Electronic One Touch Bingo System, 37998-38000 [2013-15031]
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37998
Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Proposed Rules
The Supplemental Proposal
The FAA is proposing an amendment
to Title 14 Code of Federal Regulations
(14 CFR) Part 71 by further modifying
the size of the Class D airspace area at
Santa Monica Municipal Airport, Santa
Monica, CA, to accommodate IFR
aircraft departing and arriving at the
airport. The airspace would be
increased from a 2.7-mile radius to a 4mile radius of the airport, leaving the
extension to the northeast the same as
the NPRM. The geographic coordinates
of the airport would also be updated to
coincide with the FAA’s aeronautical
database. Expanding the current Santa
Monica Municipal Airport Class D
airspace would reduce those areas that
pose a high collision risk to low level
commercial, general aviation, military
and helicopter operations.
Class D airspace designations are
published in paragraph 5000, of FAA
Order 7400.9W, dated August 8, 2012,
and effective September 15, 2012, which
is incorporated by reference in 14 CFR
71.1. The Class D airspace designation
listed in this document will be
published subsequently in this Order.
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current.
Therefore, this proposed regulation; (1)
is not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this proposed rule,
when promulgated, would not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle 1,
Section 106, describes the authority for
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
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scope of that authority as it would
modify controlled airspace at Santa
Monica Municipal Airport, Santa
Monica, CA.
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1E,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the
authority delegated to me, the Federal
Aviation Administration proposes to
amend 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9W,
Airspace Designations and Reporting
Points, dated August 8, 2012, and
effective September 15, 2012 is
amended as follows:
■
Paragraph 5000
Class D airspace.
*
*
*
*
*
AWP CA D Santa Monica, CA [Modified]
Santa Monica Municipal Airport, CA
(Lat. 34°00′57″ N., long. 118°27′05″ W.)
That airspace extending upward from the
surface to and including 2,700 feet MSL
within a 4-mile radius of the Santa Monica
Municipal Airport and within 1.5 miles each
side of the 047° bearing of the Santa Monica
Airport extending from the 4-mile radius to
4.6 miles northeast of the airport, excluding
that airspace within the Los Angeles, CA,
Class D airspace area. This Class D airspace
area is effective during the specific dates and
times established in advance by a Notice to
Airmen. The effective date and time will
thereafter be continuously published in the
Airport/Facility Directory.
Issued in Seattle, Washington, on June 17,
2013.
Clark Desing,
Manager, Operations Support Group, Western
Service Center.
[FR Doc. 2013–15133 Filed 6–24–13; 8:45 am]
BILLING CODE 4910–13–P
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 502
Electronic One Touch Bingo System
National Indian Gaming
Commission.
ACTION: Request for Public Comment.
AGENCY:
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.
D Email comments to:
reg.review@nigc.gov.
D Mail comments to: National Indian
Gaming Commission, 1441 L Street
NW., Suite 9100, Washington, DC
20005.
D Hand deliver comments to: 1441 L
Street NW., Suite 9100, Washington, DC
20005.
D 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: reg.review@nigc.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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.
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Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Proposed Rules
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
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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
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37999
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
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Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Proposed Rules
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
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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
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket No. USCG–2013–0129]
RIN 1625—AA08
Special Local Regulations; Marine
Events, Spa Creek and Annapolis
Harbor; Annapolis, MD
Coast Guard, DHS.
Proposed rule; withdrawal.
AGENCY:
ACTION:
The Coast Guard is
withdrawing its proposed rule
concerning amendments to the regattas
and marine parades regulations. The
rulemaking was initiated to establish
special local regulations during the
swim segment of the ‘‘TriRock Triathlon
Series,’’ a marine event to be held on the
waters of Spa Creek and Annapolis
Harbor on July 20, 2013. The Coast
Guard was notified on May 21, 2013,
that the event had been cancelled.
DATES: The proposed rule is withdrawn
on June 25, 2013.
ADDRESSES: The docket for this
withdrawn rulemaking is available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet by going
to https://www.regulations.gov, inserting
USCG–2013–0129 in the ‘‘SEARCH’’
box, and then clicking ‘‘Search.’’
SUMMARY:
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If
you have questions about this notice,
call or email Mr. Ronald Houck,
Waterways Management Division,
Sector Baltimore, MD, U.S. Coast Guard;
telephone 410–576–2674, email
Ronald.L.Houck@uscg.mil. If you have
questions on viewing material in the
docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone
202–366–9826.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Background
On April 3, 2013, we published a
notice of proposed rulemaking entitled
‘‘Special Local Regulations; Marine
Events, Spa Creek and Annapolis
Harbor; Annapolis, MD’’ in the Federal
Register (78 FR 20066). The rulemaking
concerned the Coast Guard’s proposal to
establish temporary special local
regulations on specified waters of Spa
Creek and Annapolis Harbor at
Annapolis, MD, effective from 6 a.m. to
9:30 a.m. on July 20, 2013. The
regulated area included all waters of the
Spa Creek and Annapolis Harbor, from
shoreline to shoreline, bounded by a
line drawn near the entrance of Spa
Creek originating at latitude 38°58′40″
N, longitude 076°28′49″ W, thence south
to latitude 38°58′32″ N, longitude
076°28′45″ W. The regulated area is
bounded to the southwest by a line
drawn from latitude 38°58′34″ N,
longitude 076°29′05″ W thence south to
latitude 38°58′27″ N, longitude
076°28′55″ W, located at Annapolis,
MD. The regulations were needed to
temporarily restrict vessel traffic during
the event to provide for the safety of
participants, spectators and other
transiting vessels.
Withdrawal
The Coast Guard is withdrawing this
rulemaking because the event has been
cancelled.
Authority
We issue this notice of withdrawal
under the authority of 33 U.S.C. 1233.
Dated: June 3, 2013.
Kevin C. Kiefer,
Captain, U.S. Coast Guard, Captain of the
Port Baltimore.
[FR Doc. 2013–15092 Filed 6–24–13; 8:45 am]
BILLING CODE 9110–04–P
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]]>Agencies
[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Proposed Rules]
[Pages 37998-38000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15031]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: reg.review@nigc.gov.
[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: reg.review@nigc.gov.
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
