Wednesday, 

October 24, 2007 

Part IV 

Department of the 

Interior 

National Indian Gaming Commission 

25 CFR Parts 502, 542, 543, et al. 

Indian Gaming Regulatory Act: 

Definitions and Classification Standards; 

Proposed Rules 


yshivers on PROD1PC62 with PROPOSALS2
60482 Federal Register / Vol. 72, No. 205 / Wednesday, October 24, 2007 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 502 

RIN 3141–AA31 

Definition for Electronic or 

Electromechanical Facsimile 

AGENCY: National Indian Gaming 

Commission (‘‘NIGC’’ or 

‘‘Commission’’). 

ACTION: Proposed rule. 

SUMMARY: The proposed rule revises the 

definition of a term Congress used to 

define Class II gaming. Specifically, the 

proposed rule revises the definition for 

‘‘electronic or electromechanical 

facsimile’’ that appears in the 

Commission’s regulations. The 

Commission defined these terms in 

1992 and revised the definitions in 

2002. The proposed rule offers further 

revision. 

DATES: Submit comments on or before 

December 10, 2007. 

ADDRESSES: Mail comments to 

‘‘Comments on Electronic or 

Electromechanical Facsimile 

Definition,’’ National Indian Gaming 

Commission, Suite 9100, 1441 L Street, 

NW., Washington, DC 20005, Attn: 

Penny Coleman, Acting General 

Counsel. Comments may be transmitted 

by facsimile to 202–632–0045, or mailed 

or submitted to the above address. 

Comments may also be submitted 

electronically to 

facsimile_definition@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: 

Background 

The Indian Gaming Regulatory Act 

(‘‘IGRA’’), 25 U.S.C. 2701–21, enacted 

by the Congress in 1988, establishes the 

NIGC and sets out a comprehensive 

framework for the regulation of gaming 

on Indian lands. The Act establishes 

three classes of Indian gaming. 

‘‘Class I gaming’’ means social games 

played solely for prizes of minimal 

value or traditional forms of Indian 

gaming played in connection with tribal 

ceremonies or celebrations. 25 U.S.C. 

2703(6). Indian tribes regulate Class I 

gaming exclusively. 25 U.S.C. 

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 and 

electronic or electromechanical 

facsimiles of any game of chance or slot 

machines of any kind. 25 U.S.C. 

2703(7)(B). Indian tribes and the NIGC 

share regulatory authority over Class II 

gaming. 25 U.S.C. 2710(a)(2). Indian 

tribes can engage in such gaming 

without any 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 regulation of Class III 

gaming. In addition, the United States 

Department of Justice possesses 

exclusive criminal jurisdiction over 

Class III gaming on Indian lands and 

also possesses certain civil jurisdiction 

over such gaming. 

As a legal matter, Congress defined 

the parameters for game classification 

when it enacted IGRA. As a practical 

matter, however, the congressional 

definitions were general in nature and 

specific terms within the broad gaming 

classifications were not explicitly 

defined. The Commission adopted 

regulations in 1992 that included 

definitions for many terms used in the 

statutory classification scheme, 

including ‘‘electronic or 

electromechanical facsimile,’’ 25 CFR 

502.7, and ‘‘electronic computer or 

other technologic aid,’’ 25 CFR 502.8. 

The Commission revised the definitions 

in 2002. See 67 FR 41166 (Jun. 17, 2002) 

for an extensive discussion of the 

reasons for the Commission’s decision 

to revise these key terms. 

A recurring question as to the proper 

scope of Class II gaming involves the 

use of electronics and other technology 

in conjunction with bingo and lotto as 

well as pull tabs, instant bingo, and 

other games similar to bingo that may be 

Class II if played in a location where 

Class II bingo is played. In IGRA, 

Congress recognized the right of tribes 

to use ‘‘electronic, computer or other 

technologic aids’’ in connection with 

these forms of Class II gaming. Congress 

provided, however, that ‘‘electronic or 

electromechanical facsimiles of any 

game of chance or slot machines of any 

kind’’ constitute Class III gaming. 

Because a tribe wishing to conduct Class 

III gaming may do so only in accordance 

with an approved tribal-state compact, it 

is important to distinguish the two 

classes. 

As the Commission worked through a 

process to develop classification 

standards, it became apparent that the 

revised definitions issued by a divided 

Commission in June 2002, See 67 FR 

41166 (Jun. 17, 2002), did not provide 

the clarity that had been a goal in that 

rulemaking. Accordingly, the 

Commission proposes to revise the 

definition of the term ‘‘electronic or 

electromechanical facsimile.’’ 

Purpose and Scope 

The definition for ‘‘electronic or 

electromechanical facsimile’’ has been 

misconstrued by some as allowing for 

bingo facsimiles. The Commission is 

convinced that there needs to be a 

distinction with a difference between 

Class II and Class III gaming. Under 

IGRA, a facsimile is Class III. Courts 

have taken a plain meaning approach to 

defining facsimile finding that 

facsimiles are exact copies or 

duplicates. Sycuan Band of Mission 

Indians v. Roach, 54 F.3d 535 (9th Cir. 

1995); U.S. v. 162 Megamania Gambling 

Devices, 231 F.3d 713, 724 (10th Cir. 

2000). It has also been recognized that 

facsimiles of Class II games would be 

considered a Class III game under IGRA. 

Diamond Game v. Reno, 230 F.3d 365, 

366 (D.C. Cir 2000). It has likewise been 

affirmed that facsimiles of games of 

chance including bingo would be 

violations of IGRA. U.S. v. 103 

Electronic Gambling Devices, 223 F.3d 

1091, 1102 (9th Cir. 2000). Finally, it 

has been determined that even if a 

player is playing against another player 

and not simply the machine that the 

game may nonetheless be a facsimile. 

Sycuan Band, 54 F.3d at 542–43 

(concluding that an electronic pull-tab 

game in which one player played with 

a machine, though not against it, was a 

class III electronic facsimile thereof). 

The proposed change to the definition 

for the term ‘‘electronic or 

electromechanical facsimile’’ will 


yshivers on PROD1PC62 with PROPOSALS2
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 


yshivers on PROD1PC62 with PROPOSALS2