Classification Standards for Bingo, Lotto, Other Games Similar to Bingo, Pull Tabs and Instant Bingo as Class II Gaming When Played Through an Electronic Medium Using “Electronic, Computer, or Other Technologic Aids”, 30238-30261 [06-4798]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Indian Gaming Commission

[Federal Register Volume 71, Number 101 (Thursday, May 25, 2006)]
[Proposed Rules]
[Pages 30238-30261]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4798]



[[Page 30237]]

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Part III





Department of the Interior





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National Indian Gaming Commission



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25 CFR Parts 502 and 546



Classification Standards; Class II Gaming; Bingo, Lotto, et al.; 
Proposed Rule

Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Parts 502 and 546

RIN 3141-AA31


Classification Standards for Bingo, Lotto, Other Games Similar to 
Bingo, Pull Tabs and Instant Bingo as Class II Gaming When Played 
Through an Electronic Medium Using ``Electronic, Computer, or Other 
Technologic Aids''

AGENCY: National Indian Gaming Commission (``NIGC'' or ``Commission'').

ACTION: Proposed Rule.

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DATES: Submit comments on or before August 23, 2006.
    Consultation: The Commission will be conducting government-to-
government consultations with Tribes on this proposed rule at the 
following times:

July 10-11 Minneapolis, Minnesota
July 12-13 Denver, Colorado
July 18-19 Washington, DC
July 24-25 Tacoma, Washington
July 26-27 Ontario, California
August 8-9 Oklahoma City, Oklahoma

Invitations will be mailed out to Tribal leaders in the coming weeks. 
These consultation meetings will be transcribed. To schedule a 
consultation please contact Natalie Hemlock, Special Assistant to the 
Commission, at (202) 632-7003.

ADDRESSES: Mail comments to ``Comments on Class II Classification 
Standards'' National Indian Gaming Commission, Suite 9100, 1441 L 
Street, NW., Washington, DC 20005, Attn: Penny Coleman, Acting General 
Counsel. Comments may be transmitted by facsimile to 202-632-0045, or 
mailed or submitted to the above address.

FOR FURTHER INFORMATION CONTACT: Penny Coleman or John Hay, Office of 
General Counsel, Telephone 202-632-7003. This is not a toll free call.
SUMMARY: The proposed rule clarifies the terms Congress used to define 
Class II gaming under the Indian Gaming Regulatory Act, 25 U.S.C. 2701, 
et seq. (``IGRA'' or ``Act''). First, the proposed rule further revises 
the definitions for ``electronic or electromechanical facsimile'' and 
``other games similar to bingo'' that appear in part 502 of Commission 
regulations (25 CFR part 501 et seq.). The Commission defined these 
terms in 1992, revised the definitions in 2002, and proposed further 
revisions to the term ``electronic or electromechanical facsimile'' 
separate from this proposed revision. The proposed rule offers further 
revision that would incorporate the new part 546 into the definitions. 
The Commission adds a new Part to its regulations (part 546) that 
explains the basis for determining whether a game of bingo or lotto, 
``other game similar to bingo,'' or a game of pull-tabs or ``instant 
bingo,'' meets the IGRA statutory requirements for Class II gaming, 
when such games are played electronically, primarily through an 
``electronic, computer or other technologic aid,'' while distinguishing 
them from Class III ``electronic or electromechanical facsimiles.'' 
This new part also establishes a process for assuring that such games 
are Class II before placement of the games in a Class II tribal gaming 
operation. This process contains information collection requirements 
subject to the Paperwork Reduction Act of 1995. The Commission has 
submitted the information collection request to OMB for approval.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

I. Background
II. Development
III. Purpose and Scope
IV. Definitions
V. Criteria for Meeting the Class II Requirements for Bingo, Lotto, 
and Other Games Similar to Bingo Established by IGRA
VI. Bingo, Lotto, and Other Games Similar to Bingo Are Games Played 
for Prizes, Including Monetary Prizes, With Cards Bearing Numbers or 
Other Designations
VII. Bingo, Lotto, and Other Games Similar to Bingo Are Games in 
Which the Holder of the Card Covers the Numbers or Other 
Designations on the Player's Card When Objects Similarly Numbered or 
Designated Are Drawn or Electronically Determined
VIII. Bingo, Lotto, and Other Games Similar to Bingo Are Games Won 
by the First Person Covering a Previously Designated Arrangement of 
Numbers or Other Designations on the Card or Cards Held By the 
Player
IX. Use of ``Electronic, Computer or Other Technologic Aids'' in the 
Play of Bingo, Lotto, and ``Other Games Similar to Bingo'' Through 
an Electronic Medium
X. Alternative Display of the Results of the Game on the Video 
Screen at the Player Station
XI. The Relationship of ``Other Games Similar to Bingo'' as Class II 
Gaming to the Requirements for Bingo Specified in IGRA
XII. Use of State Law in Determining Whether a Game Is Bingo, Lotto, 
or an ``Other Game Similar to Bingo'' Under IGRA
XIII. Additional Comment Regarding Player Against Player Competition 
in Bingo, Lotto, and ``Other Games Similar to Bingo''
XIV. Classification Standards for Pull-Tabs, Electronic Pull-Tabs 
and ``Instant Bingo''
XV. Process for Certification of Games and ``Electronic, Computer, 
and Other Technologic Aids'' as Meeting the Classification Standards

I. Background

    The Indian Gaming Regulatory Act, 25 U.S.C. 2701-21 (IGRA), enacted 
by the Congress in 1988, establishes the NIGC and sets out a 
comprehensive framework for the regulation of gaming on Indian lands. 
The Act establishes three classes of Indian gaming.
    ``Class I gaming'' means social games played solely for prizes of 
minimal value or traditional forms of Indian gaming played in 
connection with tribal ceremonies or celebrations. 25 U.S.C. 2703(6). 
Indian tribes are the exclusive regulators of Class I gaming.
    ``Class II gaming'' means the game of chance commonly known as 
bingo, whether or not electronic, computer, or other technologic aids 
are used in connection therewith, including, if played in the same 
location, pull-tabs, lotto, punch boards, tip jars, instant bingo, and 
other games similar to bingo, and various card games so long as they 
are not house banking games. 25 U.S.C. 2703(7)(A). Specifically 
excluded from Class II gaming, however, are banking card games such as 
blackjack, electronic or electromechanical facsimiles of any game of 
chance, and slot machines of any kind. 25 U.S.C. 2703(7)(B). Indian 
tribes and the NIGC share regulatory authority over Class II gaming. 
Indian tribes can engage in such gaming without any state involvement.
    ``Class III gaming'' includes all forms of gaming that are not 
Class I gaming or Class II gaming. 25 U.S.C. 2703(8). Class III gaming 
thus includes all other games of chance, including most forms of 
casino-type gaming such as slot machines of any kind, electronic or 
electromechanical facsimiles of any game of chance, roulette, banking 
card games such as blackjack, and pari-mutuel wagering. Class III 
gaming may be conducted lawfully only if the state in which the tribe 
is located and the tribe reach an agreement called a tribal-state 
compact. Alternatively, a tribe may operate Class III gaming under 
gaming procedures issued by the Secretary of the Interior if the tribe 
and the state have not reached agreement or if the state has refused to 
negotiate in good faith toward an agreement. The tribal-state compact 
or Secretarial procedures may contain provisions for concurrent state 
and tribal regulations of Class III gaming. In addition, the NIGC also 
exercises regulatory authority over Class III gaming under IGRA, and 
the United States Department of Justice and United States Attorneys 
possess exclusive

[[Page 30239]]

criminal jurisdiction over Class III gaming on Indian lands and also 
possess certain civil jurisdiction over such gaming.
    As a legal matter, Congress defined the parameters for game 
classification when it enacted IGRA. As a practical matter, however, 
the Congressional definitions were general in nature and specific terms 
within the broad gaming classifications were not explicitly defined. 
The Commission adopted regulations in 1992 that included definitions 
for many terms used in the statutory classification scheme, including 
``electronic or electromechanical facsimile'' (25 CFR 502.7), 
``electronic computer or other technologic aid'' (25 CFR 502.8), and 
``other game similar to bingo'' (25 CFR 502.9). The Commission revised 
the definitions in 2002. See 67 FR 41166 (June 17, 2002) for an 
extensive discussion of the reasons for the Commission's decision to 
revise these key terms. However, the Commission did not define the many 
other terms used in conjunction with the various Class II games.
    A recurring question as to the proper scope of Class II gaming 
involves the use of electronics and other technology in conjunction 
with bingo and lotto as well as pull tabs, instant bingo, and other 
games similar to bingo that may be Class II if played in a location 
where Class II bingo is played. In IGRA, Congress recognized the right 
of tribes to use ``electronic, computer or other technologic aids'' in 
connection with these forms of Class II gaming. Congress provided, 
however, that ``electronic or electromechanical facsimiles of any game 
of chance or slot machines of any kind'' constitute Class III gaming. 
Because a tribe wishing to conduct Class III gaming may do so only in 
accordance with an approved tribal-state compact, it is important to 
distinguish the two classes.
    Currently, the distinction between an electronic ``aid'' to a Class 
II game and an ``electronic facsimile'' of a game of chance, and 
therefore a Class III game, is often unclear. With advances in 
technology, the line between the two has blurred. When in IGRA, 
Congress defined ``the game of chance commonly known as bingo,'' 25 
U.S.C. 2703(7)(A), it could not have foreseen the technological changes 
that would affect all games of chance. Likewise, by allowing electronic 
aids to the game of bingo, Congress could not have foreseen that some 
vendors and gaming operators would be unable or unwilling to 
distinguish between Class II games, which tribes regulate, and Class 
III facsimiles, which require compacts between tribes and states. The 
Commission is concerned that the industry is dangerously close to 
obscuring the line between Class II and III. It believes that the 
future success of Indian gaming under IGRA depends upon tribes, states, 
and manufacturers being able to recognize when games fall within the 
ambit of tribal-state compacts and when they do not.
    Against this backdrop, the Commission has determined that it is in 
the best long term interest of Indian gaming to issue classification 
standards clarifying the distinction between ``electronic, computer, 
and other technologic aids'' used in the play of Class II games and 
other technologic devices that are ``electronic or electromechanical 
facsimiles of a game of chance'' or slot machines.
    This approach is somewhat different from the approach taken by the 
previous Commission when it proposed a rule on Classification of Games 
in November 1999 (See 64 FR 61234). After considering the comments of 
tribes and the public to the proposal, the Commission withdrew the 
proposed rule in July 2002 (See 67 FR 46134). At that time, the 
Commission expressed the view that the proposed rule would have more 
likely satisfied the concerns of all had there been greater opportunity 
for tribal input during its development. The Commission recommended 
that for any future such rulemaking, a tribal advisory committee be 
established to advise the Commission as to the nature and content of 
such a rule.
    As the Commission worked through a process to develop these 
classification standards, it became apparent that the revised 
definitions issued by a divided Commission in June 2002 (See 67 FR 
41166) did not provide the clarity that had been a goal in that 
rulemaking. Accordingly, the Commission proposes further revisions to 
the definitions for the terms ``electronic or electromechanical 
facsimile'' in a separate rulemaking, as well as revisions to the 
definitions of facsimile herein that incorporate part 546.
    In a related matter, the Commission is also developing specific 
technical standards for Class II ``electronic, computer and other 
technologic aids'' utilized in Indian gaming operations. These 
technical standards will be presented in a separate proposed rule.

II. Development of the Proposed Rule Through Consultation With Indian 
Tribes

    In recognition of tribal sovereignty and the fundamental importance 
of game classification to the operation and regulation of gaming on 
Indian lands under IGRA, the Commission developed a policy and process 
for consultation with Indian tribes that would provide opportunity for 
early and meaningful tribal input regarding formulation of these 
proposed Class II gaming regulations.
    In particular, while initially advising tribes of the Commission's 
intention to develop these Class II Game Classification Standards, the 
Commission also actively consulted with tribes regarding formulation of 
the Commission's first-ever official government-to-government tribal 
consultation policy. After several months of consultation with tribes, 
the Commission's official tribal consultation policy was adopted and 
published in the Federal Register on March 31, 2004 (See 69 FR 16973). 
The Commission purposely established this policy in order to have 
consultation policy guidelines in place for pre-rulemaking tribal 
consultation on the Class II classification standards and other planned 
Commission rulemaking initiatives.
    The Commission's tribal consultation policy calls for the 
Commission, to the extent practicable and permitted by law, to engage 
in regular, timely, and meaningful government-to-government 
consultation with Indian tribes when formulating proposed new or 
revised administrative regulations that may substantially affect the 
operation or regulation of gaming on Indian lands. To fulfill this 
policy commitment to consult with tribes on these proposed Class II 
regulations, the Commission devised a three-part plan to afford tribes 
a reasonable and practicable opportunity to consult with the Commission 
and to provide early input in formulation of the regulations before 
they were published as proposed new rules in the Federal Register and 
the actual rulemaking process began.
    First, the Commission endeavored to consult in person at least 
twice with each gaming tribe between May 2003 and March 2006 regarding 
development of these proposed regulations. During this time period, the 
Commission sent out over 500 separate invitations to individual tribes 
to consult with the Commission and provide input. Many tribes accepted 
one or more of the Commission's invitations to consult during this pre-
rulemaking period and participated in separate government-to-government 
consultation meetings with the Commission regarding the proposed 
regulations and other matters. While some tribes declined the 
Commission's invitation(s) to consult, between May 2003 and March 2006 
the Commission conducted over 300 separate

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government-to-government consultation meetings with individual tribes 
and their leaders or representatives regarding development and 
formulation of these proposed regulations.
    Second, the Commission established a joint Federal-Tribal advisory 
committee on March 31, 2004, composed of both Commission and tribal 
representatives to assist the Commission in formulating these proposed 
Class II gaming regulations. In January 2004, the Commission requested 
all gaming tribes across the country to nominate tribal representatives 
to serve on this advisory committee. From the tribal nominations 
received, the Commission selected the following seven tribal 
representatives on March 31, 2004, to serve on the committee: Norm Des 
Rosiers, Gaming Commissioner, Viejas Band of Kumeyaay Indians; Joseph 
Carlini, Gaming Commission Executive Director, Agua Caliente Band of 
Cahuilla Indians; Kenneth Ermatinger, Gaming Commission Executive 
Director, Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Jamie 
Hummingbird, Gaming Commission Director, Cherokee Nation, Oklahoma; 
Mark Garrow, Gaming Commission Inspections Manager, St. Regis Mohawk 
Tribe; Melvin Daniels, General Manager, Muckleshoot Indian Bingo, 
Muckleshoot Indian Tribe; Charles Lombardo, Sr. Vice-President for 
Gaming Operations, Seminole Tribe of Florida.
    To date, the advisory committee has held six (6) meetings: May 13, 
2004, in Washington, DC; August 2-3, 2004, Washington, DC; September 
13-14, 2004, Cherokee, North Carolina; December 1-3, 2004, Oklahoma 
City, Oklahoma; January 12-13, 2005, Palm Springs, California; and 
March 11, 2005, Chicago, Illinois. During these meetings, all of which 
were open to the public, the committee discussed the various 
characteristics of Class II and Class III games of chance, their play, 
and related gaming technology and methods. In addition, the Committee 
also discussed, reviewed, critiqued and commented on four (4) 
different, successive preliminary working drafts of the proposed Class 
II classification standards, which were prepared by the Commission 
representatives on the committee.
    The seven tribal committee representatives provided early tribal 
input and valuable insight, advice, and assistance to the Commission in 
developing each of the respective working drafts, as well as the 
current proposed regulations. Although there were many instances of 
accord, there were also many times during the development of the 
proposed regulations that the tribal committee representatives strongly 
disagreed with decisions made by the Commission.
    In particular, tribal representatives strongly advocated automatic 
daubing (covering) for the entire game of bingo; elimination of any 
time delays for either adding players or covering in bingo; elimination 
of any requirement for multiple bingo draws or releases; authorization 
of wholly electronic pull-tab games; and no change to the current rule 
definition of ``electronic or electromechanical facsimile'' of games of 
chance. While understanding the tribal representatives' position on 
these issues and their general desire to assure that the games are 
economically viable, the Commission is bound by Congress's intent, as 
expressed in IGRA, to promulgate rules that clearly distinguish 
technologically-aided Class II games from Class III ``electronic or 
electromechanical facsimiles of any game of chance'' or ``slot machines 
of any kind.'' Accordingly, the Commission concluded that it could not 
accept some of the tribal representatives' recommendations in 
formulating proposed rule.
    The Commission's establishment of the joint Federal-Tribal advisory 
committee was the subject of a legal challenge while the Commission was 
preparing the proposed rule for publication.
    On March 10, 2005, nearly one year after the Commission established 
the committee, the Confederated Salish and Kootenai Tribes of the 
Flathead Nation and the Santa Rosa Rancheria Indian Community filed 
suit against the Commission alleging that several of the committee 
members were not eligible to participate on the committee. Following a 
hearing in Federal court, at which the request for temporary 
restraining order was denied, the Commission determined that it should 
proceed to publish the proposed rule for comment while the legal 
standing of the committee was further litigated. The Commission also 
sought clarification from those tribes nominating the committee members 
concerning the member's role as an official representative of the 
tribe. As a result of this clarification, and, out of an abundance of 
caution, the Commission regretfully requested that two members of the 
Committee step down.
    The third component of the Commission's effort to consult with 
tribes during the development of these proposed regulations was to make 
the various preliminary working drafts of the proposed regulations 
available to all tribes and their leaders for review and comment 
independent of the joint Federal-Tribal advisory committee. All five 
preliminary drafts were published on the Commission's Web site. In 
addition, the third and fourth preliminary drafts were successively 
mailed to each tribe inviting written comment. Many tribes and the 
public submitted written comments on these respective working drafts. 
The tribal comments were shared with the members of the advisory 
committee for their review and carefully considered by the Commission 
in formulating these proposed regulations.
    In addition to forming the advisory committee, scheduling and 
conducting individual tribal consultation meetings and advisory 
committee meetings, and requesting and considering written tribal 
comments to preliminary drafts of the proposed regulations, the 
Commission also facilitated further pre-rulemaking consultation with 
tribes by other means. In particular, the Commission attended and 
addressed several different assemblies of tribal leaders and tribal 
gaming operators and regulators at meetings and conferences between 
January 2003 and March 2006 organized by state and regional tribal 
gaming associations, the National Indian Gaming Association, and the 
National Congress of American Indians. At these meetings and 
conferences, the Commission advised tribal leaders of its intention and 
plan to develop these regulations and provided periodic updates 
regarding the progress and status of the regulations development. The 
Commission also made itself available at these meetings to answer any 
questions from tribal leaders regarding the proposed regulations or 
their formulation.
    In addition, the Commission also met individually with several 
tribes and their leaders in its Washington, DC, offices, at each 
tribe's request, to discuss these proposed regulations and their 
formulation and implementation.
    Through each of these various means, the Commission actively 
endeavored to provide all tribes with a reasonable and practical 
opportunity over the past twenty-six months to meet and consult with 
the Commission on a government-to-government basis and provide early 
and meaningful tribal input regarding the formulation and 
implementation of these proposed regulations.
    By April of 2005, the Commission was prepared to send the fifth 
draft to the Federal Register for publication as a proposed rule. 
However, the Department of Justice (``DOJ'') contacted the Commission 
and expressed concern that the draft regulations might not be 
consistent with the Johnson Act. The Commission spent five months 
meeting

[[Page 30241]]

with DOJ to resolve its concerns. As a result of these meetings the DOJ 
drafted amendments to the Johnson Act. Following several consultation 
sessions with Tribes the DOJ sent the draft amendments to the Office of 
Management and Budget earlier this year. So much time has elapsed that 
it is not likely that the proposed legislation will pass the 109th 
Congress. The need to regulate Class II technologic aids has not 
diminished and the Commission is compelled to proceed with these 
regulations. The proposed regulations differ from the fifth draft that 
was provided to the public in April of 2005. The changes to that draft 
are a result of the Commission addressing the concerns of DOJ that 
these regulations clearly distinguish between Class II and Class III 
games. These changes relate to the size of the bingo card as well as 
the time period for the release of numbers. Additionally, the proposed 
changes require a fixed written notification to the player that the 
game they are playing is a game of bingo, a game similar to bingo, or a 
game of pull tabs. Finally, they prohibit pull tab machines from paying 
winnings in any form.

III. Purpose and Scope

    The proposed revision to the current definitions regulation and the 
proposed classification regulation are intended to clarify terms used 
by the Congress to define Class II gaming under IGRA. Through a 
separate regulation, the Commission has proposed to revise the current 
definitions. The change to the definition for the terms ``electronic or 
electromechanical facsimile'' and ``other games similar to bingo'' 
provides consistency and clarity in understanding Class II gaming 
concepts intended by Congress. The classification standards serve to 
distinguish the use of ``electronic, computer, or other technologic 
aids'' in the play of Class II bingo, lotto, ``other games similar to 
bingo,'' pull tabs, and instant bingo from the play of Class III gaming 
machines.
    These standards focus on the play of bingo, lotto, and ``other 
games similar to bingo'' when these games are played through an 
electronic medium using ``electronic, computer, or other technologic 
aids.'' The Commission's intent with classification standards is not to 
prescribe rules for how a tribal gaming operation conducts its live 
session bingo. The only exception to this general approach is when a 
tribal gaming operation conducts its live session bingo exclusively 
through networked electronic player stations when these devices 
essentially perform all the functions of bingo play normally undertaken 
by the players. Games played in such a manner on these electronic 
player stations are included within the parameters of bingo, lotto, and 
``other games similar to bingo'' games played through an electronic 
medium addressed in the Classification Standards.
    These standards apply only in bingo, lotto, other games similar to 
bingo, pull-tabs, and instant bingo played primarily through an 
electronic medium. They apply only to the electronic format because in 
an electronic format it becomes too easy to use features such as the 
instantaneous, rather than serial, release of numbers and the automatic 
covering (daubing) of those numbers on a player's electronic card as a 
pretext to fundamentally change or distort the nature of the game such 
that it becomes an ``electronic facsimile'' of the game. In live 
session bingo, the pace and style of the game will normally preclude 
such distortions.
    In many respects, the current generation of electronic bingo games 
shows features that turn bingo on its head. Many games offer players 
the opportunity to play with as few as one other player in games where 
the object is to obtain and cover one or more ``interim'' prize 
patterns which offer significant monetary reward. The game-winning 
pattern is more often than not a pattern with a low-value, 
inconsequential prize. The machines, offered as ``technologic aids'' to 
the play of bingo, are often designed to play close to the line by 
using alternative displays of the game results to resemble the 
experience of a slot machine for the player. This is not inherently 
wrong nor does it necessarily make such machines Class III devices. But 
it does make them more difficult to distinguish from Class III devices.
    Faced with the explosion of these ``technologic aids'' on the 
floors of Class II gaming facilities, or on the floors of Class III 
gaming facilities as an exception to the number of slot machines 
authorized for the facility under a tribal-state compact, the 
Commission has determined that some bright-line classification 
standards must be developed to distinguish Class II games from the slot 
machines they mimic. The standards interpret in operational terms 
Congress's prescribed legal criteria for Class II bingo, lotto, and 
other games similar to bingo. As to pull-tabs and instant bingo, the 
standards fully embrace the Federal court decisions that have dealt 
with the technologic aids to the game. The standards demand in some 
cases, and prohibit in others, certain play features. In short, the 
purpose in describing play features is to distinguish the play of these 
``technologic aids'' from the play of ``electronic facsimiles of a game 
of chance or slot machines of any kind,'' which is Class III gaming 
under the IGRA. The standards clarify the terms Congress used when it 
defined Class II gaming, not knowing the full potential of modern 
technology that could be brought to the industry.
    IGRA defines Class II bingo with three statutory criteria. It is 
the game of chance commonly known as bingo * * *
    (1) Which is played for prizes, including monetary prizes, with 
cards bearing number or other designations;
    (2) In which the holder of the card covers such numbers or other 
designations when objects, similarly numbered or designated, are drawn 
or electronically determined; and
    (3) In which 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). The game of ``lotto'' and ``other games similar 
to bingo'' were not defined in the Act. The terms were defined in 1992 
by the Commission as having the same requirements as bingo. The term 
``other games similar to bingo'' was also defined by the 1992 
Commission as requiring that the games could not be house-banked. In 
reviewing the definition of ``other games similar to bingo,'' the 2002 
Commission retained this non-house-banked requirement but only 
described these games as a variant of bingo. What constituted a 
``variant'' was not explained. Furthermore, the Commission in its 
advisory opinions has been unable to identify what constitutes a 
variant of bingo. It has only described what is not a variant--e.g., a 
pre-drawn bonanza bingo game.
    IGRA also allows for advances in technology to aid the way the game 
is played. Speaking on another aspect of the game, the U.S. Court of 
Appeals for the Ninth Circuit observed that bingo is not necessarily 
the ``traditional'' game that ``was played in our childhoods or home 
towns.'' 223 F.3d 1091,1096 (9th Cir. 2000). At the same time, IGRA has 
not changed. In it, Congress delegated to NIGC the task of implementing 
the Act's provisions. The three statutory criteria for bingo must 
continue to be the fundamental principles on which a Class II 
classification is based. It is this balance between capitalizing on 
technological advances while continuing to give IGRA's definitions 
meaning that the NIGC is attempting to strike in these Classification 
Standards. These standards explain the statutory criteria and represent 
the Commission's

[[Page 30242]]

effort to distinguish Class II bingo, lotto, and ``other games similar 
to bingo'' from Class III gaming.
    The Commission also addresses the games of pull tabs and ``instant 
bingo'' in the classification standards. These games are not defined in 
IGRA, but have been discussed in Federal court cases. These cases 
provide guidance for distinguishing the Class II versions of these 
games from ``electronic and electromechanical facsimiles'' of the games 
which are Class III. The Classification Standards specifically rely on 
this case law.
    Finally, these regulations address a problem highlighted by the 
Commission in 2002, but left unresolved. As noted by the Commission, 
the process for classifying games has been an imperfect process. Under 
the current informal process, the Commission's Office of General 
Counsel issues advisory classification opinions. Often these are 
obsolete as soon as they are released. Looking forward, electronic 
games change much too rapidly to encourage dependence on a small legal 
staff to provide the appropriate classification guidance. The advisory 
opinions also suffer from major drawbacks. For example, it is sometimes 
difficult to identify whether the games described in the advisory 
opinions are the same games as those that are offered for play in a 
tribal gaming facility. In addition, the advisory opinions are not 
final agency action and therefore are not subject to judicial review.
    A second method for classifying games, the issuance of a Notice of 
Violation and Closure Order, while subject to judicial review, also has 
drawbacks. This formal enforcement process is often slow and expensive, 
forces tribes to defend games they often believe in good faith are 
permissible games, and can result in decisions that have little impact 
on the new games that replace those that are the subject of the 
enforcement action.
    A third method, leaving the decision entirely to tribal gaming 
commissions, has other problems. Decisions are sometimes inconsistent 
with those of other commissions. Disagreements between tribes and 
states arise, and all of the concerned parties, including 
manufacturers, as a practical matter need a central authority to decide 
what games can be played as Class II.

Definitions in Part 502

a. ``Electronic or Electromechanical Facsimile''
    The Commission proposes to revise the definition for ``Electronic 
or electromechanical facsimile'' contained in Sec.  502.8. The revision 
clarifies that games under this section that comply with part 546 are 
not electronic or electromechanical facsimiles of any game of chance.
b. ``Other Games Similar to Bingo''
    The Commission proposes to revise the definition for ``other games 
similar to bingo'' contained in Sec.  502.9. The revision to the 
definition shifts the focus for the classification determination in an 
other game similar to bingo from whether the game is house-banked to 
whether the game has players competing against other players for the 
prizes. The revision removes the requirement, not present in IGRA, that 
these games not be house-banked. The revision also strengthens the 
requirement that the games involve players competing against other 
players for a common prize or prizes.
    As to house banking, IGRA defines as Class II bingo and, if played 
in the same location, pull-tabs, punch boards, tip jars, and games 
similar to bingo, but makes no requirement that any of these games be 
house-banked, or not be housed-banked. IGRA's only requirement about 
the banking of Class II games is to exclude house-banked card games 
from the definition and make them Class III. Congress has, in other 
words, defined both bingo and games similar to bingo as Class II, 
regardless of how they are banked. Some, but not all bingo games are 
played in a house-banked format. Accordingly, the Commission proposes 
to remove the limitation on house-banking for games similar to bingo as 
inconsistent with IGRA.
    The revision maintains that part of the definition that describes 
``other games similar to bingo'' as variants of bingo. Proposed Part 
546 explains what variants are contemplated.

IV. Definitions for 25 CFR Part 546

    The Commission proposes definitions for terms not previously 
defined in its regulations. These definitions apply only to these terms 
as used in the proposed Part 546 and do not necessarily have other 
general application.
    The Commission defines what is a ``game'' of the ``game of chance 
commonly known as bingo'' or ``other games similar to bingo'' so that a 
player will know when the game begins, when the game ends, and what the 
player must do to participate and win in an individual game. Each bingo 
game should have a distinct reference number visible on the screen at 
each player station and used subsequent to the game to track game play 
and results.
    The Commission has previously defined the game of ``lotto'' as a 
game played in the same manner as bingo. 25 CFR 502.3. Accordingly, the 
classification standards for bingo apply to ``lotto'' the same as they 
apply to defining bingo. The term ``lotto'' does not mean ``lottery'' 
in general or the type of lottery operated by various states and 
denominated ``lotto'' or some derivative thereof.
    The Commission defines ``the game of pull tabs'' and ``electronic 
pull tab'' using terminology commonly accepted in the federal courts. 
See Cabazon Band v. NIGC, 827 F. Supp. 26, 28 n. 2(D.D.C. 1993), aff'd 
14 F.3d 633 (D.C. Cir. 1994).
    The Commission defines the term ``instant bingo'' by relying on 
federal case law. See Julius M. Israel Lodge of B'nai B'rith v. 
Commissioner of Internal Revenue, 98 F.3d 190 (5th Cir. 1996). In its 
decision, the court set out some fundamental differences between bingo 
and instant bingo. Using common definitions of bingo from dictionaries, 
the court stated:

    The taxpayer's Instant Bingo is devoid of the critical element 
of bingo that runs through these ordinary, everyday definitions--
that players place markers over randomly called numbers in an 
attempt to form a preselected pattern. Instant Bingo involves only 
the player's purchase of a prepackaged card * * *, and winning cards 
are those in which the preprinted appearance of numbers on the front 
of the card * * * matches the preprinted winning arrangement 
indicated on the reverse side of the card * * *.

Julius M. Israel Lodge of B'nai B'rith, 98 F. 3d at 192-93.
    The Commission defines the terms ``bonus prize'' and ``progressive 
prize'' in bingo, lotto, or other games similar to bingo to distinguish 
them from the game-winning prize. See the discussion below on prizes 
generally.

V. Criteria for Meeting the Class II Requirements for Bingo, Lotto, and 
Other Games Similar to Bingo Established by IGRA

    IGRA establishes three requirements in defining the game of bingo 
as a Class II gaming activity. The intent of the proposed rule is to 
clarify the terms used in this statutory definition when the game is 
played primarily though ``electronic, computer, or other technologic 
aids.'' In drafting the standards, the Commission has been careful to 
derive criteria from the statutory language.

[[Page 30243]]

VI. Bingo, Lotto, and Other Games Similar to Bingo Are Games Played for 
Prizes, Including Monetary Prizes, With Cards Bearing Numbers or Other 
Designations

    This section of the proposed rule deals with two essential elements 
of bingo, lotto and ``other games similar to bingo'': Cards and prizes. 
It offers criteria for the card so that it is visible and useful to the 
game. It explains criteria for prizes but permits a wide variety of 
prizes for a game.

Cards

    Central to the game of bingo is that participants play the game on 
bingo-faced cards and compete against other players to win prizes in 
the game. Pursuant to IGRA's second statutory element, players cover 
numbers or other designations on their cards ``when'' those numbers or 
other designations are drawn. This necessarily means that the player 
has the card in her possession before the numbers are drawn. This also 
means that players cannot change cards once the game begins and the 
numbers are being drawn and displayed, although they certainly may do 
so before a new game starts.
    There is no statutory requirement that bingo be played with paper 
cards as in a traditional bingo game. In fact, case law and NIGC's 
regulations provide that Class II bingo games may be played with 
electronic cards. The U.S. Court of Appeals for the Tenth Circuit, in 
U.S. v. 162 Megamania Gambling Devices, 231 F. 3d 713 (10th Cir. 2000), 
ruled that a game, Megamania, was Class II because it met the three 
statutory criteria for bingo, among them, that the game ``is played 
with an electronic card that looks like a regular paper bingo card 
containing a grid of numbers * * *'' Id. at 719. The Ninth Circuit also 
affirmed the Class II status of Megamania, observing that the game 
consisted of ``electronic game 'cards.''' U.S. v. 103 Electronic 
Gambling Devices, 223 F. 3d 1091, 1093 (10th Cir. 2000). NIGC's 
regulation on technologic aids, 25 CFR 502.7(c), explicitly names 
``electronic cards for participants in bingo games'' as an example of 
an aid, which is allowable for Class II games under 25 CFR 502.3(a).
    Because bingo is a game played with the cards, the cards must be 
clearly visible to the player on the video screen of the ``electronic, 
computer, or other technologic aid'' displaying the card. In order to 
ensure visibility the Commission proposes that the screen always 
display a card that is at least one half the available space on the 
screen. A larger card would be useful for better visibility, but the 
Commission recognizes that the stated minimum size serves the purpose 
of having a visible card and at the same time allows flexibility for 
placing other information and features on the video screen.
    In the traditional ``game of chance commonly known as bingo,'' the 
card contains a grid of 25 spaces in 5 horizontal rows and 5 vertical 
columns. This is not clearly stated in the statute although it is the 
norm for the game. The Commission believes that a game using other than 
25 spaces placed in a 5 by 5 grid would more properly be considered an 
``other game[s] similar to bingo.'' While a previous Commission 
explained that the bingo game would not be limited to a grid of 5 rows 
and 5 columns, in giving meaning to the term ``other games similar to 
bingo,'' the Commission now believes Congress had in mind a traditional 
bingo card when it drafted the sections on Class II bingo since it 
expressly referred to ``the game of chance commonly known as bingo'' 
when listing the statutory elements of the game.
    As a major variant from the game of bingo, for other games similar 
to bingo, the card has many possibilities. The only stated restriction 
is that each card must have at least three (3) spaces to be covered, in 
addition to any ``free space,'' because a winning pattern in the game 
must have at least three (3) spaces, as explained elsewhere in this 
preamble.
    Each card must have unique numbers or other designations that 
appear only once on the card. This means a number could appear twice, 
so long as a qualifying factor such as color established the unique 
character, e.g., a ``blue 5'' and a ``red 5'' could both appear on the 
card but each would be unique. The unique number or designation can 
appear only once in order to give meaning to game play. The term 
``other designations'' includes letters, figures or symbols.
    Except as noted below, the card must always be displayed for the 
player in a clear and visible manner. If multiple bingo cards are in 
use by a player, the player station must have capability to display for 
the player on the video screen any of the bingo cards being used by the 
player in the game during play. Before game play, a single card may be 
shown. During game play, if only one card is shown, the default card 
being shown will be the card closest to a bingo win or the card with 
the highest value prize, if a winning card, with each such card display 
meeting the specified visibility requirements. At the end of the game, 
a player must have the option of reviewing all the cards used by the 
player in the game.
    An exception to the requirement that the card must always be shown 
is made for alternative display during a graphical display presented as 
a second screen during a bonus prize round which is intended for 
entertainment only. The screen will return to its normal display, 
including a card, at the conclusion of the round.
    The card may contain one free (covered) space without a specified 
number or other designation, provided the free space is located 
identically on every card in play or available to be played in the 
game.
    When the Commission issued regulations in 1992, it recognized that 
Congress did not intend to limit bingo to its classic form and that, if 
it had, Congress could have spelled out further requirements such as 
cards having the letters B I N G O across the top with numbers 1-15 in 
the first column, etc. See 57 FR 12382 (April 9, 1992). This early 
rulemaking was not specifically directed at distinguishing between play 
of bingo on electronic player stations from the play of a Class III 
electronic facsimiles or slot machines. The Commission also found that 
in defining Class II to include games similar to bingo, Congress 
intended to include more than bingo in its classic form in that class.
    This interpretation, however, begs the question of what IGRA meant 
by the phrase ``game of chance commonly known as bingo.'' In 
differentiating between bingo and other games similar to bingo, the 
Commission now understands that Congress did intend bingo to be played 
in its ``classic form'' (i.e., its common form) which includes the 
traditional 25 space card but that tribes should also be able to take 
advantage of modern technology to play the game. Accordingly, the 
proposed rule clarifies that bingo played in an electronic medium 
through an ``electronic, computer or other technologic aid'' will be 
played on the classic bingo card, but this may be an electronic card.
    ``Other games similar to bingo'' are games that are bingo-like and 
would not necessarily be played on the classic form of bingo card. With 
the corresponding change to the definition of ``other games similar to 
bingo'' set out in this proposed rule, the Commission believes it is 
not taking a step back on what is included within Class II but giving 
correct meaning to the terminology. Bingo is played on a classic card; 
games that are similar to bingo, but still Class II, can be played on 
non-traditional cards.

[[Page 30244]]

    This is consistent with the holdings in the MegaMania cases. As the 
Tenth Circuit noted:

    In this case, MegaMania meets these three criteria. Specifically 
it is played with an electronic card that looks like a regular paper 
bingo card containing a grid of numbers and the first persons to 
cover a previously designated arrangement of numbers--in this case 
five straight line spaces and the necessary corner spaces--wins a 
monetary prize.

U.S. v. 162 Megamania Gambling Devices, 231 F. 3d 713, 719 (10th Cir. 
2000).

Prizes

    Because bingo is ``played for prizes'' and ``won by the first 
player'' covering, the winning prize must have meaningful value 
compared to the entry fee for the game. The Commission believes that 
while this prize need not be the highest value prize in the game, or be 
greater than the amount wagered, it should have significant value. 
Accordingly, the Commission places a value of at least 20% of the 
amount wagered and one cent as the minimum value for a game-winning 
prize.
    Other prizes, referred as to ``bonus prizes'' and ``progressive 
prizes,'' to distinguish them from ``game winning prize,'' may also be 
awarded based on a player completing another pre-designated pattern 
during the game. Each such designated pattern or arrangement must also 
be disclosed to the players upon request before the game begins.
    A bonus prize is a prize awarded in a game in addition to the game-
winning prize. The prize may be based on different pre-designated and 
pre-announced patterns than the game-winning pattern, may be based on 
achieving a winning pattern in a specified quantity of numbers or 
designations drawn or electronically determined and released, or based 
on a combination of these conditions. The bonus prize may also be 
limited by game rule to obtaining the required pre-designated pattern 
in a specified quantity of numbers or other designations released 
before the game-winning pattern is obtained by a player in the game. 
Bonus prizes take two forms: Interim and consolation. Interim prizes 
are prizes won before or at the same time the game winning prize is won 
but based on the player covering a pre-designated pattern other than 
the pre-designated winning pattern. Consolation prizes are won by 
another player in the game after the winning player successfully covers 
the pre-designated game-winning pattern. The difference is that 
consolation prizes require an additional release of numbers or other 
designations.
    In bingo, lotto, and ``other games similar to bingo,'' the game is 
``won'' by the first player covering the pre-designated winning 
pattern. Consequently play must stop, or pause, when the last number or 
other designation that forms the pre-designated game-winning pattern is 
released to the players for the game-winning player to cover the 
pattern, announce bingo, and claim the win. A player may win an interim 
prize using the quantity of numbers or other designations necessary to 
form the game winning pattern or a lesser quantity of such numbers or 
other designations and claim that prize at the same time the game-
winning player claims the game-winning prize. However, another release 
of numbers or designations is required for the players remaining in the 
game to receive the numbers or other designations that appear on their 
card(s) and try to obtain the pre-designated pattern for a consolation 
prize(s), assuming the game does not end with the award of the game-
winning prize and continues through one or more consolation prize 
rounds.
    Under the proposed regulation, each game must provide an equal 
chance of obtaining any winning pattern for each card played by an 
active player in the game. The probability of achieving any particular 
pre-designated winning pattern must be the same for all cards played in 
a game and may not vary based on the amount wagered except that a 
minimum wager may be established as a condition of eligibility to win a 
progressive prize. All prizes in the game must be fixed in amount or 
established by formula and disclosed to all participating players in 
the game. Prizes that are not fixed or established by formula, i.e., 
prizes that are random or unpredictable, are not permitted.
    The Commission recognizes that game designers may establish various 
wagering levels in a game. This is permissible provided that all 
players in the game are eligible to compete for all winning patterns in 
the game. The higher wager or entry fee can result in a higher value 
prize but that prize must be based on a pattern or patterns available 
to all players. For example a player entering a game at the one credit 
wager level could cover a particular pattern and win a five (5) credit 
prize, but another player entering at the ten (10) credit level could 
win a higher multiple of the prize based on covering the same pattern.
    A multiplier to the prize or other bonus based on a winning pattern 
containing a specified number or other designation is permitted. 
Similarly, the order of, or quantity of, numbers or other designations 
randomly drawn or electronically determined may affect the prize 
awarded for completing any previously designated winning pattern in a 
game.
    Prizes may not be based on an event not directly related to bingo 
play, such as the spinning of a wheel with eligibility to spin having 
been determined by a player obtaining and covering a specific pattern 
in the game. This subsequent ``chance'' event is not bingo, lotto, or 
an ``other game[s] similar to bingo'' and is not a Class II gaming 
activity. Consequently, it follows that prizes must be established 
before the game begins. A ``second screen'' or ``bonus round'' feature 
is permitted, however, provided the round is for entertainment only and 
the prize was determined through the play of the underlying game of 
bingo, lotto or other game similar to bingo before the bonus round 
commenced. An alternative display may show the award of free games.
    A progressive prize is an established prize for a game, funded by a 
percentage of each player's buy-in or wager, that is awarded to a 
player for obtaining a specified pre-designated and pre-announced 
pattern within a specified quantity of numbers or designations randomly 
drawn and released or electronically determined, or randomly drawn and 
released or electronically determined in a specified sequence. If the 
progressive prize is not won in a particular game, the prize must be 
rolled over to each subsequent game until it is won. The progressive 
prize is thus increased from one game to the next based on player buy-
in or wager contributions from each qualifying game played in which the 
prize is not won. All contributions to the progressive prize jackpot 
must be awarded to the players. A winning pattern for a progressive 
prize is not necessarily the same as the game-winning prize pattern.
    The method of determining the winner of a progressive prize in a 
game must be based only on the play of the game of bingo and may not be 
based on events outside the random selection of numbers or other 
designations and the action of the competing players to cover such 
numbers or other designations on their respective cards to achieve the 
pre-designated winning patterns in the game. As an example, an 
acceptable basis for awarding a progressive prize would be for the 
winning player to obtain a winning bingo pattern in the first five 
numbers drawn in the exact order in which they are drawn.

[[Page 30245]]

    A pattern used to establish the progressive prize must be a pre-
designated pattern that can be obtained by all players in the game. The 
game may provide that only players wagering at or above a certain entry 
level are eligible to win the progressive prize associated with that 
pattern. However, other participants in the game not playing at the 
required minimum entry level to win the progressive prize must be 
eligible to win some other prize if the pre-designated pattern is 
obtained and covered by that player, and the prize claimed.
    Progressive awards with only one participating player station, 
usually called ``stand-alone progressives'' or ``personal 
progressives,'' are not permitted in Class II bingo, lotto, or other 
games similar to bingo played through an electronic medium. In 
``personal progressives,'' eligibility to participate and win is based 
upon some identifying factor, such as a player tracking card. As an 
example, a prize for the lone eligible player might be greater on the 
player's 1000th game or a game between 500 and 600 as determined by a 
random number generator. These formats introduce an additional element 
of chance into the prize award not involved in the play of the game by 
all the participants in the game and, thus, fall outside the definition 
of Class II gaming.
    ``Mystery Jackpots,'' where winners are determined from events 
outside the play of game, e.g., a format in which a player's bet causes 
a hidden jackpot amount to be exceeded thus enabling the player to play 
for that jackpot, are not permitted. In this format, an event outside 
the play of bingo, lotto, or an other game similar to bingo triggers 
the unique prize award for that player.
    A ``gamble feature,'' sometimes called a double up, double play, or 
double pay, etc., may not be used with Class II bingo, lotto, or other 
games similar to bingo played through an electronic medium. They are a 
pretext to alter the fundamental concepts under the IGRA by which 
prizes in a bingo or lotto game or an other game similar to bingo are 
awarded. These prize multipliers provide the opportunity, after the 
completion of the game, for a separate ``double or nothing'' wager. As 
such, they do not fall within the definition of Class II games.
    Similarly, a separate game or wager to convert the fractional 
amount left in player credits to either the coin value of the game or 
nothing, often called ``residual credit removal,'' does not fall within 
the definition of Class II gaming. These credits must stay on the 
player station credit meter for use by the current or a subsequent 
player until their accumulated value reaches the coin value of the 
game.
    The award of additional ``free'' games as a marketing tool is 
permitted so long as all players that participated in the game that 
initiated the prize of a free game or games receive the same number of 
free games. This is not considered to be the award of a prize outside 
the play of the game. Essentially, as part of its marketing program, 
the house determines that all players in a particular game will receive 
additional game credits to use in later games.
    Finally, a tribal gaming operation may in its discretion offer 
extraneous marketing prizes such as a ``good neighbor prize'' awarded 
to the player sitting next to a player winning a large jackpot 
progressive prize. This prize is not the result of consideration paid 
by the player winning the progressive or by the player winning the good 
neighbor prize. It is merely the gaming operation exercising a 
marketing decision.

VII. Bingo, Lotto, and Other Games Similar to Bingo Are Games in Which 
the Holder of the Card Covers the Numbers or Other Designations on the 
Player's Card When Objects Similarly Numbered or Designated Are Drawn 
or Electronically Determined

    In the game of chance commonly known as bingo, numbers or other 
designations are drawn from a pool of 75 such numbers or other 
designations. The term ``designations'' can mean letters or figures and 
may include attributes such as color which provide a unique quality to 
a number, letter, or figure that is used more than once in the game. 
The random draw or electronic determination of the numbers or other 
designations must be from a non-replaceable pool, meaning that, for 
each game, the numbers or other designations randomly drawn or 
electronically determined are not put back in the pool to be drawn 
again in that game. For example, if the number B-15 is drawn or 
electronically determined, it cannot be used again in that game. At the 
end of the game, all numbers or other designations are returned to the 
pool to be drawn in the next game.
    In bingo and lotto, the use of a non-replaceable pool of 75 numbers 
or other designations is matched with a card containing 25 non-
repeating spaces. For ``other games similar to bingo'' the Commission 
believes that the non-replaceable pool of numbers or other designations 
must consist of a number greater than the number of spaces on the card 
to be used in the game.
    A common draw or electronic determination of numbers or 
designations may be utilized for separate games that are played 
simultaneously.
    In bingo, lotto, and ``other games similar to bingo'' played 
through an electronic medium, cards containing pre-covered numbers or 
designations cannot be used. The term ``pre-covered numbers or 
designations'' means that the numbers or designations were selected 
before an individual game begins or before players accept the card or 
cards each will play and are marked as having been covered. 
Accordingly, the proposed rule provides that numbers must be selected 
in real time during the game, as part of the game, and not drawn early 
and stored for later use. No exception is made for ``bonanza bingo'' 
style games, although the Commission acknowledges that this form of 
play may be found in live session bingo play.
    Under IGRA, a game is Class II bingo only if players are required 
to cover the numbers or other designations on their cards in ``real 
time'' (the actual time that it takes a process to occur) or ``near 
real time'' response to those numbers or other designations being 
drawn, and if the first person to cover a designated pattern of those 
numbers or other designations on a card held by that player wins the 
game. The requirement that a player cover when objects are drawn means 
that games that use pre-drawn numbers cannot constitute bingo or an 
other game similar to bingo. Some have argued that for the purposes of 
IGRA ``when'' means ``after'' and that it should not matter how long 
after balls are drawn that the card is daubed, thus allowing for pre-
drawn numbers. This is contrary to the common meaning of the word 
``when.'' Webster's Collegiate Dictionary (10th ed.) defines the 
conjunction ``when'' as:

    1a: at or during the time that: WHILE * * * b: just at the 
moment that * * * c: at any or every time that * * * 2: in the event 
that: IF * * * 3a: considering that * * * b: in spite of the fact 
that: ALTHOUGH * * * 4: the time or occasion at or in which * * *.

    This definition is counter to the proposition that ``when'' means 
``at any point after.''
    The random draw by either a bingo blower or some other method where 
numbers are ``electronically determined'' must occur in real time or 
very near in real-time to the actual play of the particular bingo game. 
The act of covering the numbers must occur in close proximity to the 
drawing of those numbers or in real time. Allowing a game time to 
distribute numbers through a network of terminals to help ensure 
continuity of fast paced

[[Page 30246]]

electronic bingo games would be logical. In the Commission's view, 
however, consistent with statutory intent, such ``near real-time'' play 
contemplates only the lapse of a minimal period of time necessary to 
accomplish these objectives. This time period would be measured in 
seconds, not minutes or hours.
    In games with pre-selected numbers or designations, the numbers or 
other designations are chosen by a random number generator at some time 
prior to the cards being sold and then the completed games are stored 
in the host computer and sold to players. By the time the player begins 
participating, the game has been played within the machine or a server 
for the network and the machine distributes the completed game to the 
player. The winning cards are determined at the time the computer draws 
the numbers and matches them against the existing deck, not during the 
course of play. Therefore, the bingo player is not ``covering'' a 
previously designated arrangement and the ``covering'' is not happening 
``when'' the objects are drawn.
    An acceptable ``electronic, computer, or other technologic aid'' to 
the play of bingo, lotto, or ``other games similar to bingo'' could 
include the capability for the player to cover all of the numbers or 
other designations drawn and released to the point the player instructs 
the aid to perform the cover action on the electronic card used by that 
player in the game. In other words, the player does not have to touch 
each number or other designation on the card to cover the number, or 
use an electronic pen or ``dauber'' to mark each number or designation. 
Instead, the player can touch the screen or a designated button to 
perform this function. This action must occur after each release of 
numbers or other designations in the game because players must cover 
``when'' numbers or designations are released, as discussed above. (The 
numbers may be released in rounds, each round containing one number or 
a set of numbers. In a game designed in this manner, the required cover 
action by players must occur after each round or release of a set of 
numbers.)
    An ``electronic, computer or other technologic aid'' cannot employ 
a feature whereby the ``aid'' accepts instruction from the player at 
the beginning of the game to later cover (daub) the numbers that will 
be drawn in later rounds or releases of numbers or other designations 
This is sometimes referred to as total ``auto-daub'' meaning a feature 
incorporated into an aid to the play of bingo, lotto, or an other game 
similar to bingo that automatically performs the requirements for the 
player to cover (daub) numbers or designations on the player's 
electronic card. Use of this feature would mean players were not 
covering ``when'' those numbers were drawn and released. Similarly, the 
equipment would lose its character as an ``electronic, computer, or 
other technologic aid'' to Class II gaming and would become an 
``electronic facsimile'' of the game if it performed all of the 
``cover'' functions for the player without specific player direction or 
if it performed those functions following an instruction from the 
player to cover at some later point ``when'' and if the numbers other 
designations were drawn. The device would essentially play the game for 
the player. The player would merely start the game, watch play unfold, 
and be paid any amounts won without further action.
    It follows that a player should have a reasonable opportunity to 
cover the numbers or other designations after those numbers or other 
designations are released before forfeiting the use of the covered 
numbers or designations. The Commission believes a minimum time of two 
(2) seconds is appropriate in each round for players to have an 
opportunity to accomplish this function. If all players have covered 
sooner, the game may proceed.
    To ``sleep'' or to ``sleep a bingo'' means that a player fails, 
within the time allowed by the game: (i) To cover (daub) the previously 
released numbers or other designations on that player's card(s) 
constituting a game-winning pattern or other pre-designated winning 
pattern, or (ii) to claim the prize to which the player is entitled, 
having covered (daub