Thursday, 

May 25, 2006 

Part III 

Department of the 

Interior 

National Indian Gaming Commission 

25 CFR Parts 502 and 546 

Classification Standards; Class II Gaming; 

Bingo, Lotto, et al.; Proposed Rule 


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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. 

DATES: Submit comments on or before 

August 23, 2006. 

Consultation: The Commission will be 

conducting government-to-government 

consultations with Tribes on this 

proposed rule at the following times: 

July 10–11 Minneapolis, Minnesota 

July 12–13 Denver, Colorado 

July 18–19 Washington, DC 

July 24–25 Tacoma, Washington 

July 26–27 Ontario, California 

August 8–9 Oklahoma City, Oklahoma 

Invitations will be mailed out to Tribal 

leaders in the coming weeks. These 

consultation meetings will be 

transcribed. To schedule a consultation 

please contact Natalie Hemlock, Special 

Assistant to the Commission, at (202) 

632–7003. 

ADDRESSES: Mail comments to 

‘‘Comments on Class II Classification 

Standards’’ 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. 

FOR FURTHER INFORMATION CONTACT: 

Penny Coleman or John Hay, Office of 

General Counsel, Telephone 202–632– 

7003. This is not a toll free call. 

SUMMARY: The proposed rule 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’’). First, the proposed 

rule further revises the definitions for 

‘‘electronic or electromechanical 

facsimile’’ and ‘‘other games similar to 

bingo’’ that appear in part 502 of 

Commission regulations (25 CFR part 

501 et seq.). 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 

proposed rule offers further revision 

that would incorporate the new part 546 

into the definitions. The Commission 

adds a new Part to its regulations (part 

546) 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 subject to the Paperwork 

Reduction Act of 1995. The Commission 

has submitted the information 

collection request to OMB for approval. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Background 

II. Development 

III. Purpose and Scope 

IV. Definitions 

V. Criteria for Meeting the Class II 

Requirements for Bingo, Lotto, and Other 

Games Similar to Bingo Established by 

IGRA 

VI. Bingo, Lotto, and Other Games Similar to 

Bingo Are Games Played for Prizes, 

Including Monetary Prizes, With Cards 

Bearing Numbers or Other Designations 

VII. Bingo, Lotto, and Other Games Similar 

to Bingo Are Games in Which the Holder 

of the Card Covers the Numbers or Other 

Designations on the Player’s Card When 

Objects Similarly Numbered or 

Designated Are Drawn or Electronically 

Determined 

VIII. Bingo, Lotto, and Other Games Similar 

to Bingo Are Games Won by the First 

Person Covering a Previously Designated 

Arrangement of Numbers or Other 

Designations on the Card or Cards Held 

By the Player 

IX. Use of ‘‘Electronic, Computer or Other 

Technologic Aids’’ in the Play of Bingo, 

Lotto, and ‘‘Other Games Similar to 

Bingo’’ Through an Electronic Medium 

X. Alternative Display of the Results of the 

Game on the Video Screen at the Player 

Station 

XI. The Relationship of ‘‘Other Games 

Similar to Bingo’’ as Class II Gaming to 

the Requirements for Bingo Specified in 

IGRA 

XII. Use of State Law in Determining 

Whether a Game Is Bingo, Lotto, or an 

‘‘Other Game Similar to Bingo’’ Under 

IGRA 

XIII. Additional Comment Regarding Player 

Against Player Competition in Bingo, 

Lotto, and ‘‘Other Games Similar to 

Bingo’’ 

XIV. Classification Standards for Pull-Tabs, 

Electronic Pull-Tabs and ‘‘Instant Bingo’’ 

XV. Process for Certification of Games and 

‘‘Electronic, Computer, and Other 

Technologic Aids’’ as Meeting the 

Classification Standards 

I. Background 

The Indian Gaming Regulatory Act, 25 

U.S.C. 2701–21 (IGRA), 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. 

‘‘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. 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 NIGC also 

exercises regulatory authority over Class 

III gaming under IGRA, and the United 

States Department of Justice and United 

States Attorneys possess exclusive 


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criminal jurisdiction over Class III 

gaming on Indian lands and also possess 

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), ‘‘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 

(June 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 

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 

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. 

This approach is somewhat different 

from the approach taken by the previous 

Commission when it proposed a rule on 

Classification of Games in November 

1999 (See 64 FR 61234). After 

considering the comments of tribes and 

the public to the proposal, the 

Commission withdrew the proposed 

rule in July 2002 (See 67 FR 46134). At 

that time, the Commission expressed the 

view that the proposed rule would have 

more likely satisfied the concerns of all 

had there been greater opportunity for 

tribal input during its development. The 

Commission recommended that for any 

future such rulemaking, a tribal 

advisory committee be established to 

advise the Commission as to the nature 

and content of such a rule. 

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) 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, as well as 

revisions to the definitions of facsimile 

herein that incorporate part 546. 

In a related matter, the Commission is 

also developing specific technical 

standards for Class II ‘‘electronic, 

computer and other technologic aids’’

utilized in Indian gaming operations. 

These technical standards will be 

presented in a separate proposed rule. 

II. Development of the Proposed Rule 

Through Consultation With Indian 

Tribes 

In recognition of tribal sovereignty 

and the fundamental importance of 

game classification to the operation and 

regulation of gaming on Indian lands 

under IGRA, the Commission developed 

a policy and process for consultation 

with Indian tribes that would provide 

opportunity for early and meaningful 

tribal input regarding formulation of 

these proposed Class II gaming 

regulations. 

In particular, while initially advising 

tribes of the Commission’s intention to 

develop these Class II Game 

Classification Standards, the 

Commission also actively consulted 

with tribes regarding formulation of the 

Commission’s first-ever official 

government-to-government tribal 

consultation policy. After several 

months of consultation with tribes, the 

Commission’s official tribal consultation 

policy was adopted and published in 

the Federal Register on March 31, 2004 

(See 69 FR 16973). The Commission 

purposely established this policy in 

order to have consultation policy 

guidelines in place for pre-rulemaking 

tribal consultation on the Class II 

classification standards and other 

planned Commission rulemaking 

initiatives. 

The Commission’s tribal consultation 

policy calls for the Commission, to the 

extent practicable and permitted by law, 

to engage in regular, timely, and 

meaningful government-to-government 

consultation with Indian tribes when 

formulating proposed new or revised 

administrative regulations that may 

substantially affect the operation or 

regulation of gaming on Indian lands. 

To fulfill this policy commitment to 

consult with tribes on these proposed 

Class II regulations, the Commission 

devised a three-part plan to afford tribes 

a reasonable and practicable 

opportunity to consult with the 

Commission and to provide early input 

in formulation of the regulations before 

they were published as proposed new 

rules in the Federal Register and the 

actual rulemaking process began. 

First, the Commission endeavored to 

consult in person at least twice with 

each gaming tribe between May 2003 

and March 2006 regarding development 

of these proposed regulations. During 

this time period, the Commission sent 

out over 500 separate invitations to 

individual tribes to consult with the 

Commission and provide input. Many 

tribes accepted one or more of the 

Commission’s invitations to consult 

during this pre-rulemaking period and 

participated in separate government-togovernment consultation meetings with 

the Commission regarding the proposed 

regulations and other matters. While 

some tribes declined the Commission’s 

invitation(s) to consult, between May 

2003 and March 2006 the Commission 

conducted over 300 separate 


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government-to-government consultation 

meetings with individual tribes and 

their leaders or representatives 

regarding development and formulation 

of these proposed regulations. 

Second, the Commission established a 

joint Federal-Tribal advisory committee 

on March 31, 2004, composed of both 

Commission and tribal representatives 

to assist the Commission in formulating 

these proposed Class II gaming 

regulations. In January 2004, the 

Commission requested all gaming tribes 

across the country to nominate tribal 

representatives to serve on this advisory 

committee. From the tribal nominations 

received, the Commission selected the 

following seven tribal representatives on 

March 31, 2004, to serve on the 

committee: Norm Des Rosiers, Gaming 

Commissioner, Viejas Band of 

Kumeyaay Indians; Joseph Carlini, 

Gaming Commission Executive Director, 

Agua Caliente Band of Cahuilla Indians; 

Kenneth Ermatinger, Gaming 

Commission Executive Director, Sault 

Ste. Marie Tribe of Chippewa Indians of 

Michigan; Jamie Hummingbird, Gaming 

Commission Director, Cherokee Nation, 

Oklahoma; Mark Garrow, Gaming 

Commission Inspections Manager, St. 

Regis Mohawk Tribe; Melvin Daniels, 

General Manager, Muckleshoot Indian 

Bingo, Muckleshoot Indian Tribe; 

Charles Lombardo, Sr. Vice-President 

for Gaming Operations, Seminole Tribe 

of Florida. 

To date, the advisory committee has 

held six (6) meetings: May 13, 2004, in 

Washington, DC; August 2–3, 2004, 

Washington, DC; September 13–14, 

2004, Cherokee, North Carolina; 

December 1–3, 2004, Oklahoma City, 

Oklahoma; January 12–13, 2005, Palm 

Springs, California; and March 11, 2005, 

Chicago, Illinois. During these meetings, 

all of which were open to the public, the 

committee discussed the various 

characteristics of Class II and Class III 

games of chance, their play, and related 

gaming technology and methods. In 

addition, the Committee also discussed, 

reviewed, critiqued and commented on 

four (4) different, successive 

preliminary working drafts of the 

proposed Class II classification 

standards, which were prepared by the 

Commission representatives on the 

committee. 

The seven tribal committee 

representatives provided early tribal 

input and valuable insight, advice, and 

assistance to the Commission in 

developing each of the respective 

working drafts, as well as the current 

proposed regulations. Although there 

were many instances of accord, there 

were also many times during the 

development of the proposed 

regulations that the tribal committee 

representatives strongly disagreed with 

decisions made by the Commission. 

In particular, tribal representatives 

strongly advocated automatic daubing 

(covering) for the entire game of bingo; 

elimination of any time delays for either 

adding players or covering in bingo; 

elimination of any requirement for 

multiple bingo draws or releases; 

authorization of wholly electronic pulltab games; and no change to the current 

rule definition of ‘‘electronic or 

electromechanical facsimile’’ of games 

of chance. While understanding the 

tribal representatives’ position on these 

issues and their general desire to assure 

that the games are economically viable, 

the Commission is bound by Congress’s 

intent, as expressed in IGRA, to 

promulgate rules that 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.’’ Accordingly, the 

Commission concluded that it could not 

accept some of the tribal 

representatives’ recommendations in 

formulating proposed rule. 

The Commission’s establishment of 

the joint Federal-Tribal advisory 

committee was the subject of a legal 

challenge while the Commission was 

preparing the proposed rule for 

publication. 

On March 10, 2005, nearly one year 

after the Commission established the 

committee, the Confederated Salish and 

Kootenai Tribes of the Flathead Nation 

and the Santa Rosa Rancheria Indian 

Community filed suit against the 

Commission alleging that several of the 

committee members were not eligible to 

participate on the committee. Following 

a hearing in Federal court, at which the 

request for temporary restraining order 

was denied, the Commission 

determined that it should proceed to 

publish the proposed rule for comment 

while the legal standing of the 

committee was further litigated. The 

Commission also sought clarification 

from those tribes nominating the 

committee members concerning the 

member’s role as an official 

representative of the tribe. As a result of 

this clarification, and, out of an 

abundance of caution, the Commission 

regretfully requested that two members 

of the Committee step down. 

The third component of the 

Commission’s effort to consult with 

tribes during the development of these 

proposed regulations was to make the 

various preliminary working drafts of 

the proposed regulations available to all 

tribes and their leaders for review and 

comment independent of the joint 

Federal-Tribal advisory committee. All 

five preliminary drafts were published 

on the Commission’s Web site. In 

addition, the third and fourth 

preliminary drafts were successively 

mailed to each tribe inviting written 

comment. Many tribes and the public 

submitted written comments on these 

respective working drafts. The tribal 

comments were shared with the 

members of the advisory committee for 

their review and carefully considered by 

the Commission in formulating these 

proposed regulations. 

In addition to forming the advisory 

committee, scheduling and conducting 

individual tribal consultation meetings 

and advisory committee meetings, and 

requesting and considering written 

tribal comments to preliminary drafts of 

the proposed regulations, the 

Commission also facilitated further prerulemaking consultation with tribes by 

other means. In particular, the 

Commission attended and addressed 

several different assemblies of tribal 

leaders and tribal gaming operators and 

regulators at meetings and conferences 

between January 2003 and March 2006 

organized by state and regional tribal 

gaming associations, the National Indian 

Gaming Association, and the National 

Congress of American Indians. At these 

meetings and conferences, the 

Commission advised tribal leaders of its 

intention and plan to develop these 

regulations and provided periodic 

updates regarding the progress and 

status of the regulations development. 

The Commission also made itself 

available at these meetings to answer 

any questions from tribal leaders 

regarding the proposed regulations or 

their formulation. 

In addition, the Commission also met 

individually with several tribes and 

their leaders in its Washington, DC, 

offices, at each tribe’s request, to discuss 

these proposed regulations and their 

formulation and implementation. 

Through each of these various means, 

the Commission actively endeavored to 

provide all tribes with a reasonable and 

practical opportunity over the past 

twenty-six months to meet and consult 

with the Commission on a governmentto-government basis and provide early 

and meaningful tribal input regarding 

the formulation and implementation of 

these proposed regulations. 

By April of 2005, the Commission was 

prepared to send the fifth draft to the 

Federal Register for publication as a 

proposed rule. However, the 

Department of Justice (‘‘DOJ’’) contacted 

the Commission and expressed concern 

that the draft regulations might not be 

consistent with the Johnson Act. The 

Commission spent five months meeting 


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with DOJ to resolve its concerns. As a 

result of these meetings the DOJ drafted 

amendments to the Johnson Act. 

Following several consultation sessions 

with Tribes the DOJ sent the draft 

amendments to the Office of 

Management and Budget earlier this 

year. So much time has elapsed that it 

is not likely that the proposed 

legislation will pass the 109th Congress. 

The need to regulate Class II technologic 

aids has not diminished and the 

Commission is compelled to proceed 

with these regulations. The proposed 

regulations differ from the fifth draft 

that was provided to the public in April 

of 2005. The changes to that draft are a 

result of the Commission addressing the 

concerns of DOJ that these regulations 

clearly distinguish between Class II and 

Class III games. These changes relate to 

the size of the bingo card as well as the 

time period for the release of numbers. 

Additionally, the proposed changes 

require a fixed written notification to 

the player that the game they are 

playing is a game of bingo, a game 

similar to bingo, or a game of pull tabs. 

Finally, they prohibit pull tab machines 

from paying winnings in any form. 

III. Purpose and Scope 

The proposed revision to the current 

definitions regulation and the proposed 

classification regulation are intended to 

clarify terms used by the Congress to 

define Class II gaming under IGRA. 

Through a separate regulation, the 

Commission has proposed to revise the 

current definitions. The change to the 

definition for the terms ‘‘electronic or 

electromechanical facsimile’’ and ‘‘other 

games similar to bingo’’ provides 

consistency and clarity in 

understanding Class II gaming concepts 

intended by Congress. The classification 

standards serve to distinguish the use of 

‘‘electronic, computer, or other 

technologic aids’’ in the play of Class II 

bingo, lotto, ‘‘other games similar to 

bingo,’’ pull tabs, and instant bingo from 

the play of Class III gaming machines. 

These standards focus on the play of 

bingo, lotto, and ‘‘other games similar to 

bingo’’ when these games are played 

through an electronic medium using 

‘‘electronic, computer, or other 

technologic aids.’’ The Commission’s 

intent with classification standards is 

not to prescribe rules for how a tribal 

gaming operation conducts its live 

session bingo. The only exception to 

this general approach is when a tribal 

gaming operation conducts its live 

session bingo exclusively through 

networked electronic player stations 

when these devices essentially perform 

all the functions of bingo play normally 

undertaken by the players. Games 

played in such a manner on these 

electronic player stations are included 

within the parameters of bingo, lotto, 

and ‘‘other games similar to bingo’’

games played through an electronic 

medium addressed in the Classification 

Standards. 

These standards apply only in bingo, 

lotto, other games similar to bingo, pulltabs, and instant bingo played primarily 

through an electronic medium. They 

apply only to the electronic format 

because in an electronic format it 

becomes too easy to use features such as 

the instantaneous, rather than serial, 

release of numbers and the automatic 

covering (daubing) of those numbers on 

a player’s electronic card as a pretext to 

fundamentally change or distort the 

nature of the game such that it becomes 

an ‘‘electronic facsimile’’ of the game. In 

live session bingo, the pace and style of 

the game will normally preclude such 

distortions. 

In many respects, the current 

generation of electronic bingo games 

shows features that turn bingo on its 

head. Many games offer players the 

opportunity to play with as few as one 

other player in games where the object 

is to obtain and cover one or more 

‘‘interim’’ prize patterns which offer 

significant monetary reward. The gamewinning pattern is more often than not 

a pattern with a low-value, 

inconsequential prize. The machines, 

offered as ‘‘technologic aids’’ to the play 

of bingo, are often designed to play 

close to the line by using alternative 

displays of the game results to resemble 

the experience of a slot machine for the 

player. This is not inherently wrong nor 

does it necessarily make such machines 

Class III devices. But it does make them 

more difficult to distinguish from Class 

III devices. 

Faced with the explosion of these 

‘‘technologic aids’’ on the floors of Class 

II gaming facilities, or on the floors of 

Class III gaming facilities as an 

exception to the number of slot 

machines authorized for the facility 

under a tribal-state compact, the 

Commission has determined that some 

bright-line classification standards must 

be developed to distinguish Class II 

games from the slot machines they 

mimic. The standards interpret in 

operational terms Congress’s prescribed 

legal criteria for Class II bingo, lotto, and 

other games similar to bingo. As to pulltabs and instant bingo, the standards 

fully embrace the Federal court 

decisions that have dealt with the 

technologic aids to the game. The 

standards demand in some cases, and 

prohibit in others, certain play features. 

In short, the purpose in describing play 

features is to distinguish the play of 

these ‘‘technologic aids’’ from the play 

of ‘‘electronic facsimiles of a game of 

chance or slot machines of any kind,’’

which is Class III gaming under the 

IGRA. The standards clarify the terms 

Congress used when it defined Class II 

gaming, not knowing the full potential 

of modern technology that could be 

brought to the industry. 

IGRA defines Class II bingo with three 

statutory criteria. It is the game of 

chance commonly known as bingo 

* * * 

(1) Which is played for prizes, 

including monetary prizes, with cards 

bearing number or other designations; 

(2) In which the holder of the card 

covers such numbers or other 

designations when objects, similarly 

numbered or designated, are drawn or 

electronically determined; and 

(3) In which the game is won by the 

first person covering a previously 

designated arrangement of numbers or 

designations on such cards[.] 

25 U.S.C. 2703(7)(A). The game of 

‘‘lotto’’ and ‘‘other games similar to 

bingo’’ were not defined in the Act. The 

terms were defined in 1992 by the 

Commission as having the same 

requirements as bingo. The term ‘‘other 

games similar to bingo’’ was also 

defined by the 1992 Commission as 

requiring that the games could not be 

house-banked. In reviewing the 

definition of ‘‘other games similar to 

bingo,’’ the 2002 Commission retained 

this non-house-banked requirement but 

only described these games as a variant 

of bingo. What constituted a ‘‘variant’’

was not explained. Furthermore, the 

Commission in its advisory opinions 

has been unable to identify what 

constitutes a variant of bingo. It has only 

described what is not a variant—e.g., a 

pre-drawn bonanza bingo game. 

IGRA also allows for advances in 

technology to aid the way the game is 

played. Speaking on another aspect of 

the game, the U.S. Court of Appeals for 

the Ninth Circuit observed that bingo is 

not necessarily the ‘‘traditional’’ game 

that ‘‘was played in our childhoods or 

home towns.’’ 223 F.3d 1091,1096 (9th 

Cir. 2000). At the same time, IGRA has 

not changed. In it, Congress delegated to 

NIGC the task of implementing the Act’s 

provisions. The three statutory criteria 

for bingo must continue to be the 

fundamental principles on which a 

Class II classification is based. It is this 

balance between capitalizing on 

technological advances while 

continuing to give IGRA’s definitions 

meaning that the NIGC is attempting to 

strike in these Classification Standards. 

These standards explain the statutory 

criteria and represent the Commission’s 


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effort to distinguish Class II bingo, lotto, 

and ‘‘other games similar to bingo’’ from 

Class III gaming. 

The Commission also addresses the 

games of pull tabs and ‘‘instant bingo’’

in the classification standards. These 

games are not defined in IGRA, but have 

been discussed in Federal court cases. 

These cases provide guidance for 

distinguishing the Class II versions of 

these games from ‘‘electronic and 

electromechanical facsimiles’’ of the 

games which are Class III. The 

Classification Standards specifically 

rely on this case law. 

Finally, these regulations address a 

problem highlighted by the Commission 

in 2002, but left unresolved. As noted 

by the Commission, the process for 

classifying games has been an imperfect 

process. Under the current informal 

process, the Commission’s Office of 

General Counsel issues advisory 

classification opinions. Often these are 

obsolete as soon as they are released. 

Looking forward, electronic games 

change much too rapidly to encourage 

dependence on a small legal staff to 

provide the appropriate classification 

guidance. The advisory opinions also 

suffer from major drawbacks. For 

example, it is sometimes difficult to 

identify whether the games described in 

the advisory opinions are the same 

games as those that are offered for play 

in a tribal gaming facility. In addition, 

the advisory opinions are not final 

agency action and therefore are not 

subject to judicial review. 

A second method for classifying 

games, the issuance of a Notice of 

Violation and Closure Order, while 

subject to judicial review, also has 

drawbacks. This formal enforcement 

process is often slow and expensive, 

forces tribes to defend games they often 

believe in good faith are permissible 

games, and can result in decisions that 

have little impact on the new games that 

replace those that are the subject of the 

enforcement action. 

A third method, leaving the decision 

entirely to tribal gaming commissions, 

has other problems. Decisions are 

sometimes inconsistent with those of 

other commissions. Disagreements 

between tribes and states arise, and all 

of the concerned parties, including 

manufacturers, as a practical matter 

need a central authority to decide what 

games can be played as Class II. 

Definitions in Part 502 

a. ‘‘Electronic or Electromechanical 

Facsimile’’

The Commission proposes to revise 

the definition for ‘‘Electronic or 

electromechanical facsimile’’ contained 

in § 502.8. The revision clarifies that 

games under this section that comply 

with part 546 are not electronic or 

electromechanical facsimiles of any 

game of chance. 

b. ‘‘Other Games Similar to Bingo’’

The Commission proposes to revise 

the definition for ‘‘other games similar 

to bingo’’ contained in § 502.9. The 

revision to the definition shifts the focus 

for the classification determination in 

an other game similar to bingo from 

whether the game is house-banked to 

whether the game has players 

competing against other players for the 

prizes. The revision removes the 

requirement, not present in IGRA, that 

these games not be house-banked. The 

revision also strengthens the 

requirement that the games involve 

players competing against other players 

for a common prize or prizes. 

As to house banking, IGRA defines as 

Class II bingo and, if played in the same 

location, pull-tabs, punch boards, tip 

jars, and games similar to bingo, but 

makes no requirement that any of these 

games be house-banked, or not be 

housed-banked. IGRA’s only 

requirement about the banking of Class 

II games is to exclude house-banked 

card games from the definition and 

make them Class III. Congress has, in 

other words, defined both bingo and 

games similar to bingo as Class II, 

regardless of how they are banked. 

Some, but not all bingo games are 

played in a house-banked format. 

Accordingly, the Commission proposes 

to remove the limitation on housebanking for games similar to bingo as 

inconsistent with IGRA. 

The revision maintains that part of the 

definition that describes ‘‘other games 

similar to bingo’’ as variants of bingo. 

Proposed Part 546 explains what 

variants are contemplated. 

IV. Definitions for 25 CFR Part 546 

The Commission proposes definitions 

for terms not previously defined in its 

regulations. These definitions apply 

only to these terms as used in the 

proposed Part 546 and do not 

necessarily have other general 

application. 

The Commission defines what is a 

‘‘game’’ of the ‘‘game of chance 

commonly known as bingo’’ or ‘‘other 

games similar to bingo’’ so that a player 

will know when the game begins, when 

the game ends, and what the player 

must do to participate and win in an 

individual game. Each bingo game 

should have a distinct reference number 

visible on the screen at each player 

station and used subsequent to the game 

to track game play and results. 

The Commission has previously 

defined the game of ‘‘lotto’’ as a game 

played in the same manner as bingo. 25 

CFR 502.3. Accordingly, the 

classification standards for bingo apply 

to ‘‘lotto’’ the same as they apply to 

defining bingo. The term ‘‘lotto’’ does 

not mean ‘‘lottery’’ in general or the 

type of lottery operated by various states 

and denominated ‘‘lotto’’ or some 

derivative thereof. 

The Commission defines ‘‘the game of 

pull tabs’’ and ‘‘electronic pull tab’’

using terminology commonly accepted 

in the federal courts. See Cabazon Band 

v. NIGC, 827 F. Supp. 26, 28 n. 2(D.D.C. 

1993), aff’d 14 F.3d 633 (D.C. Cir. 1994). 

The Commission defines the term 

‘‘instant bingo’’ by relying on federal 

case law. See Julius M. Israel Lodge of 

B’nai B’rith v. Commissioner of Internal 

Revenue, 98 F.3d 190 (5th Cir. 1996). In 

its decision, the court set out some 

fundamental differences between bingo 

and instant bingo. Using common 

definitions of bingo from dictionaries, 

the court stated: 

The taxpayer’s Instant Bingo is devoid of 

the critical element of bingo that runs 

through these ordinary, everyday 

definitions—that players place markers over 

randomly called numbers in an attempt to 

form a preselected pattern. Instant Bingo 

involves only the player’s purchase of a 

prepackaged card * * *, and winning cards 

are those in which the preprinted appearance 

of numbers on the front of the card * * * 

matches the preprinted winning arrangement 

indicated on the reverse side of the card 

* * *. 

Julius M. Israel Lodge of B’nai B’rith, 98 

F. 3d at 192–93. 

The Commission defines the terms 

‘‘bonus prize’’ and ‘‘progressive prize’’

in bingo, lotto, or other games similar to 

bingo to distinguish them from the 

game-winning prize. See the discussion 

below on prizes generally. 

V. Criteria for Meeting the Class II 

Requirements for Bingo, Lotto, and 

Other Games Similar to Bingo 

Established by IGRA 

IGRA establishes three requirements 

in defining the game of bingo as a Class 

II gaming activity. The intent of the 

proposed rule is to clarify the terms 

used in this statutory definition when 

the game is played primarily though 

‘‘electronic, computer, or other 

technologic aids.’’ In drafting the 

standards, the Commission has been 

careful to derive criteria from the 

statutory language. 


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VI. Bingo, Lotto, and Other Games 

Similar to Bingo Are Games Played for 

Prizes, Including Monetary Prizes, With 

Cards Bearing Numbers or Other 

Designations 

This section of the proposed rule 

deals with two essential elements of 

bingo, lotto and ‘‘other games similar to 

bingo’’: Cards and prizes. It offers 

criteria for the card so that it is visible 

and useful to the game. It explains 

criteria for prizes but permits a wide 

variety of prizes for a game. 

Cards 

Central to the game of bingo is that 

participants play the game on bingofaced cards and compete against other 

players to win prizes in the game. 

Pursuant to IGRA’s second statutory 

element, players cover numbers or other 

designations on their cards ‘‘when’’

those numbers or other designations are 

drawn. This necessarily means that the 

player has the card in her possession 

before the numbers are drawn. This also 

means that players cannot change cards 

once the game begins and the numbers 

are being drawn and displayed, 

although they certainly may do so 

before a new game starts. 

There is no statutory requirement that 

bingo be played with paper cards as in 

a traditional bingo game. In fact, case 

law and NIGC’s regulations provide that 

Class II bingo games may be played with 

electronic cards. The U.S. Court of 

Appeals for the Tenth Circuit, in U.S. v. 

162 Megamania Gambling Devices, 231 

F. 3d 713 (10th Cir. 2000), ruled that a 

game, Megamania, was Class II because 

it met the three statutory criteria for 

bingo, among them, that the game ‘‘is 

played with an electronic card that 

looks like a regular paper bingo card 

containing a grid of numbers * * *’’ Id. 

at 719. The Ninth Circuit also affirmed 

the Class II status of Megamania, 

observing that the game consisted of 

‘‘electronic game ’cards.’’’ U.S. v. 103 

Electronic Gambling Devices, 223 F. 3d 

1091, 1093 (10th Cir. 2000). NIGC’s 

regulation on technologic aids, 25 CFR 

502.7(c), explicitly names ‘‘electronic 

cards for participants in bingo games’’

as an example of an aid, which is 

allowable for Class II games under 25 

CFR 502.3(a). 

Because bingo is a game played with 

the cards, the cards must be clearly 

visible to the player on the video screen 

of the ‘‘electronic, computer, or other 

technologic aid’’ displaying the card. In 

order to ensure visibility the 

Commission proposes that the screen 

always display a card that is at least one 

half the available space on the screen. 

A larger card would be useful for better 

visibility, but the Commission 

recognizes that the stated minimum size 

serves the purpose of having a visible 

card and at the same time allows 

flexibility for placing other information 

and features on the video screen. 

In the traditional ‘‘game of chance 

commonly known as bingo,’’ the card 

contains a grid of 25 spaces in 5 

horizontal rows and 5 vertical columns. 

This is not clearly stated in the statute 

although it is the norm for the game. 

The Commission believes that a game 

using other than 25 spaces placed in a 

5 by 5 grid would more properly be 

considered an ‘‘other game[s] similar to 

bingo.’’ While a previous Commission 

explained that the bingo game would 

not be limited to a grid of 5 rows and 

5 columns, in giving meaning to the 

term ‘‘other games similar to bingo,’’ the 

Commission now believes Congress had 

in mind a traditional bingo card when 

it drafted the sections on Class II bingo 

since it expressly referred to ‘‘the game 

of chance commonly known as bingo’’

when listing the statutory elements of 

the game. 

As a major variant from the game of 

bingo, for other games similar to bingo, 

the card has many possibilities. The 

only stated restriction is that each card 

must have at least three (3) spaces to be 

covered, in addition to any ‘‘free space,’’

because a winning pattern in the game 

must have at least three (3) spaces, as 

explained elsewhere in this preamble. 

Each card must have unique numbers 

or other designations that appear only 

once on the card. This means a number 

could appear twice, so long as a 

qualifying factor such as color 

established the unique character, e.g., a 

‘‘blue 5’’ and a ‘‘red 5’’ could both 

appear on the card but each would be 

unique. The unique number or 

designation can appear only once in 

order to give meaning to game play. The 

term ‘‘other designations’’ includes 

letters, figures or symbols. 

Except as noted below, the card must 

always be displayed for the player in a 

clear and visible manner. If multiple 

bingo cards are in use by a player, the 

player station must have capability to 

display for the player on the video 

screen any of the bingo cards being used 

by the player in the game during play. 

Before game play, a single card may be 

shown. During game play, if only one 

card is shown, the default card being 

shown will be the card closest to a bingo 

win or the card with the highest value 

prize, if a winning card, with each such 

card display meeting the specified 

visibility requirements. At the end of 

the game, a player must have the option 

of reviewing all the cards used by the 

player in the game. 

An exception to the requirement that 

the card must always be shown is made 

for alternative display during a 

graphical display presented as a second 

screen during a bonus prize round 

which is intended for entertainment 

only. The screen will return to its 

normal display, including a card, at the 

conclusion of the round. 

The card may contain one free 

(covered) space without a specified 

number or other designation, provided 

the free space is located identically on 

every card in play or available to be 

played in the game. 

When the Commission issued 

regulations in 1992, it recognized that 

Congress did not intend to limit bingo 

to its classic form and that, if it had, 

Congress could have spelled out further 

requirements such as cards having the 

letters B I N G O across the top with 

numbers 1–15 in the first column, etc. 

See 57 FR 12382 (April 9, 1992). This 

early rulemaking was not specifically 

directed at distinguishing between play 

of bingo on electronic player stations 

from the play of a Class III electronic 

facsimiles or slot machines. The 

Commission also found that in defining 

Class II to include games similar to 

bingo, Congress intended to include 

more than bingo in its classic form in 

that class. 

This interpretation, however, begs the 

question of what IGRA meant by the 

phrase ‘‘game of chance commonly 

known as bingo.’’ In differentiating 

between bingo and other games similar 

to bingo, the Commission now 

understands that Congress did intend 

bingo to be played in its ‘‘classic form’’

(i.e., its common form) which includes 

the traditional 25 space card but that 

tribes should also be able to take 

advantage of modern technology to play 

the game. Accordingly, the proposed 

rule clarifies that bingo played in an 

electronic medium through an 

‘‘electronic, computer or other 

technologic aid’’ will be played on the 

classic bingo card, but this may be an 

electronic card. 

‘‘Other games similar to bingo’’ are 

games that are bingo-like and would not 

necessarily be played on the classic 

form of bingo card. With the 

corresponding change to the definition 

of ‘‘other games similar to bingo’’ set out 

in this proposed rule, the Commission 

believes it is not taking a step back on 

what is included within Class II but 

giving correct meaning to the 

terminology. Bingo is played on a 

classic card; games that are similar to 

bingo, but still Class II, can be played on 

non-traditional cards. 


jlentini on PROD1PC65 with PROPOSAL3
30244 Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules 

This is consistent with the holdings in 

the MegaMania cases. As the Tenth 

Circuit noted: 

In this case, MegaMania meets these three 

criteria. Specifically it is played with an 

electronic card that looks like a regular paper 

bingo card containing a grid of numbers and 

the first persons to cover a previously 

designated arrangement of numbers—in this 

case five straight line spaces and the 

necessary corner spaces—wins a monetary 

prize. 

U.S. v. 162 Megamania Gambling 

Devices, 231 F. 3d 713, 719 (10th Cir. 

2000). 

Prizes 

Because bingo is ‘‘played for prizes’’

and ‘‘won by the first player’’ covering, 

the winning prize must have meaningful 

value compared to the entry fee for the 

game. The Commission believes that 

while this prize need not be the highest 

value prize in the game, or be greater 

than the amount wagered, it should 

have significant value. Accordingly, the 

Commission places a value of at least 

20% of the amount wagered and one 

cent as the minimum value for a gamewinning prize. 

Other prizes, referred as to ‘‘bonus 

prizes’’ and ‘‘progressive prizes,’’ to 

distinguish them from ‘‘game winning 

prize,’’ may also be awarded based on 

a player completing another predesignated pattern during the game. 

Each such designated pattern or 

arrangement must also be disclosed to 

the players upon request before the 

game begins. 

A bonus prize is a prize awarded in 

a game in addition to the game-winning 

prize. The prize may be based on 

different pre-designated and preannounced patterns than the gamewinning pattern, may be based on 

achieving a winning pattern in a 

specified quantity of numbers or 

designations drawn or electronically 

determined and released, or based on a 

combination of these conditions. The 

bonus prize may also be limited by 

game rule to obtaining the required predesignated pattern in a specified 

quantity of numbers or other 

designations released before the gamewinning pattern is obtained by a player 

in the game. Bonus prizes take two 

forms: Interim and consolation. Interim 

prizes are prizes won before or at the 

same time the game winning prize is 

won but based on the player covering a 

pre-designated pattern other than the 

pre-designated winning pattern. 

Consolation prizes are won by another 

player in the game after the winning 

player successfully covers the predesignated game-winning pattern. The 

difference is that consolation prizes 

require an additional release of numbers 

or other designations. 

In bingo, lotto, and ‘‘other games 

similar to bingo,’’ the game is ‘‘won’’ by 

the first player covering the predesignated winning pattern. 

Consequently play must stop, or pause, 

when the last number or other 

designation that forms the predesignated game-winning pattern is 

released to the players for the gamewinning player to cover the pattern, 

announce bingo, and claim the win. A 

player may win an interim prize using 

the quantity of numbers or other 

designations necessary to form the game 

winning pattern or a lesser quantity of 

such numbers or other designations and 

claim that prize at the same time the 

game-winning player claims the gamewinning prize. However, another release 

of numbers or designations is required 

for the players remaining in the game to 

receive the numbers or other 

designations that appear on their card(s) 

and try to obtain the pre-designated 

pattern for a consolation prize(s), 

assuming the game does not end with 

the award of the game-winning prize 

and continues through one or more 

consolation prize rounds. 

Under the proposed regulation, each 

game must provide an equal chance of 

obtaining any winning pattern for each 

card played by an active player in the 

game. The probability of achieving any 

particular pre-designated winning 

pattern must be the same for all cards 

played in a game and may not vary 

based on the amount wagered except 

that a minimum wager may be 

established as a condition of eligibility 

to win a progressive prize. All prizes in 

the game must be fixed in amount or 

established by formula and disclosed to 

all participating players in the game. 

Prizes that are not fixed or established 

by formula, i.e., prizes that are random 

or unpredictable, are not permitted. 

The Commission recognizes that game 

designers may establish various 

wagering levels in a game. This is 

permissible provided that all players in 

the game are eligible to compete for all 

winning patterns in the game. The 

higher wager or entry fee can result in 

a higher value prize but that prize must 

be based on a pattern or patterns 

available to all players. For example a 

player entering a game at the one credit 

wager level could cover a particular 

pattern and win a five (5) credit prize, 

but another player entering at the ten 

(10) credit level could win a higher 

multiple of the prize based on covering 

the same pattern. 

A multiplier to the prize or other 

bonus based on a winning pattern 

containing a specified number or other 

designation is permitted. Similarly, the 

order of, or quantity of, numbers or 

other designations randomly drawn or 

electronically determined may affect the 

prize awarded for completing any 

previously designated winning pattern 

in a game. 

Prizes may not be based on an event 

not directly related to bingo play, such 

as the spinning of a wheel with 

eligibility to spin having been 

determined by a player obtaining and 

covering a specific pattern in the game. 

This subsequent ‘‘chance’’ event is not 

bingo, lotto, or an ‘‘other game[s] similar 

to bingo’’ and is not a Class II gaming 

activity. Consequently, it follows that 

prizes must be established before the 

game begins. A ‘‘second screen’’ or 

‘‘bonus round’’ feature is permitted, 

however, provided the round is for 

entertainment only and the prize was 

determined through the play of the 

underlying game of bingo, lotto or other 

game similar to bingo before the bonus 

round commenced. An alternative 

display may show the award of free 

games. 

A progressive prize is an established 

prize for a game, funded by a percentage 

of each player’s buy-in 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 jackpot must be awarded to the 

players. A winning pattern for a 

progressive prize is not necessarily the 

same as the game-winning prize pattern. 

The method of determining the 

winner of a progressive prize in a game 

must be based only on the play of the 

game of bingo and may not be based on 

events outside the random selection of 

numbers or other designations and the 

action of the competing players to cover 

such numbers or other designations on 

their respective cards to achieve the predesignated winning patterns in the 

game. As an example, an acceptable 

basis for awarding a progressive prize 

would be for the winning player to 

obtain a winning bingo pattern in the 

first five numbers drawn in the exact 

order in which they are drawn. 


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Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules 30245 

A pattern used to establish the 

progressive prize must be a predesignated pattern that can be obtained 

by all players in the game. The game 

may provide that only players wagering 

at or above a certain entry level are 

eligible to win the progressive prize 

associated with that pattern. However, 

other participants in the game not 

playing at the required minimum entry 

level to win the progressive prize must 

be eligible to win some other prize if the 

pre-designated pattern is obtained and 

covered by that player, and the prize 

claimed. 

Progressive awards with only one 

participating player station, usually 

called ‘‘stand-alone progressives’’ or 

‘‘personal progressives,’’ are not 

permitted in Class II bingo, lotto, or 

other games similar to bingo played 

through an electronic medium. In 

‘‘personal progressives,’’ eligibility to 

participate and win is based upon some 

identifying factor, such as a player 

tracking card. As an example, a prize for 

the lone eligible player might be greater 

on the player’s 1000th game or a game 

between 500 and 600 as determined by 

a random number generator. These 

formats introduce an additional element 

of chance into the prize award not 

involved in the play of the game by all 

the participants in the game and, thus, 

fall outside the definition of Class II 

gaming. 

‘‘Mystery Jackpots,’’ where winners 

are determined from events outside the 

play of game, e.g., a format in which a 

player’s bet causes a hidden jackpot 

amount to be exceeded thus enabling 

the player to play for that jackpot, are 

not permitted. In this format, an event 

outside the play of bingo, lotto, or an 

other game similar to bingo triggers the 

unique prize award for that player. 

A ‘‘gamble feature,’’ sometimes called 

a double up, double play, or double pay, 

etc., may not be used with Class II 

bingo, lotto, or other games similar to 

bingo played through an electronic 

medium. They are a pretext to alter the 

fundamental concepts under the IGRA 

by which prizes in a bingo or lotto game 

or an other game similar to bingo are 

awarded. These prize multipliers 

provide the opportunity, after the 

completion of the game, for a separate 

‘‘double or nothing’’ wager. As such, 

they do not fall within the definition of 

Class II games. 

Similarly, a separate game or wager to 

convert the fractional amount left in 

player credits to either the coin value of 

the game or nothing, often called 

‘‘residual credit removal,’’ does not fall 

within the definition of Class II gaming. 

These credits must stay on the player 

station credit meter for use by the 

current or a subsequent player until 

their accumulated value reaches the 

coin value of the game. 

The award of additional ‘‘free’’ games 

as a marketing tool is permitted so long 

as all players that participated in the 

game that initiated the prize of a free 

game or games receive the same number 

of free games. This is not considered to 

be the award of a prize outside the play 

of the game. Essentially, as part of its 

marketing program, the house 

determines that all players in a 

particular game will receive additional 

game credits to use in later games. 

Finally, a tribal gaming operation may 

in its discretion offer extraneous 

marketing prizes such as a ‘‘good 

neighbor prize’’ awarded to the player 

sitting next to a player winning a large 

jackpot progressive prize. This prize is 

not the result of consideration paid by 

the player winning the progressive or by 

the player winning the good neighbor 

prize. It is merely the gaming operation 

exercising a marketing decision. 

VII. Bingo, Lotto, and Other Games 

Similar to Bingo Are Games in Which 

the Holder of the Card Covers the 

Numbers or Other Designations on the 

Player’s Card When Objects Similarly 

Numbered or Designated Are Drawn or 

Electronically Determined 

In the game of chance commonly 

known as bingo, numbers or other 

designations are drawn from a pool of 

75 such numbers or other designations. 

The term ‘‘designations’’ can mean 

letters or figures and may include 

attributes such as color which provide 

a unique quality to a number, letter, or 

figure that is used more than once in the 

game. The random draw or electronic 

determination of the numbers or other 

designations must be from a nonreplaceable pool, meaning that, for each 

game, the numbers or other designations 

randomly drawn or electronically 

determined are not put back in the pool 

to be drawn again in that game. For 

example, if the number B–15 is drawn 

or electronically determined, it cannot 

be used again in that game. At the end 

of the game, all numbers or other 

designations are returned to the pool to 

be drawn in the next game. 

In bingo and lotto, the use of a nonreplaceable pool of 75 numbers or other 

designations is matched with a card 

containing 25 non-repeating spaces. For 

‘‘other games similar to bingo’’ the 

Commission believes that the nonreplaceable pool of numbers or other 

designations must consist of a number 

greater than the number of spaces on the 

card to be used in the game. 

A common draw or electronic 

determination of numbers or 

designations may be utilized for 

separate games that are played 

simultaneously. 

In bingo, lotto, and ‘‘other games 

similar to bingo’’ played through an 

electronic medium, cards containing 

pre-covered numbers or designations 

cannot be used. The term ‘‘pre-covered 

numbers or designations’’ means that 

the numbers or designations were 

selected before an individual game 

begins or before players accept the card 

or cards each will play and are marked 

as having been covered. Accordingly, 

the proposed rule provides that 

numbers must be selected in real time 

during the game, as part of the game, 

and not drawn early and stored for later 

use. No exception is made for ‘‘bonanza 

bingo’’ style games, although the 

Commission acknowledges that this 

form of play may be found in live 

session bingo play. 

Under IGRA, a game is Class II bingo 

only if players are required to cover the 

numbers or other designations on their 

cards in ‘‘real time’’ (the actual time that 

it takes a process to occur) or ‘‘near real 

time’’ response to those numbers or 

other designations being drawn, and if 

the first person to cover a designated 

pattern of those numbers or other 

designations on a card held by that 

player wins the game. The requirement 

that a player cover when objects are 

drawn means that games that use predrawn numbers cannot constitute bingo 

or an other game similar to bingo. Some 

have argued that for the purposes of 

IGRA ‘‘when’’ means ‘‘after’’ and that it 

should not matter how long after balls 

are drawn that the card is daubed, thus 

allowing for pre-drawn numbers. This is 

contrary to the common meaning of the 

word ‘‘when.’’ Webster’s Collegiate 

Dictionary (10th ed.) defines the 

conjunction ‘‘when’’ as: 

1a: at or during the time that: WHILE 

* * * b: just at the moment that * * * c: at 

any or every time that * * * 2: in the event 

that: IF * * * 3a: considering that * * * b: 

in spite of the fact that: ALTHOUGH * * * 

4: the time or occasion at or in which * * *. 

This definition is counter to the 

proposition that ‘‘when’’ means ‘‘at any 

point after.’’

The random draw by either a bingo 

blower or some other method where 

numbers are ‘‘electronically 

determined’’ must occur in real time or 

very near in real-time to the actual play 

of the particular bingo game. The act of 

covering the numbers must occur in 

close proximity to the drawing of those 

numbers or in real time. Allowing a 

game time to distribute numbers 

through a network of terminals to help 

ensure continuity of fast paced 


jlentini on PROD1PC65 with PROPOSAL3
30246 Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules 

electronic bingo games would be logical. 

In the Commission’s view, however, 

consistent with statutory intent, such 

‘‘near real-time’’ play contemplates only 

the lapse of a minimal period of time 

necessary to accomplish these 

objectives. This time period would be 

measured in seconds, not minutes or 

hours. 

In games with pre-selected numbers 

or designations, the numbers or other 

designations are chosen by a random 

number generator at some time prior to 

the cards being sold and then the 

completed games are stored in the host 

computer and sold to players. By the 

time the player begins participating, the 

game has been played within the 

machine or a server for the network and 

the machine distributes the completed 

game to the player. The winning cards 

are determined at the time the computer 

draws the numbers and matches them 

against the existing deck, not during the 

course of play. Therefore, the bingo 

player is not ‘‘covering’’ a previously 

designated arrangement and the 

‘‘covering’’ is not happening ‘‘when’’

the objects are drawn. 

An acceptable ‘‘electronic, computer, 

or other technologic aid’’ to the play of 

bingo, lotto, or ‘‘other games similar to 

bingo’’ could include the capability for 

the player to cover all of the numbers 

or other designations drawn and 

released to the point the player instructs 

the aid to perform the cover action on 

the electronic card used by that player 

in the game. In other words, the player 

does not have to touch each number or 

other designation on the card to cover 

the number, or use an electronic pen or 

‘‘dauber’’ to mark each number or 

designation. Instead, the player can 

touch the screen or a designated button 

to perform this function. This action 

must occur after each release of 

numbers or other designations in the 

game because players must cover 

‘‘when’’ numbers or designations are 

released, as discussed above. (The 

numbers may be released in rounds, 

each round containing one number or a 

set of numbers. In a game designed in 

this manner, the required cover action 

by players must occur after each round 

or release of a set of numbers.) 

An ‘‘electronic, computer or other 

technologic aid’’ cannot employ a 

feature whereby the ‘‘aid’’ accepts 

instruction from the player at the 

beginning of the game to later cover 

(daub) the numbers that will be drawn 

in later rounds or releases of numbers or 

other designations This is sometimes 

referred to as total ‘‘auto-daub’’ meaning 

a feature incorporated into an aid to the 

play of bingo, lotto, or an other game 

similar to bingo that automatically 

performs the requirements for the player 

to cover (daub) numbers or designations 

on the player’s electronic card. Use of 

this feature would mean players were 

not covering ‘‘when’’ those numbers 

were drawn and released. Similarly, the 

equipment would lose its character as 

an ‘‘electronic, computer, or other 

technologic aid’’ to Class II gaming and 

would become an ‘‘electronic facsimile’’

of the game if it performed all of the 

‘‘cover’’ functions for the player without 

specific player direction or if it 

performed those functions following an 

instruction from the player to cover at 

some later point ‘‘when’’ and if the 

numbers other designations were 

drawn. The device would essentially 

play the game for the player. The player 

would merely start the game, watch play 

unfold, and be paid any amounts won 

without further action. 

It follows that a player should have a 

reasonable opportunity to cover the 

numbers or other designations after 

those numbers or other designations are 

released before forfeiting the use of the 

covered numbers or designations. The 

Commission believes a minimum time 

of two (2) seconds is appropriate in each 

round for players to have an 

opportunity to accomplish this function. 

If all players have covered sooner, the 

game may proceed. 

To ‘‘sleep’’ or to ‘‘sleep a bingo’’

means that a player fails, within the 

time allowed by the game: (i) To cover 

(daub) the previously released numbers 

or other designations on that player’s 

card(s) constituting a game-winning 

pattern or other pre-designated winning 

pattern, or (ii) to claim the 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. 

Because each game of bingo, lotto, or 

other game similar to bingo must have 

a winning player (game is ‘‘won by the 

first player’’ covering a pre-designated 

pattern), it follows that a player who 

fails to cover the game-winning pattern 

on that player’s card(s) under the time 

permitted by the rules of the game 

‘‘sleeps’’ that game-winning pattern, and 

the game must continue for some player 

in the game to win following a 

subsequent release of numbers or 

designations. Game rules may specify a 

time period of not less than two seconds 

for this cover opportunity to facilitate 

movement in the game and speed play. 

If the game waited endlessly for a nonattentive player to cover, other players 

would be stuck in the game waiting for 

additional numbers or other 

designations to be drawn and released, 

and the opportunity to play the 

subsequent round. A player who fails to 

cover the numbers or designations 

making up that game-winning pattern 

released in the first round or in a 

subsequent round may later cover those 

numbers or designations (‘‘catch-up’’) 

and still remain eligible to win the 

game-winning prize, provided that prize 

has not been awarded to another player 

who covered the numbers or other 

designations making up the pattern and 

claimed the prize. However, a player 

failing to cover (daub) those numbers or 

designations within the permitted time 

loses the opportunity to make a pattern 

from those numbers or designation that 

could result in a bonus or progressive 

prize. 

VIII. Bingo, Lotto, and Other Games 

Similar to Bingo Are Games Won by the 

First Person Covering a Previously 

Designated Arrangement of Numbers or 

Other Designations on the Card or 

Cards Held by the Player 

Key to understanding IGRA’s third 

statutory element is an examination of 

the term ‘‘first person.’’ The 

Commission understands Congress’s use 

of this term to indicate that bingo, lotto, 

and ‘‘other games similar to bingo’’ must 

be played by more than one person if 

there is to be a ‘‘first person.’’ In the 

Commission’s view, bingo, lotto and 

‘‘other games similar to bingo’’ are 

games where broad participation is 

favored, although the Commission 

recognizes that a simplistic reading of 

the IGRA requirements would allow the 

game to be played only by two (2) 

players. Furthermore, players must be 

competing for all available winning 

patterns in the game including all 

patterns associated with the bonus 

prizes and the progressive prize, if any, 

in the game. In other words, the game 

and all prize patterns associated with it 

must be played by more than one (1) 

person and preferably by many players. 

The need for multiple players is also 

a factor distinguishing ‘‘electronic, 

computer, or other technologic aids’’

from electronic facsimiles of a game of 

chance in that an ‘‘aid’’ facilitates broad 

participation in the game. Accordingly, 

the Commission wants to make clear 

that a network of linked player stations 

for the play of bingo, lotto, or other 

games similar to bingo must be designed 

to facilitate broad participation and not 

limit play to two (2) players. In an effort 

to quantify this for game design, the 

Commission proposes that games 

encourage play with six (6) or more 

participants. It has drafted the rule to 

allow a short but reasonable period for 

these additional players to enter the 

game after the first player enters. If six 


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(6) players do not enter within two (2) 

seconds, the game can begin with a 

minimum of two players. 

When played with electronic player 

stations, players must be linked through 

a networked system. Participating 

linked player stations may be located 

adjacent to or separately from one 

another at each location at which a 

common game is played. The networked 

system may also extend to electronic 

player stations at multiple tribal gaming 

locations. Players at electronic player 

stations in different locations may be 

linked into a common game. 

The location of any ‘‘electronic, 

computer, or other technologic aid’’

assisting game play by providing the 

random draw or electronic 

determination of numbers or 

designations used in the game, 

controlling a progressive game, or 

allowing a player to participate in the 

game must be located on ‘‘Indian lands’’

as that term is defined in the IGRA. 

Electronic, computer, or other 

technologic systems which only monitor 

game revenue may be located elsewhere. 

The patterns or arrangement of 

numbers or designations which the 

players strive to cover in the game have 

minimum requirements under the 

proposed rule. A game-winning pattern 

will have at least three spaces on the 

card in addition to any free space used. 

Other winning patterns will have at 

least two (2) spaces on the card in 

addition to any free space used. The 

maximum number of spaces for any 

winning pattern in a game is the number 

of spaces on the card. 

A game may have more than one 

game-winning player. In other words, 

ties are permitted. To constitute a tie, 

each game-winning player must use the 

same number or other designation 

drawn and released in the game that 

finalizes the game-winning pattern for 

each player and must cover and claim 

the prize under the procedures 

described. 

The requirement that there must be a 

‘‘first person must cover’’ a pattern also 

has important implications for the game. 

Participants must take an active role 

during the competition in covering the 

numbers or other designations on their 

cards when the numbers are drawn. 

The third statutory requirement also 

means that there must be at least two (2) 

releases of numbers before a winning 

game-ending pattern is created. The 

statutory language, ‘‘won by the first 

person,’’ describes a contest or race 

among players to be the first to win. 

Central to ‘‘the game of chance 

commonly known as bingo’’ is the 

competition built up over the course of 

successive ball draws, as each player 

covers matching numbers or 

designations in an attempt to be the first 

to cover the winning pattern. No such 

challenge exists where all of the balls 

are revealed at once. Said differently, if 

all the balls necessary to produce a 

game-winning pattern are drawn at 

once, the game will likely end with only 

one ball draw, thereby removing the 

contest element. 

This interpretation of the statutory 

definition, requiring balls to be released 

in multiple rounds during the course of 

the game, is supported by case law. In 

the Ninth and Tenth Circuits’ opinions 

on MegaMania, the courts found that the 

game was Class II. U.S. v. 103 Electronic 

Gambling Devices, 223 F.3d 1091 (9th 

Cir. 2000); U.S. v. 162 MegaMania 

Gambling Devices, 231 F. 3d 713 (10th 

Cir. 2000). The courts reached their 

decisions after an analysis of the play of 

the game for whether it met the 

statutory criteria for bingo. According to 

the courts, in MegaMania numbers are 

drawn by a bingo blower and released 

three balls serially at a time. If a player 

wants to continue playing the game after 

the first three balls are drawn, the player 

pays additional money to stay in the 

game for the release of the next three 

balls. The game is won by the first 

person to cover a five-space straight line 

on an electronic bingo card. 

Intrinsic to the play of MegaMania 

were the successive rounds that a player 

must engage in to win the game. The 

game cannot be won after a single 

release or numbers or other 

designations. The Ninth Circuit’s rulinglimited as it was to the facts-recognized 

an inherent character of bingo: that the 

game requires a player to participate in 

a process of numbers being revealed. 

MegaMania could be won by two 

successive releases and so the 

Commission does not require more than 

two releases of one or more numbers or 

other designations. However, the 

Commission’s interpretation of IGRA’s 

definition of bingo, with the winner 

being the first to cover, does require 

more than one release. Consequently, 

the quantity of numbers or other 

designations released in the first round 

must be some number less than the 

number of balls required for a player to 

achieve the win, that is, cover the gamewinning pattern. 

Furthermore, in Megamania, the balls, 

although released in clusters of three, 

they each rolled out one at a time. They 

did not pop out three at a time. This roll 

out of each individual ball allowed 

players to track the balls and the game. 

We believe that this serial release of the 

balls is a practical approach for allowing 

players to identify what numbers they 

are covering. The requirement that the 

release take 2 seconds also allows the 

player a minimum time to view the balls 

as they are released. 

The Commission is wholly cognizant 

of the Ninth Circuit’s caveat that, 

‘‘Whatever a nostalgic inquiry into the 

vital characteristics of the game as it 

was played in our childhood or home 

towns might discover, IGRA’s three 

explicit criteria constitute the sole legal 

requirements for the game to count as 

class II bingo. ‘‘ 103 Electronic 

Gambling Devices, 223 F.3d at 1096. 

This interpretation of the third statutory 

element, consistent with both case law 

and the statutory definition, respects 

what the Commission understands ‘‘the 

game of chance commonly known as 

bingo’’ to be. As previously discussed, 

the Commission is concerned that the 

lines between what constitute Class II 

and Class III games are being blurred by 

technological advances that Congress 

could not have foreseen and did not 

explicitly address in 1988 when it 

enacted IGRA, with its three simple 

statutory criteria for what constituted 

bingo. The Commission nonetheless 

must continue to distinguish Class II 

from Class III games because Congress 

distinguished between them. The 

Committee Report on the bill that 

became IGRA noted that ‘‘both state and 

tribal governments have significant 

governmental interests in the conduct of 

class III gaming.’’ S. Rep. 100–446, p. 

13. Having weighed the merits of 

different interpretations of the third 

statutory requirement, the Commission 

believes that requiring multiple ball 

releases, in the format described, is in 

keeping with the statutory language, 

case law, and with its concern that play 

of bingo must be distinguishable from 

the play of a slot machine, over which 

Congress intended tribes and states to 

compact. 

IX. Use of ‘‘Electronic, Computer or 

Other Technologic aids’’ in the Play of 

Bingo, Lotto, and ‘‘Other Games Similar 

to Bingo’’ Through an Electronic 

Medium. 

In light of the Commission’s 

understanding of IGRA’s statutory 

requirements as well as the distinction 

between ‘‘aids’’ and ‘‘facsimiles,’’ the 

Commission believes the following 

steps describe the play of bingo, lotto, 

or ‘‘other games similar to bingo’’ in an 

electronic medium, as Class II gaming. 

(1) A request for entry into the game; 

(2) A release of a group of balls, one 

at a time, in no less then two seconds; 

(3) A first cover (daub) opportunity of 

at least two seconds for all competing 

players in the game to cover (daub) the 

numbers or other designations on their 

cards that correspond to the numbers or 


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other designations drawn and released 

in the first round and action by the 

players to cover (daub) the numbers or 

other designations on their cards 

following this release; 

(4) A second cover (daub) opportunity 

of at least two seconds for all competing 

players in the game to cover (daub) the 

numbers or other designations on their 

cards that correspond to the numbers or 

other designations drawn and released 

in the second round and an action by 

the players to cover (daub) the numbers 

or other designations on their cards 

following this second release together 

with an action to claim any prize won. 

The minimum two-second 

opportunity for covering (daubing) the 

selected numbers or other designations 

in each release that appear on players’

cards may be shortened, and the game 

may proceed, if all players in the game 

cover (daub) their cards in less time. 

One or more additional releases and 

cover (daub) opportunities may be 

necessary, if there is not a winner in the 

game following the second release and 

cover (daub) opportunity. A game 

design may provide for more than two 

releases prior to a winner being 

determined. 

Using these three steps, 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: 

(1) To enter and begin the game, each 

player accepts the card or cards to be 

used by that player and requests entry 

into the game by selecting an amount to 

wager and pressing or touching a button 

showing the word ‘‘play’’ or other 

similar designation. The cards must 

meet the requirements specified in Part 

546 and any Technical Standards issued 

by the Commission. 

(2) After the game begins, one or more 

unique numbers or other designations 

must be randomly drawn or 

electronically determined, without 

replacement, from a finite pool of 

numbers or other designations. For 

example, if the number B–15 is drawn 

or electronically determined, it cannot 

be used again in that game. 

(3) Each game must permit the 

random draw and release or electronic 

determination of all numbers or 

designations in the non-replacement 

pool of such numbers or other 

designations. Numbers or other 

designations must be selected and used 

immediately in real time by the 

competing players in the game for 

which they are drawn or electronically 

determined, that is they cannot be 

selected and released until all players 

have entered and the game has actually 

commenced. Selected numbers or other 

designations must be used in the 

sequence in which they are drawn or 

electronically determined. 

(4) Numbers or other designations 

will be randomly drawn or 

electronically determined and released 

to players in separate multiple rounds. 

Each round may consist of one number 

or other designation or a set of numbers 

or other designations. The numbers or 

other designations selected must be 

displayed to the player in the sequence 

they are used in the game. When each 

release of numbers or designations 

occurs, the technologic aid may 

highlight the numbers or designations 

on the card that a player should cover 

(daub) by a change of color that changes 

again when the player covers (daubs) 

those numbers or designations. 

(5) Prizes cannot be won in the first 

release of numbers or other 

designations, meaning that players are 

required to participate and compete 

through the random determination and 

release of at least two rounds as part of 

the contest to be the first to cover the 

winning pattern. 

(6) All players must have an 

opportunity to cover (daub) their cards 

after each release to reflect their 

participation in a common game. 

Players may cover (daub) 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 

(daub) action. Following this action by 

a player, the video screen at that player 

station must display a different color or 

other marking on the number or 

designation on that player’s card if that 

number or designation has been 

properly covered (daubed) by the 

player. Players must be notified that 

they should cover (daub) their cards 

when the numbers or designations are 

revealed. For each cover opportunity, 

the game must wait (indefinitely) until 

at least one player performs the cover 

(daub) action. 

(7) After the first release and cover 

(daub) opportunity by all players, a 

subsequent number or set of numbers or 

other designations must be released. 

The quantity of numbers or designations 

released in each subsequent round 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. Following each subsequent 

release, all players must again have the 

opportunity to cover (daub) the spaces 

on their cards that contain any of the 

numbers or designations randomly 

drawn and released or electronically 

determined. Numbers or other 

designations covered (daubed) by a 

player must stay covered throughout the 

play of the game. 

(8) A player wins the game by being 

the first player(s) in the game to cover 

(daub) a pre-designated game-winning 

pattern or arrangement of numbers or 

other designations and, after the release 

of at least the second set of numbers or 

other designations, claiming the win by 

touching the screen or a button showing 

the word ‘‘cover,’’ ‘‘daub,’’ ‘‘claim’’ or 

other similar designation within the 

time allowed by the rules of the game 

which must be at least two seconds. 

(9) A player who ‘‘sleeps’’ a 

potentially winning pattern or fails to 

timely claim that winning pattern and 

thereby forfeits the win based on that 

pattern, must be informed by an 

indication on the player station video 

screen that the player has ‘‘slept’’ the 

win. Numbers or other designations that 

have been slept must be clearly and 

uniquely marked on the player’s card. 

Note that a player who fails to cover 

(daub) the numbers or other 

designations drawn and released in the 

first round, or a subsequent round, 

within the time allowed may not later 

use those numbers or other designations 

in a prize-winning pattern other than 

the game-winning pattern. The player 

may later cover (daub) the numbers or 

designations (‘‘catch-up’’) and be 

awarded the game-winning prize 

provided the player is the first player(s) 

in the game to cover (daub) the numbers 

or other designations making up the 

game-winning pattern and claim the 

win. 

(10) A bingo game cannot end until a 

player in the game wins the game 

winning prize i.e. obtains a predesignated game-winning pattern, 

timely covers (daubs) all of the numbers 

or other designations in the pattern, and 

timely claims the win in the manner 

prescribed by the rules of the game. 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 randomly drawn or 

electronically determined numbers or 

other designations for a consolation 

prize(s), provided such criteria are 

clearly stated in the rules available to 

the players. 

(11) After all available numbers or 

designations have been randomly drawn 

or electronically determined and 

released that could lead to a game 

winning prize (i.e. no more balls could 

be drawn that would assist in the 

formation of a game winning prize), the 

game may allow an unlimited length of 


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time to complete the last required cover 

(daub) and claim the prize, or be 

declared void and wagers returned to 

players and prizes canceled—the latter 

action is only to be permitted under 

strict security control of the gaming 

facility. 

(12) Each player in a game must take 

overt action to cover (daub) 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 or other designations is 

released. Each released number or 

designation 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 (daub) the 

numbers or designations drawn and 

released in each round that appear on 

the player’s card. When each release of 

numbers or other designations occurs, 

the technologic aid may highlight the 

numbers or designations on the card 

that a player should cover (daub) by a 

change of color that changes again when 

the player covers (daubs) those numbers 

or designations. 

X. Alternative Display of the Results of 

the Game on the Video Screen at the 

Player Station. 

An electronic player station may offer 

an alternative technologic display of the 

results of the game in addition to the 

display of the game results on the 

electronic bingo card. The game results 

may be shown on a video screen using 

a game theme display such as spinning 

reel icons. If the alternative display is 

presented, the video screen must 

continue to display the bingo card and 

results to the player. The alternative 

display of bingo game results may also 

be shown on a secondary display 

screen. 

The alternative technologic display of 

bingo game results may be shown on a 

technologic aid using mechanical reels, 

but only if there is also a screen which 

is a component of the technologic aid 

which always shows the results of the 

bingo game as well as other important 

player information such as the current 

bet amount. 

Alternative result display options may 

only be utilized for entertainment or 

amusement purposes and may not be 

used to independently determine a 

winner of the game or the prizes 

awarded or change the results of the 

bingo game in any way. 

Each game must give the player the 

option to select only the bingo card 

display on a video screen and to play 

the game using that display alone. The 

video screen may revert to the combined 

screen with alternative display if the 

credit meter reaches zero. 

If both the electronic bingo card and 

the additional depiction of the results 

using a game theme display are 

presented simultaneously, the bingo 

card must be displayed in a manner 

(size, color, location, etc.) that allows 

the player to clearly see the numbers or 

other designations on the bingo card 

and any results of covering (daubing). 

At the conclusion of a game, the screen 

must reflect whether the player has won 

and the value of any win without 

reference to the alternative display. 

XI. The Relationship of ‘‘Other Games 

Similar to Bingo’’ as Class II Gaming to 

the Requirements for Bingo Specified 

by IGRA 

IGRA does not define ‘‘other games 

similar to bingo.’’ The Commission 

initially defined the term to mean any 

game that met all the requirements for 

bingo and was not a house-banking 

game. See 57 FR 12382 (April 9, 1992). 

In 2002, the Commission revised the 

definition as: 

Any game played in the same location as 

bingo * * * constituting a variant on the 

game of bingo, provided that such game is 

not house banked and permits players to 

compete against each other for a common 

prize or prizes. 

25 CFR 502.9. 

In the preamble comment to the 2002 

revision, the Commission explained that 

under the previous definition, ‘‘other 

games similar to bingo’’ were games that 

met the same precise statutory criteria 

set for bingo. Such a definition would 

be illogical, the Commission said, 

because a game that met each of the 

statutory requirements of bingo would 

simply be bingo, making a class of 

games similar to bingo unnecessary. 

Instead, the Commission said, games 

similar to bingo should be understood to 

be games: 

that are bingo-like, but that do not fit the 

precise statutory definition of bingo. * * * 

‘‘[O]ther games similar to bingo’’ constitute a 

‘‘variant’’ on the game and do not necessarily 

meet each of the elements specified in the 

statutory definition of bingo. 

67 FR 41171 (June 17, 2002). In its 2002 

revised definition, the Commission did 

not include the statement that such 

games similar to bingo ‘‘do not 

necessarily meet each of the elements 

specified in the statutory definition of 

bingo.’’ It relegated that idea instead to 

the preamble commentary. The 

Commission also did not define the 

term ‘‘variant.’’

Application of the 2002 definition has 

been limited and difficult. Subsequent 

to the definition’s publication, the 

Commission endeavored to clarify 

exactly what statutory requirements 

‘‘other games similar to bingo’’ would or 

would not include. In Bulletin 03–03, 

for example, the Commission 

determined that at least some of the 

statutory requirements for bingo also 

had to be met by ‘‘other games similar 

to bingo’’: 

The question before us then is 

whether any characteristics of bingo are 

so fundamental that a game without 

them cannot even be said to rise to the 

level of a variant of bingo and, if so, 

whether numbers drawn after the player 

enters the game is one of them. 

We conclude that there are 

characteristics of bingo that are so 

critical that games lacking them cannot 

even be said to be a variant or bingolike. 

In NIGC Bulletin 03–03 (September 

23, 2003), p. 5. the Commission 

concluded that having numbers drawn 

after game play commenced was so 

critical to the character of bingo that 

games with pre-drawn numbers could 

not even be said to be a game similar to 

bingo. IGRA requires that a player cover 

when the numbers or objects are drawn 

[25 U.S.C. 2703(7)(A)(i)(II)], the 

Commission observed. The act of 

covering the numbers must occur in 

close proximity to the drawing of those 

numbers or in ‘‘real time.’’ Covering 

numbers substantially later than 

numbers are drawn or determined is not 

consistent with the dictionary definition 

of ‘‘when.’’ As a result, games in which 

numbers are not drawn and covered 

after play begins do not meet the second 

statutory criterion and are not bingo, the 

Commission reasoned. Neither can these 

games be ‘‘other games similar to 

bingo,’’ it stated. 

The Commission continues to believe 

that pre-drawn numbers are anathema to 

games similar to bingo. The Commission 

also believes that the other IGRA 

requirements are so critical to bingo that 

games lacking them cannot be ‘‘other 

games similar to bingo’’ within the 

definition for Class II gaming. For 

example, the Commission views the 

requirement that the game is won by the 

first to cover a pre-designated pattern or 

arrangement of numbers or other 

designations to be a characteristic of 

bingo so critical that games lacking this 

feature cannot be games similar to 

bingo. 

While the Commission believes it 

cannot dispense with these important 

statutory criteria when evaluating 

‘‘other games similar to bingo’’ for Class 

II determination, it also believes there 

can be a variation in applying the 

statutory criteria. This approach gives 


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meaning to the category of games to 

which Congress referred in IGRA as 

‘‘other games similar to bingo’’ within 

Class II but which were not specifically 

defined. 

The proposed regulation on ‘‘games 

similar to bingo,’’ born out of the 

Commission’s experience with past 

definitions, its desire to clarify what 

constitutes a ‘‘variant,’’ and its 

observations about advancing bingo 

technology, thus has the following 

effect. ‘‘Other games similar to bingo’’

will not include games with preselected numbers, although such games 

may be ‘‘pull-tabs’’ or ‘‘instant bingo.’’

(These are games distinct from ‘‘other 

games similar to bingo.’’) Players also 

must cover the numbers or other 

designations on their cards, whatever 

the size or shape of the card may be, 

‘‘when’’ numbers or other designations 

are randomly determined and released 

and the winning player will be the first 

to cover a pre-designated pattern on the 

card. Games in which players do not 

play for pre-designated patterns or do 

not require the winning player to be the 

first player to cover numbers or other 

designations making up a predesignated game-winning pattern on a 

card cannot be Class II bingo, lotto, or 

an ‘‘other game similar to bingo’’ under 

the IGRA definition. 

Under the revised definition for 

‘‘other games similar to bingo,’’ the 

game of ‘‘keno’’ will continue to be 

viewed by the Commission as a Class III 

game because it is not played with predesignated patterns as an objective and 

players are not competing against each 

other to be the player to cover a predesignated winning pattern. In keno 

players simply bet that they have 

selected the winning numbers to be 

drawn from a pool of such numbers, 

usually 80. 

The proposed regulation also departs 

from the previous definition in that it 

deletes the requirement that ‘‘other 

games similar to bingo’’ not be a housebanked game. The proposed regulation 

also emphasizes that the format of the 

game must require players to compete 

against each other for a common prize 

or prizes rather than merely permitting 

player competition. 

In short, the Commission believes that 

a ‘‘variant’’ of the game of bingo is a 

game that is bingo-like but is played on 

a card displaying numbers or other 

designations that is not the classic bingo 

card format. Additionally, the winning 

numbers will be drawn from a pool no 

larger then 75. In other words, under the 

revised definition, all of the statutory 

requirements for bingo would be 

present, but the game would be played 

on a variant of the typical bingo card. 

This interpretation of the term 

‘‘variant,’’ along with elimination of the 

requirement that the game not be housebanked, will mean that bingo, lotto, and 

‘‘other games similar to bingo’’ will be 

treated equally for purposes of defining 

the limits of Class II gaming. The 

fundamental aspects of each game as 

Class II gaming under the IGRA 

definition will be the same. Game 

designers will have the opportunity to 

design games that are not tied to a 

classic bingo card, but the games will 

always be played in a bingo-like 

manner. 

XII. Use of State Law in Determining 

Whether a Game is Bingo, Lotto, or an 

‘‘Other Game Similar to Bingo’’ Under 

IGRA 

As noted in Commission Bulletin 03–

03, the holding in Julius M. Israel Lodge 

of B’nai B’rith v. Commissioner of 

Internal Revenue, 98 F. 3d 190 (5th Cir. 

1996) also supports the Commission’s 

view that state laws allowing play of 

games do not affect the analysis of what 

constitutes bingo, lotto, or an ‘‘other 

game similar to bingo’’ under IGRA. The 

taxpayer in the case argued that bingo 

and instant bingo were authorized 

under Texas law. The Fifth Circuit 

dismissed the argument, saying ‘‘As a 

threshold matter, we dismiss the 

taxpayer’s contention that we must look 

to Texas state law in determining 

whether Instant Bingo is exempt from 

federal taxation under the federal tax 

code.’’ 98 F. 3d at 191, n. 2. 

States may designate whatever games 

are legal within their borders. That some 

state codes describe, for example, 

bonanza bingo as a pre-drawn game and 

allow it for play as it would a bingo 

game does not address the question of 

what constitutes bingo, lotto, and ‘‘other 

games similar to bingo’’ for the purposes 

of IGRA. 

XIII. Additional Comment Regarding 

Player Against Player Competition in 

Bingo, Lotto, and ‘‘Other Games Similar 

to Bingo.’’

The Commission believes that 

Congress intended the play of Class II 

bingo, lotto, and ‘‘other games similar to 

bingo’’ to involve competition among 

players to determine the winner. In 

other words, players do not compete 

against the house to win but against 

others playing the game simultaneously. 

This application is simple enough in 

live session bingo in which the house 

sponsors a game at a particular time, 

sells bingo-faced cards, calls numbers, 

and awards a prize to the first player 

covering a pre-designated pattern on the 

card held by the player. The application 

is more difficult when the players 

engage in a fast play game on electronic 

player stations with electronic cards. 

The conclusion that Congress intended 

Class II bingo to be a competition with 

and against other players is also key to 

the distinction between Class II bingo 

using ‘‘electronic, computer, or other 

technologic aids,’’ in which players 

actively play against each other 

throughout the course of the game, and 

Class III electronic facsimiles of a game, 

in which players play against a 

machine. 

The Commission notes the trend in 

‘‘electronic bingo’’ games using 

technologic aids is to offer a player the 

opportunity to compete against other 

players for a pre-designated ‘‘gamewinning’’ pattern (referred to in some 

game designs as a ‘‘game-ending’’

pattern) while at the same time offering 

players the opportunity to compete for 

higher value, pre-designated, ‘‘interim 

prize’’ patterns. In these games players 

ostensibly compete against one or more 

other players to be the first to obtain the 

necessary numbers and then cover the 

pre-designated ‘‘game-winning’’ pattern. 

The result is that the game ends and the 

winning player registers the credits 

associated with that pattern on the 

credit meter at his or her player station. 

More often than not, this prize has only 

minimum value. More important to the 

player, the games offer the opportunity 

to win larger value prizes if the player 

is successful in obtaining one or more 

of the many other pre-designated 

bonus—prize winning patterns rather 

than the ‘‘game-winning’’ or ‘‘gameending’’ pattern offering minimum 

prizes. There is a fine line between 

whether play for these other patterns is 

play against the machine or the 

controlling game server, which is a 

Class III gaming activity, and 

competition against other players, 

which is Class II. 

In an effort to preserve the sense that 

these games involve player against 

player competition, the Commission 

interprets the statutory requirements for 

bingo, lotto, and ‘‘other games similar to 

bingo’’ to mean that all players in an 

individual ‘‘game’’ must be competing 

for the same set of these other predesignated winning patterns and each 

player’s successful quest for these 

patterns must be accomplished by the 

time the first player obtaining the socalled ‘‘game-winning’’ pattern obtains 

and then covers the numbers on the 

card producing that pattern. In other 

words, the competition for the patterns 

producing the higher value ‘‘interim 

prizes’’ must be in sync with the 

competition for the game-winning 

pattern. If it is not, the players are not 

in competition with one another but in 


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competition with the controlling game 

server, and in that respect, the house. 

This would make the game an 

‘‘electronic facsimile’’ of a lottery. 

XIV. Classification Standards for Pull 

Tabs, Electronic Pull-Tabs and ‘‘Instant 

Bingo’’

The proposed regulation includes 

definitions for the terms ‘‘Pull-tabs’’ and 

‘‘Instant Bingo.’’ The definitions used by 

the Commission are drawn from federal 

case law. 

The definition of a pull-tab game is 

drawn from the definition used by the 

Court in Cabazon Band v. NIGC, 827 F. 

Supp. 26, 28 (n. 2)(D.D.C. 1993), aff’d 14 

F.3d. 633 (D.C. Cir. 1994) wherein the 

Court described the game as follows: 

The game of pull-tabs is a game of chance 

played traditionally as a paper game. Players 

purchase outwardly identical cards from a 

stack of cards (the ‘‘deal’’). The deal includes 

a pre-determined number of winning and 

losing cards. The player opens the tab and 

finds out if the card is a winner. 

Under IGRA and Commission 

regulations, the paper game of pull-tabs 

is Class II when played in the same 

location as bingo. See 25 U.S.C. 2703 

(7)(A)(i)(III) and 25 CFR 502.3(b). 

A wholly electronic version of pulltabs is played with a similar underlying 

concept, but without any tangible or 

paper pull-tab deals. A player obtains an 

electronic ‘‘card’’ or ‘‘ticket’’ that is 

displayed for the player on a video 

monitor from a ‘‘stack’’ of similar 

‘‘cards’’ or ‘‘tickets’’ stored 

electronically. Using the electronic 

equipment available to the player, the 

player ‘‘opens’’ the electronic pull-tab 

and examines the combinations on the 

video screen to determine if she has a 

winning combination. As with paper 

pull-tabs, the ‘‘deal’’ is finite which is 

to say that the numbers of winning and 

losing tickets are known when the 

‘‘deal’’ is loaded electronically into the 

gaming equipment. In some versions, 

the deal is contained in a cartridge or 

series of cartridges that are loaded 

individually into a single player 

terminal. In others, the deal is loaded 

into a central computer that can be 

accessed through a number of 

individual player terminals. 

In either of these instances, the game 

does not exist in paper format or any 

other tangible format, but only in an 

‘‘electronic’’ format. As such, the game 

becomes an ‘‘electronic facsimile’’ game 

of paper pull-tabs and, by the statutory 

definition, cannot be a class II game. See 

25 U.S.C. 2703(7)(B)(ii). 

This analysis finds support in 

Cabazon Band of Mission Indians v. 

National Indian Gaming Commission, 

14 F.3d 633, 636 (D.C. Cir. 1994) 

(Cabazon II) wherein the Court noted: 

There is now a computerized version of 

pull-tabs. The computer randomly selects a 

card for the gambler, pulls the tab at the 

gambler’s discretion, and displays the result 

on the screen. The computer version, like the 

paper version has a fixed number of winning 

cards in each deal. The computer may be 

interconnected so that each gambler 

simultaneously plays against other gamblers 

in pods or banks of as many as forty 

machines. 

* * * * * 

[T]he tribes concede that the video version 

of pull-tabs is the same game as the paper 

version. * * * Because class II gaming 

does not include ‘‘electronic or 

electromechanical facsimiles of any game of 

chance’’ (25 U.S.C. § 2703(7)(B)(ii)), this 

concession alone demonstrates that the video 

game is not in the class II category. ‘‘By 

definition, a device that preserves the 

fundamental characteristics of a game is a 

facsimile of the game.’’ Sycuan Band of 

Mission Indians v. Roach, (S.D. Cal. 1992). 

As commonly understood, facsimiles are 

exact copies or duplicates. Although there 

may be room for a broader interpretation of 

‘‘facsimile,’’ the video version of pull-tabs 

falls within the core meaning of electronic 

facsimile. It exactly replicates the paper 

version of the game, and if that is not 

sufficient to make it a facsimile, we doubt 

* * * that anything could qualify. 

* * * * * 

* * * [T]he Act’s exclusion of electronic 

facsimiles removes games from the class II 

category when those games are wholly 

incorporated into an electronic or 

electromechanical version. 

Cabazon II, 14 F.3d, at 636. 

See also Sycuan Band v. Roache, 54 

F.3d 535 (9th Cir. 1995) which 

considered an electronic pull-tab device 

known as the Autotab Model 101 and 

found the device to be class III. (‘‘The 

‘Autotab Model 101 electronic pull-tab 

dispenser’ is a self-contained unit 

containing a computer linked to a video 

monitor and a printer. The player 

electronically reveals concealed 

numbers to determine whether he or she 

is a winner. * * * The game retains 

the fundamental characteristics of the 

paper version of pull-tab: the video pull 

tab machine is supplied with a 

computer chip cartridge that insures a 

predetermined and known number of 

winning tickets from a finite pool of 

tickets with known prizes * * *’’. 

Sycuan, 54 F.3d. at 541.) 

While the Cabazon II and Sycuan 

cases deal with pull-tabs in electronic 

format, other important cases decided 

by the United States Courts of Appeals 

for the District of Columbia Circuit, 

Tenth Circuit, and Eighth Circuit 

discuss ‘‘paper’’ pull-tabs played with 

‘‘electronic, computer, or other 

technologic aids.’’

In Diamond Game Enterprises v. 

Reno, 230 F.3d 365 (D.C. Cir. 2000), 

United States Court of Appeals for the 

District of Columbia Circuit concluded 

that a gaming device known as the 

Lucky Tab II was a technological aid to 

the play of paper pull-tabs and a Class 

II device under the IGRA. There is, 

however, a substantial difference in how 

the Lucky Tab II game described in 

Diamond Game is played compared to 

the game in Cabazon II. The Lucky Tab 

II device uses a paper roll of pull-tabs 

that are read by optical scanner and 

then displayed on a video monitor. The 

Court concluded that the game was not 

an electronic facsimile of the paper 

game and thus was not excluded from 

the Class II definition. The Lucky Tab II 

machine was described by the court as 

follows: 

The machine dispenses pull-tabs from a 

roll containing approximately 7500 tabs. 

About 100 rolls comprise a deal, within 

which winning pull tabs are randomly 

distributed. The machine cuts the pull-tab 

from the roll and drops it in a tray. A bar 

code scanner inside the machine 

automatically reads the tab and then displays 

its contents on a video screen. A placard on 

the machine informs players that ‘‘video 

images may vary from actual images on pull 

tabs. Each tab must be opened to verify.’’ To 

collect prizes, players must present the actual 

winning tab to a clerk. We think the Lucky 

Tab II is quite different from the machine at 

issue in Cabazon II. To begin with, the Lucky 

Tab II is not a ‘‘computerized version’’ of 

pull-tabs. Although the Lucky Tab II has a 

video screen, the screen merely displays the 

contents of a paper pull-tab. Instead of using 

a computer to select patterns, the Lucky Tab 

II actually cuts tabs from paper rolls and 

dispenses them to players. In other words, 

the game is in the paper rolls, not as in the 

case of the Cabazon machine, in the 

computer. 

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

367–368. 

Thus, the court concluded that ‘‘the 

machine functions as an aid—it ‘helps 

or supports,’ or ‘assists’ the paper game 

of pull-tabs.’’ Consequently, the court 

ruled that the game played with Lucky 

Tab II is not a facsimile of paper pulltabs, but it is paper pull-tabs. 

The Eighth Circuit Court of Appeals 

has also held that Lucky Tab II was a 

Class II technological aid. United States 

v. Santee Sioux Tribe, 324 F.3d 607 (8th 

Cir. 2003), cert. denied, 2004 U.S. Lexis 

1807 (U.S. Mar. 1, 2004). The court’s 

analysis was that: 

Operation of the Lucky Tab II machines 

does not change the fundamental fact that the 

player receives a traditional paper pull-tab 

from a machine, and whether he or she 

decides to pull the tab or not, must present 

that card to the cashier to redeem winnings. 

* * * the machines do not replicate pullVerDate Aug<31>2005 17:17 May 24, 2006 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\25MYP3.SGM 25MYP3

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tabs; rather, the player using the machines is 

playing pull-tabs. 

Santee Sioux Tribe, 324 F.3d at 615. 

The Magical Irish Instant Bingo 

Dispenser System, identical to the 

Lucky Tab II system, was also held to be 

a ‘‘technologic aid.’’ See Seneca-Cayuga 

Tribe of Okla. v. NIGC, 327 F.3d 1019, 

1042–44 (10th Cir. 2003), cert. denied, 

2004 U.S. Lexis 1651 (U.S. Mar. 1, 

2004). The Tenth Circuit Court of 

Appeals decided that the Magical Irish 

machine was a Class II aid because: 

The Machine (1) cuts tabs from paper rolls 

and dispenses them to players, and when its 

‘‘verify’’ feature is enabled, displays the 

contents of the paper pull-tab on the video 

screen; (2) does not use a computer to select 

the patterns of the pull-tabs it dispenses; and 

(3) requires players to peel each pull-tab to 

confirm the result and provide the pull-tab to 

a clerk for inspection prior to receiving any 

prize. 

Seneca-Cayuga Tribe, 327 F.3d at 1043. 

Therefore, the court concluded that the 

‘‘Machine is not the game of pull-tabs; 

rather, the Machine facilitates the 

playing of pull-tabs, the game is in the 

paper rolls.’’

The Commission understands that 

courts have concluded that the Lucky 

Tab II and the Magical Irish machines 

are ‘‘technological aids’’ because they 

assist players in playing actual paper 

pull-tabs. See, e.g., Diamond Game, 230 

F.3d at 370 (‘‘the machine functions as 

an aid—it helps or supports, or assists 

the paper game of pull-tabs’’); SenecaCayuga Tribe, 327 F.3d at 1043 (the 

‘‘Machine facilitates the playing of pulltabs, the game is in the paper rolls’’). 

These machines do not alter the format 

of the game—the game remains in the 

actual paper pull-tabs, not in a 

computer or electronic format. See, e.g., 

Seneca-Cayuga Tribe, 327 F.3d at 1043; 

Diamond Game, 230 F.3d at 370; Santee 

Sioux Tribe, 324 F.3d at 615. 

The proposed regulation relies 

specifically on the developed federal 

case in this area, as discussed above. 

The Commission recognizes that 

gaming technology has moved forward 

in the ten years since the Cabazon II and 

Sycuan cases were decided. 

Nevertheless, the Commission believes 

these cases continue to represent the 

state of the law for the play of pull-tabs 

that do not exist in tangible format 

readily accessible to the player. 

Consequently, the proposed regulation 

requires the pull-tabs or ‘‘instant bingo’’

tickets exist in tangible medium readily 

accessible to the player at the player 

station. Pull-tabs that exist in tangible 

medium remote from the player, such as 

in a controlled storage room at or near 

the gaming facility where the game is 

played and which are converted to 

electronic images for display at the 

player station are not immediately 

available to the player. In this method 

of play, the game is not in the paper, as 

the courts require for Class II play, but 

is in the computer or electronic format, 

which the courts find to be a Class III 

electronic facsimile. 

Under the proposed regulation, the 

game may not accumulate credits for the 

player. The player station may not 

dispense winnings in any form. 

Additionally, the pull-tabs themselves 

must exist in tangible format at the 

player station and be available for the 

player and the gaming operation to 

validate the game results and prize, if 

desired. 

The proposed regulation also permits 

alternative display of game results. The 

results may appear on a screen using 

game theme graphics, spinning reels, or 

other imagery. The alternative display of 

pull-tab game results may be shown on 

a primary screen or on a secondary 

display screen. The alternative display 

of pull-tab game results may also be 

shown on a technologic aid using 

mechanical reels but only if there is also 

a screen which is a component of the 

technologic aid which always shows the 

contents and results of the pull-tab game 

as well as other important player 

information such as current bet amount. 

XV. Process for Certification of Games 

and ‘‘Electronic, Computer, and Other 

Technologic Aids’’ as Meeting the 

Classification Standards 

The Commission recognizes that 

Indian tribes are the primary regulators 

for Indian gaming. Accordingly, this 

proposed regulation provides that a 

Tribe’s gaming regulatory authority will 

be the entity authorizing specific games 

and gaming systems for use in that 

Tribes’ gaming operation. From its 

standpoint, however, the Commission 

believes that establishing uniform 

minimum classification standards for 

Class II ‘‘electronic, computer, or other 

technologic aids’’ is part of its oversight 

role. Before permitting operation and 

play of Class II ‘‘aids’’ in its gaming 

operation, the Tribe’s gaming regulatory 

authority must ensure that a game or 

‘‘aid’’ to the play of bingo, lotto, or 

‘‘other games similar to bingo,’’ or pulltabs or ‘‘instant bingo’’ is certified as 

meeting the criteria established by the 

Commission’s Classification Standards 

by an independent testing laboratory 

recognized as qualified to perform such 

testing. The testing laboratory does not 

‘‘classify’’ the game or ‘‘aid’’ or 

otherwise usurp the authority of the 

Tribe’s gaming regulatory authority. 

Rather, the testing laboratory merely 

provides a report that it has tested and 

evaluated the game or ‘‘aid’’ and that the 

game or ‘‘aid’’ meets the Commission’s 

Classification Standards. The Tribe may 

rely on this certification. The Tribe may 

adopt additional classification standards 

that do not undermine the 

Commission’s minimum standards, if it 

so desires, and require testing and 

certification to the Tribe’s additional 

standards as a condition to operation 

and play of the game or ‘‘aid’’ in the 

Tribe’s gaming operation. 

The Commission believes that, as a 

condition of being recognized to 

perform these important evaluations, a 

testing laboratory must be required to 

demonstrate its integrity, independence, 

and financial stability by providing 

evidence that it has been licensed in a 

competent jurisdiction that required a 

thorough background investigation as 

part of the licensing process. The testing 

lab must also demonstrate its technical 

skill and capability by providing 

evidence that it has conducted suitable 

testing to standards established by other 

jurisdictions. The NIGC will conduct an 

onsite review of the testing lab’s 

facilities prior to recognizing a lab as 

qualified and competent to perform 

evaluation and testing under its 

standards. The Commission may extend 

provisional recognition to a new testing 

laboratory that has not undergone a 

background investigation review for a 

license or that has not previously 

provided testing and evaluation to 

comparable standards. 

A testing laboratory recognized by the 

NIGC should expect to demonstrate its 

continuing level of technical skill 

through a Key Performance Indicator 

(KPI) analysis evaluated yearly as a 

condition to maintaining its recognition. 

This KPI analysis will take into account: 

(1) Accuracy of evaluation of Class II 

Classification and Technical standards 

conducted through periodic audit by the 

NIGC of the testing laboratory’s 

recommendations. 

(2) Reports of serious classification or 

technical faults in games and associated 

equipment placed in operation in tribal 

gaming facilities following certification 

by the testing laboratory. To assist with 

this evaluation, tribal gaming regulatory 

authorities are encouraged to report 

serious classification or technical faults 

to the NIGC Chairman as they become 

known. 

The Commission recognizes that in 

some unique circumstances, a testing 

laboratory may have questions about 

aspects of the Classification Standards. 

Accordingly, the process set out in the 

proposed regulation provides that the 

laboratory may seek to resolve questions 

with the gaming developer or 

manufacturer, the sponsoring tribe, or 


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with the NIGC Chairman. The 

Commission expects these discussions 

will normally resolve any question. 

In even more unique circumstances, a 

testing laboratory may not properly 

apply the Classification Standards or 

may misinterpret those standards when 

it issues a report. 

In these circumstances, the NIGC 

Chairman may object to a certifying 

laboratory report and require its 

withdrawal. The Chairman will provide 

notice to the testing laboratory, the 

requesting party submitting the game for 

evaluation, and the sponsoring tribe, 

and attempt to resolve the matter 

through negotiation. If the Chairman 

continues to have objection following 

these discussions, the Chairman will 

issue a determination. This 

determination by the Chairman may be 

reviewed by the full Commission on 

appeal from the testing laboratory, the 

requesting party, or the sponsoring tribe. 

A Commission decision upholding the 

Chairman’s objection will constitute a 

‘‘final agency action’’ that may be 

appealed to federal court. 

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 

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. 

Unfunded Mandates Reform Act 

The Commission has determined that 

this proposed rule does not impose an 

unfunded mandate on state, local, or 

Tribal governments or on the private 

sector of more than $100 million per 

year. Thus, it is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act, 2 U.S.C. 1501 et 

seq. The Commission has determined 

that this proposed rule may have a 

unique effect on Tribal governments, as 

this rule applies to Tribal governments, 

whenever they undertake the 

ownership, operation, regulation, or 

licensing of gaming facilities on Indian 

lands as defined by the Indian Gaming 

Regulatory Act. Thus, in accordance 

with section 203 of the Unfunded 

Mandates Reform Act, the Commission 

implemented a small government 

agency plan that provides Tribal 

governments with adequate notice, 

opportunity for meaningful 

consultation, and information, advice, 

and education on compliance. 

The Commission’s plan includes the 

formation of a Tribal Advisory 

Committee and request for input from 

Tribal leaders through government-togovernment consultations and through 

written comments to draft regulations 

that are provided to the Tribes. Section 

204(b) of the Unfunded Mandates 

Reform Act exempts from the Federal 

Advisory Committee Act (5 U.S.C. App.) 

meetings with Tribal elected officials (or 

their designees) for the purpose of 

exchanging views, information, and 

advice concerning the implementation 

of intergovernmental responsibilities or 

administration. In selecting Committee 

members, consideration was placed on 

the applicant’s experience in this area, 

as well as the size of the Tribe the 

nominee represented, geographic 

location of the gaming operation, and 

the size and type of gaming conducted. 

The Commission attempted to assemble 

a committee that incorporates diversity 

and is representative of Tribal gaming 

interests. The Commission will meet 

with the Advisory Committee to discuss 

the public comments that are received 

as a result of the publication of this 

proposed rule and make 

recommendations regarding the final 

rule. The Commission also plans to 

continue its policy of providing 

technical assistance, through its field 

offices, to Tribes to assist in complying 

with classification issues. 

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. 

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 OMB. 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 by the 

manufacturer 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 


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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 

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 ambit 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 analysis 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 20 such manufacturers 

and 5 such laboratories. The frequency 

of responses to the information 

collection requirement will vary. 

During the first 6 to 12 months after 

adoption of the proposed rule, all 

existing games or aids in Class II 

operations that fall within this rule must 

be submitted and reviewed if they are to 

continue in Class II operations. 

Following that period, the frequency of 

responses will be a function of the Class 

II market and the need or desire for new 

games or aids. Thus, the Commission 

estimates that the frequency of 

responses will range over an initial 

period of frequent submissions, settling 

down into 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 submission will number 

approximately 200 during the first year 

after adoption and approximately 75 per 

year thereafter. 

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 is 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 a gathering and preparing 

documentation for a single submission 

requires, on average, 8 hours of an 

employee’s time for a manufacturer and 

that following examination and 

analysis, writing a report and 

certification requires, on average, 12.5 

hours of an employee’s time for a 

laboratory. In the first year after 

adoption, then, the Commission 

estimates that the information collection 

requirements in the proposed rule will 

be a 1600-hour burden on 

manufacturers during the first year after 

adoption and a 600-hour burden 

thereafter. The Commission estimates 

that the information collection 

requirements in the proposed rule will 

be a 2500-hour burden on laboratories 

during the first year after adoption and 

a 940-hour burden thereafter. The 

following table summarizes: 

Provision Respondents Number of 

respondents 

Collections, 

1st year 

Hours per 

collection Total hours 

Collections, 

year 2 

forward 

Hours per 

collection Total 

25 CFR 546.11 .. Laboratories ....... 5 200 12 .5 2500 75 12 .5 937 .5 

25 CFR 546.11 .. Manufacturers .... 20 200 8 1600 75 8 600 

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. 

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 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 part 502 and add a new part 546 

to read 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. 2701 et seq. 


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2. Amend § 502.8 by adding 

paragraph ( c) to read as follows: 

§ 502.8 Electronic or electromechanical 

facsimile. 

* * * * * 

(c) 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 

game of chance. 

3. 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. 

4. 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 

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?’’

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 

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

or electromechanical facsimiles?’’

546.8 When is a pull tab or instant bingo 

game an ‘‘electronic or 

electromechanical facsimile?’’

546.9 What is the process for approval, 

introduction, and verification of 

‘‘electronic, computer, or other 

technologic aids’’ under the 

classification standards established by 

this part? 

546.10 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 Class II 

tribal gaming facilities meet the 

classification standards of this part? 

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, an ‘‘other 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 forms of Class 

III gaming that employ ‘‘electronic or 

electromechanical facsimiles’’ of a game 

of chance or slot machines. 

§ 546.2 What is the scope of this part? 

This part is intended to address only 

games played with electronic 

components. It does not address live 

session bingo unless that game is played 

exclusively through electronic 

components. 

§ 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 an ‘‘other game similar to 

bingo’’ consists of the random draw or 

electronic determination and release of 

numbers or other designations necessary 

to form the pre-designated gamewinning 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 pre-designated gamewinning 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 

than 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 buy-in 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 jackpot must be awarded to the 

players. A winning pattern for a 

progressive prize is not necessarily the 

same as the game-winning prize pattern. 

(e) What does it mean to ‘‘sleep’’ in 

the game of bingo or an ‘‘other 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; or 

(2) to claim the prize to which the 

player is entitled, having covered 

(daubed) a previously designated gamewinning pattern or other 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 pre-determined 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 


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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, as stated at 

25 U.S.C. 2703 (7)(A)(i)(I), 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 on a 

video screen of the electronic player 

station utilized by the player and must 

be clearly visible to that player at all 

times 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 2 

(two) inches by two (2) inches or four 

(4) square inches if other than a square 

card is used. When displayed, the game 

of bingo, or other games similar to 

bingo, including the electronic card but 

excluding any alternative displays, shall 

fill at least 1⁄2 of the total space available 

for display. 

(c) For a game of bingo, each card 

must contain a five (5) by five (5) 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 technologic aid shall 

prominently display the following 

message: ‘‘THIS IS A GAME OF BINGO’’ 

or ‘‘THIS IS A GAME SIMILAR TO 

BINGO.’’ Each letter of the display must 

measure at least two (2) inches in 

height. 

(e) As a variant of bingo, in an ‘‘other 

game similar to bingo,’’ each card must 

contain at least three (3) 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 (3) 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) 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. 

(i) 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. 

(j) 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 20% of the amount wagered by 

the player on each card and at least one 

cent. 

(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) A player station 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 not view 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. In no 

instance may the alternative display fill 

more than 1⁄2 of the total display space. 

§ 546.5 What are the criteria for meeting 

the second statutory requirement, as stated 

at 25 U.S.C. 2703 (7)(A)(i)(II), 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 an ‘‘other 

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 which is greater 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 


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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,’’ a player in a game 

must take overt action after numbers or 

designations are released. A player 

covers (daubs) by touching either the 

screen or a designated button on the 

player station at least one time in each 

round after a set of numbers or other 

designations is released. 

(f) Players must have an opportunity 

to cover (daub) after every release. 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 to opportunity to cover (daub) by 

touching the screen or a designated 

button at least one time in each round 

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 station 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 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) A minimum of two (2) seconds 

must be provided after the completion 

of each release of numbers or other 

designations for players to complete 

each cover (daub) opportunity. The 

game may not proceed until at least one 

player has covered (daubed) the selected 

numbers or other designations 

appearing on the player’s card, but, in 

any event may not proceed in less than 

two (2) seconds. 

(j) Players must cover after each 

release in order to achieve any winning 

pattern, except that a player may later 

cover numbers or designations slept 

following a previous release (‘‘catch 

up’’) for use in obtaining the gamewinning pattern. Failure to cover 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 ‘‘sleeps,’’ i.e. fails to 

cover 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 slept 

by the player. For game-winning prizes, 

if a player sleeps, the player may later 

cover the number(s) or other 

designations and win such prize if that 

player is the first player to cover all 

other numbers or designations making 

up the game-winning pattern. 

(k) If a player sleeps the gamewinning pattern, the game must 

continue until a player subsequently 

obtains and covers (daubs) and claims 

the game-winning pattern. 

(l) All numbers or other designations 

slept 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 must be 

notified by visible message on the video 

screen that the pattern was slept. 

Players who fail to cover (daub) 

numbers or other designations that 

establish patterns yielding bonus or 

progressive prizes also must be notified 

by visible message on the video screen 

that the pattern was slept. 

(m) After all available numbers or 

designations that could lead to a game 

winning prize have been randomly 

drawn or electronically determined and 

released (i.e. no more balls 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. 

(n) The gaming facility or its 

employees may not play as a substitute 

for a player. 

§ 546.6 What are the criteria for meeting 

the third statutory requirement, as stated at 

25 U.S.C. 2703 (7)(A)(i)(III), 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 (2) 

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) In order for players to participate 

in a common game, and to meet the 

requirements for the minimum number 

of players, each player must be eligible 

to compete for all winning patterns in 

the game. A game may offer players the 

opportunity to play at different entry 

wagers, and the prizes in the game may 

be increased, or a progressive prize 

offered, based on a higher entry wager, 

so long as all prizes are based on 

achieving pre-designated winning 

patterns common for all players. 

(c) To establish the game as a contest 

in which players play against one 

another the game must provide for two 

or more the releases of selected numbers 

or other designations. Each release will 

provide one or more numbers or other 

designations randomly selected or 

electronically determined. Each release 

must take a minimum of two (2) 

seconds. Numbers or other designations 

must be released one at a time. The 

game may end after the second release 

or after subsequent releases, when the 

game winning-pattern is covered 

(daubed) and claimed. After the gamewinning 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). 

(d) During the first release, the 

maximum amount of numbers or 

characters to be revealed is one less than 

the number required for a game winning 

pattern. 

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

may be won by multiple players 

simultaneously. Each game-winning 

pattern or arrangement must consist of 

at least three (3) spaces, not counting 

any free spaces used. The game-winning 


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pattern or arrangement must be 

available to players before the game 

begins. 

(f) Other patterns or arrangements 

consisting of at least two (2) 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. 

(g) Events outside the play of bingo 

may not be used to determine the 

eligibility for a prize award or the value 

of a prize. 

(h) The set of selected numbers or 

other designations in the first release 

may not 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 release 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. 

(i) Prizes cannot be claimed following 

the first release of numbers or other 

designations. Two or more releases are 

required before a player can claim any 

prize in any game. 

(j) Bonus or progressive prizes may be 

awarded based on pre-designated 

patterns provided the award of these 

prizes is based on the play of bingo in 

the same manner as for the gamewinning prize. Bonus or progressive 

prizes may be based on different predesignated and pre-announced patterns, 

on achieving a winning pattern in a 

specified quantity of numbers or 

designations drawn or electronically 

determined and released, on the order 

in which numbers or 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 game winning prize is awarded. 

(k) 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 

and covers (daubs) the game-winning 

pattern. If all players leave the game 

before a game-winning pattern is 

obtained and covered (daubed) by a 

player, the game will be declared void 

and wagers returned to players. 

(l) Each game must provide an equal 

chance of obtaining any winning pattern 

for each card played by an active player 

in the game. The probability of 

achieving any particular pre-designated 

winning pattern for a participating 

player in the game may not vary based 

on the amount wagered by that player. 

(m) The use of a paytable 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 

previously designated winning pattern 

in a game. A multiplier to the prize 

based on a winning pattern containing 

a specified number or other designation 

is permitted. 

(n) 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. 

(o) Alternative result display options 

may only be utilized for entertainment 

or amusement purposes and may not be 

used to independently determine a 

winner of the game or the prizes 

awarded or change the results of the 

bingo game in any way. 

§ 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 

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 its being dispensed. 

(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 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) The machine cannot pay out 

winnings to the player, nor dispense 

vouchers or receipts representing such 

winnings. 

(j) For technologic aids that are larger 

than the pull-tab, the machine shall 

prominently display the following 

message: ‘‘THIS IS THE GAME OF 

PULLTABS.’’ Each letter of the display 

must measure at least two (2) inches in 

height. 

(k) The winning results on the pulltab shall be no smaller than an 8 point 

font. 

§ 546.8 When is a pull tab or instant bingo 

game an ‘‘electronic or electromechanical 

facsimile?’’

(a) 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. 

(b) 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.’’


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§ 546.9 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 

Commission 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 and provide any other 

information requested by the testing 

laboratory. 

(b) For an ‘‘electronic, computer, or 

other technologic aid’’ to be accepted as 

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. 

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. 

(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 

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. A 

supplemental report addressing 

additional game themes or other nonplay 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. 

(4) Each report will also provide one 

or more unique signatures or checksum 

values for the operating programs used 

with the ‘‘electronic, computer, or other 

technologic aid.’’ In the case of diskbased machines, a standard directory 

checking program and the data files and 

documentation to verify the correct 

operational software will be provided. 

In the case of EPROMs, a unique 

signature or checksum will be provided 

based upon standard algorithms. The 

purpose of the unique signature(s) or 

checksum values is to permit later 

verification that the games and the 

‘‘electronic, computer or other 

technologic aids’’ in play in a Tribe’s 

gaming operation(s) are the games and 

aids certified by the testing laboratory, 

by comparison of the signature(s) or 

checksum values. 

(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. Each testing 

laboratory will maintain a detailed 

listing of the ‘‘electronic, computer or 

other technologic aids’’ it certifies. The 

Commission will make its listing 

available on its Web site. Portions of 

reports containing trade secrets and 

commercial or financial information 

relating to the ‘‘electronic, computer, or 

other technologic aid’’ that are 

considered privileged or confidential 

will not be made available for public 

review. 

(d) Additional requirements 

established by a tribal gaming 

regulatory authority. (1) A tribal gaming 

regulatory authority may establish 

additional classification standards that 

extend and/or exceed the standards 

established by this part. 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 

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) The Chairman or a 

designee will review the certifications 

and accompanying reports received 

from testing laboratories and may 

interpose an objection 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. In 

the absence of objection within 60 days, 

the parties may assume the Chairman 

does not interpose an objection. The 

Chairman may object to a testing 

laboratory certification subsequent to 

the 60-day period upon good cause 

shown. 

(2) The Chairman or a 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 

determination. 

(3) Within 30 days after receiving 

notice of Chairman’s determination, the 


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testing laboratory, the requesting party, 

or the sponsoring tribe may appeal the 

Chairman’s objection 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 Chairman or 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 testing laboratory, the 

manufacturer, 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 

a designee, upheld after review by the 

Commission, will be a final agency 

action for purposes of suit under the 

Administrative Procedure Act by the 

requesting party. 

(f) Recognition of Testing 

Laboratories. (1) The Commission will 

maintain a listing of testing laboratories 

recognized as 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. To obtain 

Commission recognition a testing 

laboratory will demonstrate its integrity, 

independence and financial stability by 

providing evidence of licensing 

obtained from a competent jurisdiction 

that has conducted a thorough 

background check of the testing 

laboratory. 

(2) The testing laboratory will 

demonstrate its relevant technical skill 

and capability by providing evidence of 

suitable testing previously conducted 

for state or tribal regulatory authorities. 

The Commission will conduct an onsite 

review of the testing laboratory’s 

facilities as part of its evaluation and 

will be satisfied that the testing 

laboratory is qualified and competent to 

perform the testing required by this part 

before recognizing the testing 

laboratory. 

(3) A testing laboratory recognized by 

the Commission will notify the 

Commission immediately if any license 

issued by a state or tribe is revoked or 

not renewed. 

(4) The Commission may offer 

provisional recognition to a new testing 

laboratory that does not meet the 

requirements of paragraphs (f)(1) and (2) 

of this section based on its own review 

of suitability and technical 

qualifications of the testing laboratory. 

§ 546.10 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 Class II tribal 

gaming facilities meet the classification 

standards of this part? 

(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 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, meet 

the 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 no longer meet the 

standards established by this part. 

Note: Emergency changes to a game are 

permitted prior to certification so long as the 

change does not affect the classification of 

the game. 

(3) Periodic testing of the all of the 

servers and a random sample of the 

electronic player stations to validate 

that the equipment continues to meet 

the standards established by this part. 

(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 NIGC 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 gaming facility 

it regulates. 

(c) The Tribal gaming regulatory 

authority shall affix a seal or other label 

on each server and each individual 

client machine (player terminal) it has 

authorized for play under the 

classification standards established by 

this Part, indicating that all games 

played thereon meet the classification 

standards established by this Part and 

any additional standards established by 

the Tribe. The seal or other label will 

show the version number(s) or other 

unique identifier(s), as established by 

the manufacturer or other entity 

providing the game operating software, 

for the games authorized for play on the 

equipment by the Tribal gaming 

regulatory authority and as documented 

in a certification report(s) issued by a 

testing laboratory. The seal or other 

label shall conform to the requirements 

for ‘‘stickers’’ established in Part 547 of 

this chapter. The seal or other label 

shall be promptly removed from the 

server and any individual client 

machine when the version number(s) of 

the games played thereon are changed 

and a new seal or other label affixed 

showing the versions of the game in 

play, provided the new version(s) meet 

the Classification Standards established 

by this Part and any additional 

standards established by the Tribe. 

(d) The Tribal gaming regulatory 

authority shall maintain a current listing 

of each server, each individual client 

machine (player terminal), and each 

game program it has authorized for play 

under the classification standards 

established 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 number(s) of each server and client 

machine (player terminal) and the 

version number(s) or other unique 

identifier(s), as established by the 

manufacturer or other entity providing 

the game operating software, for the 

games authorized for play as 

documented in a certification report(s) 

issued by a testing laboratory. 

(e) Effective date for operation of 

games under the classification 

standards. 

(1) For Class II gaming operations 

open on the effective date of this part or 

that open within six months of the 

effective date, certification of the 

‘‘electronic, computer, or other 

technologic aids’’ must be completed 

and authorization provided by the tribal 

gaming regulatory authority within six 

months of the effective date. Games and 


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Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules 30261 

associated equipment not certified 

within that period must be removed 

until certification is obtained and 

authorization given. The Commission 

Chairman may extend the period for 

obtaining certification for one or more 

periods of six months at the request of 

a tribal gaming regulatory authority 

based on good cause shown. 

(2) For Class II gaming operations 

opening six months after the effective 

date, certification and authorization to 

operate by the tribal gaming regulatory 

authority must be completed before 

opening. 

(3) Games played with ‘‘electronic, 

computer, or other technologic aids,’’

subject to certification under this part 

and not in a tribe’s operation prior to 

the effective date, must be authorized 

for use as Class II by the tribal gaming 

regulatory authority using the processes 

described in this Part prior to play in 

that tribe’s gaming operation. 

Dated: May 18, 2006. 

Philip N. Hogen, 

Chairman. 

Cloyce V. Choney, 

Commissioner. 

[FR Doc. 06–4798 Filed 5–24–06; 8:45 am] 

BILLING CODE 7565–01–P 


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