[Federal Register Volume 71, Number 101 (Thursday, May 25, 2006)]
[Proposed Rules]
[Pages 30238-30261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4798]
[[Page 30237]]
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Part III
Department of the Interior
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National Indian Gaming Commission
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25 CFR Parts 502 and 546
Classification Standards; Class II Gaming; Bingo, Lotto, et al.;
Proposed Rule
Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 /
Proposed Rules
[[Page 30238]]
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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.
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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 pari-mutuel wagering. Class III
gaming may be conducted lawfully only if the state in which the tribe
is located and the tribe reach an agreement called a tribal-state
compact. Alternatively, a tribe may operate Class III gaming under
gaming procedures issued by the Secretary of the Interior if the tribe
and the state have not reached agreement or if the state has refused to
negotiate in good faith toward an agreement. The tribal-state compact
or Secretarial procedures may contain provisions for concurrent state
and tribal 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
[[Page 30239]]
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-to-government
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
[[Page 30240]]
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 pull-tab 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 pre-rulemaking 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 government-to-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
[[Page 30241]]
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, pull-tabs, 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 game-winning
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 pull-tabs 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
[[Page 30242]]
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 Sec. 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 Sec. 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 house-banking 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.
[[Page 30243]]
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
bingo-faced 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.
[[Page 30244]]
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 game-winning
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 pre-designated 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
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 based
on a combination of these conditions. The bonus prize may also be
limited by game rule to obtaining the required pre-designated pattern
in a specified quantity of numbers or other designations released
before the game-winning 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 pre-designated 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 pre-designated winning
pattern. Consequently play must stop, or pause, when the last number or
other designation that forms the pre-designated game-winning pattern is
released to the players for the game-winning 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 game-winning 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 pre-announced
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
pre-designated 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.
[[Page 30245]]
A pattern used to establish the progressive prize must be a pre-
designated 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 non-replaceable 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 non-replaceable 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 non-replaceable 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 pre-drawn 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
[[Page 30246]]
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 non-attentive 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
[[Page 30247]]
(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
ruling-limited 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 game-winning 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
[[Page 30248]]
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 game-
winning 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 pre-designated 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
[[Page 30249]]
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
bingo-like.
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
[[Page 30250]]
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 pre-selected
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 pre-designated 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 pre-designated patterns as
an objective and players are not competing against each other to be the
player to cover a pre-designated 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 house-banked 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 house-banked, 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 ``game-winning'' 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
``game-ending'' 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 pre-designated winning patterns and each
player's successful quest for these patterns must be accomplished by
the time the first player obtaining the so-called ``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
[[Page 30251]]
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 pull-tabs 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. Sec. 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 pull-tabs, 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 pull-
[[Page 30252]]
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'');
Seneca-Cayuga Tribe, 327 F.3d at 1043 (the ``Machine facilitates the
playing of pull-tabs, 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 pull-tabs 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
[[Page 30253]]
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-
to-government 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
[[Page 30254]]
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:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Collections,
Provision Respondents Number of Collections, Hours per Total hours year 2 Hours per Total
respondents 1st year collection forward collection
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
[[Page 30255]]
2. Amend Sec. 502.8 by adding paragraph ( c) to read as follows:
Sec. 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 Sec. 502.9 to read as follows:
Sec. 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 pull-tabs 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.
Sec. 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.
Sec. 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.
Sec. 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 game-winning pattern on a card
held by the winning player and the participation of competing players
to cover (daub) the numbers or other designations which appear on their
card(s) when the selected numbers or other designations are released
for play. A ``game'' ends when a participating player(s) claims the win
after obtaining and covering (daubing) the pre-designated game-winning
pattern and consolation prizes, if any, are awarded in the game.
(b) What is ``Lotto''? The term ``Lotto'' means a game of chance
played in the same manner as the game of chance commonly known as
bingo.
(c) What is a ``bonus prize'' in the game commonly known as bingo
or ``other game similar to bingo''? A bonus prize is a prize awarded in
a game in addition to the game-winning prize. The prize may be based on
different pre-designated 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 pre-announced
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 pre-designated winning pattern; or
(2) to claim the prize to which the player is entitled, having
covered (daubed) a previously designated game-winning 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
[[Page 30256]]
arrangement of numbers or symbols indicating whether the player has won
a prize. Winning cards with pre-established 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 pre-selected
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 pull-tabs.
Sec. 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.
Sec. 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
[[Page 30257]]
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 game-winning 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 game-winning 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.
Sec. 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 game-winning pattern is covered and claimed, there may be
additional releases of randomly drawn or electronically determined
numbers or other designations for a consolation prize(s).
(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 game-winning 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
[[Page 30258]]
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 game-winning 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 game-winning prize. Bonus
or progressive prizes may be based on different pre-designated 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.
Sec. 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 game-theme 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 pull-tab shall be no smaller than an
8 point font.
Sec. 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.''
[[Page 30259]]
Sec. 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 non-play features may follow
as necessary, and will contain a statement verifying that gaming
conducted with the aid continues to meet the requirements of this part.
(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 disk-based
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
[[Page 30260]]
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.
Sec. 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
[[Page 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