[Federal Register Volume 73, Number 198 (Friday, October 10, 2008)]
[Proposed Rules]
[Pages 60489-60490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23075]

[[Page 60489]]


Part V

Department of the Interior


National Indian Gaming Commission


25 CFR Parts 502 and 546

Definition for Electronic or Electromechanical Facsimile; 
Classification Standards for Bingo, Lotto, etc.; Withdrawal of Proposed 

25 CFR Parts 542, 543, and 547

Class II Games; Establishment of Technical Standards and Minimum 
Internal Control Standards; Final Rules

Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / 
Proposed Rules

[[Page 60490]]



National Indian Gaming Commission

25 CFR Part 502

Definition for Electronic or Electromechanical Facsimile

AGENCY: National Indian Gaming Commission, Interior.

ACTION: Notice of withdrawal of proposed rule.


SUMMARY: The National Indian Gaming Commission is withdrawing the 
proposed modification to the definition of ``Electronic or 
electromechanical facsimile'' published in the Federal Register on 
October 24, 2007. (72 FR 60482.)

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, of which this amended definition was a part, 
in early 2004. The procedural mileposts leading up to the publication 
of the proposed rule, amended ``Definition for Electronic or 
Electromechanical Facsimile'' 72 FR 60482 (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.
    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 and amending the definition of ``facsimile''--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 and amended definition 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 
    As Chairman Hogen stated at the June 5, 2008 Sovereignty Symposium 
in Oklahoma City, the proposed rule, ``Definition for Electronic or 
Electromechanical Facsimile'' 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. E8-23075 Filed 10-9-08; 8:45 am]