or other designations must be 

used in the sequence in which they are 

drawn. 

(e) To cover (daub), a player in a game 

must take overt action after numbers or 

designations are released by touching 

the screen or a designated button. A 

player must cover (daub) at least one 

time after a set of numbers or other 

designations are released. The overt 

action of covering (daubing) may be 

done simultaneously with claiming. 

(f) Each released number or 

designation does not have to be covered 

(daubed) individually by the player, i.e., 

the player need not touch each specific 

space on the electronic bingo card 

where the called number or designation 

is located. However, the player must 

have the opportunity to cover (daub) by 

touching the screen or a designated 

button at least one time when those 

numbers or other designations are 

released, if those numbers or other 

designations appear on the player’s 

card. Following this action by a player, 

the video screen at that player interface 

will display a different color on the 

number or designation on that player’s 

card, a strike-out through the space, or 

some other readily apparent visible 

characteristic if that number or 

designation has been properly covered 

(daubed) by the player. Players must be 

notified that they should cover (daub) 

their cards and claim their prize when 

the numbers or designations are 

revealed. 

(g) Games may not include a feature 

whereby covering (daubing) after a 

release occurs automatically or without 

overt action taken by the player 

following the release. 

(h) All players in a game, and not just 

a winning player, must be required by 

the rules of the game to cover (daub) the 

selected numbers or other designations 

that appear on their card when those 

numbers or other designations are 

released as an indication of their 

participation in a common game. 

(i) Players must cover (daub) after 

numbers or designations are released in 

order to achieve any winning pattern. In 

the event of multiple releases of 

numbers, a player may later cover 

(daub) numbers or designations slept 

following a previous release (catch up) 

for use in obtaining the game-winning 

pattern. Failure to cover (daub) after 

each release results in the player 

forfeiting use of those numbers or other 

designations in any other pattern in the 

game. For bonus prizes and progressive 

prizes, if a player fails to cover (daub) 

one or more numbers or other 

designations, that player cannot be 

awarded such prize based on a winning 

pattern which contains one or more of 

the numbers or other designations not 

covered (daubed) by the player. For 

game-winning prizes, if a player fails to 

cover the player may later cover (daub) 

the number(s) or other designations and 

win such prize if that player is the first 

player to cover all other numbers or 


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designations making up the gamewinning pattern and claim the prize. 

(j) If a player sleeps the game-winning 

pattern, the game must continue until a 

player subsequently obtains and covers 

(daubs) and claims the game-winning 

pattern. 

(k) All numbers or other designations 

not covered (daubed) by a player must 

be clearly and uniquely identified as 

such by displaying them in a unique 

color, by drawing a strikeout through 

them, or by other readily visible means. 

A player who sleeps a winning pattern 

or a pattern yielding bonus or 

progressive prizes must be notified by 

visible message on the video screen that 

the pattern was slept. 

(l) After all available numbers or 

designations that could lead to a gamewinning prize have been randomly 

drawn or electronically determined and 

released (i.e. no more objects could be 

drawn that would assist in the 

formation of a game-winning prize), the 

game may allow an unlimited length of 

time to complete the last required cover 

(daub) and claim of the prize, or it may 

be declared void and wagers returned to 

players and prizes canceled. 

(m) The gaming operation or its 

employees may not play as a substitute 

for a player. 

§ 546.6 What are the criteria for meeting 

the third statutory requirement that bingo, 

lotto, or other games similar to bingo be 

won by the first person covering a 

previously designated arrangement of 

numbers or designations on such cards? 

(a) Because the game must be won by 

the first person, each game must be 

played by multiple players. Players in 

an electronic game must be linked 

through a networked system. The 

system must require a minimum of two 

players for each game, but not limit 

participation to two players, and must 

be designed to broaden participation in 

each common game by providing 

reasonable and sufficient opportunity 

for at least six players to enter the game. 

Games cannot begin until two seconds 

have elapsed from the time that the first 

player elects to play, unless six players 

enter. Nothing in this section is 

intended to limit games to six players. 

(b) To establish the game as a contest 

in which players play against one 

another, the game must provide for one 

or more releases of selected numbers or 

other designations. Each release will 

provide one or more numbers or other 

designations randomly selected or 

electronically determined. The game 

may end after the first release or after 

subsequent releases, when the gamewinning pattern is covered (daubed) and 

claimed. After the game-winning pattern 

is covered and claimed, there may be 

additional releases of randomly drawn 

or electronically determined numbers or 

other designations for a consolation 

prize(s). 

(c) Each game must have one gamewinning pattern or arrangement, which 

must be common to all players and may 

be won by multiple players 

simultaneously. Each game-winning 

pattern or arrangement must consist of 

at least three spaces, not counting any 

free spaces used. The game-winning 

pattern or arrangement must be 

available to players before the game 

begins. 

(d) Other patterns or arrangements 

consisting of at least two spaces each, 

not counting free spaces, may be used 

for the award of bonus or progressive 

prizes, if the patterns or arrangements 

are designated and made available to 

players before the game begins. 

(e) Events outside the play of bingo 

may not be used to determine the 

eligibility for a prize award or the value 

of a prize. 

(f) The set of selected numbers or 

other designations in the first release 

may contain all of the numbers or other 

designations necessary to form the 

game-winning pattern on a card in play 

in the game. The set may contain the 

numbers or other designations necessary 

to form other winning patterns for 

bonus or progressive prizes. The 

quantity of numbers or designations in 

the second or subsequent releases may 

not extend beyond the quantity of 

numbers or other designations necessary 

to form the first available eligible gamewinning pattern on a card in play in the 

game. There may be additional releases 

to allow for additional bonus prizes. 

(g) Prizes can be claimed 

simultaneously when a player covers 

(daubs) to end the game. 

(h) Bonus or progressive prizes may 

be awarded based on pre-designated 

patterns provided that the award of 

these prizes is based on the play of 

bingo in the same manner as for the 

game-winning prize. Bonus or 

progressive prizes may be based on 

different pre-designated and preannounced patterns, on achieving a 

winning pattern in a specified quantity 

of numbers or other designations drawn 

or electronically determined and 

released, on the order in which numbers 

or other designations are drawn or 

electronically determined and released, 

or on a combination of these criteria. 

Bonus or progressive prizes may be 

awarded as interim prizes, before or as 

the game-winning prize is awarded, or 

as consolation prizes after the gamewinning prize is awarded. 

(i) In order for players to participate 

in a common game, the probability of 

achieving the game-winning prize 

pattern or progressive prize pattern, if 

any, may not vary. 

(j) Prizes in a common game may be 

increased, or progressive prizes offered, 

based upon different entry wagers. 

(k) The use of a pay table is permitted. 

The order of, or quantity of, numbers or 

other designations randomly drawn or 

electronically determined may affect the 

prize awarded for completing any predesignated winning pattern in a game. A 

multiplier to the prize based on a 

winning pattern containing a specified 

number or other designation is 

permitted. 

(l) A game-winning prize must be 

awarded in every game. If the first 

player or a subsequent player obtaining 

the pre-designated game-winning prize 

pattern sleeps that pattern, the game 

must continue until a player achieves 

the game-winning pattern. The same 

value prize must be awarded to a 

subsequent game-winning player in the 

game. 

(m) Alternative result display options 

may only be utilized for entertainment 

or amusement purposes and may not be 

used independently to determine a 

winner of the game or the prizes 

awarded or change the results of the 

bingo game in any way. 

(n) An ante-up format, in which a 

player is required to wager before each 

release as a condition of remaining in 

the game, is permissible, provided the 

game maintains at least two 

participating players. If only one player 

remains after one or more releases, that 

player will be declared the winner of 

the game-winning prize, and the game 

will end, provided that player obtains, 

covers (daubs), and claims the gamewinning pattern. If all players leave the 

game before a game-winning pattern is 

obtained, covered (daubed), and 

claimed by a player, the game will be 

declared void and wagers returned to 

players. 

§ 546.7 What are the criteria for meeting 

the statutory requirement that pull-tabs or 

instant bingo not be an electronic or 

electromechanical facsimile? 

(a) Every pull-tab card or instant 

bingo ticket must exist in a tangible 

medium such as paper. Hereafter, the 

term pull-tabs also includes the term 

instant bingo. A pre-printed pull-tab 

must be distributed to the player as 

paper, plastic, or other tangible medium 

at the time the pull-tab is purchased. 

The pull-tab presented to the player 

must contain the information necessary 

for the player to determine if that player 

has won a prize in the game. The 


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information must be presented to the 

player in a readable format. 

(b) A pull-tab card may contain more 

than one arrangement of numbers or 

symbols, but each arrangement must 

comport with the requirements of this 

section. The player must pay for all of 

the arrangements on that pull-tab card 

in advance of dispensing it. 

(c) Pull-tabs that exist in a tangible 

medium may also be sold to players 

with assistance of a technologic aid that 

assists in the sale. The technologic aid 

may also read and display the contents 

of the pull-tab as it is distributed to the 

player. The results of the pull-tab may 

be shown on a video screen that is part 

of or adjacent to the technologic aid 

assisting in the sale of the pull-tab. 

(d) The player may also purchase a 

pull-tab from a person or from a vending 

unit and place the pull-tab in a separate 

technologic aid that reads and displays 

the contents of the pull-tab. 

(e) If pull-tabs contain multiple 

arrangements of numbers or symbols, 

the rules for game play must indicate 

the disposition of a pull-tab in a 

technologic aid that is only partially 

played, i.e. all arrangements have not 

been viewed in the technologic aid. 

(f) A technologic aid may also show 

pull-tab results on a video screen using 

alternative displays, including gametheme graphics, spinning reels, or other 

imagery. The results may also be 

displayed on mechanical reels. Options 

for players found in this alternative 

display may not determine a winner of 

the game or the prizes awarded or 

change the results of the pull-tab game 

in any way. 

(g) If the pull-tab is a winning card, 

it must be redeemable for a prize when 

presented at the location in the gaming 

facility designated by the gaming 

operator. 

(h) A pull-tab may not be generated or 

printed at the player station. 

(i) For technologic aids that are larger 

than the pull-tab, the machine shall 

prominently display the following 

message: ‘‘THIS IS THE GAME OF 

PULL-TABS.’’

(j) The results on the pull-tab shall be 

no smaller than an eight point font. 

(k) A pull-tab game is an electronic 

facsimile if the pull-tab does not exist in 

paper, plastic, or other tangible medium 

at the point of sale and is displayed only 

electronically. 

(l) Pull-tabs that exist in a tangible 

medium but that are electronically or 

optically read and transformed into an 

electronic medium and made available 

to the player only as depictions on a 

video screen (and not presented directly 

to the player in the tangible medium) 

are electronic facsimiles. 

§ 546.8 What is the process for approval, 

introduction, and verification of electronic, 

computer, or other technologic aids under 

the classification standards established by 

this part? 

(a) An Indian tribe or a supplier, 

manufacturer, or game developer 

sponsored by a tribe (hereafter, the 

‘‘requesting party’’) wishing to have 

games and associated electronic, 

computer, or other technologic aids 

certified as meeting the classification 

standards established by this part must 

submit the games and equipment to a 

testing laboratory recognized by the 

tribal gaming regulatory authority under 

this part. The requesting party must 

support the submission with materials 

and software sufficient to establish that 

the game and equipment meets 

classification standards, any other 

applicable regulations of the 

Commission, and provide any other 

information requested by the testing 

laboratory. 

(b) For an electronic, computer, or 

other technologic aid to be certified as 

meeting the classification standards 

under this part, the tribe shall require 

the following: 

(1) The testing laboratory will 

evaluate and test the submission to the 

standards established by this part and 

any other applicable regulations of the 

Commission. Issues that concern an 

interpretation of the standards or the 

certification procedure identified during 

the evaluation or testing process, if any, 

will initially be discussed between the 

testing laboratory and the requesting 

party. In the event of impasse, the 

requesting party and the testing 

laboratory may jointly submit questions 

concerning the issue to the Chairman, 

who may decide the issue. Questions 

regarding additional tribal standards 

will be addressed to the appropriate 

tribal gaming regulatory authority. 

(2) At the completion of the 

evaluation and testing process, the 

testing laboratory will provide a formal 

written report to the requesting party 

setting forth its findings and 

conclusions. The testing laboratory will 

also forward a copy of its report to the 

Commission. The report may be made 

available upon request to any interested 

tribal gaming regulatory authority by the 

requesting party or by the testing 

laboratory. Each testing laboratory will 

maintain a detailed listing of the 

electronic, computer or other 

technologic aids it certifies. 

(3) Each report from a testing 

laboratory must state the name of the 

requesting party; the type of game 

evaluated; name(s) and version(s) of the 

game played with the electronic, 

computer, or other technologic aid being 

evaluated; all associated game themes 

under which the game will be played on 

the technologic aid being evaluated; 

findings regarding game features and 

manner of play; a checklist of the 

standards established by this part and 

any other applicable regulations of the 

Commission together with an indication 

of the results of testing and evaluation 

to each particular standard; and, a 

summary conclusion as to whether the 

gaming conducted with the aid meets 

the requirements of this part and any 

other applicable regulations of the 

Commission. A supplemental report 

addressing additional game themes or 

other non-play features may follow as 

necessary, and will contain a statement 

verifying that gaming conducted with 

the aid continues to meet the 

requirements of this part and any other 

applicable regulations of the 

Commission. 

(4) Each report will also include one 

or more unique signatures or checksum 

values for the operating programs used 

with the electronic, computer, or other 

technologic aid. 

(5) In certifying a game or an 

electronic, computer, or other 

technologic aid for Class II play, a 

requesting party or a tribe may not rely 

on a report from a testing laboratory 

owned or operated by that requesting 

party or that tribe. 

(c) The Commission will maintain a 

generalized listing of games and 

electronic, computer, or other 

technologic aids certified by recognized 

testing laboratories as meeting the 

classification standards established by 

this part and any other applicable 

regulations of the Commission. The 

Commission will make its listing 

available to the public. The Commission 

will only make available for public 

review records or portions of records 

subject to release under the Freedom of 

Information Act, 5 U.S.C. 552; the 

Privacy Act of 1974, 5 U.S.C. 552a; or 

the Indian Gaming Regulatory Act, 25 

U.S.C. 2716(a). 

(d) Additional requirements 

established by a tribal gaming regulatory 

authority. 

(1) A tribal gaming regulatory 

authority may establish additional 

classification standards that extend and 

exceed the standards established by this 

part and any other applicable 

regulations of the Commission. It may 

require additional testing and 

certification to its own extended 

standards as a condition to operation of 

the game and associated electronic, 

computer, or other technologic aid in a 

gaming facility it regulates. 

(2) A tribal gaming regulatory 

authority may elect to provide its 


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extended testing standards to the testing 

laboratories and require additional tests 

and certification reports applicable to its 

own certification of a game or 

electronic, computer or other 

technologic aid. A requesting party 

wishing to meet the specific tribal 

requirements will submit additional 

supporting materials and 

documentation to the testing laboratory 

as may be necessary to meet the specific 

tribal requirements. A testing laboratory 

evaluating a game and associated 

equipment will include in its report to 

the requesting party information 

relevant to the specific additional tribal 

requirements and provide a copy of the 

report to that tribal gaming regulatory 

authority and the Commission. 

(e) Objections to a testing laboratory 

certification. 

(1) (i) Within 30 days of receipt of the 

certification, a tribe may object to the 

certification by submitting a notice of 

objection to the Chairman. The 

objection shall specify the reasons why 

the certification is erroneous and shall 

include supporting documentation, if 

any. If a tribe timely objects, the 

Chairman or his or her designee shall 

have 60 days from receipt of the 

objection to concur with the tribe’s 

objection. The Chairman or his or her 

designee will notify the testing 

laboratory, the requesting party and the 

sponsoring tribe of his concurrence or 

objection. 

(ii) If no objection is submitted by a 

tribe, the Chairman or his or her 

designee will review the certifications 

and accompanying reports received 

from testing laboratories and may object 

to any certification issued by a testing 

laboratory by notification to the testing 

laboratory, the requesting party, and the 

sponsoring tribe within 60 days of 

receipt of the certification and report. 

(iii) If the Chairman receives no 

objection and does not object on his or 

her own, the requesting party or 

sponsoring tribe may assume the 

Chairman does not object to the 

certification. The Chairman may object 

to a testing laboratory certification 

subsequent to the 60-day period upon 

good cause shown. If the Chairman 

finds good cause to object to the 

certification subsequent to the 60-day 

period, he or she shall do so only after 

providing notice to the testing 

laboratory, the requesting party, and the 

sponsoring tribe and an opportunity for 

a hearing. 

(2) The Chairman or his or her 

designee will conduct additional 

discussions with the testing laboratory, 

the requesting party, and the sponsoring 

tribe on any game or electronic, 

computer, or other technologic aid to 

which the Chairman has objection and 

attempt to resolve the dispute within 30 

days after receiving notice of the 

Chairman’s objection. The Chairman 

and the requesting party and sponsoring 

tribe may agree to the appointment of a 

mediator or other third party to review 

the laboratory’s certification and the 

Chairman’s objection and provide a 

recommendation on the matter within 

this 30-day period. Following the 

discussions and receipt of the 

recommendation of the mediator or 

other third party, if any, the Chairman 

will decide the issue and inform the 

testing laboratory, the requesting party, 

and the sponsoring tribe of his or her 

determination. 

(3) Within 30 days after receiving 

notice of the Chairman’s determination, 

the requesting party or the sponsoring 

tribe may appeal the Chairman’s 

determination to the full Commission by 

providing written notice of appeal along 

with documents and other information 

in support of the appeal. The appeal 

will be decided by the Commission 

based on the record developed by the 

Chairman or his or her designee and on 

written submissions by the testing 

laboratory, the requesting party, and the 

sponsoring tribe, unless the Commission 

requests additional information. The 

appeal will not include a hearing under 

Part 577 of this chapter unless directed 

by the Commission. 

(4) If the requesting party or the 

sponsoring tribe does not appeal the 

Chairman’s determination, or if the 

objection is upheld after review by the 

Commission following an appeal, the 

testing laboratory and the requesting 

party will notify any tribal gaming 

regulatory authority to which it has 

provided a certification and report on 

the game and associated equipment that 

the Chairman has objected to the 

certification and that the certification is 

no longer valid. 

(5) An objection by the Chairman or 

his or her designee, upheld after review 

by the Commission, will be a final 

agency action for purposes of suit by the 

requesting party under the 

Administrative Procedures Act. 

(f) Recognition of Testing 

Laboratories. (1) A testing laboratory 

may provide the examination, testing, 

evaluating and reporting functions 

required by this section provided that: 

(i) The testing laboratory 

demonstrates its integrity, 

independence and financial stability to 

the tribal gaming regulatory authority; 

(ii) The testing laboratory 

demonstrates its relevant technical skill 

and capability to the tribal gaming 

regulatory authority; 

(iii) The testing laboratory is not 

owned or operated by the tribe or tribal 

gaming regulatory authority; and 

(iv) The tribal gaming regulatory 

authority: 

(A) Makes a suitability determination 

of the testing laboratory based on 

requirements no less stringent than 

required by § 533.6(b)(1)(ii)—(v) and 

§ 533.6(c) of this chapter and based 

upon no less information than that 

required by § 537.1 of this chapter, or 

(B) Accepts, in its discretion, a 

determination of suitability for the 

testing laboratory made by any other 

gaming regulatory jurisdiction in the 

United States. 

(v) After reviewing the information 

provided by the testing laboratory, the 

tribal gaming regulatory authority may, 

in its discretion, determine that the 

testing laboratory is qualified to perform 

testing and evaluation for games played 

using electronic, computer, or other 

technologic aids that are offered for use 

in Class II gaming. 

(2) The tribal gaming regulatory 

authority shall: 

(i) Maintain a record of all 

determinations made pursuant to 

paragraphs (f)(1)(iv) and (f)(1)(v) of this 

section for a minimum of three years 

and shall make the records available to 

the Commission upon request. The 

Commission will only make available 

for public review records or portions of 

records subject to release under the 

Freedom of Information Act, 5 U.S.C. 

552; the Privacy Act of 1974, 5 U.S.C. 

552a; or the Indian Gaming Regulatory 

Act, 25 U.S.C. 2716(a). 

(ii) Place the testing laboratory under 

a continuing obligation to notify it of 

any adverse regulatory action in any 

jurisdiction where the testing laboratory 

conducts business. 

(ii) Require the testing laboratory to 

provide notice of any material changes 

to the information provided to the tribal 

gaming regulatory authority. 

§ 546.9 What are the steps for a 

compliance program administered by a 

tribal gaming regulatory authority to ensure 

that electronic, computer, or other 

technologic aids in play in tribal gaming 

facilities meet Class II certification 

requirements? 

(a) In regulating Class II gaming, a 

tribal gaming regulatory authority will 

institute a compliance program that 

ensures bingo, lotto, and other games 

similar to bingo and pull-tabs and 

instant bingo in use in its gaming 

facilities, which are operated and 

played with electronic, computer, or 

other technologic aids required to be 

certified by this part, meet the 

requirements of this part, any other 


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applicable regulations of the 

Commission, and any additional tribal 

standards adopted by the tribal gaming 

regulatory authority. The program must 

include the following elements: 

(1) Determination by the tribal gaming 

regulatory authority that electronic, 

computer, or other technologic aids, 

along with the games played thereon, 

required to be certified as meeting the 

standards established by this part, have 

been tested and certified by a laboratory 

recognized under § 546.8(f) of this part 

as meeting all applicable Class II 

standards before the equipment is 

placed for use in the gaming operation. 

(2) Internal controls that prevent 

unauthorized access to game control 

software to preclude modifications that 

would cause the electronic, computer, 

or other technologic aid and the games 

played therewith to potentially fail to 

meet the required standards. 

(3) Periodic testing of all of the servers 

and a random sample of the electronic 

components and software to validate 

that the equipment and software 

continue to meet the required standards 

and are identical to that tested and 

certified by the testing laboratories. 

(b) In authorizing particular Class II 

gaming within a gaming facility it 

licenses, a tribal gaming regulatory 

authority shall, at a minimum, require a 

finding and certification by an 

independent gaming testing laboratory, 

recognized by the tribal gaming 

regulatory authority under this part, that 

each electronic, computer, or other 

technologic aid used in connection with 

such gaming meets the standards of this 

part. If the tribe’s gaming regulatory 

authority has established classification 

standards that apply additional criteria, 

the tribe shall require additional 

findings consistent with the additional 

standards as a condition to authorizing 

a technologic aid for use and play in the 

gaming facilities it regulates. 

(c) The tribal gaming regulatory 

authority shall maintain a current listing 

of each electronic, computer, or other 

technologic aid including servers, 

player interfaces, and each game 

program it has authorized for play under 

the classification standards governed by 

this part, indicating that all such games 

meet the classification standards 

established by this part and any 

additional standards established by the 

tribe. The listing will show the asset 

identification number(s) of each 

electronic, computer, or other 

technologic aid including servers and 

player interfaces and the manufacturer’s 

name; version number(s), game theme 

titles and other unique identifier(s), of 

the game operating software, for the 

games authorized for play as 

documented in a certification report(s) 

issued by a testing laboratory. 

§ 546.10 When must a tribe comply with 

this part? 

(a) Tribes must comply with this part 

when placing Class II electronic, 

computer, or other technologic aids 

governed by this part in operation after 

[Insert 120 days after effective date]. 

(b) Tribes using Class II technologic 

aids governed by this part on or before 

[Insert 120 days from the effective date], 

may continue to operate those 

electronic, computer or other 

technologic aids for a period of five 

years from the same date. During this 

period technologic aids may be sold, 

leased, or otherwise transferred to 

another tribe. 

(c) Individual hardware components 

of technologic aids governed by this part 

and in use on or before [Insert 120 days 

from effective date] may be repaired or 

replaced to ensure the proper 

functioning, security, or integrity of the 

game. All new software versions must 

be certified under this part except for 

changes made to ensure the proper 

functioning, security, or integrity of the 

game and changes that will not detract 

from the games overall compliance with 

the requirements of this part. 

(d) On or before [Insert 120 days from 

the effective date], each tribal gaming 

regulatory authority shall submit to the 

Commission the list required by 

§ 546.9(c) of this part. 

(e) Nothing in this section is intended 

to authorize the continued operation of 

uncompacted Class III machines that 

allow a player to play against the 

machine. 

§ 546.11 What is the effect on this part if 

a section is declared invalid? 

If any provision of this part be 

declared invalid by a court of competent 

jurisdiction, such decision shall not 

affect the remainder of this part. 

Dated: October 17, 2007. 

Philip N. Hogen, 

Chairman. 

Cloyce V. Choney, 

Commissioner. 

Norman H. DesRosiers, 

Commissioner. 

[FR Doc. E7–20776 Filed 10–23–07; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Parts 542 and 543 

RIN 3141–AA37 

Minimum Internal Control Standards 

for Class II Gaming 

AGENCY: National Indian Gaming 

Commission (‘‘NIGC’’ or 

‘‘Commission’’), Interior. 

ACTION: Proposed rule. 

SUMMARY: In response to the inherent 

risks and the need for effective controls 

in tribal gaming, the Commission, in 

January 1999, developed minimum 

internal control standards (MICS). Since 

their original implementation, it has 

become obvious that the MICS require 

technical adjustments and revisions so 

that they continue to be effective in 

protecting tribal assets, while still 

allowing tribes to utilize technological 

advances in the gaming industry. The 

current MICS are specific to the conduct 

of a wagering game without regards to 

whether the game is classified as a Class 

II or Class III game. This proposed rule 

is intended to supersede certain 

specified sections of the current MICS 

and replace them with a new part titled 

Minimum Internal Control Standards for 

Class II Gaming. 

DATES: Submit comments on or before 

December 10, 2007. 

ADDRESSES: Mail Comments to 

‘‘Comments on Class II MICS’’ National 

Indian Gaming Commission, Suite 9100, 

1441 L Street, NW., Washington, DC 

20005. Comments may be transmitted 

by facsimile to 202–632–7066, or mailed 

or submitted to the above address. 

Comments may also be submitted 

electronically to bingo_mics@nigc.gov. 

FOR FURTHER INFORMATION CONTACT: Joe 

H. Smith, Director of Audits, telephone 

202–632–7003. This is not a toll free 

call. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Development of the Proposed Rule 

II. MICS Structure 

III. Tier Structure 

IV. Small and Charitable Gaming Operations 

V. Tribal Internal Control Standards 

VI. Alternative Procedures 

VII. Agents 

VIII. Smart Cards 

IX. Manual Payouts 

X. Promotional Prize Payouts 

XI. Patron Account Transaction Record 

XII. Audit Tasks To Be Performed at Relevant 

Periods 

XIII. Inter-tribal Prize Pools 

XIV. Information Technology 


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