01-15700. Definitions: Electronic or Electromechanical Facsimile

AGENCY:

National Indian Gaming Commission.

ACTION:

Proposed rule.

SUMMARY:

The National Indian Gaming Commission proposes to amend its regulations by removing the definition of “electronic and electromechanical facsimile” now set forth at 25 CFR 502.8.

DATES:

Comments may be submitted on or before July 23, 2001.

ADDRESSES:

Send comments by mail, facsimile, or hand delivery to: Definitions: Electronic and Electromechanical Facsimile, Amendment Comments, National Indian Gaming Commission, Suite 9100, 1441 L Street, NW., Washington, DC 20005. Fax number: 202-632-7066 (not a toll-free number). Public comments may be delivered or inspected from 9 a.m. until noon and from 2 p.m. to 5 p.m. Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Michele F. Mitchell 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” or “Act”) 25 U.S.C. 2701-2721, enacted on October 17, 1988, established the National Indian Gaming Commission (Commission). Under the Act, the Commission is charged, among other things, with regulating Class II gaming by Indian tribes. The Act defines Class II gaming as including the game of chance commonly known as bingo (whether or not electronic, computer, or other technological aids are used in connection therewith), but does not include electronic or electromechanical facsimiles of any game of chance or slot machines of any kind. On April 9, 1992, the Commission issued a final rule defining key terms in the Act. Among the terms defined by the Commission was “electronic or electromechanical facsimile.” The Commission defined this term by reference to the Johnson Act, 15 U.S.C. 1171(a)(2) and (3). See 25 CFR 502.8. Although an agency's interpretation of ambiguous terms in a federal law that it is responsible for administering is ordinarily entitled to great deference, the courts, in several recent decisions, have not relied on the Commission's definition of electronic or electromechanical facsimile. Instead the courts have relied exclusively on the terms contained in the Indian Gaming Regulatory Act, applying a plain language interpretation of this phrase. To ensure consistency with developments in the case law and to ensure a uniform approach to this term by the Commission and the courts, the Commission now proposes and seeks public comment on removal of 25 CFR 502.8 and use instead the plain language interpretation that has been preferred by the courts.

Regulatory Flexibility Act

This rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. 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.

Unfunded Mandates Reform Act

The Commission has determined that this proposed rule does not impose an unfunded mandate on State, local or tribal governments or on the private sector of more than $100 million per year. Thus, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq. The Commission has also determined that the proposed rule does not have a unique effect on tribal governments because the proposed removal of the reference to the Johnson Act merely codifies the practice of defining “electronic and electromechanical facsimile” in accordance with the plain meaning of those words.

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

1. The authority citation for part 502 continues to read as follows:

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

2. Amend § 502.8 as follows:

§ 502.8

[Removed and Reserved]

Remove and reserve § 502.8.

Dated: June 18, 2001.

Elizabeth L. Homer,

Vice Chair.

Teresa E. Poust,

Commissioner.