[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Proposed Rules]
[Pages 60490-60491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23070]



National Indian Gaming Commission

25 CFR Part 546

Classification Standards for Bingo, Lotto, Other Games Similar to 
Bingo, Pull Tabs and Instant Bingo as Class II Gaming When Played 
Through an Electronic Medium Using ``Electronic, Computer, or Other 
Technologic Aids''

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Notice of withdrawal of proposed rule.


SUMMARY: The National Indian Gaming Commission is withdrawing the 
proposed Classification standards published in the Federal Register on 
October 24, 2007. (72 FR 60483.)

FOR FURTHER INFORMATION CONTACT: John Hay at 202-632-7003; fax 202-632-
7066. These are not toll-free numbers.

SUPPLEMENTARY INFORMATION: Under Chairman Phil Hogen, The National 
Indian Gaming Commission (Commission) began its effort to craft 
classification standards in early 2004. The procedural mileposts 
leading up to the publication of the proposed rule, Classification 
Standards for Bingo, Lotto, Etc. as Class II Gaming When Played Through 
an Electronic Medium Using ``Electronic Computer, or Other Technologic 
Aids,'' 72 FR 60483, (October 24, 2007), are well known and need not be 
recounted again here.
    About the reasons for this long effort, much has been said and 
written, and many and varied motives have been ascribed to the Chairman 
and the Commissioners. These likewise need not be recited here.
    A brief response is, however, appropriate.

[[Page 60491]]

    The Commission's motivation has always been the long-term health 
and well-being of Indian gaming, for gaming is the single greatest 
engine for economic development in Indian Country in history. As 
Chairman Hogen has consistently said--though his words have often been 
lost in the cacophony of criticism--he perceives a risk to the long-
term well-being of Indian gaming in the exploitation of technology as 
an aid to the play of Class II games. IGRA, of course, permits tribes 
``maximum flexibility'' in the use of technology in Class II gaming, 
but it also does make a distinction between Class II gaming and Class 
III gaming. The risk arises when the exploitation of technology erases, 
or is perceived to erase, that distinction.
    The risk itself is inchoate, but it could take any of the following 
forms, to the great detriment of Indian gaming. If states perceive that 
tribes are playing Class III games under the guise of Class II gaming, 
they may expand legalized gaming within their own borders, as the State 
of Alabama is doing now. Indian gaming operations located far from 
population centers will be greatly harmed as a result. Patrons will 
spend their money downtown and closer to home rather than driving out 
to the reservation. If a perception that tribes are not following IGRA 
becomes sufficiently widespread, the Department of Justice may bring 
Johnson Act gambling device actions against tribal gaming operations 
again. Tribes have been successful in past litigation, but those cases 
involved games that less resemble slot machine than do games in play 
today, and the outcome of litigation over today's games might be 
different. Finally, Congress may choose to act, and the Commission 
would not want to see IGRA amended to restrict gaming or otherwise 
changed to the detriment of Indian tribes.
    Throughout the long process of crafting the Classification 
regulations--throughout all of the advisory committee meetings; 
throughout all of the comment periods, both formal and informal; 
throughout all of the Congressional hearings--the Commissioners have 
repeatedly stated that it takes all comments to heart and that until 
the day the Commission takes final action, their minds are not made up. 
These statements too were lost in the cacophony.
    The Commission understands the terrific economic costs that the 
Classification regulations will have on Indian gaming and Indian 
Country, as set out in its two economic impact reports, its cost-
benefit analysis, and in comments it received. The Commission has heard 
from many tribal leaders and representatives that should the states, 
the Justice Department or the Congress seek to act against tribal 
gaming interests, the tribes stand ready, willing, and able to address 
those challenges head on. The Commission has also heard that it should 
seek alternatives to adopting Classification regulations, for any 
problems concerning classification are local, rather than national, in 
scope. In short, the Commission has heard that the risks about which is 
concerned are not as great as it fears and that the costs of the 
Commission's proposed solution are too great. The Commission sincerely 
hopes that the voices that have so spoken are correct.
    As Chairman Hogen stated at the June 5, 2008 Sovereignty Symposium 
in Oklahoma City, the proposed rule, Classification Standards for 
Bingo, Lotto, Etc. as Class II Gaming When Played Through an Electronic 
Medium Using ``Electronic Computer, or Other Technologic Aids,'' 72 FR 
60483, (October 24, 2007), is withdrawn. This withdrawal does not mean 
that the Commission believes ``one-touch'' bingo games are Class II. 
Going forward, the Commission intends to address this and other 
classification issues through a combination of training, technical 
assistance, and enforcement actions.

    Dated: September 24, 2008.
Philip N. Hogen,
Chairman, National Indian Gaming Commission.
Norman H. DesRosiers,
Vice Chairman, National Indian Gaming Commission.
 [FR Doc. E8-23070 Filed 10-9-08; 8:45 am]