[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Proposed Rules]
[Pages 37998-38000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15031]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 502


Electronic One Touch Bingo System

AGENCY: National Indian Gaming Commission.

ACTION: Request for Public Comment.

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SUMMARY: The National Indian Gaming Commission (NIGC) is seeking 
comment on a proposed reinterpretation of an agency decision regarding 
the classification of server based electronic bingo system games that 
can be played utilizing only one touch of a button (``one touch 
bingo''). The proposed reinterpretation is in response to questions the 
NIGC received from the regulated community and the public about whether 
one touch bingo is a Class II or Class III game.

DATES: The agency must receive comments on or before August 26, 2013.

ADDRESSES: You may submit comments to the Commission by any one of the 
following methods, but please note that comments sent by electronic 
mail are strongly encouraged.
    [ssquf] Email comments to: [email protected].
    [ssquf] Mail comments to: National Indian Gaming Commission, 1441 L 
Street NW., Suite 9100, Washington, DC 20005.
    [ssquf] Hand deliver comments to: 1441 L Street NW., Suite 9100, 
Washington, DC 20005.
    [ssquf] Fax comments to: National Indian Gaming Commission at 202-
632-0045.

FOR FURTHER INFORMATION CONTACT: Michael Hoenig, National Indian Gaming 
Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. 
Telephone: 202-632-7009; email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

    This notice is directed to the public in general and may be of 
interest to a wide range of parties, including, but not limited to, 
tribal gaming operations, tribal gaming regulators, and tribal, state, 
and local governments. The NIGC is inviting interested parties to 
participate in this proposed reinterpretation by submitting such 
written data, views, or arguments as they may desire. Comments that 
provide the factual basis supporting the views and suggestions 
presented are particularly helpful in developing reasoned decisions on 
the proposal.

[[Page 37999]]

II. Background

    The NIGC has received several questions from the regulated 
community regarding the status of one touch bingo as a Class II or a 
Class III game pursuant to the Indian Gaming Regulatory Act (IGRA). In 
an electronic one touch bingo game, the player inserts money into the 
gaming machine, which is connected to other bingo machines in an 
electronically linked bingo system, and presses a button once to play a 
game of bingo. This, according prior NIGC Office of General Counsel 
legal opinions and a Chairman's decision on a game-specific tribal 
gaming ordinance, does not constitute Class II bingo because it does 
not require players to participate in the bingo game by taking further 
action to cover the numbers on the cards.
    In 2008, the Metlakatla Indian Community submitted an amendment to 
its tribal gaming ordinance which defined Class II gaming as including 
one touch bingo. Specifically, the Community set forth the following 
definition: ``Class II gaming includes an electronic, computer or other 
technologic aid to the game of bingo that, as part of an electronically 
linked bingo system, assists the player by covering, without further 
action by the player, numbers or other designations on the player's 
electronic bingo card(s) when the numbers or other designations arc 
electronically determined and electronically displayed to the player.'' 
Chairman Hogen disapproved the ordinance amendment based on this 
definition. The Chairman's decision (Metlakatla Decision or Decision) 
provided a detailed explanation of the game of bingo and the elements 
that must be present for it to be a Class II game. According to the 
Decision, the game of bingo under IGRA has certain specific, essential 
elements, including the requirement that a player cover the drawn 
numbers on a bingo card and that the game be won by the first person to 
do so. 25 U.S.C 2703(7)(A)(i)(II) and (III). The Chairman reasoned that 
inherent in the ``first person covering'' language is an element of 
competition--namely, multiple players competing with one another to be 
the first to cover a particular pattern. According to the Metlakatla 
Decision, that competition does not exist in a one touch bingo game. 
Without the element of competition through player participation, then, 
the Decision concluded that one touch bingo does not meet the 
requirements of IGRA's Class II gaming definition.
    The Metlakatla Decision also concluded that one touch bingo is not 
a Class II ``game similar to bingo.'' The Decision reasoned that, 
because one touch bingo does not include the requisite element of 
competition, it cannot meet the NIGC's regulatory definition of other 
games similar to bingo, which requires the game to ``permit players to 
compete against each other.'' Finally, the Decision determined that 
allowing the game system, rather than the player, to ``cover'' the 
bingo card incorporates all characteristics of the game of bingo into 
an electronic machine and system, and thereby renders one touch bingo a 
Class III electronic facsimile of a game of chance.
    The Commission, however, finds that the more reasonable 
interpretation of IGRA's definition of Class II gaming leads the 
conclusion that one touch bingo is a Class II bingo game. The NIGC 
proposes to reinterpret the position regarding one touch bingo as set 
forth in the Metlakatla Ordinance disapproval and is seeking comment on 
this proposal. The NIGC believes that this proposed reinterpretation is 
more in keeping with IGRA's definition of bingo and will bring clarity 
to the industry.

III. Summary of Proposed Reinterpretation

    Pursuant to IGRA, Class II bingo has three elements. First, it must 
be played for prizes, including monetary prizes, with cards bearing 
numbers or other designations. Next, the holder of the card must cover 
such numbers or designations when objects, similarly numbered or 
designated, are drawn or electronically determined. Finally, 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)(i)(I)-
(III).
    One touch bingo meets IGRA's statutory requirements for a game of 
bingo. The type of one touch game at issue here is played for prizes, 
usually money, on a card bearing numbers or symbols. It also satisfies 
IGRA's second element that ``the holder of the card covers [the] 
numbers or designations when objects, similarly numbered or designated, 
are drawn or electronically determined.'' In one touch bingo, the 
player covers the numbers or designations when drawn. That step is 
achieved by the assistance of a machine via the first, and only, touch 
of the button. Finally, the game meets the third element. The machine 
assists the player in being the first person to cover the designated 
arrangement, and the game is won by the first person to cover the pre-
designated winning pattern in the electronically linked bingo system.
    The Ninth Circuit Court of Appeals has held that the 3 elements of 
IGRA and NIGC regulations for bingo are all that the law requires for 
Class II bingo. United States v. 103 Elec. Gambling Devices, 223 F.3d 
1091, 1096 (9th Cir. 2000) (``IGRA's three explicit criteria, we hold, 
constitute the sole legal requirements for a game to count as class II 
bingo''); see also United States v. 162 MegaMania Gambling Devices, 231 
F.3d 713, 719 (10th Cir. 2000) (finding that Section 2703(7) sets forth 
3 explicit criteria for classification of Class II). Further, the court 
in 103 Electronic Gambling Devices held that ``there is nothing in IGRA 
or its implementing regulations . . . that requires a player to 
independently locate each called number on each of the player's cards 
and manually `cover' each number independently and separately. The 
statute and the implementing regulations merely require that a player 
cover the numbers without specifying how they must be covered.'' United 
States v. 103 Elec. Gambling Devices, supra at 18.
    Thus, the previous interpretation's requirement that the cover of 
the bingo card be done manually by the player through an additional 
pressing of a button is an additional requirement not mandated by the 
statute. Player participation in an electronically linked one touch 
bingo game still exists and players are actively and actually 
participating in the game. Whether a player presses a button one time 
or two, the player is engaging with the machine, participating in the 
bingo game, and competing with fellow players on the electronically 
linked bingo system.
    Likewise, in one touch bingo, the possibility that more than one 
player can simultaneously get ``bingo'' does not conflict with IGRA's 
requirement that the game be won by ``the first person to cover.'' In 
United States v. 162 Megamania Gambling Devices, 231 F.3d 713 (10th 
Cir. Okla. 2000), the United States sought to seize bingo machines 
operated by various Oklahoma tribes for Johnson Act violations. The 
government argued, in part, that MegaMania was a Class III game 
``because a player does not have to be the first player to cover the 
designated pattern of numbers to win.'' Id. at 721.
    In response, the 10th Circuit Court of Appeals underscored the 
lower court determination that ``nothing in the Gaming Act or 
regulations prohibits more than one winner'' and held that ``the 
language in [IGRA] concerning the `first person' to win is not limited 
to a straight-line game and should not be read in isolation from the 
traditional variations of bingo that allow interim prizes and 
simultaneous winners.'' Id. at 722. Accordingly, a machine that allows 
two simultaneous bingos in a game may

[[Page 38000]]

still be a Class II bingo machine. Id.; See also 103 Electronic Gaming 
Devices, 223 F.3d at 1098-99 (the 9th Circuit reached the same 
conclusion, holding ``winning'' does not necessarily mean 
``vanquishing'' all other opponents, and identifying Congress' intent 
to permit interim prizes, given that some traditional variants of bingo 
allow them.).
    Nor does the fact that a game of bingo can be played with one touch 
of a button by itself transform the machines into a Class III 
electronic facsimile of the game of bingo. One touch bingo does not 
incorporate all of the characteristics of bingo. The machine, for 
example, does not replicate the competitive element of bingo. Players 
still compete with other players, not the machine.
    Also, there is an exception for bingo in the regulatory definition 
of electronic facsimile, which exempts electronic bingo that broadens 
player participation by allowing multiple players to play with or 
against each other rather than with or against a machine. As this 
proposed reinterpretation finds that one touch bingo meets the 
statutory definition of the game of bingo and does not incorporate all 
the characteristics of bingo into the machine, the application of the 
exception is not necessary. However, the previous interpretation 
concluded ``as it is applied to bingo, . . . the ``except when'' 
language of 502.8 [] require[s] some--even minimal participation in the 
game by the players above and beyond the mere pressing of a button to 
begin the game.'' We find this interpretation in error because whether 
a game constitutes bingo or not cannot be reduced to the number of 
times a button is pushed. Rather, as set out above, we must look to 
whether the statutory elements of the game are met. And, as also set 
out above, we find that for one touch bingo they are. One touch bingo 
does incorporate player participation in the game beyond the pressing 
of a button.
    Finally, the Commission should give consideration to an 
interpretation of bingo that embraces rather than stifles technological 
advancements in gaming. The Senate Select Committee on Indian Affairs 
affirmed in its report regarding the Indian Gaming Regulatory Act that 
it ``intends that tribes be given the opportunity to take advantage of 
modern methods of conducting Class II games and the language regarding 
technology is designed to provide maximum flexibility.'' S. Rep. No. 
100-446 at p. A-9. In explaining its policy toward technology, a key 
distinction for the Committee was that technological aids are ``readily 
distinguishable from the use of electronic facsimiles in which a single 
participant plays a game with or against a machine rather than with or 
against other players.'' Id. One touch bingo does not change that 
fundamental aspect of bingo. Whether played on a one or two touch 
machine in a linked system, the player is still competing with other 
bingo players for a prize.
    For all of the above reasons, the NIGC proposes to reinterpret its 
position on one touch bingo, as previously set forth in the June 4, 
2008 decision disapproving the Metlakatla Indian Community's Tribal 
Gaming Ordinance.

    Dated: June 19, 2013, Washington, DC.
 Daniel J. Little,
 Commissioner.
Tracie L. Stevens,
Chairwoman.
[FR Doc. 2013-15031 Filed 6-21-13; 11:15 am]
BILLING CODE 7565-01-P