02-6806. Definitions: Electronic or Electromechanical Facsimile; Games Similar to Bingo; Electronic, Computer or Other Technologic Aid to Class II Games

AGENCY:

National Indian Gaming Commission, Interior.

ACTION:

Proposed Rule for Final Comment.

SUMMARY:

The National Indian Gaming Commission (Commission) proposes to clarify the regulatory definitions of three key terms in the Indian Gaming Regulatory Act, “electronic and electromechanical facsimile”, “games similar to bingo” and “electronic, computer or other technologic aid to Class II gaming”. The Commission believes that these amendments may simplify the classification of games.

DATES:

Comments may be submitted on or before April 22, 2002.

FOR FURTHER INFORMATION CONTACT:

Penny Coleman, at 202/632-7003 or, by fax, at 202/632-7066 (these are not toll-free numbers).

SUPPLEMENTARY INFORMATION:

The Indian Gaming Regulatory Act (IGRA) 25 U.S.C. 2701-2721, enacted on October 17, 1988, established the Commission. Under the Act, the Commission is charged with regulating gaming by Indian tribes. On April 9, 1992, the Commission issued a final rule defining several key terms that were not fully defined in the statute. In light of the experience that it has developed in the past ten years in working with these definitions, the Commission believes that it may be time to reevaluate some of these definitions. Accordingly, on June 22, 2001, the Commission published a Proposed Rule seeking public comment on the proposed removal of the existing definition of “electronic or electromechanical facsimile” from the Commission's regulations and using instead the plain language interpretation that seems to have been preferred by the courts.

The Commission received numerous comments to this proposed rule, a majority of which indicated support for the proposal. However, even many of the supportive comments expressed the view that removing the current definition was merely a first step in addressing the questions at issue. Several comments indicated that the Commission should remove the definition and replace it with another definition providing additional substantive guidance.

The Commission addresses these comments by proposing a new definition of “electronic or electromechanical facsimile.” In light of the comments, the Commission also proposes changes to two related definitions for which it seeks additional comment.

Regulatory Flexibility Act

To the extent that tribal gaming operations may be considered small businesses and therefore small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., this rule will not have a significant economic effect on a substantial number of small entities. Indian Tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

Small Business Regulatory Enforcement Fairness Act

This 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.

Takings

In accordance with Executive Order 12630, the Commission has determined that this 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 rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Instead, the rule is likely to decrease litigation with Indian tribes and reduce unnecessary friction between the Department of Justice and the Commission.

Paperwork Reduction Act

This regulation does not require an information collection under the Paperwork Reduction Act 44 U.S.C. 3501 et seq.

National Environmental Policy Act

The Commission has analyzed this rule in accordance with the criteria of the National Environmental Policy Act. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required.

List of Subjects in 25 CFR Part 502

• Gaming
• Indian lands

For the reasons set forth in the preamble, the National Indian Gaming Commission proposes to amend 25 CFR Part 502 as follows:

PART 502—DEFINITIONS OF THIS CHAPTER

Authority: 25 U.S.C. 2701 et seq.

1. Revise § 502.7 to read as follows:

§ 502.7

Electronic, computer or other technologic aid.

(a) Electronic, computer or other technologic aid means any machine or device, such as a computer, telephone, cable, television, screen, satellite, or bingo blower, that when used—

(1) Is not a game of chance but merely assists a player or the playing of a game;

(2) Is readily distinguishable from the playing of an electronic or electromechanical facsimile of a game of chance; and

(3) Is operated according to applicable Federal communications law.

(b) Other examples of an electronic, computer or other technologic aid may include, but are not limited to, equipment that allows communication between and among gaming sites, electronic cards (player stations) for participants in bingo games, and machines or devices that read and/or dispense pull-tabs.

2. Revise § 502.8 to read as follows:

§ 502.8

Electronic or electromechanical facsimile

Electronic or electromechanical facsimile means a game played in an electronic or electromechanical format that replicates a game of chance by incorporating all of the fundamental characteristics of the game and that is not an electronic, computer or technologic aid to a Class II game.

3. Revise § 502.9 to read as follows:

§ 502.9

Games similar to bingo

Pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo means games played with a finite deal, and established prizes, that are preprinted and use paper or other tangible medium, such as, break open or scratch off tickets.

Dated: March 15, 2002.

Elizabeth L. Homer,

Vice Chair.

Teresa E. Poust,

Commissioner.