[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