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10 October 2008
[Federal Register: October 10, 2008 (Volume 73, Number 198)]
[Rules and Regulations]
[Page 60508-60535]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc08-15]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 547
RIN 3141-AA29
Technical Standards for Electronic, Computer, or Other
Technologic Aids Used in the Play of Class II Games
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Final rule.
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SUMMARY: The rule adds a new part to the Commission's regulations
establishing technical standards for Class II games--bingo, lotto,
other games similar to bingo, pull tabs, and ``instant bingo''--that
are played using ``electronic, computer, or other technologic aids'' as
parts of a Class II gaming system. The rule establishes a process for
ensuring the integrity of such games and aids--examination by an
independent testing laboratory and approval by the tribal gaming
regulatory authority--before being made available to the public for
play in a tribal gaming operation. The standards will assist tribal
gaming regulatory authorities and operators in ensuring the integrity
and security of Class II gaming and the accountability of Class II
gaming revenue. The standards will also provide guidance to equipment
manufacturers and distributors of Class II gaming systems.
The rule does not attempt to distinguish Class II gaming from Class
III gaming. Rather, the rule assumes that the games played on Class II
gaming systems are, in fact, Class II.
DATES: Effective November 10, 2008.
FOR FURTHER INFORMATION CONTACT: Michael Gross, Associate General
Counsel, General Law, Office of General Counsel, National Indian Gaming
Commission, 1441 L St., NW., Suite 9100, Washington, DC 20005,
telephone: 202.632.7003. This is not a toll-free call.
SUPPLEMENTARY INFORMATION:
Withdrawal of Classification Standards and Amendment to Definition of
Facsimile
The Commission has withdrawn the Classification standards it
proposed on October 24, 2007. ``Classification Standards for Bingo,
Lotto, Etc. as Class II Gaming When Played Through an Electronic Medium
Using `Electronic Computer, or Other Technologic Aids.' '' 72 FR 60483.
The Commission has also withdrawn the amendment to the definition of
``electronic or electromechanical facsimile,'' also proposed on October
24, 2007. ``Definition for Electronic or Electromechanical Facsimile.''
72 FR 60482. See the Commission's notices of withdrawal, published
simultaneously.
Background
The Indian Gaming Regulatory Act, 25 U.S.C. 2701-21 (``IGRA''),
enacted by the Congress in 1988, establishes the National Indian Gaming
Commission (``Commission'') and sets out a comprehensive framework for
the regulation of gaming on Indian lands. IGRA 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 regulate Class I gaming exclusively.
``Class II gaming'' means the game of chance commonly known as
bingo, whether or not electronic, computer, or
[[Page 60509]]
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, as well as various
non-house-banked card games. 25 U.S.C. 2703(7)(A). Specifically
excluded from Class II gaming 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
Commission share regulatory authority over Class II gaming. Indian
tribes can engage in Class II 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 lotteries and most
forms of casino gaming, such as slot machines, roulette, and banking
card games like blackjack. Class III gaming may be conducted lawfully
only if the tribe and the state in which the tribe is located enter
into a tribal-state compact for such gaming. Alternatively, a tribe may
operate Class III gaming under gaming procedures issued by the
Secretary of the Interior. Indian tribes, states, and the Commission
exercise regulatory authority over Class III gaming. In addition, the
United States Department of Justice possesses exclusive criminal, and
certain civil, jurisdiction over Class III gaming on Indian lands.
The Commission has determined that it is in the best interests of
Indian gaming to adopt technical standards that govern the
implementation of electronic, computer, and other technologic aids used
in the play of Class II games because no such standards currently
exist. The rule seeks to provide a means for tribal gaming regulatory
authorities and tribal operators to ensure that the integrity and
security of Class II games played with the use of electronic, computer,
or other technologic aids is maintained and that the games and aids are
fully auditable, i.e., that they provide a means for the gaming
authority and gaming operation to account for all gaming revenue. The
rule also seeks to permit flexibility in the implementation of
technology and to embrace the development of future technologies
unforeseen and undeveloped.
Development of the Rule
The development of the rule began formally with the March 31, 2004,
appointment of an advisory committee comprised of tribal government
representatives with substantial experience and expertise in gaming
regulation and operations, the Commission, and Commission staff.
Although the Commission initially intended to develop one set of
regulations, this committee's work ultimately resulted in the
Commission's publication of a proposed rule for Class II classification
standards, 71 FR 30238 (May 25, 2006), and a separate proposed rule for
Class II technical standards, 71 FR 46336 (August 11, 2006). A detailed
history of the advisory committee's work on the technical standards to
that point, its meetings, the Commission's consultations with Indian
tribes, and the contributions and participation of the interested
general public is published in the preamble to that proposed rule. 71
FR 46336-46337 (August 11, 2006).
The ultimate goal of that first proposed set of technical standards
was as it is here--to ensure the security and integrity of Class II
games played with technologic aids, to ensure the auditabilty of the
gaming revenue that those games earn, and to account and allow for
evolving and new technology.
Given the importance of the regulations to the industry, the
Commission, which had initially set a comment period of 45 days,
reopened the comment period for an additional 76 days, from November
15, 2006, through January 31, 2007. 71 FR 71115 (December 8, 2006); 71
FR 76618 (December 21, 2006).
Public comments made it clear to the Commission that the first set
of proposed technical standards fell short of its goal of technological
flexibility. In particular, commenters stated that the first set of
proposed technical standards would mandate particular implementations
of technology that were not practical or feasible. Commenters suggested
that rather than prescribe particular implementations of technology,
the standards should describe the regulatory outcomes that the
Commission seeks to achieve and leave it to the industry to develop
ways to meet those regulatory requirements.
At a December 5, 2006, advisory committee meeting in Washington,
DC, the tribal representatives to the advisory committee strongly
agreed with this sentiment. The details of the solution, however, were
not immediately apparent. Before providing further advice to the
Commission, the tribal representatives on the committee wished to
consult further with other tribal representative and regulators, and
with industry representatives. They therefore suggested that they
assemble a working group made up of representatives from the Class II
gaming industry--tribal operators, tribal regulators, and manufacturers
alike--to assist the advisory committee. The Commission agreed to allow
the tribal representatives to work independently of the Commission to
redraft the technical standards. Accordingly, the Commission withdrew
the first proposed technical standards. 72 FR 7360 (February 15, 2007).
The tribal representatives to the advisory committee formed a
working group, which met at various times, in person and
telephonically, from the end of 2006 through the middle of 2007 to
draft this new set of technical standards. The Commission did not
participate in the establishment of this working group or in most of
its work. On some occasions, the tribal representatives invited the
participation of Commission staff members to answer questions and to
provide explanation about the Commission's regulatory goals. Commission
staff participated in this capacity during in-person meetings on
December 11-12, 2006, in Las Vegas, Nevada, and June 5, 2007, in
Dallas, Texas.
The full advisory committee, including the Commission, met to
discuss drafts developed by the tribal representatives and the working
group on February 22, 2007, in Albuquerque, New Mexico; April 26, 2007,
in Seattle, Washington; and May 22, 2007, in Bloomington, Minnesota.
All of these meetings were open to the interested public.
The NIGC published its Government-to-Government Tribal Consultation
Policy on March 24, 2004, 69 FR 16973. In that policy the Commission
recognized the government-to-government relationship that exists
between the NIGC and federally-recognized tribes and stated that the
primary focus on the NIGC's consultation policies would involve
consulting with individual tribes and their recognized governmental
leaders. The Commission's consultation policy also calls for providing
early notification to affected tribes of any regulatory policies prior
to a final agency decision regarding their formulation or
implementation.
Accordingly, throughout this entire period, the Commission
maintained a busy consultation schedule, consulting with tribal
governments and gaming commissions, usually at gaming association
meetings across the country but also at the Commission's Washington,
DC, headquarters. From September 2005 through December 2007, and
excluding consultations devoted solely to the Commission's Class II
classification standards, the
[[Page 60510]]
Commission issued 751 invitations to tribes for consultation. These
invitations resulted in consultations with 189 tribes or their gaming
commissions. The tribes were invited to discuss the proposed technical
standards, among other current issues.
In addition, in July and August 2006, the Commission consulted with
69 tribes and tribal gaming commissions in Washington, DC; Bloomington,
Minnesota; Oklahoma City, Oklahoma; Tacoma, Washington; and Ontario
California. These consultations were devoted primarily to discussing
the proposed Classification standards. However, a few tribes took the
opportunity to discuss the proposed technical standards as well.
The Commission is immensely grateful to all who contributed to the
technical standards: The tribes and gaming commissions who took the
time and made the effort to consult; the tribal representatives on the
advisory committee and the working group of tribal leaders, tribal
regulators, and manufacturers; and all of the commenters who
contributed their insight in comments. The proposed rule published in
October 2007 was substantially adopted from the draft of descriptive
technical standards that the tribal representatives on the advisory
committee delivered to the Commission.
There are some places where the Commission felt it could not accept
the recommendations in the draft, and the October 2007 proposed rule
contained some standards more stringent than the tribal representatives
to the advisory committee would have preferred and some that the tribal
representatives thought unnecessary. These differences are discussed in
detail in the comment section, below.
Purpose and Scope
Part 547 (``the Technical Standards'') applies to all Class II
games played using electronic, computer, or other technologic aids, or
modifications of such games and aids. Class II games played through
such technologic aids are widely used in Indian gaming operations, yet
no uniform standards exist to govern their construction, function, or
implementation. The rule seeks to remedy that absence and create a
regulatory structure under which tribal gaming regulatory authorities
and tribal operators are able to ensure the integrity and security of
Class II games played with the use of electronic, computer, or other
technologic aids and of Class II gaming revenue.
There is a great variety in the technologic aids used in the play
of Class II games and, therefore, a great variety in the means used to
play the games. An operation may, for example, play bingo using no aids
at all. A caller may select numbers using ping pong balls taken from a
hopper, and players purchase paper cards from an employee of the
operation and mark them with an inked dauber. Alternatively, numbers
may be selected randomly using an electronic random number generator,
which in turn displays the selected number on a display board. Instead
of paper, players may use electronic handheld devices to monitor and
mark their cards. The handheld devices are purchased and have cards
loaded on them at a point-of-sale retail terminal.
Still again, bingo may be implemented wholly electronically on
client-server architectures. A common arrangement, but by no means the
only one possible, is to have client machines on the casino floor as
electronic player stations. These display the cards, allow the player
to cover numbers when drawn, and pay any prizes won. Credits may be
placed on the electronic player station by inserting cash or
electronically drawing down an account separately established. The
server, usually located off the floor, draws random numbers and passes
them along data communications lines to the client machines for game
play.
The challenge, then, for writing technical standards is to address
all of the various ways that Class II games can be played. Central to
the Technical Standards, therefore, is the definition of ``Class II
gaming system,'' which refers to the collection of components used in
the play of a Class II game: ``All components, whether or not
technologic aids in electronic, computer, mechanical or other
technologic form, that function together to aid the play of one or more
Class II games, including accounting functions mandated by these
regulations.'' The notion of the ``gaming system'' thus encompasses
bingo played in all of the implementations described above.
It is the ``gaming system'' that must meet the requirements of the
Technical Standards. Like the gaming system itself, the Technical
Standards are conceived generally so that they may be met by a gaming
system, regardless of the particular components that may comprise it.
For example, the Technical Standards do not refer to ``bill
validators,'' electronic devices into which a patron may insert a bill
in order to place credits on a gaming machine. Instead, the Technical
Standards describe ``financial instrument acceptors'' and the standards
they must meet. ``Financial instrument acceptor'' is broad enough in
meaning to encompass not only a ``bill validator'' but also a cash
drawer staffed by an employee of the gaming operation. The Technical
Standards provide minimum standards for the security of the
``acceptors'' and of the money or vouchers (generally, ``financial
instruments'') they accept.
In the past, when Class II gaming systems did not make use of as
many sophisticated electronic components as they do now, there was less
need for technical standards. Now that technology has come so far and
been implemented in Class II gaming to such a great extent, playing a
direct role in the outcome of Class II games, technical standards,
independent laboratory analysis, and tribal gaming regulatory authority
approval are essential parts of gaming regulation.
However, because of the breadth of possible implementations for
Class II gaming systems, the Technical Standards require that gaming
equipment and software used with Class II gaming systems meet only
those requirements that are applicable to the system as implemented.
This is, in short, a rule of construction of common sense. For example,
if a system takes only cash and lacks the ability to print or accept
vouchers, then any standards that apply to vouchers do not apply.
The Technical Standards are deliberately only minimum standards.
Tribes and tribal gaming regulatory authorities may add any additional
requirements, or more stringent requirements, needed to suit their
particular circumstances.
In order to ensure compliance, the Technical Standards borrow from
the established practices of tribal, state, and provincial gaming
jurisdictions across North America for handling other technologically
sophisticated electronic gaming devices. The Technical Standards
establish, as a necessary prerequisite to a gaming system being offered
to the public for play, review of the system by a qualified,
independent testing laboratory and approval by the tribal gaming
regulatory authority.
Under the Technical Standards, a tribe's gaming regulatory
authority will require all Class II gaming systems, or modifications
thereof, to be submitted to a testing laboratory for review and
analysis. That submission includes a working prototype of the gaming
system or modification, all pertinent software, and anything else the
testing laboratory needs for its complete and thorough review. In turn,
the laboratory will review whether the gaming system does or does not
meet the requirements of the Technical Standards, as well as any
additional requirements adopted by the
[[Page 60511]]
tribe's gaming regulatory authority. The laboratory will provide a
written report of its analysis and conclusions to the tribal gaming
regulatory authority to aid its approval or disapproval of the gaming
system or modification. The tribal gaming regulatory authority will
retain the report as long as the gaming system or modification in
question remains available to the public for play. This process will
help assure the integrity and security of Class II gaming technology.
Five-Year Grandfather and Transition Period
The Commission understands that existing Class II gaming systems
likely do not meet all of the requirements of the Technical Standards.
In order to avoid any potentially significant economic and practical
consequences of requiring immediate compliance, the Technical Standards
implement a five-year ``grandfather period'' for existing gaming
systems.
Existing gaming systems--those in play or manufactured by the
effective date of the Technical Standards--may be grandfathered and
exempt from compliance with the Technical Standards for five years if
they are put through a similar review by a qualified independent
testing laboratory and approved by a tribal gaming regulatory
authority. Specifically, in order to be eligible for grandfathering, a
gaming system must be submitted to a testing laboratory within 120 days
of the Technical Standards' effective date. The testing laboratory must
review the gaming system for compliance with a specific, minimum set of
requirements--random number generation, minimum probabilities, no
reflexive or secondary decision-making after random numbers are drawn,
the inability to change bingo cards during the play of a game, and a
mechanism for verifying game software.
The laboratory must issue a report on these issues to the tribal
gaming regulatory authority, which must make a finding that the gaming
system qualifies for grandfather status. Once a gaming system is
qualified, the manufacturer must label each player interface on the
system with its date of manufacture and certify the same to the tribal
gaming regulatory authority. This requirement effectively freezes the
number of grandfathered interfaces in use.
The 120-day requirement applies only to the submission of the
gaming system for testing. There is no requirement in the technical
standards that the testing laboratory test the system, or the tribal
gaming regulatory authority approve it as a grandfathered system,
within that time period. It is, nonetheless, in the interest of gaming
operations for the testing laboratory to complete its evaluation and
for the tribal gaming regulatory authority to issue its grandfather
certifications as quickly as possible. The Technical Standards require
both of those things to occur before a Class II gaming system is
grandfathered and available to the public for play.
All of this is not to say, however, that the Technical Standards
require grandfathered gaming systems to remain entirely static. Tribal
gaming regulatory authorities may permit modifications to gaming system
software or hardware that increases compliance with the requirements of
the Technical Standards, even if the modifications do not make the
system wholly compliant. Tribal gaming regulatory authorities may also
authorize modifications to gaming system software that do not detract
from, compromise, or prejudice the proper functioning, security or
integrity of the Class II gaming system and the system's overall
compliance with the requirements of the Technical Standards. Changes
such as new pay tables, new game themes, and new entertaining displays
fall within this latter category.
Withdrawal of the Classification Standards
Finally, the October 2007 proposed rule was not intended to stand
alone. The advisory committee pointed out, and the Commission agreed,
that many of the functions placed in the technical standards proposed
on August 11, 2006, and subsequently withdrawn, were more properly
characterized as minimum internal control standards. Accordingly, along
with the proposed technical standards, the Commission published, as a
separate proposed rule, a companion set of minimum internal control
standards for the play of bingo and games similar to bingo. Those two
proposed rules were to be applied in conjunction with proposed
classification standards. The final Technical Standards are not so
intertwined.
The Commission has withdrawn the classification standards (see
notice of withdrawal published simultaneously) and has removed all
cross references from the Technical Standards to the classification
standards. Compliance with the classification standards is not required
for compliance with the Technical Standards.
Class II MICS
Similarly, the Commission is adopting as 25 CFR part 543, the
companion set of internal controls for bingo and games similar to
bingo. The Commission has endeavored to place all requirements for the
design, construction, and implementation of Class II gaming systems
into the Technical Standards and all requirements for the operation of
bingo gaming systems and the authorization, recognition, and
recordation of gaming and gaming-related transactions into the MICS. In
this sense, the two rules are independent of one another.
Nevertheless, there are places where the two rules bump up against
one another--for example, in circumstances where equipment must have
certain features to allow the application of appropriate internal
controls. In those cases, a cross reference from one set of regulations
to the other is appropriate. Similarly, the grandfather provisions of
Technical Standards cross reference the MICS in a few places where
tribal gaming regulatory authorities may permit hardware and software
changes to a grandfathered Class II gaming system when those changes
will improve compliance with the Technical Standards or the MICS.
Regulatory Matters
Regulatory Flexibility Act
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impact of the Technical Standards on
small entities, ``small entity'' is defined as: (1) A small business
that meets the definition of a small business found in the Small
Business Act and codified at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
Indian tribes and tribal casinos do not meet this definition.
Tribes are excluded from the governmental jurisdictions listed under
(2), and tribally owned casinos are not ordinary commercial
[[Page 60512]]
activities but are tribal governmental operations.
In determining whether a rule has a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, because the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
As a practical matter, the economic impacts of the Technical
Standards will fall primarily upon the Indian tribes. The Technical
Standards impose some direct costs upon gaming tribes--regulatory
compliance costs, for example. In addition, as the ultimate customers,
costs initially borne by testing laboratories and gaming manufacturers
will be passed along. Accordingly, the Commission certifies that this
action will not have a significant economic impact on a substantial
number of small entities.
Small Business Regulatory Enforcement Fairness Act
When the Technical Standards were proposed in October 2007, the
Commission proceeded as if they were a major rule under 5 U.S.C. 804.2,
the Small Business Regulatory Enforcement Fairness Act. The Commission
did so because the status of the proposed technical standards,
considered alone--apart from the classification standards (proposed
part 546), the proposed amended definition of 25 CFR 502.8, and the
proposed MICS (proposed part 543)--was unclear. The Commission had
commissioned an economic impact study of the proposals taken together,
and it made clear that the cost to the Indian gaming industry of
complying with the combined proposed rules would have an annual effect
on the economy of $100 million or more. Accordingly, the Commission
treated the proposed technical standards as a major rule.
In so proceeding, the Commission was required to undertake a cost-
benefit analysis, and, in doing so, evaluated the costs of each
proposed rule individually. The Commission has found that the annual
cost to the Indian gaming industry of the Technical Standards,
considered alone, is $3.1 million dollars. The cost of the Technical
Standards and the Class II MICS taken together is less than $10 million
annually. Accordingly, the Technical Standards are not a major rule
within the meaning of 5 U.S.C. 804.2, the Small Business Regulatory
Enforcement Fairness Act.
The Commission's cost-benefit analysis is available for review at
the Commission's Web site, www.nigc.gov, or by request using the
addresses or telephone numbers, above.
Unfunded Mandates Reform Act
The Commission, as an independent regulatory agency within the
Department of the Interior, is exempt from compliance with the Unfunded
Mandates Reform Act. 2 U.S.C. 658(1); 1502(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the Technical Standards do not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission's Office
of General Counsel has determined that the Technical Standards do not
unduly burden the judicial system and meet the requirements of sections
3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
The Technical Standards require information collection under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. The title,
description, and respondent categories are discussed below, together
with an estimate of the annual information collection burden.
Title: Process for Certification of Electronic, Computer, or other
Technologic Aids used in the play of Class II games and process for
qualification of independent testing laboratories, proposed 25 CFR
547.4.
Summary and description of information collections: The Technical
Standards establish a process for ensuring that Class II gaming systems
have been reviewed and evaluated by a qualified, independent testing
laboratory prior to their approval by a tribal gaming regulatory
authority and their availability to the public for play. The process
helps to ensure the proper functioning of the systems and the
integrity, fairness, and auditability of games played.
The process requires a tribe's gaming regulatory authority to
require that all Class II gaming systems, or modifications thereto, be
submitted to a qualified, independent testing laboratory for review and
analysis. That submission includes a working prototype of the game and
aid, all pertinent software, and complete documentation and
descriptions of all functions and components. In turn, the laboratory
will determine that the gaming system does or does not meet the
requirements of the Technical Standards and any additional requirements
adopted by the tribe's gaming regulatory authority. The laboratory will
provide a written report of its analysis and conclusions to the tribal
gaming regulatory authority, which in turn will approve or disapprove
the system or modification. The tribal gaming regulatory authority will
retain the laboratory report as long as the system or modification
remains available to the public for play.
This process is necessary to ensure the security and integrity of
Class II gaming. Technical standards generally are a fundamental part
of Class III gaming and of non-Indian, commercial casino gaming
throughout North America. No uniform standards exist for Class II
gaming, however. The implementation of such standards will assist
tribal gaming regulators in ensuring that games are implemented fairly,
that all gaming systems are secure and function properly, and that the
tribes and operators are able to properly account for gaming revenue.
The Technical Standards implement an analogous process for
determining whether a Class II gaming system is eligible for the five-
year grandfather period. This process again requires a tribe's gaming
regulatory authority to require that a Class II gaming system be
submitted, within 120 days after the effective date, to a qualified,
independent testing laboratory for review and analysis. The submission
must include a working prototype of the game and aid, all pertinent
software, and complete documentation and descriptions of all functions
and components. In turn, the laboratory will determine that the gaming
system does or does not meet a small set of specified requirements. The
laboratory will provide a written report of its analysis and
conclusions to the tribal gaming regulatory authority, which in turn
will determine that the gaming system is or is not eligible for
grandfather status. Upon a finding of eligibility, the tribal gaming
regulatory authority will issue a certificate to that effect to the
gaming system manufacturer and a description of the grandfathered game
to the Commission.
[[Page 60513]]
This process is necessary to ensure a certain minimum integrity and
security for games while at the same time avoiding potentially
significant economic and practical consequences of requiring immediate
and complete compliance with the Technical Standards.
Finally, the Technical Standards establish a process for testing
laboratories to establish their eligibility to provide testing services
to the tribal gaming regulatory authorities. The testing laboratories
must submit to suitability determinations made by the tribes they
serve, and these determinations include criminal background checks for
the laboratories' principals. These determinations are made according
to the same standards used to license the primary management officials
and key employees of Indian gaming operations under the Indian Gaming
Regulatory Act. All of this requires the submission by the laboratory
of corporate financial information; qualifications of the engineering
staff; information (and inspections) of the available engineering
facilities, and personal information for principals, including tax
returns, bankruptcies and law suits, work histories, and references.
Given the essential role accorded to laboratories in ensuring the
integrity, security, and auditability of Class II gaming systems, this
process is essential to ensuring the competence, integrity, and
independence of the testing laboratories and the suitability of their
decision makers, i.e. to ensure that undesirable elements are kept out
of gaming.
Respondents: The respondents are independent testing laboratories,
developers and manufacturers of Class II gaming systems, and Indian
tribes. The Commission estimates that there are currently 20 such
manufacturers, 5 such laboratories, and 226 gaming tribes. The
frequency of responses to the information collection requirement will
vary.
Information Collection Burden: In order to qualify under the
grandfather provisions of the Technical Standards, a gaming system must
be submitted to a testing laboratory for review and analysis during the
first 120 days after the effective date of the rule. The Commission
estimates that there are approximately 25 Class II gaming systems in
existence and that all will be submitted during this period.
Following the initial 120-day period, the frequency of submissions
of new gaming systems or of modifications to existing gaming systems
will be entirely market driven. The Commission anticipates
approximately a 20% turnover each year for the five-year grandfather
period. Consequently, there should be approximately five submissions of
new gaming systems each year.
Submissions of modifications are, as a matter of course, a more
common practice. Software in particular commonly goes through many
iterations in development and continues to be improved and revised even
after sale and placement on a gaming operation's floor. That said, the
submission of modifications tends to be sporadic, with less frequent or
occasional submissions punctuated by fairly steady periods of
submissions when new systems or modifications are introduced. The
Commission anticipates there will be approximately 300 submissions of
modifications and thus 300 reports produced by testing laboratories
each year following the 120-day period that begins on the effective
date of the rule.
The preparation and submission of supporting documentation by
manufacturers or a tribal gaming operation (as opposed to gaming system
hardware and software per se) is an information collection burden under
the Paperwork Reduction Act, as is the preparation of reports by the
testing laboratories or the preparation of a grandfather certificate
and explanation of gaming system by a tribal gaming regulatory
authority.
It is the existing practice in the gaming industry, both Indian and
non-Indian alike, for the game manufacturer to submit a gaming system
to a testing laboratory for review and analysis. The Technical
Standards leave open the possibility that a tribal gaming regulatory
authority may require the management of a gaming operation to make a
required submission. The Commission anticipates, however, that it will
be the responsibility of the gaming system manufacturers to make the
submissions to testing laboratories.
The amount of documentation submitted by a manufacturer as part of
a submission of a gaming system and the size of a laboratory report is
a function of the complexity of the gaming system submitted for review.
Submission for minor modifications to software or hardware already
submitted and examined will be a matter of little time both for
manufacturer and laboratory, while the submission and review of an
entirely new game platform will be time consuming. The provision of a
grandfather certificate and a description of a gaming system's
component are small matters as that information can be taken directly
from a testing laboratory's report.
Accordingly, based upon the discussions with leading testing
laboratories and with manufacturers for the Indian gaming and non-
Indian gaming markets, the Commission estimates that gathering and
preparing documentation for a submission of a single, complete gaming
system will require, on average, 8 hours for a manufacturer's employee.
The Commission estimates that following examination and analysis,
writing a report for a complete gaming system will require, on average,
10 hours of a laboratory engineer's time. For the submission of
modifications to a gaming system, the Commission estimates 4 hours for
a manufacturer's employee. For the report on a modification, the
Commission estimates 5 hours for a laboratory engineer.
Thus, the information collection requirements will be a 200-hour
burden on manufacturers industry-wide during the first 120 days after
the Technical Standards become effective and a 1,200-hour burden
industry-wide thereafter. The information collection requirements will
be a 250-hour burden on laboratories for the grandfather submissions
made during the first 120 days and a 1,500-hour burden thereafter.
Next, the Commission anticipates that tribal gaming regulatory
authorities will issue grandfather certificates to manufacturers and
send a description of grandfathered systems to the Commission for all
of the approximately 25 existing gaming systems. The preparation of
these certificates and descriptions will be a small matter as all of
the necessary information is contained in the testing laboratory
reports and will take no more than 0.5 hours to prepare.
Finally, the Technical Standards require tribal gaming regulatory
authorities to maintain laboratory reports as long as the game system
or modification at issue is available for play. This, however, is a
ministerial function that involves little more than filing, and
occasionally retrieving, the report. As this is already common practice
among tribal gaming regulatory authorities, the Commission estimates
that 0.1 hours per report will be dedicated to these tasks.
The following table summarizes the annual hour burden:
[[Page 60514]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Collections,
Number of Collections, Hours per Total day 121 Hours per Total
Provision Respondents respondents 1st 120 days collection annual forward, per collection annual
hours annum hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
25 CFR 547.4.................. Laboratories............ 5 25 10 250 300 5 1,500
25 CFR 547.4.................. Manufacturers........... 20 25 8 200 300 4 1,200
25 CFR 547.4.................. Tribal Gaming Operations 226 0 0 0 0 0 0
25 CFR........................ Tribal Gaming Regulatory 226 25 .5 12.5 300 0.1 30
Authorities.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Technical Standards require a determination of suitability for
each of the approximately 5 testing laboratories. The information
required can be substantial: Corporate financial information;
qualifications of the engineering staff; information (and inspections)
of the engineering facilities available; and personal information for
principals, including tax returns, bankruptcies and lawsuits, work
histories, and references.
However, the 5 existing testing laboratories have already collected
and provided this information--multiple times--in order to be licensed
in tribal and non-tribal gaming jurisdictions nationwide. The
Commission estimates that the re-submission of such information would
take the necessary laboratory employees 20 hours to accomplish once. As
the gaming tribes typically use only one gaming laboratory, the
submission of suitability determinations to 226 tribal gaming
regulatory authorities would total 4,520 hours.
The Commission believes, however, that the hour burden is not
likely to be nearly this high. Rather than require each tribal gaming
regulatory authority to make a new suitability determination for each
testing laboratory it uses, the Technical Standards permit a tribal
gaming regulatory authority to rely upon a suitability determination
already made by another gaming jurisdiction in the United States. The
existing testing laboratories are already licensed or approved in
numerous jurisdictions throughout the United States, and the Commission
believes that approximately 90%--203 of 226--of the tribal gaming
authorities will accept existing suitability determinations from other
jurisdictions or will already have made one under their own vendor
licensing programs. The submission by a testing lab of an existing
suitability determination amounts to the writing of a letter. The
Commission estimates that the submission of such letters will take the
necessary laboratory employees 0.5 hours to accomplish once. As each of
the gaming tribes typically uses only one gaming laboratory, the
submission of suitability determinations to 203 tribal gaming
authorities would total 101.5 hours. For the remaining 10% or 23 tribal
gaming regulatory authorities, the submission burden on laboratories is
20 hours per tribe or 460 hours.
Review of Public Comments Concerning Information Collections
On February 19, 2008, the Office of Management and Budget (OMB)
took action on the Commission's request for approval of the information
collections in the Technical Standards and required the Commission to
explain how it has ``maximized the practical utility of the collection
and minimized the burden.'' OMB required as well that the Commission
respond to public comment on the information collections.
The Commission has maximized the utility of the information
collections and minimized the burden on the industry by adopting
industry-standard practices already required and in place across non-
tribal gaming throughout North America and already common in tribal
gaming. In this way, the Technical Standards require little that is
new.
First and foremost, as stated above, the review of gaming systems
by testing laboratories and their subsequent approval by tribal gaming
regulatory authorities is essential to the integrity of Indian gaming.
The process enables tribal gaming regulators to ensure that games are
implemented fairly, that all gaming systems are secure and function
properly, and that the tribes and operators are able to properly
account for gaming revenue. This process and the information
collections that it necessitates are already in place.
Independent testing laboratories owe their very existence to the
widespread use of this practice. They are, in essence, in the business
of testing and examining gaming equipment against a set of regulatory
standards and then issuing a report of their findings. They are, thus,
already set up to comply with the information collections required by
the Technical Standards. Likewise, gaming manufacturers are already in
the business of submitting gaming equipment and software for laboratory
review and are already set up to provide the information collections
required here. What is more, many tribal gaming regulatory authorities
already require manufacturers to submit gaming equipment and software
to testing laboratories for review and already keep the resulting
reports, just as a matter of sound regulatory practice. The Technical
Standards merely make the requirement applicable nationwide.
The Technical Standards reduce the information collection burden on
tribes, manufacturers, and testing laboratories by rules of common
sense and non-repetition. There are 226 gaming tribes, and
manufacturers, of course, seek to sell gaming systems to as many tribes
as possible. The Technical Standards do not require that a gaming
system be resubmitted to a testing laboratory for each tribal gaming
operation. Once a testing laboratory has issued a report for a given
gaming system or modification, every tribal gaming regulatory authority
may rely upon it. Further, the information collection burden
surrounding the submission, review, and approval of gaming equipment
and software is eased still further in that the Technical Standards
permit electronic means of providing, receiving, and storing
information at the convenience of all parties concerned.
Second and finally, as stated above, the Technical Standards
require testing laboratories to submit to suitability determinations by
tribal gaming regulatory authorities. Again, assuring the competence,
integrity, and independence of the testing laboratories and the
suitability of their decision-makers is essential to the integrity of
gaming. This information collection, though essential, has the
potential to be burdensome. The Technical Standards reduce this burden
as much as is practicable.
Again, the Technical Standards piggy-back on processes already
established.
[[Page 60515]]
The existing testing laboratories have already collected and provided
the necessary information--multiple times--in order to be approved in
tribal and non-tribal gaming jurisdictions nationwide. Similarly, the
Technical Standards reduce unnecessary duplication. Testing
Laboratories need not submit 226 separate suitability applications.
Tribal gaming regulatory authorities are free to accept any suitability
determination made by any state or tribal regulatory authority in the
United States. Finally, electronic submission, receipt, and maintenance
of this information collection is permitted.
For all of these reasons, then, the Commission believes that the
Technical Standards have maximized the practical utility of the
information collections they require while at the same time minimizing
the burden they place upon the industry.
Paperwork Reduction Act Comments
Comment: One commenter stated that the Commission did not properly
figure the burden upon tribes of the information collection burdens
imposed by the Technical Standards. The Commission's focus was on the
burdens on gaming laboratories, which are not burdened at all since
their services are compensated.
Response: The Commission disagrees. The Commission's cost estimates
do, in fact, list the 226 tribal gaming operations and 226 tribal
gaming regulatory authorities as respondents. The burden upon them is
minimal, however. Though the tribal gaming regulatory authority or
gaming operation may choose to submit a Class II gaming system to a
testing laboratory for evaluation, the standard practice is to place
that obligation on the manufacturers. They are the ones best situated
to provide all necessary prototype hardware, software and documentation
to the testing laboratories and to respond to testing laboratory
concerns and inquiries. Indeed, manufacturers already have such systems
set up for compliance with the regulatory requirements of commercial
gaming jurisdictions. The emphasis on the information collection
burdens is, therefore, properly on the manufacturers and the
laboratories. The burden upon the tribes is minimal and involves
retaining laboratory reports, a standard existing practice; identifying
a finite number of grandfathered Class II gaming systems to the
Commission; and suitability determinations of laboratory principals.
Comment: A few commenters stated that because the Technical
Standards will take effect ``all at once,'' the Commission
underestimates the turnover rate of gaming systems and the associated
paperwork burdens.
Response: The Commission disagrees. The Technical Standards provide
for a five-year grandfather period in which existing Class II gaming
systems may be brought into compliance. The Commission believes that
existing Class II systems will be brought closer to or into compliance
due to regular upgrades, and the Technical Standards specifically allow
for this possibility. 547.4(b)(4). The Commission further believes that
many new, compliant systems will be brought to market over this period,
as they have during other five-year periods. Neither market condition
suggests an immediate turnover of existing gaming systems or that the
Commission underestimated the paperwork burden associated with
turnover.
Comment: A few commenters stated that the Commission has failed to
take any steps to minimize information collection burdens by providing
for the use of automated information collection, maintenance or
submission techniques.
Response: The Commission disagrees. There is no limitation in the
Technical Standards on the technology usable for information
collections. Paperless submission, maintenance, and collection of
information is perfectly acceptable.
Comment: One commenter stated that the Commission underestimates
the time it will take the testing laboratories to test Class II gaming
systems for grandfather compliance, depending on whether the software
random number generator has already been approved. The commenter
therefore recommends revising upward the hours burden on the testing
laboratories.
Response: Whether or not the Commission underestimated the time
laboratory testing may take, this is not an information burden placed
upon the testing laboratories. The information burden refers to the
time it will take the testing laboratory to write the reports of their
findings and results. That time does not change, even if the time for
testing does.
National Environmental Policy Act
The Commission has determined that the Technical Standards do not
constitute a major federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.).
Review of Public Comments
A number of commenters made miscellaneous editorial suggestions not
intended to change the substance of the Technical Regulations but to
improve sentence structure, correct grammar, preserve consistency of
usage throughout the document, etc.
Response: The Commission has accepted all such changes where they
improve clarity and editorial consistency, and these are reflected
throughout the final rule. Substantive changes are addressed in the
responses to comments below.
General Comments
Comment: A number of commenters objected to the adoption of the
Technical Standards and request their withdrawal unless the Commission
accept, without alteration, the draft of the Technical Standards
provided to it by its tribal advisory committee. Based upon these
differences, and the inability of the Commission to come to consensus
with the advisory committee about them, others commenters asked that
the Commission not proceed with the Technical Standards but return to
the advisory committee for further drafting and for consultation with
tribes.
Response: As said above, the Commission greatly values and
appreciates the work on the technical standards done by the tribal
advisory committee and the working group of tribal leaders, tribal
regulators, and manufacturers who advised them. During drafting, the
Commission did state to the Committee members that their role was
advisory and that the Commission could, as the final decision-maker,
choose to depart from the draft provided. The Commission believes that
this was appropriate insofar as this is consistent with its federal
regulatory oversight mission. Nonetheless, most of what the Commission
proposed as part 547 was taken verbatim from the draft that the
advisory committee supplied.
There were, of course, some departures from the advisory
committee's draft, and the one that has received the most comments--all
in opposition--is the requirement that compliance with the Technical
Standards also requires compliance with the proposed part 546,
classification standards. As the Commission has withdrawn the proposed
classification standards (see notice of withdrawal published
simultaneously), the Commission has removed all references to them.
Nonetheless, the rule still departs from the recommended draft in a
few
[[Page 60516]]
ways. The rule still requires a certain minimum probability, the recall
of entertaining displays, and hardware compliance. As explained in
detail below, the Commission believes that these requirements are
appropriate. That said, in order to stay abreast of advances in
technology, the Commission intends to regularly revisit its technical
standards, and in doing so it will pay particular attention to these
provisions that have caused such disagreement. In so doing, the
Commission intends to consult further.
Other departures from the advisory committee draft have been raised
as comments, and the Commission's responses to those comments are also
set out below.
Comment: Several comments stated that the comment period was not
long enough.
Response: In the October 24, 2007 notice of proposed rulemaking,
the Commission initially provided that the comment period would end on
December 10, 2007, a period of 47 days. Because early comments
requested additional time, the Commission extended the comment period
until March 9, 2008, creating a total comment period of 138 days
(including the date of publication). The Commission believes that this
period was more than sufficient, given the extensive and thoughtful
comments it received and that have informed this final rule.
Comment: A number of commenters faulted the Commission's
consultation with tribes about the Technical Standards. Some stated
that the Commission's use of advisory committees was not a substitute
for consultation. Others stated that the Commission did not consult, or
consult sufficiently, on the Technical Standards, particularly after
the advisory committee provided its final draft to the Commission.
Response: The Commission stands by its record on consultation. The
Commission does not believe that its use of the advisory committee was
a substitute for consultation, and it has set out the details of its
consultations above.
As to the quality of consultation, some commenters fault the
Commission for not allotting sufficient time for individual
consultation sessions. The Commission understands and appreciates this
concern. The Commission would point out, however, that it goes to great
time and expense traveling to large regional and national gaming
association meetings to make itself available for consultations, and
this minimizes the burdens of time and expense for the tribes. The
Commission would point out as well that with approximately 225 tribes
engaged in gaming, balancing the time spent in consultations on the one
hand with the Commission's other duties and obligations on the other is
difficult. Further, the Commission believes that the criticism
concerning the quality of consultation about the technical standards,
however, is an unfair one, when only 25% of the tribes accepted
invitations for consultation between September 2005 and December 2007
and only a minority of those that accepted actually chose to discuss
the Technical Standards.
That said, the Commission recognizes that there are many views
about what consultation is and how it may best be done. The Commission
is not married to its consultation practices and has already begun a
dialogue and collaboration with tribal leaders, through the National
Congress of American Indians and the National Indian Gaming
Association, about finding mutually satisfactory methods of
consultation.
Finally, the Commission would note that its extensive consultation
was successful and resulted in significant changes to the Technical
Standards--all for the better, the Commission believes. Most prominent
among these was the Commission's decision to abandon its first proposed
technical standards to begin the process of drafting technical
standards over again from the beginning.
Comment: A number of commenters suggested that the Technical
Standards will, alone or in combination with the proposed
Classification standards and MICS, have a devastating economic effect
on Class II gaming, as demonstrated by the Commission's own economic
impact study. These and other commenters felt that study is itself
flawed, as it both improperly calculates some economic effects and
ignores others, such as local effects and costs. In addition to the
obvious direct economic consequences, a few commenters also saw a loss
of negotiating power in future dealings with the states.
Response: The Commission disagrees. The Commission does not see an
economic collapse of Class II gaming as a result of the Technical
Standards. There is no support for that proposition. While the economic
impact study of Dr. Alan Meister of the Analysis Group does find that
there will be costs to comply with the Technical Standards, the vast
majority of the economic impact from the set of four regulations
proposed in October 24, 2007, stems from the projected revenue loss and
the compliance costs associated with the now-discarded classification
standards. This is so, even assuming the calculation and under-counting
criticisms of the study are in fact correct.
Further, the Commission's cost-benefit analysis finds that the
Technical Standards, considered independently, are not a major rule.
They impose an annual cost of approximately $3 million--hardly an
onerous cost when compared to the $25 billion in gross gaming revenue
the industry earned in 2007. Taken together with the proposed Class II
MICS, the annual costs are not much higher. Adoption of the Technical
Standards, therefore, alone or with the MICS, will not imperil the
viability of Class II gaming and will not impair the tribes'
negotiating power in dealings with the states.
Comment: One commenter felt that the Technical Standards will not
work because they are built upon the mistaken assumption that Class II
gaming is based upon gaming components.
Response: The Commission disagrees. The Technical Standards do not
assume that Class II gaming is based upon components. Central to the
Technical Standards is the idea of the Class II gaming system, which
allows the Technical Standards to address all of the various ways that
Class II games can be played. The notion of the ``gaming system,'' for
example, encompasses bingo whether it is played electronically on
client-server architectures, with ping pong balls drawn from a hopper
and cards marked by an electronic minder purchased at a point-of-sale
retail station, or with some other system. Necessarily, then, the
definition of system makes reference to ``components,'' for it is the
unique collection of components that makes up a gaming system. It is,
however, the system, and not individual components, that must comply
with the requirements of the Technical Standards.
Comment: A number of commenters suggested that the Commission's
rule-making process was itself flawed, over and above any consideration
of economic effect the Technical Standards might have. Some commenters
felt that the Commission is not an independent regulatory agency and,
as such, it has failed to comply with the requirements of Executive
Orders 12875, 12866, and 13175 and the Unfunded Mandates Reform Act. 2
U.S.C. 658(1); 1502(1). A few felt that the Commission has failed to
comply with the Federal Advisory Committees Act (FACA) or the
Government Performance and Results Act (GPRA). Others felt that the
Commission should not have published
[[Page 60517]]
the proposed rules before the economic impact study was ready and
should have considered other regulatory alternatives. Others still find
that the regulations, if made final, would result in a regulatory
taking, contrary to the Commission's finding in the proposed rule.
Response: The Commission disagrees. Congress has made abundantly
clear that it intended the Commission to be an independent regulatory
agency and, as such, exempt from the requirements of these Executive
Orders and the Unfunded Mandates Reform Act. The Senate report
accompanying the passage of IGRA provides Congress's intention clearly
and unambiguously: The bill ``established a National Indian Gaming
Commission as an independent agency within the Department of
Interior.'' S. Rep. No. 100-446, at 1 (1988). When it amended IGRA in
2005, Congress reiterated its intention:
Additionally, it is to be noted that the NIGC is an independent
regulatory agency. This status has ramifications, including, that
the agency is not governed by Executive Order 13175, which compels
agencies other than independent regulatory agencies to consult
tribal officials in the development of regulatory policies that have
tribal implications. The Executive Order encourages independent
agencies to observe its precepts, however, and the Committee notes
with approval that the Commission, through its current consultation
policy, has endeavored to do so.
S. Rep. No. 109-122 at 3 (2005).
As to the publication of the economic analysis after publication of
the rule, that, while not ideal, did not deprive the industry or the
interested public of the benefit of the report, as the careful comments
submitted about its methodological failings make clear. Likewise, the
Commission has considered regulatory alternatives, not the least of
which is its withdrawal of the proposed Classification standards.
As to compliance with FACA, the Commission's advisory committees
are exempt from the requirements of FACA because the non-Commission
members were elected officials of tribal governments, or their
authorized designees, acting in their official capacities. 41 CFR 102-
3.40(g).
As to compliance with GPRA, the Commission agrees that Public Law
109-221, the Native American Technical Corrections Act of 2006,
provides that the NIGC shall be subject to the GPRA. On September 30,
2007, the NIGC submitted a draft performance and accountability report
with the Office of Management and Budget for review. The Commission is
currently making revisions to its GPRA plan.
Further, on September 18, 2008, the Commission released a draft
five-year strategic plan to tribes, tribal trade associations, and
Congress for comments. The strategic plan, like the performance plan,
is required by GPRA.
Finally, the comment about regulatory taking is premised upon the
wholesale disappearance of the Class II gaming industry as a result of
adoption of the Technical Standards. As the Commission said above, with
the relatively small cost of the Technical Standards alone, or together
with the MICS, there will be no complete destruction of Class II
gaming. There will be no complete loss of the economically beneficial
or productive use of tribes' Class II investments and, by definition,
no regulatory taking. See, e.g., Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1015 (1992).
Comment: A few commenters suggested that the Commission lacks the
statutory authority to promulgate the Technical Standards, one
analogizing the situation to that in Colorado Indian Tribes v. NIGC,
466 F.3d 134 (DC Cir. 2006) (CRIT), where the DC Circuit ultimately
found that the Commission lacked the authority to promulgate and
enforce Class III minimum internal control standards.
Response: The Commission disagrees. IGRA does give the Commission
the authority to adopt the Technical Standards. Congress was expressly
concerned that gaming under IGRA be ``conducted fairly and honestly by
both the operator and players.'' 25 U.S.C. 2702(2). The Technical
Standards are specifically designed to protect the integrity, fairness
and safety of Class II gaming. Adopting the Technical Standards is
consistent with the authority granted the Commission to monitor,
inspect, and examine Class II gaming, 25 U.S.C. 2706 (b)(1)-(4), and to
promulgate such regulations as it deems appropriate to implement the
provisions of IGRA. 25 U.S.C. 2706(b)(10). The Commission disagrees
with the commenter who drew the opposite conclusion.
The Commission likewise believes that this reading distinguishes
this circumstance from the CRIT case. There, the Court found that
2706(b)(10) could not be a source of authority for Class III MICS
because there are no applicable provisions in IGRA concerning day-to-
day Class III regulatory authority that the Commission could implement
through rulemaking. Here, by contrast, the Commission is implementing
its monitoring, inspecting, and examining authority over Class II
gaming, specifically granted by IGRA in 25 U.S.C. 2706(b).
In particular, the Technical Standards make meaningful the
Commission's monitoring, inspection, and examination authority. As
stated above, the Technical Standards do not, and are not designed to,
prescribe the design or features of Class II gaming systems. To the
contrary, the Technical Standards set out various minimum ways that
gaming systems can meet IGRA's goal of ensuring that gaming is
conducted fairly and honestly, both by operators and by the public, 25
U.S.C. 2702(2), leaving specific implementations designed to meet those
regulatory goals to the tribal gaming regulatory authorities and
industry.
For example, the Technical Standards require components that store
financial instruments and that are not operated under the control of a
gaming operation employee ``shall be located within a secure and locked
area or in a locked cabinet or housing that is of a robust construction
designed to resist determined illegal entry and to protect internal
components.'' How exactly ``robust construction'' is to be implemented,
the Technical Standards do not say, but the purpose of the standard is
clear--assets held in gaming equipment are to be secure from theft and
tampering.
Similarly, the Technical Standards require that progressive awards
on Class II gaming systems have a minimum chance of being hit of 1 in
100,000,000. What precisely the chances of hitting the award are or
should be, the Technical Standards do not say, leaving the matter
instead to the tribal gaming regulatory authorities and the market. As
stated below, the purpose of the minimum probability requirement is to
ensure fairness in the play of Class II games by eliminating advertised
awards that will never be hit because the chances of doing so are
astronomically low.
Before a Class II gaming system may be placed on the floor and
offered to the public for play, it must be submitted to a independent
gaming laboratory, which will test the system for compliance with the
Technical Standards. The testing laboratory will then submit a report
of its findings to the tribal gaming regulatory authority, which in
turn will approve the system for play (or not). The tribal gaming
regulatory authority will keep the testing laboratory's report and a
record of its approval.
It is this, then, that enables the Commission, through its
monitoring, inspection and examination authority to ensure the security
of Class II gaming systems and assets, to ensure the fairness of Class
II games, and to ensure that tribes are the primary beneficiaries
[[Page 60518]]
of their gaming. 25 U.S.C. 2702(2). The Commission achieves these
regulatory goals by monitoring, inspecting, and examining the gaming
systems and the documentation of its compliance with the Technical
Standards. Given all of this, the Commission disagrees with the
commenter who concluded that it lacks the authority to promulgate the
Technical Standards.
Comment: A few commenters objected to the Technical Standards as
encroaching too far into the primary authority and responsibility
tribes have to regulate Class II gaming and overstepping the
Commission's oversight regulatory role.
Response: The Commission is keenly aware that the primary
responsibility for regulating Class II gaming belongs to the tribes and
has no desire to intrude upon it. The Commission is also aware of the
substantial sums tribes spend upon regulation and the excellent job
they do. The Commission does not believe that the Technical Standards
improperly intrude upon the tribes' role as primary regulators. Rather,
the Technical Standards have been drafted and redrafted to ensure that
the tribes remain the primary regulators.
The Technical Standards are designed to be minimum standards. They
give the tribal gaming regulatory authorities the primary role in
approving Class II gaming systems and modifications thereto. Indeed,
the Commission plays no direct role under the Technical Standards save
when a tribal gaming regulatory authority seeks a variance. Further,
the Technical Standards specifically contemplate the primacy of the
tribal gaming regulatory authorities insofar as they may, in their
discretion, supplement the Technical Standards by adopting additional
standards or standards more stringent than the minimum standards. Sec.
547.5(a). The Commission therefore disagrees with the commenter who
characterized the Technical Standards as directing a specific course of
action and eliminating alternatives.
The Commission also disagrees, as one commenter states, that 25
U.S.C. 2701(5) demonstrates that the Commission has improperly
encroached upon the tribes' authority: ``Indian tribes have the
exclusive right to regulate gaming activity on Indian lands if the
gaming activity is not specifically prohibited by Federal law and is
conducted within a State which does not, as a matter of criminal law
and public policy, prohibit such gaming activity.'' This Congressional
finding does not mean that tribes may regulate Class II gaming to the
exclusion of the Commission. Rather, this paragraph is merely a
restatement of the holding in California v. Cabazon Band of Mission
Indians, 480 U.S. 202 (1987). From that fundamental starting point, the
regulatory structure established by IGRA, including the Commission's
role in the regulation of Class II gaming, was built.
Comment: One commenter stated that the Technical Standards do not
recognize the regulatory authority and capability of tribes that have
earned a Class II self-regulation certificate.
Response: The Commission agrees that the Technical Standards do not
explicitly refer to self-regulating tribes, but there is no intent to
slight or to diminish the regulatory authority and capabilities of
self-regulating tribes, which are evident to all by the fact of their
self-regulation.
As stated above, the Technical Standards are not intended to
encroach on the regulatory authority of any tribal gaming regulatory
authority. The Technical Standards adopt minimum standards and already-
existing best practices such as the testing of gaming equipment by
testing laboratories. As such, they should impose only the most minimal
new burdens on the self-regulating tribe.
The most obvious is the procedure surrounding the testing and
certification of grandfathered gaming systems. That, however, is matter
of national uniformity. It allows the Commission both to ensure that
all grandfathered, non-compliant Class II gaming systems across the
nation meet certain minimal standards and to identify and track all of
them.
Though self-regulating tribes do have to follow Commission
regulations, 25 CFR 518.4(a)(4), the Technical Standards do not change
the applicability of IGRA's self-regulation provisions. Self-regulating
tribes are still exempt from certain of the Commission's powers as
delimited in 25 U.S.C. 2710(c)(5).
Comment: One commenter suggested that the adoption of the Technical
Standards is arbitrary and capricious primarily because the Technical
Standards do not fix an identifiable problem or fill a regulatory void,
because their onerous compliance obligations bear no reasonable
relationship to the regulatory benefit that they will provide, and
because the Commission has provided no rational basis for the
standards.
Response: The Commission disagrees. As a matter of regulatory best
practices, all commercial gaming jurisdictions and many, if not most,
tribal gaming jurisdictions require the testing of gaming equipment
against technical standards and the subsequent approval of the relevant
governmental authority. The Technical Standards are designed to
uniformly implement a minimum set of these best practices across Indian
gaming. That they are not so implemented now, and in some places
technical standards are not implemented at all, is justification enough
for their need. All of Indian gaming benefits when the nationwide
gaming public may be assured of the integrity and fairness of Class II
gaming, no matter where implemented. Accordingly, the Commission also
disagrees with the commenters who suggested that the Technical
Standards be issued not as regulations but as a non-binding bulletin.
The Commission disagrees that this regulatory benefit is outweighed
by onerous compliance obligations. To the contrary, the Commission
believes that compliance with the Technical Standards is not onerous,
financially or otherwise. While the economic impact study of Dr. Alan
Meister of the Analysis Group does find that there will be costs to
comply with the Technical Standards, the vast majority of the economic
impact from the set of four regulations proposed in October 24, 2007,
stems from the projected revenue loss and the compliance costs
associated with the now-discarded classification standards. Again, the
Commission's cost-benefit analysis finds that the Technical Standards,
considered independently, are not a major rule. They impose an annual
cost of approximately $3 million--hardly an onerous cost when compared
to the $25 billion in gross gaming revenue the industry earned in 2007.
Further, the general rule expressed in the Technical Standards is
that laboratory review and tribal gaming regulatory authority approval
is required before a Class II gaming system may be offered to the
public for play. In establishing this procedure, the Technical
Standards merely formalize the best practices that already exist both
in tribal and non-tribal gaming jurisdictions alike. As such, the
Commission does not believe that the testing procedure is onerous.
Comment: One commenter stated that the Technical Standards will
have a chilling effect upon Class II technology, limiting use to
today's technology and inhibiting or prohibiting its development and
advancement. IGRA, by contrast, states that the tribes are to have
maximum flexibility in the use of technology.
Response: The Commission disagrees. The Commission discarded the
draft proposed technical standards published
[[Page 60519]]
in August 2006 for precisely this reason. The current proposed part 547
was therefore specifically designed not to prescribe how equipment is
to be built but to state the desired regulatory outcome, leaving it to
the ingenuity of the industry to figure out compliant designs, whatever
form the new technology may take.
Comment: One commenter stated that the Technical Standards are
improperly retroactive because the Commission lacks the authority under
IGRA to promulgate retroactive regulations.
Response: The Commission disagrees that the Technical Standards are
retroactive. The Technical standards apply prospectively only and do
not alter the legal consequences of actions completed before their
effective date. The Technical Standards, in other words, attach no
liability to any operation of any non-compliant Class II gaming systems
that occurred prior to their effective date. Indeed, given the
grandfather provisions in Sec. 547.4, they attach no liability to the
operation of non-compliant systems for five years after the effective
date either. As such, the Commission disagrees with the commenters who
characterized the grandfather provisions as unreasonable.
That said, the Technical standards can without question upset
settled expectations based upon prior law and impose economic burdens
on past conduct. Some tribes will have invested in Class II gaming
systems that will have to be modified or replaced during the five-year
grandfather period. This unsettling of expectations and the imposition
of unexpected economic burdens in this way, however, does not make the
Technical Standards retroactive. See Landgraf v. USI Film Products, 511
U.S. 244, 269 n. 24 (1994) (``Even uncontroversially prospective
statutes may unsettle expectations and impose burdens on past conduct:
* * * a new law banning gambling harms the person who had begun to
construct a casino before the law's enactment * * *.'')
Comments Upon Sec. 547.3, Definitions
Comment: One commenter suggested that the definitions in the
Technical Standards should conform to the definitions in the companion
MICS, Sec. 543.2, unless there is an appropriate reason for different
terms.
Response: The Commission agrees and, where possible, the Commission
has used terms consistently in the two rules. It was, however, not
always possible to do so as the two rules have different objectives.
The Technical Standards are intended to define the technical
specifications of Class II gaming systems, while the companion MICS are
intended to set minimum standards, consistent with industry best
practices, for the authorization, recognition, and recordation of
gaming and gaming-related transactions. Consequently, users should be
well aware of the definition section accompanying each rule.
Comment: A number of commenters suggested broadening the definition
of ``agent'' to include any person authorized by the gaming operation
and the tribal gaming regulatory authority to undertake specified
decisions, actions, or tasks, whether or not they are employees of the
operation or licensed by the tribal gaming regulatory authority.
Response: As the Commission understands the comment, the definition
of ``agent'' is too restrictive and places unnecessary regulatory
obstacles in the way of routine activities by requiring licensure when
that is not always necessary. The Commission agrees.
The Technical Standards use the term ``agent'' when prescribing
security standards for financial instrument storage components,
financial instrument acceptors, financial instrument dispensers, and
components that determine game outcome. One standard applies when such
components are operated under the direct control of an agent--e.g., a
cash drawer--and another applies when such components are operated
automatically, independently of such control--e.g., a bill acceptor.
These individuals may or may not be key employees, and therefore IGRA
may or may not require their licensure. Accordingly, the Commission
believes that when such individuals are key employees they must be
licensed, and when they are not key employees, their licensure is a
matter left to the tribal gaming regulatory authorities.
The Commission has edited the definition of ``agent'' in
conformance with the comment to read, ``An employee or other person
authorized by the gaming operation, as approved by the tribal gaming
regulatory authority, designated for certain decisions, tasks and
actions in the gaming operation.''
Comment: One commenter suggested changing the proposed definitions
of ``agent'' and ``employee'' to create a distinction between the two
and using ``employee or agent'' throughout part 547, where the proposed
text says only ``agent.'' An ``employee'' would mean an employee of a
gaming operation licensed by the tribal gaming regulatory authority,
and an ``agent'' would be a non-employee ``authorized by a gaming
operation to make decisions for, or perform tasks or action on behalf
of, the gaming operation.''
Response: See response to previous comment.
Comment: A number of commenters suggested restoring a definition of
``promotional account'' to mean ``a file, record or other data
structure that records transactions involving a patron or patrons that
are not otherwise recorded in a patron deposit account.'' That
definition was included in the draft provided to the Commission by its
tribal advisory committee. Similarly, these commenters suggest
restoring the reference to ``promotional account'' to the definition of
``cashless transaction'' that the tribal advisory committee had
provided.
Response: The Commission disagrees. The Commission removed the term
``promotional account'' from the Technical Standards' definitions
because the term appears nowhere else in the text. Therefore the
definition of the term is unnecessary.
Comment: One commenter suggested for editorial consistency a change
to the definition of Random Number Generator from that which produces
``outputs that are effectively random'' to one that produces ``outputs
that comply with the provisions of section 547.14.''
Response: The Commission believes that the proposed definition is
sufficiently clear and that adopting the suggested comment would create
a peculiar and undesirable result: A random number generator that did
not comply with the requirements of Sec. 547.14 would, by definition,
not be a random number generator at all, as opposed to merely a non-
compliant one.
Comments Upon Sec. 547.4, Compliance
Section Title
Comment: One commenter suggested that the title of this section
should be changed from ``How do I comply with this part'' to ``How does
a tribal government, tribal gaming regulatory authority, or tribal
gaming operation comply with this part?'' These entities, rather than
unspecified individuals, are the parties required to comply.
Response: The Commission agrees and has adopted the change as
suggested.
Section 547.4(a)(1)--Limited Immediate Compliance
Comment: One commenter suggested edits that would specifically
require the supplier or manufacturer to submit the Class II gaming
system software to a testing laboratory for verification.
Response: The Commission disagrees. The Commission recognizes that
the
[[Page 60520]]
standard practice is for the manufacturer or supplier to make
laboratory submissions, and nothing in the Technical Standards
prohibits that. The Commission did not specify that it be the
manufacturer or supplier who makes the submission so that the tribal
gaming regulatory authority could choose whether this obligation should
fall on the manufacturer or supplier, the gaming operation, or the
tribal gaming regulatory authority itself.
Comment: One commenter suggested that the submission be accompanied
by ``any hardware, documentation or other information necessary to test
such software.''
Response: The Commission disagrees as the edit is unnecessary.
Rather than attempt to specify everything that must be submitted, and
perhaps omit something that might be necessary in individual or unusual
cases, the Technical Standards attempt to leave what is required for
testing to the testing laboratories themselves.
Section 547.4(a)(2)--Limited Immediate Compliance
Comment: One commenter suggested that this paragraph setting out
the requirement of limited immediate compliance appears to have omitted
mention of Sec. 547.8(f), the requirement that there be some means of
software signature verification for game software. It is included and
required elsewhere in the section, e.g., in the requirements of the
report that the testing laboratory must issue in Sec. 547.4(a)(4).
Response: The Commission agrees and has corrected the omission.
Section 547.4(a)(4)--Limited Immediate Compliance
Comment: One commenter suggested that the section does not, but
should, address what happens when the gaming laboratory does not issue
its report within 120 days after the effective date of part 547.
Response: The comment makes clear that the section does not read in
the way the Commission intended. The Commission did not intend to
confine the entire limited immediate compliance process to the first
120 days after the effective date. Rather, it intended to allow
grandfathered systems to be certified as such no matter how long the
lab process took, provided that the submission was made within the
first 120 days after the effective date of part 547. The Commission has
changed the wording in this paragraph to make this clear. It has
removed the 120-day requirement language from 547.4(a) and placed it
within 547.4(a)(1), thus making the time limit applicable only to the
submission of the gaming system to the lab. Paragraph 547.4(a)(1) now
reads: ``* * * Require that all Class II gaming system software that
affects the play of the Class II game be submitted, together with the
signature verification required by Sec. 547.8(f), to a testing
laboratory recognized pursuant to paragraph (f) of this section, within
120 days after the effective date of this part; * * *''
That said, however, it is in the interest of gaming operations for
the testing laboratory to complete its evaluation and for the tribal
gaming regulatory authority to issue its grandfather certifications as
quickly as possible. Section 547.4(b) requires both of those things to
occur before a Class II gaming system is grandfathered and available
for play under the Technical Standards.
Comment: One commenter suggested that the submission process is
unworkable in the circumstance where a tribe no longer has a
relationship with the manufacturer(s) of its gaming systems.
Response: The Commission disagrees. As stated above, there is no
requirement that the manufacturer make the submission to the testing
laboratory for grandfather review. The tribal gaming regulatory
authority may require the operation to do so. In the alternative, if
one tribe requires a manufacturer to submit a system to a lab, another
tribe running that same gaming system may rely on the same laboratory
report.
Comment: One commenter suggested that the language of this
paragraph be clarified to provide the tribal gaming regulatory
authority 120 days to issue a certificate of grandfather status after
receiving the testing laboratory's report.
Response: Given the comment and resulting change above, the
Commission believes that this change is unnecessary. The tribal gaming
regulatory authority will issue a certificate of grandfather status as
it deems appropriate.
Comment: One commenter suggested that as drafted, Sec. 547(a)(4)
does not make sufficiently clear that ``the testing laboratory only
certifies that the submitted game software complies with the specified
standards,'' while the tribal gaming regulatory authority certifies
that the Class II gaming system is eligible for grandfather status.
Response: The Commission disagrees. As an initial matter, the
testing laboratory is not required to ``certify'' that game software
meet any standards. Rather, it is required only to issue a report as to
its findings. Beyond that, the Commission believes that the this
paragraph, as proposed, makes the respective responsibilities of the
testing laboratory and the tribal gaming regulatory authority clear.
The Commission has, however, made a few minor editorial changes to
ensure that clarity.
Section 547.4(b)(2) and Elsewhere, Compliance With Classification
Standards
Comment: For many and varied reasons, many commenters objected to
requiring compliance with the Commission's proposed Classification
regulations, proposed 25 CFR part 546, 72 FR 60483 (Oct. 24, 2007), as
part of the Technical Standards. These commenters asked, therefore,
that all such cross-references and cross-compliance requirements be
deleted.
Response: As the Commission has withdrawn the proposed
classification standards (see notice of withdrawal published
simultaneously), the Commission has removed all references to them.
Section 547.4(b)(4) and Elsewhere, Compliance With Class II MICS
Comment: Many commenters objected to requiring compliance with the
Commission's Class II Minimum Internal Control Standards as part of the
Technical Standards, pointing out that the two sets of rules serve
different purposes. Technical Standards contain, in essence, design
standards to which laboratories can test before a gaming system goes
into operation, while MICS contain operational standards that apply
after gaming systems go into operation. Further, testable design
standards should be placed in the Technical Standards, while
operational standards belong in the Class II MICS and cross-references
should be removed.
Response: For the most part, the Commission agrees. However, the
line between the two kinds of regulation is not impermeable. There are
times when the means for complying with a particular internal control
standard is built into a component of the Class II gaming system and
can be tested by the testing laboratory. In those cases, a cross
reference from one set of regulations to the other is appropriate. Such
cross references therefore appear in Sec. 547.4(c), testing and
approval of Class II gaming systems generally, and Sec. 547.4(d),
emergency hardware and software changes, and require compliance with
any testable standards in the MICS.
Further, Sec. Sec. 547.5(b)(4)(i), (ii), and (iii)(B) all contain
references to the Class II MICS. These paragraphs state that that among
the permissible modifications of grandfathered Class II gaming systems
are those that advance the system's overall compliance not only with
the
[[Page 60521]]
Technical Standards but also with the MICS. These cross-references,
insofar as they both advance regulatory compliance and maintain the
economic viability of grandfathered gaming systems, will remain.
Section 547.4(b)--Grandfather Provisions
Comment: One commenter suggested rewriting this paragraph to make
clear that a Class II gaming system can qualify for grandfather status
if it was placed in a tribal gaming facility by the effective date of
the Technical Standards or was manufactured by that date.
Response: The Commission believes that the commenter has correctly
stated the intent of Sec. 547.4(b) and that the language of the
proposed rule already stated this clearly.
Section 547.4(b), (c)(3)--Grandfather Clause, Duration
Comment: A number of commenters suggested making player interfaces
permanently exempt from the requirements of the Technical Standards.
One commenter suggested that all existing Class II gaming technology be
permanently exempt from the Technical Standards. To do otherwise, the
commenters suggested, will have significant negative financial
consequences for Indian gaming. Others, similarly, suggested that the
grandfather period was too short because five years is not the proper
measure of the useful life of a Class II gaming system. A few others
suggested that the grandfather period was inadequate because there are
no compliant systems on the market today.
Response: The Commission does not agree that perpetually exempting
player interfaces or all existing Class II technology from the
Technical Standards is appropriate or that the five-year term is
insufficient. While Dr. Meister's economic impact report does find that
there will be costs to comply with the Technical Standards, the vast
majority of the economic impact stems from the projected revenue loss
and the compliance costs associated with the now-discarded
classification standards. Again, the cost to the industry of complying
with the Technical Standards is approximately $3 million annually.
Further, there is a good regulatory reason for grandfathering
existing hardware for only five years. By definition, grandfathered
hardware is not compliant with all of the requirements of the technical
standards. Perpetually grandfathering existing hardware will create a
permanent class of non-compliant equipment. That is not consistent with
the regulatory purpose of the technical standards, namely to ensure the
integrity and security of Class II gaming systems and the
accountability of Class II gaming revenue. What is more, the Commission
believes that market forces will move equipment toward greater
compliance and that if most current systems are not compliant, they are
not far from compliant either. Thus, the Technical Standards
specifically provide that tribal gaming regulatory authorities, in
their discretion, may require or permit changes to grandfathered
equipment that will bring the equipment into better (if still
incomplete) compliance, or even complete compliance. 547.4(b)(4)(ii).
Finally, as most systems in play today were put into play long before
the effective date of the Technical Standards, they will have a useful
life longer than five years, even if they are removed from play at the
end of the grandfather period.
Section 547.4(d)--Emergency Hardware and Software Changes
Comment: One commenter suggested that the use of the term ``game
software'' in this paragraph is unnecessarily limiting. The section
contemplates emergency changes necessary to correct problems
``affecting the fairness, security, or integrity of a game or
accounting system or any cashless system, or voucher system.'' However,
the paragraph then only contemplates modified ``game software,'' which
by definition excludes software for cashless systems or voucher
systems. The commenter recommends changing ``game software'' to
``software'' to accommodate emergency changes to these systems as well.
Response: The Commission agrees and has made the suggested change.
Sec. 547.4(d)(2)(ii)--Emergency Hardware or Software Changes,
Subsequent Submission to Testing Laboratory
Comment: A number of commenters suggested changing the procedures
applicable to emergency hardware of software changes to eliminate
submission to a testing laboratory when the modifications would not
affect the outcome of the game.
Response: The Commission disagrees. The Technical Standards are an
attempt to provide a regulatory means for assuring the integrity and
security of Class II gaming. These ends are best met when all Class II
gaming hardware and software, and all modifications to gaming hardware
and software, are verified by an independent testing laboratory and
subject to the supervision of a tribal gaming regulatory authority.
Providing an exception to this verification and supervision does not
serve this end. All modifications should be reviewed so that the
integrity and security of Class II gaming systems are not inadvertently
compromised.
Section 547.4(f)--Testing Laboratories, Generally
Comment: One commenter suggested that it should be the Commission,
rather than the tribal gaming regulatory authorities, that selects the
testing laboratories used for testing under the Technical Standards.
Doing so, the commenter reasons, would ensure the independence of the
laboratories.
Response: The Commission disagrees. The tribes have the primary
responsibility for regulating gaming under IGRA, and the Technical
Standards attempt to acknowledge this and place primary regulatory
responsibility with tribal gaming regulatory authorities where it
belongs. For example, part 547 provides minimum standards that tribal
gaming regulatory authorities may supplement to suit their individual
needs and standards; it places the responsibility for approving
grandfathered gaming systems, and changes to those systems, with them;
it places primary authority for approval of variances with them. As the
tribal gaming regulatory authorities are already responsible under IGRA
for licensing employees and management officials, and many are
responsible under tribal law for licensing vendors, it is appropriate
that they approve the use of testing laboratories as well. The
Commission believes that the independence of the testing laboratories
is assured by the limitation in Sec. 547.4(f)(1)(iii), which states
that a testing laboratory owned by a tribe may not test games or gaming
equipment for that tribe's gaming operations.
Comment: A number of commenters objected to the role assigned to
the independent testing laboratories by the Technical Standards. Some
described the laboratories as ``unaccountable third parties;'' others
described the verification process as ``outsourcing'' tribal
sovereignty or letting the testing laboratories interpret IGRA and
expressed concern about the process's complexity and cost.
Response: The Commission disagrees. The general rule is that
laboratory review and tribal gaming regulatory authority approval is
required before a Class II gaming system may be offered to the public
for play. In establishing this procedure, the Technical Standards
merely formalize the best practices that already exist both in tribal
and non-tribal gaming jurisdictions alike. As
[[Page 60522]]
such, the Commission does not believe that the testing procedure is
either overly complex or overly expensive.
Further, the testing laboratories are hardly unaccountable. The
Technical Standards require the tribal gaming regulatory authorities to
make suitability determinations for the principals of testing
laboratories that they use, and the tribal gaming regulatory
authorities may require that the laboratories be subject to whatever
vendor licensing standards they feel appropriate. Further, the role of
the testing laboratory is confined to providing an independent analysis
of a particular gaming system's or modification's compliance with the
technical standards. All questions of approval over gaming systems,
grandfathering, changes to gaming systems, etc., belong not to the
testing laboratory or the Commission but to the tribal gaming
regulatory authority. As such, the Commission does not agree that there
is an outsourcing of sovereignty.
Section 547.4(f)(1)(iii)--Testing Laboratories, Ownership
Comment: A number of commenters strongly objected to a perceived
discriminatory prohibition in the Technical Standards that would
prohibit tribal ownership of a testing laboratory. Tribal governments,
like state governments, should be allowed to own and operate testing
laboratories.
Response: The Commission agrees. Of course tribes can own and
operate testing laboratories. There is not, and there has never been,
any intent to make a blanket prohibition on tribal ownership or
operation of testing laboratories. The Commission has reworded the
proposed Sec. 547.4(f)(iii) to eliminate the possibility of such an
interpretation. The paragraph now reads: ``A testing laboratory may
provide the examination, testing, evaluating and reporting functions
required by this section provided that: * * * [i]t is not owned or
operated by the same tribe or tribal gaming regulatory authority for
whom it is providing the testing, evaluating, and reporting functions
required by this section.''
The only restriction intended in this section is a narrow one: that
a lab owned or operated by a tribe should not test games for that
tribe's gaming operations. The restriction is intended as means to
ensure the independence of the laboratory
Section 547.4(f)(1)(iv)(A)--Testing Laboratories, Suitability
Determinations
Comment: One commenter pointed out that there is a redundancy in
making the principals of testing laboratories subject to suitability
determinations no less stringent than those in 25 CFR 533.6(b)(1)(ii)-
(v) and in 25 CFR 533.6(c), because 533.6(b)(1)(v) and 533.6(c) contain
the same standard, the former for Class II gaming management contracts
and the latter for Class III gaming management contracts.
Response: The Commission agrees and has removed the redundancy. The
paragraph now reads, ``Makes a suitability determination of the testing
laboratories no less stringent than that required by Sec. Sec.
533.6(b)(1)(ii)-(v) of this chapter and based upon no less information
than that required by Sec. 537.1 of this chapter * * *.''
Comment: One commenter objected to the requirement that testing
laboratories be subject to suitability determinations. The requirement,
the commenter argued, acts as a barrier to entry to new tribally owned
testing laboratories, which have not yet been subject to suitability
determinations, and as a protectionist measure for the business of
existing non-tribal testing laboratories, which have received such
determinations.
Response: The Commission believes that the measure is necessary.
Positions directly responsible for the integrity of gaming in any
gaming jurisdiction, tribal or commercial--are, or ought to be, subject
to licensure or suitability determinations. The comment seeks, in
effect, exemption from this sound regulatory principle on the ground of
commercial disadvantage, real or perceived.
Comments on Sec. 547.5, Fairness Standards and Rules of General
Application
Section 547.5(c)--Minimum Probability Standards
Comment: A number of commenters suggested that the minimum
probability standards of 1 in 50,000,000 for progressive prizes and 1
in 25,000,000 for other prizes either be eliminated as contrary to IGRA
or, if maintained, be lowered to match odds permitted by state
lotteries, approximately 1 in 175,000,000, or Class III slot machines,
1 in 400,000,000 or less.
Response: The Commission disagrees that a minimum probability
requirement is inconsistent with IGRA. As discussed in greater detail
above, the Commission has the authority under IGRA to adopt minimum
probability requirements for the same reason that it has the authority
to adopt the Class II technical standards and Class II minimum internal
control standards. Congress was expressly concerned that gaming under
IGRA be ``conducted fairly and honestly by both the operator and
players.'' 25 U.S.C. 2702(2). Both parts 543 and 547 are designed to
protect the integrity of Class II gaming. The Technical Standards are
intended to assure the fairness, integrity and safety of Class II games
and equipment themselves, and the MICS are intended to assure the
protection of tribal assets when the games and equipment are in
operation in the gaming facility. Promulgating both of these sets of
standards is consistent with the Commission's authority to monitor,
inspect, and examine, Class II gaming, 25 U.S.C. 2706 (b)(1)-(4), and
to promulgate such regulations as it deems appropriate to implement the
provisions of IGRA. 25 U.S.C. 2706(b)(10).
Section 547(c) embodies a general prohibition upon cheating or
misleading players. It contains two specific rules that implement this
general prohibition. One is a requirement that all prizes advertised be
available to win, and the other, which is related, is the minimum
probability requirement. Having a minimum probability requirement
ensures that there are no prizes that are theoretically available but
will never, as a practical matter, be won.
For example, assume in a 75-ball bingo game the progressive prize
is awarded when a unique 20-space pattern is hit on the first 20
numbers drawn. The chances of that occurring are 1 in
803,167,998,494,073,240. This is a prize that never will be hit. To put
the number in perspective, it is not quite twice as many seconds as
have elapsed since the Big Bang.
Nevertheless, as the intention of the minimum probability
requirement is to mark an outer bound within which wagers are fair, the
Commission agrees that the proposed limits of 1 in 50 million for
progressive awards and 1 in 25 million for other award is not low
enough and is changing the requirement to 1 in 100 million for
progressive awards and 1 in 50 million for other awards.
These limits should provide an appropriate outer bound of fairness.
For example, a progressive award with one chance to win in 100 million
will hit, on average, one time every 100 million plays. If a system or
systems linked to a common progressive award averages 250,000 plays a
day, that works out to about 7.5 million plays per month, and it will
take a little over one year, on average, to hit the award. The
Commission believes that this sets an appropriate outer bound as
players demand greater frequency in progressive awards than that.
[[Page 60523]]
Section 547.5(c)--Fairness Standards
Comment: One commenter suggested that the requirements of this
paragraph--that Class II gaming systems shall not cheat, mislead, or
disadvantage patrons--are not design standards, cannot be tested by a
testing laboratory, and should be deleted. If the Commission retains
them, the commenter suggested that the paragraph read that no gaming
system ``shall be designed to'' do these things. Finally, the commenter
suggested that as a standard, ``disadvantaging'' a player is
subjective, not testable, could be construed to require that players
always get their money back, and is not required in any gaming
jurisdiction.
Response: The Commission disagrees in part and agrees in part. The
word ``disadvantage'' adds nothing to the section an has been deleted.
Other than this, however, the section remains as proposed. Simply put,
gaming patrons should not be cheated or duped, unintentionally or
intentionally.
Comments Upon Sec. 547.7, Minimum Hardware Standards
Section 547.7(b)--Printed Circuit Boards
Comment: One commenter suggested striking the requirement that
switches or jumpers on circuit boards that have the potential to affect
the outcome or integrity of games, progressive awards, financial
instruments, cashless transactions, voucher transactions, or accounting
records be capable of being sealed. The commenter argued that the
requirement is unnecessary and unduly burdensome.
Response: The Commission disagrees. The paragraph does not mandate
that such switches or jumpers actually be sealed. Rather, the paragraph
only requires that the switches or jumpers be capable of being sealed
in the event that the tribal gaming regulatory authority so requires.
Section 547.7(g)--Financial Instrument Storage Components, Security
Comment: A number of commenters suggested that only those storage
components not ``designed to be'' operated under the direct control of
an employee be located in a secured cabinet. As written, this paragraph
requires those components not actually so operated be located in a
secured cabinet. Adding the words ``designed to be'' provides a
standard to which a testing laboratory can test.
Response: The Commission disagrees with the necessity of such a
change. Of course a testing laboratory can only assess a prototype's
design and cannot assess what happens once equipment is placed on the
gaming floor. The Commission is confident, however, that in most cases,
equipment will be tested and used according to its intended design. In
particular, however, the proposed change could have the unintended
effect of handicapping the regulator. If, for example, a component
designed to be used by an individual--say a point-of-sale cash drawer--
could in practice be left alone without sufficient safeguard. Such a
circumstance is undesirable and insecure but nevertheless compliant
with the technical standards if they read as the commenters propose
because the cash drawer was ``designed to be'' used under the control
of an employee or agent.
Section 547.7(k)(2)--Door Access Detection, Sensors
Comment: One commenter suggested that the standard for door sensor
security was impossible to meet--``It shall not be possible to disable
a door open sensor * * *''--and should be replaced with ``shall be
secure against attempts to disable * * *''
Response: On the basis of this comment, the Commission reviewed
this paragraph and determined both that it was both unclear and
redundant. The security of door open sensors and components within
cabinets is already addressed elsewhere under paragraph (k). The
Commission therefore deleted 547.7(k)(2) and renumbered the remainder
of paragraph (k) accordingly.
Comments Upon Sec. 547.8, Minimum Software Standards
Section 547.8(a)(1)(ii)--Display of Game Results
Comment: One commenter suggested that the requirement that a player
interface display ``game results'' be clarified and read ``game results
for the cards displayed on that player interface.'' This would remove
any implication that all other players' results also have to be
displayed.
Response: The Commission disagrees and believes the standard as
written is sufficiently clear. Current electronic game systems are
designed to display each player's individual results, and nothing else
is intended or should be read here.
Section 547.8(a)(2)(ii) and Elsewhere--Game Recall, Alternate,
Entertaining Displays.
Comment: A number of commenters objected to the requirement that
game recall functions have to be able to recall not only the final
results of the last game played but also any associated ``alternative''
display of results such as video reels that do not determine game
outcome but are additional, separate, ways of displaying results for
the player. The commenters contended that the Commission lacks the
statutory authority to impose such a requirement. The commenters
suggested as well that the requirement imbues alternative displays with
legal significance that they do not have and that this can blur the
line between Class II and Class III gaming. Finally, the commenters
suggested that the requirement may work against its intended regulatory
goal--to make easier the investigation and resolution of patron
disputes--and give patrons legal rights based on the alternate displays
that they otherwise would not have.
Response: The Commission disagrees. As a preliminary matter, the
Commission observes that a number of major gaming system manufacturers
already provide this feature. Thus, as they do by requiring independent
laboratory testing of gaming systems, the Technical Standards do no
more than formalize existing best practices.
The broad regulatory goal of the requirement is, as Congress
stated, to ensure that gaming is ``conducted fairly and honestly by
both the operator and players.'' 25 U.S.C. 2702(2). The requirement
attempts to achieve this goal by creating a mechanism that gives tribal
gaming regulatory authorities as much information as is possible when
called upon to resolve patron disputes over the outcome of games. The
investigating tribal gaming regulatory authority will have available to
it both the results of the bingo game and of any entertaining display.
Further, as this requirement formalizes existing practices, the
Commission disagrees that it will inhibit, rather than make easier, the
investigative job of the tribal gaming regulatory authority.
Requiring recall of entertaining displays will not blur the
necessary distinction between Class II and Class III gaming. Indeed,
the presence or absence of entertaining displays in a Class II game
does not affect the classification of the game at all. Drawing that
line was the primary regulatory goal of the now-discarded
Classification regulations. The Technical Standards do not attempt to
draw such a line. Rather, they assume that such a line already exists.
They are, by design, applicable only to Class II gaming and are
specifically designed to be applicable only to Class II gaming. They
are organized around the concept of the ``Class II gaming system''
central to Class II gaming.
There is no intention by this requirement to give any legal
[[Page 60524]]
significance to entertaining displays. An entertaining display that
malfunctions and appears to land on a winning combination when the
game, in fact, was not won does not entitle a patron to any award,
because prizes are determined only by bingo or the Class II game in
question. 547.16(b)(1). Any malfunction, whether in a bingo game or in
an entertaining display voids all prizes and plays. 547.16(b)(2). That
said, to avoid any implication of legal significance in the term
``alternate display,'' the Commission has changed the term to
``entertaining display'' throughout.
Finally, the Commission has the authority to promulgate the
requirement here, just as it has the authority to promulgate the
Technical Standards as a whole. As discussed in greater detail above,
Congress was expressly concerned that gaming under IGRA be ``conducted
fairly and honestly by both the operator and players.'' 25 U.S.C.
2702(2). The Technical Standards are designed to protect the integrity
of Class II gaming. The Technical Standards are intended to assure the
fairness, integrity and safety of Class II games and equipment
themselves. Promulgating the Technical Standards is consistent with the
Commission's authority to monitor, inspect, and examine Class II
gaming, 25 U.S.C. 2706 (b)(1)-(4), and to promulgate such regulations
as it deems appropriate to implement the provisions of IGRA. 25 U.S.C.
2706(b)(10).
Section 547.8(b)(1)--Game Initiation and Play
Comment: A number of commenters suggested that the prohibition that
``there shall be no automatic or undisclosed changes of rule'' be
amended to say that ``there shall be no undisclosed changes of rules.''
Response: The Commission disagrees. The prohibition is to be read
with the first sentence of the paragraph, ``[e]ach game played on the
Class II gaming system shall follow and not deviate from a constant set
of rules for each game provided to players. * * * There shall be no
automatic or undisclosed changes of rules.'' The intention is to
prohibit the use of games or systems that base the outcome of a
particular play, or that adjust the overall return to the player, on
the outcome of previous plays. The outcome of any one particular game
played must be independent of the outcome of all other games played.
This section is not intended to address, nor should it be construed
to address, downloadable game software, which can occur automatically
on a pre-programmed schedule. Downloadable games are governed by Sec.
547.12.
Section 547.8(c)(2)--Audit Mode
Comment: One commenter suggested defining what is meant by the
requirement that audit mode be accessible by a ``secure method.''
Response: The Commission agrees and has added descriptive language.
The paragraph now reads, ``Audit mode shall be accessible by a secure
method such as an employee PIN and key or other auditable access
control.''
Section 547.8(b)(2) and Elsewhere--Applicability to Games Similar to
Bingo
Comment: A number of commenters requested that the Commission make
part 547 applicable to bingo alone, rather than to games similar to
bingo and other Class II games as well. Games similar to bingo may have
individual considerations not addressed here and should be addressed in
regulations designed specifically for them.
Response: The Commission disagrees. While games similar to bingo
are not bingo, they are substantially similar, by definition, and can
be played on the same systems. Failure to include games similar to
bingo has the potential to leave some systems uncovered by this part.
To the extent that a requirement in the technical standards is
obviously inapplicable to a system offering a ``game similar to
bingo,'' then it does not apply. 547.5(b). To the extent that a
requirement in the technical standards is ill fit to a ``game similar
to bingo'' system, that can be managed through a variance, and part 547
will remain applicable to all games played on Class II gaming systems.
Section 547.8(d)(4)(vii) and Elsewhere--Applicability to Pull Tabs
Comment: A number of commenters requested that the Commission make
part 547 applicable to bingo alone, rather than include pull tabs. Pull
tabs may have individual considerations not addressed here and should
be addressed in regulations designed specifically for them.
Response: The Commission disagrees. Again, failure to include pull
tabs has the potential to leave some Class II gaming systems uncovered
by this part. To the extent that a requirement in the technical
standards is obviously inapplicable to a system offering pull tabs,
then it does not apply. 547.5(b). To the extent that a requirement in
the technical standards is ill fit to a pull tabs system, that can be
managed through a variance. Part 547 will remain applicable to all
games played on Class II gaming systems.
Section 547.8(d)(4)(vii)--Pull Tabs
Comment: A number of commenters stated that for pull tabs, it is
not possible to comply with all of the requirements of this section.
Response: The Commission disagrees. The requirements of Sec.
547.8(d)(4)(vii) are specific to systems running pull tabs games. If
there are portions of Sec. 547.8 that are not obviously applicable to
a Class II gaming system offering pull tabs, and if it is not possible
to comply with some requirements because they are inapplicable, that is
of no matter. The Technical Standards were specifically designed to be
broadly and generally applicable to Class II gaming systems, no matter
how any individual system implemented a particular game. Thus, bingo
systems consisting of electronic client-server architectures and bingo
systems involving a manual number draw and electronic bingo minders
sold from a point-of-sale station are, for example, both within the
ambit of the Technical Standards. Inevitably, there will be systems and
situations where the Standards prescribe requirements that are simply
inapplicable. When that is the case, the inapplicable standards are
ignored, as the Technical Standards themselves instruct. Section
547.5(b) requires that gaming systems meet only ``applicable
requirements of this part.''
Comments Upon Sec. 547.9, Accounting
Section 547.9(a)--Required Accounting Data
Comment: A number of commenters suggested that Class II gaming
systems should track not only ``amount in'' and ``amount out,'' as
those terms are described, but also ``Bingo Sales'' and ``Prize
Payouts,'' terms used in the proposed minimum internal control
standards of part 543.
Response: The Commission disagrees. As the Technical Standards are
designed to apply to Class II gaming systems essentially independent of
what game is played on them, the more general terms ``amount in'' and
``amount out'' are more appropriate. The Commission would prefer
``Bingo sales'' and ``prize payouts'' only if it had decided to limit
the application of the Technical Standards to bingo.
Comment: A number of commenters suggested that the descriptions and
requirements of ``amount in'' and ``amount out'' would be clearer if
financial instruments accepted had to be tracked ``independently per
financial instrument acceptor'' and financial instruments dispensed had
to be tracked ``independently per financial instrument dispenser.''
[[Page 60525]]
Response: The Commission agrees and has made the suggested change.
Comments Upon Sec. 547.11, Money and Credit Handling
Section 547.11(b)(5)(i)--Vouchers
Comment: One commenter suggested that there is no need to require
both a gaming operation name and its location on coupons and vouchers.
Moreover, the meaning of ``location'' is unclear as a location may be
identified any number of ways.
Response: The Commission believes that the standard is appropriate
as written. The purpose is to match vouchers and coupons to the gaming
facility that issues and accepts them. Whether ``location'' is
implemented as a city and state, as a street address, as a reservation,
or as some combination of these is left up to the tribal gaming
regulatory authority in its discretion.
Comments Upon Sec. 547.12, Software Downloads
Comment: A number of commenters suggested that some of the
requirements in these paragraphs are not testable design standards but
are operational standards that belong in the Class II MICS. These
include the requirements that downloads shall be conducted only ``as
authorized'' and that ``the tribal gaming regulatory authority shall
confirm verification'' of the download.
Response: The Commission believes that these are some of the
requirements that belong equally in the Technical Standards and MICS.
To the extent that they appear in the Technical Standards, the
requirements should be construed to mean that there must be some
mechanism in the gaming system that will allow downloads to be
authorized--e.g., password entry by an appropriate official--or to be
confirmed--e.g. an audit trail reviewable by the tribal gaming
regulatory authority. Accordingly, the Commission has amended the last
sentence of Sec. 547.12(b) to read, ``Using any method it deems
appropriate, the tribal gaming regulatory authority shall confirm the
verification.'' The complementary MICS governing access to and
authorizations for information technology is found in Sec. 543.16(a)-
(c), and complementary standards for access verification are found in
Sec. 543.16(e).
Comments Upon Sec. 547.13, Program Storage Media
Comment: One commenter suggested that write-protected hard disks be
permitted using software write protection verifiable by testing labs,
such as Microsoft Enhanced Write Filter.
Response: The Commission agrees and has made the suggested change.
The paragraph now reads, ``Write protected hard disks are permitted if
the hardware means of enabling the write protect is easily viewable and
can be sealed in place. Write protected hard disks are permitted using
software write protection verifiable by a testing laboratory.''
Comments Upon Sec. 547.14, Random Number Generation
Comment: One commenter suggested exempting bingo ball RNGs from the
requirements of this section because broad tolerance levels in bingo
balls manufacture create too great a variance in randomness. Testing
bingo ball RNGs to the standards of this section is therefore not
meaningful.
Response: The Commission agrees. However, Sec. 547.14, by its
terms, only applies to electronic RNGs. Bingo Ball RNGs are already
exempt from the requirements of Sec. 547.14.
Comments Upon Sec. 547.15, Electronic Data Communications Between
System Components
Comment: One commenter suggested that the following should be
deleted from Sec. 547.15(e) as untestable by a testing laboratory and
more appropriately placed in the MICS: ``Remote communications shall
only be allowed if authorized by the tribal gaming regulatory
authority.''
Response: The Commission believes that these are also requirements
that belong equally in the Technical Standards and MICS. To the extent
that they appear in the Technical Standards, the requirements should be
construed to mean that there be some mechanism in the gaming system
that will enable and disable remote communications. This will allow the
tribal gaming regulatory authority to authorize and control remote
communications. Complementary MICS governing remote access are found in
Sec. 543.16(f).
Comments Upon Sec. 547.16--Game Artwork, Glass, Rules Etc.
Comment: One commenter suggested revising the section heading to
refer to ``information that must be made available to players.''
Response: The Commission believes that the intent and meaning of
this section is adequately described by the language of the proposed
rule.
Comments Upon Sec. 547.17--Variances
Comment: One commenter suggested that the heading in this section
improperly refers to a ``gaming operation'' requesting a variance and
that it properly should refer to a ``tribal gaming regulatory
authority'' requesting a variance as that is the apparent intent of the
section.
Response: The Commission agrees and has made the suggested change.
Sec. 547.17(c)(6)--Appellate Procedure
Comment: A number of commenters suggested that this paragraph be
amended to automatically affirm the tribal gaming regulatory
authority's determination if the Commission fails to make a decision on
appeal within the time provided.
Response: The Commission agrees in part and has made the suggested
change. In addition, the Commission recognizes that in rare or unusual
instances, circumstances may require more than 30 days to issue a
decision. Therefore, the Commission has added a provision enabling it
to extend the deadline for decision an additional 30 days, but only
upon the consent of the appellant tribal gaming regulatory authority.
This calendaring mechanism also appears in 25 CFR part 539 governing
management contract appeals, and the Commission finds that it works
well.
List of Subjects in 25 CFR Part 547
Gambling, Indian--lands, Indian--tribal government, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, the Commission amends 25 CFR
Chapter III by adding Part 547 to read as follows:
PART 547--MINIMUM TECHNICAL STANDARDS FOR GAMING EQUIPMENT USED
WITH THE PLAY OF CLASS II GAMES
Sec.
547.1 What is the purpose of this part?
547.2 How do these regulations affect state jurisdiction?
547.3 What are the definitions for this part?
547.4 How does a tribal government, tribal gaming regulatory
authority, or tribal gaming operation comply with this part?
547.5 What are the rules of interpretation and of general
application for this part?
547.6 What are the minimum technical standards for enrolling and
enabling Class II gaming system components?
547.7 What are the minimum technical hardware standards applicable
to Class II gaming systems?
547.8 What are the minimum technical software standards applicable
to Class II gaming systems?
547.9 What are the minimum technical standards for Class II gaming
system accounting functions?
547.10 What are the minimum standards for Class II gaming system
critical events?
547.11 What are the minimum technical standards for money and credit
handling?
[[Page 60526]]
547.12 What are the minimum technical standards for downloading on a
Class II gaming system?
547.13 What are the minimum technical standards for program storage
media?
547.14 What are the minimum technical standards for electronic
random number generation?
547.15 What are the minimum technical standards for electronic data
communications between system components?
547.16 What are the minimum standards for game artwork, glass, and
rules?
547.17 How does a tribal gaming regulatory authority apply for a
variance from these standards?
Authority: 25 U.S.C. 2706(b).
Sec. 547.1 What is the purpose of this part?
The Indian Gaming Regulatory Act, 25 U.S.C. 2703(7)(A)(i), permits
the use of electronic, computer, or other technologic aids in
connection with the play of Class II games. This part establishes the
minimum technical standards governing the use of such aids.
Sec. 547.2 How do these regulations affect state jurisdiction?
Nothing in this part shall be construed to grant to a state
jurisdiction over Class II gaming or to extend a state's jurisdiction
over Class III gaming.
Sec. 547.3 What are the definitions for this part?
For the purposes of this part, the following definitions apply:
Account access component. A component within a Class II gaming
system that reads or recognizes account access media and gives a patron
the ability to interact with his or her account.
Account access medium. A magnetic stripe card or any other medium
inserted into, or otherwise made to interact with, an account access
component in order to give a patron the ability to interact with an
account.
Audit mode. The mode where it is possible to view Class II gaming
system accounting functions, statistics, etc. and perform non-player-
related functions.
Agent. An employee or other person authorized by the gaming
operation, as approved by the tribal gaming regulatory authority,
designated for certain decisions, tasks and actions in the gaming
operation.
Cancel credit. An action initiated by the Class II gaming system
where some or all of a player's credits are removed by an attendant and
paid to the player.
Cashless system. A system that performs cashless transactions and
maintains records of those cashless transactions.
Cashless transaction. A movement of funds electronically from one
component to another, often to or from a patron deposit account.
CD-ROM. Compact Disc--Read Only Memory.
Chairman. The Chairman of the National Indian Gaming Commission.
Class II game. The same as ``class II gaming'' in 25 U.S.C.
2703(7)(A).
Class II gaming system. All components, whether or not technologic
aids in electronic, computer, mechanical, or other technologic form,
that function together to aid the play of one or more Class II games,
including accounting functions mandated by these regulations.
Commission. The National Indian Gaming Commission established by
the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq.
Coupon. A financial instrument of fixed wagering value, usually
paper, that can only be used to acquire non-cashable credits through
interaction with a voucher system. This does not include instruments
such as printed advertising material that cannot be validated directly
by a voucher system.
Critical memory. Memory locations storing data essential to the
functionality of the Class II gaming system.
DLL. A Dynamic-Link Library file.
Download package. Approved data sent to a component of a Class II
gaming system for such purposes as changing the component software.
DVD. Digital Video Disk or Digital Versatile Disk.
Electromagnetic interference. The physical characteristic of an
electronic component to emit electronic noise either into free air,
onto the power lines, or onto communication cables.
Electrostatic discharge. A single-event, rapid transfer of
electrostatic charge between two objects, usually resulting when two
objects at different potentials come into direct contact with each
other.
EPROM. Erasable Programmable Read Only Memory--a storage area that
may be filled with data and information, that once written is not
modifiable, and that is retained even if there is no power applied to
the machine.
Fault. An event that when detected by a Class II gaming system
causes a discontinuance of game play or other component functions.
Financial instrument. Any tangible item of value tendered in Class
II game play, including, but not limited to, bills, coins, vouchers and
coupons.
Financial instrument acceptor. Any component that accepts financial
instruments.
Financial instrument dispenser. Any component that dispenses
financial instruments.
Financial instrument storage component. Any component that stores
financial instruments.
Flash memory. Non-volatile memory that retains its data when the
power is turned off and that can be electronically erased and
reprogrammed without being removed from the circuit board.
Game software. The operational program or programs that govern the
play, display of results, and/or awarding of prizes or credits for
Class II games.
Gaming equipment. All electronic, electro-mechanical, mechanical,
or other physical components utilized in the play of Class II games.
Hardware. Gaming equipment.
Interruption. Any form of mis-operation, component failure, or
interference to the Class II gaming equipment.
Modification. A revision to any hardware or software used in a
Class II gaming system.
Non-cashable credit. Credits given by an operator to a patron;
placed on an Class II gaming system through a coupon, cashless
transaction or other approved means; and capable of activating play but
not being converted to cash.
Patron deposit account. An account maintained on behalf of a
patron, for the purpose of depositing and withdrawing cashable funds
for the primary purpose of interacting with a gaming activity.
Player interface. Any component or components of a Class II gaming
system, including an electronic or technologic aid (not limited to
terminals, player stations, handhelds, fixed units, etc.), that
directly enables player interaction in a Class II game.
Prize schedule. The set of prizes available to players for
achieving pre-designated patterns in the Class II game.
Program storage media. An electronic data storage component, such
as a CD-ROM, EPROM, hard disk, or flash memory on which software is
stored and from which software is read.
Progressive prize. A prize that increases by a selectable or
predefined amount based on play of a Class II game.
Random number generator (RNG). A software module, hardware
component or combination of these designed to produce outputs that are
effectively random.
Reflexive software. Any software that has the ability to manipulate
and/or replace a randomly generated outcome for the purpose of changing
the results of a Class II game.
Removable/rewritable storage media. Program or data storage
components
[[Page 60527]]
that can be removed from gaming equipment and be written to, or
rewritten by, the gaming equipment or by other equipment designed for
that purpose.
Server. A computer that controls one or more applications or
environments within a Class II gaming system.
Test/diagnostics mode. A mode on a component that allows various
tests to be performed on the Class II gaming system hardware and
software.
Testing laboratory. An organization recognized by a tribal gaming
regulatory authority pursuant to Sec. 547.4(f).
Tribal gaming regulatory authority. The entity authorized by tribal
law to regulate gaming conducted pursuant to the Indian Gaming
Regulatory Act.
Voucher. A financial instrument of fixed wagering value, usually
paper, that can only be used to acquire an equivalent value of cashable
credits or cash through interaction with a voucher system.
Voucher system. A component of the Class II gaming system or an
external system that securely maintains records of vouchers and
coupons; validates payment of vouchers; records successful or failed
payments of vouchers and coupons; and controls the purging of expired
vouchers and coupons.
Sec. 547.4 How does a tribal government, tribal gaming regulatory
authority, or tribal gaming operation comply with this part?
(a) Limited immediate compliance. A tribal gaming regulatory
authority shall:
(1) Require that all Class II gaming system software that affects
the play of the Class II game be submitted, together with the signature
verification required by Sec. 547.8(f), to a testing laboratory
recognized pursuant to paragraph (f) of this section within 120 days
after November 10, 2008;
(2) Require that the testing laboratory test the submission to the
standards established by Sec. 547.8(b), Sec. 547.8(f), Sec. 547.14,
the minimum probability standards of Sec. 547.5(c), and to any
additional technical standards adopted by the tribal gaming regulatory
authority;
(3) Require that the testing laboratory provide the tribal gaming
regulatory authority with a formal written report setting forth and
certifying to the findings and conclusions of the test;
(4) Make a finding, in the form of a certificate provided to the
supplier or manufacturer of the Class II gaming system, that the Class
II gaming system qualifies for grandfather status under the provisions
of this section, but only upon receipt of a testing laboratory's report
that the Class II gaming system is compliant with Sec. 547.8(b), Sec.
547.8(f), the minimum probability standards of Sec. 547.5(c), Sec.
547.14, and any other technical standards adopted by the tribal gaming
regulatory authority. If the tribal gaming regulatory authority does
not issue the certificate, or if the testing laboratory finds that the
Class II gaming system is not compliant with Sec. 547.8(b), Sec.
547.8(f), the minimum probability standards of Sec. 547.5(c), Sec.
547.14, or any other technical standards adopted by the tribal gaming
regulatory authority, then the gaming system shall immediately be
removed from play and not be utilized.
(5) Retain a copy of any testing laboratory's report so long as the
Class II gaming system that is the subject of the report remains
available to the public for play;
(6) Retain a copy of any certificate of grandfather status so long
as the Class II gaming system that is the subject of the certificate
remains available to the public for play; and
(7) Require the supplier of any player interface to designate with
a permanently affixed label each player interface with an identifying
number and the date of manufacture or a statement that the date of
manufacture was on or before the effective date of this part. The
tribal gaming regulatory authority shall also require the supplier to
provide a written declaration or affidavit affirming that the date of
manufacture was on or before November 10, 2008.
(b) Grandfather provisions. All Class II gaming systems
manufactured or placed in a tribal facility on or before the effective
date of this part and certified pursuant to paragraph (a) of this
section are grandfathered Class II gaming systems for which the
following provisions apply:
(1) Grandfathered Class II gaming systems may continue in operation
for a period of five years from November 10, 2008.
(2) Grandfathered Class II gaming system shall be available for use
at any tribal gaming facility subject to approval by the tribal gaming
regulatory authority, which shall transmit its notice of that approval,
identifying the grandfathered Class II gaming system and its
components, to the Commission.
(3) As permitted by the tribal gaming regulatory authority,
individual hardware or software components of a grandfathered Class II
gaming system may be repaired or replaced to ensure proper functioning,
security, or integrity of the grandfathered Class II gaming system.
(4) All modifications that affect the play of a grandfathered Class
II gaming system must be approved pursuant to paragraph (c) of this
section, except for the following:
(i) Any software modifications that the tribal gaming regulatory
authority finds will maintain or advance the system's overall
compliance with this part or any applicable provisions of parts 542 and
543 of this chapter, after receiving a new testing laboratory report
that the modifications are compliant with the standards established by
Sec. 547.8(b), the minimum probability requirements of Sec. 547.5(c),
Sec. 547.14, and any other standards adopted by the tribal gaming
regulatory authority;
(ii) Any hardware modifications that the tribal gaming regulatory
authority finds will maintain or advance the system's overall
compliance with this part or any applicable provisions of parts 542 and
543 of this chapter; and
(iii) Any other modification to the software of a grandfathered
Class II gaming system that the tribal gaming regulatory authority
finds will not detract from, compromise or prejudice:
(A) The proper functioning, security, or integrity of the Class II
gaming system, and
(B) The gaming system's overall compliance with the requirements of
this part or any applicable provisions of parts 542 and 543 of this
chapter.
(iv) No such modification may be implemented without the approval
of the tribal gaming regulatory authority. The tribal gaming regulatory
authority shall maintain a record of the modification so long as the
Class II gaming system that is the subject of the modification remains
available to the public for play and shall make the record available to
the Commission upon request. The Commission will only make available
for public review records or portions of records subject to release
under the Freedom of Information Act, 5 U.S.C. 552; the Privacy Act of
1974, 5 U.S.C. 552a; or the Indian Gaming Regulatory Act, 25 U.S.C.
2716(a).
(c) Submission, testing, and approval--generally. Except as
provided in paragraphs (b) and (d) of this section, no tribal gaming
regulatory authority shall permit in a tribal gaming operation the use
of any Class II gaming system, or any associated cashless system or
voucher system or any modification thereto, unless:
(1) The Class II gaming system, cashless system, voucher payment
system, or modification has been submitted to a testing laboratory;
(2) The testing laboratory tests the submission to the standards
established by:
(i) This part;
[[Page 60528]]
(ii) Any applicable provisions of parts 542 and 543 of this chapter
that are testable by the testing laboratory; and
(iii) The tribal gaming regulatory authority;
(3) The testing laboratory provides a formal written report to the
party making the submission, setting forth and certifying to its
findings and conclusions; and
(4)(i) Following receipt of the testing laboratory's report, the
tribal gaming regulatory authority makes a finding that the Class II
gaming system, cashless system, or voucher system conforms to the
standards established by:
(A) This part;
(B) Any applicable provisions of parts 542 and 543 of this chapter
that are testable by the testing laboratory; and
(C) The tribal gaming regulatory authority.
(ii) The tribal gaming regulatory authority shall retain a copy of
the testing laboratory's report so long as the Class II gaming system,
cashless system, voucher system, or modification thereto that is the
subject of the report remains available to the public for play in its
gaming operation.
(d) Emergency hardware and software modifications. (1) A tribal
gaming regulatory authority, in its discretion, may permit modified
hardware or software to be made available for play without prior
laboratory testing or review if the modified hardware or software is:
(i) Necessary to correct a problem affecting the fairness,
security, or integrity of a game or accounting system or any cashless
system, or voucher system; or
(ii) Unrelated to game play, an accounting system, a cashless
system, or a voucher system.
(2) If a tribal gaming regulatory authority authorizes new or
modified software or hardware to be made available for play or use
without prior testing laboratory review, the tribal gaming regulatory
authority shall thereafter require the hardware or software
manufacturer to:
(i) Immediately advise other users of the same hardware or software
of the importance and availability of the update;
(ii) Immediately submit the new or modified hardware or software to
a testing laboratory for testing and verification of compliance with
this part and any applicable provisions of parts 542 and 543 of this
chapter that are testable by the testing laboratory; and
(iii) Immediately provide the tribal gaming regulatory authority
with a software signature verification tool meeting the requirements of
Sec. 547.8(f) for any new or modified software.
(3) If a tribal gaming regulatory authority authorizes a software
or hardware modification under this paragraph, it shall maintain a
record of the modification and a copy of the testing laboratory report
so long as the Class II gaming system that is the subject of the
modification remains available to the public for play and shall make
the record available to the Commission upon request. The Commission
will only make available for public review records or portions of
records subject to release under the Freedom of Information Act, 5
U.S.C. 552; the Privacy Act of 1974, 5 U.S.C. 552a; or the Indian
Gaming Regulatory Act, 25 U.S.C. 2716(a).
(e) Compliance by charitable gaming operations. This part shall not
apply to charitable gaming operations, provided that:
(1) The tribal government determines that the organization
sponsoring the gaming operation is a charitable organization;
(2) All proceeds of the charitable gaming operation are for the
benefit of the charitable organization;
(3) The tribal gaming regulatory authority permits the charitable
organization to be exempt from this part;
(4) The charitable gaming operation is operated wholly by the
charitable organization's employees or volunteers; and
(5) The annual gross gaming revenue of the charitable gaming
operation does not exceed $1,000,000.
(f) Testing laboratories. (1) A testing laboratory may provide the
examination, testing, evaluating and reporting functions required by
this section provided that:
(i) It demonstrates its integrity, independence and financial
stability to the tribal gaming regulatory authority.
(ii) It demonstrates its technical skill and capability to the
tribal gaming regulatory authority.
(iii) It is not owned or operated by the same tribe or tribal
gaming regulatory authority for whom it is providing the testing,
evaluating, and reporting functions required by this section.
(iv) The tribal gaming regulatory authority:
(A) Makes a suitability determination of the testing laboratory
based upon standards no less stringent than those set out in Sec. Sec.
533.6(b)(1)(ii) through (v) of this chapter and based upon no less
information than that required by Sec. 537.1 of this chapter, or
(B) Accepts, in its discretion, a determination of suitability for
the testing laboratory made by any other gaming regulatory authority in
the United States.
(v) After reviewing the suitability determination and the
information provided by the testing laboratory, the tribal gaming
regulatory authority determines that the testing laboratory is
qualified to test and evaluate Class II gaming systems.
(2) The tribal gaming regulatory authority shall:
(i) Maintain a record of all determinations made pursuant to
paragraphs (f)(1)(iv) and (f)(1)(v) of this section for a minimum of
three years and shall make the records available to the Commission upon
request. The Commission will only make available for public review
records or portions of records subject to release under the Freedom of
Information Act, 5 U.S.C. 552; the Privacy Act of 1974, 5 U.S.C. 552a;
or the Indian Gaming Regulatory Act, 25 U.S.C. 2716(a).
(ii) Place the testing laboratory under a continuing obligation to
notify it of any adverse regulatory action in any jurisdiction where
the testing laboratory conducts business.
(iii) Require the testing laboratory to provide notice of any
material changes to the information provided to the tribal gaming
regulatory authority.
Sec. 547.5 What are the rules of interpretation and of general
application for this part?
(a) Minimum standards. A tribal gaming regulatory authority may
establish and implement additional technical standards that are as
stringent as, or more stringent than, those set out in this part.
(b) Only applicable standards apply. Gaming equipment and software
used with Class II gaming systems shall meet all applicable
requirements of this part. For example, if a Class II gaming system
lacks the ability to print or accept vouchers, then any standards that
govern vouchers do not apply.
(c) Fairness. No Class II gaming system shall cheat or mislead
users. All prizes advertised shall be available to win. No progressive
prize shall have a probability of winning less than 1 in 100,000,000.
No other prize shall have a probability of winning less than 1 in
50,000,000.
(d) Approved equipment and software only. All gaming equipment and
software used with Class II gaming systems shall be identical in all
respects to a prototype reviewed and tested by a testing laboratory and
approved for use by the tribal gaming regulatory authority pursuant to
Sec. 547.4(a) through (c). Unapproved software shall not be loaded
onto or stored on any program
[[Page 60529]]
storage medium used in a Class II gaming system, except as provided in
Sec. 547.4(d).
(e) Proper functioning. All gaming equipment and software used with
Class II gaming systems shall perform according to the manufacturer's
design and operating specifications.
(f) No Limitation of Technology. This part should not be
interpreted to limit the use of technology or to preclude the use of
technology not specifically referenced.
(g) Severability. If any provision of this part is declared invalid
by a court of competent jurisdiction, such decision shall not affect
the remainder of this part.
Sec. 547.6 What are the minimum technical standards for enrolling and
enabling Class II gaming system components?
(a) General requirements. Class II gaming systems shall provide a
method to:
(1) Enroll and unenroll system components;
(2) Enable and disable specific system components.
(b) Specific requirements. Class II gaming systems shall:
(1) Ensure that only enrolled and enabled system components
participate in gaming; and
(2) Ensure that the default condition for components shall be
unenrolled and disabled.
Sec. 547.7 What are the minimum technical hardware standards
applicable to Class II gaming systems?
(a) General requirements. (1) The Class II gaming system shall
operate in compliance with applicable regulations of the Federal
Communications Commission.
(2) Prior to approval by the tribal gaming regulatory authority
pursuant to Sec. 547.4(c), the Class II gaming system shall have
obtained from Underwriters' Laboratories, or its equivalent, relevant
certification(s) required for equipment of its type, including but not
limited to certifications for liquid spills, electromagnetic
interference, etc.
(b) Printed circuit boards. (1) Printed circuit boards that have
the potential to affect the outcome or integrity of the game, and are
specially manufactured or proprietary and not off-the-shelf, shall
display a unique identifier such as a part number and/or revision
number, which shall be updated to reflect new revisions or
modifications of the board.
(2) Switches or jumpers on all circuit boards that have the
potential to affect the outcome or integrity of any game, progressive
award, financial instrument, cashless transaction, voucher transaction,
or accounting records shall be capable of being sealed.
(c) Electrostatic discharge. Class II gaming system components
accessible to the public shall be constructed so that they exhibit
immunity to human body electrostatic discharges on areas exposed to
contact. Static discharges of 15 kV for air discharges and
7.5 kV for contact discharges may not cause damage, or
inhibit operation or integrity of the Class II gaming system.
(d) Physical enclosures. Physical enclosures shall be of a robust
construction designed to resist determined illegal entry. All
protuberances and attachments such as buttons, identification plates,
and labels shall be sufficiently robust to avoid unauthorized removal.
(e) Player interface. The player interface shall include a method
or means to:
(1) Display information to a player; and
(2) Allow the player to interact with the Class II gaming system.
(f) Account access components. A Class II gaming system component
that reads account access media shall be located within a secure,
locked or tamper-evident area or in a cabinet or housing that is of a
robust construction designed to resist determined illegal entry and to
protect internal components. In addition, the account access component:
(1) Shall be constructed so that physical tampering leaves evidence
of such tampering; and
(2) Shall provide a method to enable the Class II gaming system to
interpret and act upon valid or invalid input or error condition.
(g) Financial instrument storage components. Any Class II gaming
system components that store financial instruments and that are not
operated under the direct control of a gaming operation employee or
agent shall be located within a secure and locked area or in a locked
cabinet or housing that is of a robust construction designed to resist
determined illegal entry and to protect internal components.
(h) Financial instrument acceptors. (1) Any Class II gaming system
components that handle financial instruments and that are not operated
under the direct control of an agent shall:
(i) Be located within a secure, locked and tamper-evident area or
in a locked cabinet or housing that is of a robust construction
designed to resist determined illegal entry and to protect internal
components;
(ii) Be able to detect the entry of valid or invalid financial
instruments and to provide a method to enable the Class II gaming
system to interpret and act upon valid or invalid input or error
condition; and
(iii) Be constructed to permit communication with the Class II
gaming system of the accounting information required by Sec. 547.9(a)
and by applicable provisions of any Commission and tribal gaming
regulatory regulations governing minimum internal control standards.
(2) Prior to completion of a valid financial instrument transaction
by the Class II gaming system, no monetary amount related to that
instrument shall be available for play. For example, credits shall not
be available for play until currency or coupon inserted into an
acceptor is secured in the storage component.
(3) The monetary amount related to all valid financial instrument
transactions by the Class II gaming system shall be recorded as
required by Sec. 547.9(a) and the applicable provisions of any
Commission and tribal gaming regulatory authority regulations governing
minimum internal control standards.
(i) Financial instrument dispensers. (1) Any Class II gaming system
components that dispense financial instruments and that are not
operated under the direct control of a gaming operation employee or
agent shall:
(i) Be located within a secure, locked and tamper-evident area or
in a locked cabinet or housing that is of a robust construction
designed to resist determined illegal entry and to protect internal
components;
(ii) Provide a method to enable the Class II gaming system to
interpret and act upon valid or invalid input or error condition; and
(iii) Be constructed to permit communication with the Class II
gaming system of the accounting information required by Sec. 547.9(a)
and by applicable provisions of any Commission and tribal gaming
regulatory regulations governing minimum internal control standards.
(2) The monetary amount related to all valid financial instrument
transactions by the Class II gaming system shall be recorded as
required by Sec. 547.9(a), the applicable provisions of parts 542 and
543 of this chapter, and any tribal gaming regulatory authority
regulations governing minimum internal control standards.
(j) Game Outcome Determination Components. Any Class II gaming
system logic components that affect the game outcome and that are not
operated under the direct control of a gaming operation employee or
agent shall be located within a secure, locked and tamper-evident area
or in a locked cabinet or housing that is of a robust
[[Page 60530]]
construction designed to resist determined illegal entry and to protect
internal components. DIP switches or jumpers that can affect the
integrity of the Class II gaming system must be capable of being sealed
by the tribal gaming regulatory authority.
(k) Door access detection. All components of the Class II gaming
system that are locked in order to meet the requirements of this part
shall include a sensor or other methods to monitor an open door. A door
open sensor, and its components or cables, shall be secure against
attempts to disable them or interfere with their normal mode of
operation;
(l) Separation of functions/no limitations on technology. Nothing
herein shall prohibit the account access component, financial
instrument storage component, financial instrument acceptor, and
financial instrument dispenser from being included within the same
component, or separated into individual components.
Sec. 547.8 What are the minimum technical software standards
applicable to Class II gaming systems?
This section provides general software standards for Class II
gaming systems for the play of Class II games.
(a) Player interface displays. (1) If not otherwise provided to the
player, the player interface shall display the following:
(i) The purchase or wager amount;
(ii) Game results; and
(iii) Any player credit balance.
(2) Between plays of any game and until the start of the next play,
or until the player selects a new game option such as purchase or wager
amount or card selection, whichever is earlier, if not otherwise
provided to the player, the player interface shall display:
(i) The total purchase or wager amount and all prizes and total
credits won for the last game played;
(ii) The final results for the last game played, including
entertaining displays of results, if any; and
(iii) Any default purchase or wager amount for the next play.
(b) Game initiation and play. (1) Each game played on the Class II
gaming system shall follow and not deviate from a constant set of rules
for each game provided to players pursuant to Sec. 547.16. Any change
in rules constitutes a different game. There shall be no automatic or
undisclosed changes of rules.
(2) For bingo games and games similar to bingo, the Class II gaming
system shall not alter or allow to be altered the card permutations or
game rules used for play of a Class II game unless specifically chosen
by the player prior to commitment to participate in the game. No
duplicate cards shall be sold for any common draw.
(3) No game play shall commence and, no financial instrument or
credit shall be accepted on the affected player interface, in the
presence of any fault condition that affects the outcome of the game,
open door, or while in test, audit, or lock-up mode.
(4) The player must choose to participate in the play of a game.
(c) Audit Mode. (1) If an audit mode is provided, the Class II
gaming system shall provide, for those components actively involved in
the audit:
(i) All accounting functions required by Sec. 547.9, by applicable
provisions of any Commission regulations governing minimum internal
control standards, and by any internal controls adopted by the tribe or
tribal gaming regulatory authority;
(ii) Display player interface identification; and
(iii) Display software version or game identification;
(2) Audit mode shall be accessible by a secure method such as an
employee PIN and key or other auditable access control.
(3) Accounting function data shall be accessible by an authorized
person at any time, except during a payout, during a handpay, or during
play.
(4) The Class II gaming system shall disable financial instrument
acceptance on the affected player interface while in audit mode, except
during financial instrument acceptance testing.
(d) Last game recall. The last game recall function shall:
(1) Be retrievable at all times, other than when the recall
component is involved in the play of a game, upon the operation of an
external key-switch, entry of an audit card, or a similar method;
(2) Display the results of recalled games as originally displayed
or in text representation, including entertaining display results
implemented in video, rather than electro-mechanical, form, if any, so
as to enable the tribal gaming regulatory authority or operator to
clearly identify the game sequences and results that occurred;
(3) Allow the Class II gaming system component providing game
recall, upon return to normal game play mode, to restore any affected
display to the positions, forms and values displayed before access to
the game recall information; and
(4) Provide the following information for the current and previous
four games played and shall display:
(i) Game start time, end time, and date;
(ii) The total number of credits at the start of play, less the
purchase or wager amount;
(iii) The purchase or wager amount;
(iv) The total number of credits at the end of play; and
(v) The total number of credits won as a result of the game
recalled, and the value in dollars and cents for progressive prizes, if
different.
(vi) For bingo games and games similar to bingo only, also display:
(A) The card(s) used by the player;
(B) The identifier of the bingo game played;
(C) The numbers or other designations drawn, in the order that they
were drawn;
(D) The numbers or other designations and prize patterns covered on
each card;
(E) All prizes won by the player, including winning patterns and
entertaining displays implemented in video, rather than electro-
mechanical form, if any; and
(F) The unique identifier of the card on which prizes were won;
(vii) For pull-tab games only, also display:
(A) The result(s) of each pull-tab, displayed in the same pattern
as on the tangible pull-tab;
(B) All prizes won by the player;
(C) The unique identifier of each pull tab; and
(D) Any other information necessary to fully reconstruct the
current and four previous plays.
(e) Voucher and credit transfer recall. Notwithstanding the
requirements of any other section in this part, a Class II gaming
system shall have the capacity to:
(1) Display the information specified in Sec. 547.11(b)(5)(ii)
through (vi) for the last five vouchers or coupons printed and the last
five vouchers or coupons accepted; and
(2) Display a complete transaction history for the last five
cashless transactions made and the last five cashless transactions
accepted.
(f) Software signature verification. The manufacturer or developer
of the Class II gaming system must provide to the testing laboratory
and to the tribal gaming regulatory authority an industry-standard
methodology, acceptable to the tribal gaming regulatory authority, for
verifying the Class II gaming system game software. By way of
illustration, for game software stored on rewritable media, such
methodologies include signature algorithms and hashing formulas such as
SHA-1.
(g) Test, diagnostic, and demonstration modes. If test, diagnostic,
[[Page 60531]]
and/or demonstration modes are provided, the Class II gaming system
shall, for those components actively involved in the test, diagnostic,
or demonstration mode:
(1) Clearly indicate when that component is in the test,
diagnostic, or demonstration mode;
(2) Not alter financial data on that component other than temporary
data;
(3) Only be available after entering a specific mode;
(4) Disable credit acceptance and payment unless credit acceptance
or payment is being tested; and
(5) Terminate all mode-specific functions upon exiting a mode.
(h) Multi-game. If multiple games are offered for player selection
at the player interface, the player interface shall:
(1) Provide a display of available games;
(2) Provide the means of selecting among them;
(3) Display the full amount of the player's credit balance;
(4) Identify the game selected or being played; and
(5) Not force the play of a game after its selection.
(i) Program interruption and resumption. The Class II gaming system
software shall be designed so that upon resumption following any
interruption, the system:
(1) Is able to return to a known state;
(2) Shall check for any fault condition upon resumption;
(3) Shall verify the integrity of data stored in critical memory;
(4) Shall return the purchase or wager amount to the player in
accordance with the rules of the game; and
(5) Shall detect any change or corruption in the Class II gaming
system software.
(j) Class II gaming system components acting as progressive
controllers. This paragraph applies to progressive controllers and
components acting as progressive controllers in Class II gaming
systems.
(1) Modification of progressive parameters shall be conducted in a
secure manner approved by the tribal gaming regulatory authority. Such
parameters may include:
(i) Increment value;
(ii) Secondary pool increment(s);
(iii) Reset amount(s);
(iv) Maximum value(s); and
(v) Identity of participating player interfaces.
(2) The Class II gaming system component or other progressive
controller shall provide a means of creating a progressive balancing
report for each progressive link it controls. At a minimum, that report
shall provide balancing of the changes of the progressive amount,
including progressive prizes won, for all participating player
interfaces versus current progressive amount(s), plus progressive
prizes. In addition, the report shall account for, and not be made
inaccurate by, unusual events such as:
(i) Class II gaming system critical memory clears;
(ii) Modification, alteration, or deletion of progressive prizes;
(iii) Offline equipment; or
(iv) Multiple site progressive prizes.
(k) Critical memory. (1) Critical memory may be located anywhere
within the Class II gaming system. Critical memory is any memory that
maintains any of the following data:
(i) Accounting data;
(ii) Current credits;
(iii) Configuration data;
(iv) Last game recall information required by Sec. 547.8(d);
(v) Game recall information for the current game, if incomplete;
(vi) Software state (the last normal state software was in before
interruption);
(vii) RNG seed(s), if necessary for maintaining integrity;
(viii) Encryption keys, if necessary for maintaining integrity;
(ix) Progressive prize parameters and current values;
(x) The five most recent financial instruments accepted by type,
excluding coins and tokens;
(xi) The five most recent financial instruments dispensed by type,
excluding coins and tokens; and
(xii) The five most recent cashless transactions paid and the five
most recent cashless transactions accepted.
(2) Critical memory shall be maintained using a methodology that
enables errors to be identified and acted upon. All accounting and
recall functions shall be verified as necessary to ensure their ongoing
integrity.
(3) The validity of affected data stored in critical memory shall
be checked after each of the following events:
(i) Every restart;
(ii) Each attendant paid win;
(iii) Each attendant paid progressive win;
(iv) Each sensored door closure; and
(v) Every reconfiguration, download, or change of prize schedule or
denomination requiring operator intervention or action.
(l) Secured access. Class II gaming systems that use a logon or
other means of secured access shall include a user account lockout
after a predetermined number of consecutive failed attempts to access
system.
Sec. 547.9 What are the minimum technical standards for Class II
gaming system accounting functions?
This section provides standards for accounting functions used in
Class II gaming systems.
(a) Required accounting data. The following minimum accounting
data, however named, shall be maintained by the Class II gaming system.
------------------------------------------------------------------------
Title Description
------------------------------------------------------------------------
(1) Amount In........................ The total value of all financial
instruments and cashless
transactions accepted by the
Class II gaming system. Each
type of financial instrument
accepted by the Class II gaming
system shall be tracked
independently per financial
instrument acceptor, and as
required by applicable
requirements of any Commission
and tribal gaming regulatory
authority regulations governing
minimum internal control
standards.
(2) Amount Out....................... The total value of all financial
instruments and cashless
transactions paid by the Class
II gaming system, plus the total
value of attendant pay. Each
type of financial instrument
paid by the Class II Gaming
System shall be tracked
independently per financial
instrument dispenser, and as
required by applicable
requirements of any Commission
and tribal gaming regulatory
authority regulations governing
minimum internal control
standards.
------------------------------------------------------------------------
(b) Accounting data storage. If the Class II gaming system
electronically maintains accounting data:
(1) Accounting data shall be stored with at least eight decimal
digits.
(2) Credit balances shall have sufficient digits to accommodate the
design of the game.
[[Page 60532]]
(3) Accounting data displayed to the player may be incremented or
decremented using visual effects, but the internal storage of this data
shall be immediately updated in full.
(4) Accounting data shall be updated upon the occurrence of the
relevant accounting event.
(5) Modifications to accounting data shall be recorded, including
the identity of the person(s) making the modifications, and be
reportable by the Class II gaming system.
(c) Rollover. Accounting data that rolls over to zero shall not
corrupt data.
(d) Credit balance display and function. (1) Any credit balance
maintained at the player interface shall be prominently displayed at
all times except:
(i) In audit, configuration, recall and test modes; or
(ii) Temporarily, during entertaining displays of game results.
(2) Progressive prizes may be added to the player's credit balance
provided:
(i) The player credit balance is maintained in dollars and cents;
(ii) The progressive accounting data is incremented in number of
credits; or
(iii) The prize in dollars and cents is converted to player credits
or transferred to the player's credit balance in a manner that does not
mislead the player or cause accounting imbalances.
(3) If the player credit balance displays in credits, but the
actual balance includes fractional credits, the Class II gaming system
shall display the fractional credit when the player credit balance
drops below one credit.
Sec. 547.10 What are the minimum standards for Class II gaming system
critical events?
This section provides standards for events such as system critical
faults, deactivation, door open or other changes of states, and lockup
within the Class II gaming system.
(a) Fault events. (1) The following events are to be treated as
described below:
------------------------------------------------------------------------
Events Definition and action to be taken
------------------------------------------------------------------------
(i) Component fault.................. Reported when a fault on a
component is detected. When
possible, this event message
should indicate what the nature
of the fault is.
(ii) Financial storage component full Reported when a financial
instrument acceptor or dispenser
includes storage, and it becomes
full. This event message should
indicate what financial storage
component is full.
(iii) Financial output component Reported when a financial
empty. instrument dispenser is empty.
The event message should
indicate which financial output
component is affected, and
whether it is empty.
(iv) Financial component fault....... Reported when an occurrence on a
financial component results in a
known fault state.
(v) Critical memory error............ Some critical memory error has
occurred. When a non-correctable
critical memory error has
occurred, the data on the Class
II gaming system component can
no longer be considered
reliable. Accordingly, any game
play on the affected component
shall cease immediately, and an
appropriate message shall be
displayed, if possible.
(vi) Progressive communication fault. If applicable; when
communications with a
progressive controller component
is in a known fault state.
(vii) Program storage medium fault... The software has failed its own
internal security check or the
medium itself has some fault.
Any game play on the affected
component shall cease
immediately, and an appropriate
message shall be displayed, if
possible.
------------------------------------------------------------------------
(2) The occurrence of any event identified in paragraph (a)(1) of
this section shall be recorded.
(3) Upon clearing any event identified in paragraph (a)(1) of this
section, the Class II gaming system shall:
(i) Record that the fault condition has been cleared;
(ii) Ensure the integrity of all related accounting data; and
(iii) In the case of a malfunction, return a player's purchase or
wager according to the rules of the game.
(b) Door open/close events. (1) In addition to the requirements of
paragraph (a)(1) of this section, the Class II gaming system shall
perform the following for any component affected by any sensored door
open event:
(i) Indicate that the state of a sensored door changes from closed
to open or opened to closed;
(ii) Disable all financial instrument acceptance, unless a test
mode is entered;
(iii) Disable game play on the affected player interface;
(iv) Disable player inputs on the affected player interface, unless
test mode is entered; and
(v) Disable all financial instrument disbursement, unless a test
mode is entered.
(2) The Class II gaming system may return the component to a ready
to play state when all sensored doors are closed.
(c) Non-fault events. (1) The following non-fault events are to be
treated as described below, if applicable:
------------------------------------------------------------------------
Event Definition and action to be taken
------------------------------------------------------------------------
(i) Player interface power off during This condition is reported by the
play. affected component(s) to
indicate power has been lost
during game play.
(ii) Player interface power on....... This condition is reported by the
affected component(s) to
indicate it has been turned on.
(iii) Financial instrument storage This condition is reported when a
component container/stacker removed. financial instrument storage
container has been removed. The
event message should indicate
which storage container was
removed.
------------------------------------------------------------------------
Sec. 547.11 What are the minimum technical standards for money and
credit handling?
This section provides standards for money and credit handling by a
Class II gaming system.
(a) Credit acceptance, generally. (1) Upon any credit acceptance,
the Class II gaming system shall register the correct number of credits
on the player's credit balance.
(2) The Class II gaming system shall reject financial instruments
deemed invalid.
(b) Credit redemption, generally. (1) For cashable credits on a
player interface, players shall be allowed to
[[Page 60533]]
cash out and/or redeem those credits at the player interface except
when that player interface is:
(i) Involved in the play of a game;
(ii) In audit mode, recall mode or any test mode;
(iii) Detecting any sensored door open condition;
(iv) Updating the player credit balance or total win accounting
data; or
(v) Displaying a fault condition that would prevent cash-out or
credit redemption. In this case a fault indication shall be displayed.
(2) For cashable credits not on a player interface, the player
shall be allowed to cash out and/or redeem those credits at any time.
(3) A Class II gaming system shall not automatically pay an award
subject to mandatory tax reporting or withholding.
(4) Credit redemption by voucher or coupon shall conform to the
following:
(i) A Class II gaming system may redeem credits by issuing a
voucher or coupon when it communicates with a voucher system that
validates the voucher or coupon.
(ii) A Class II gaming system that redeems credits by issuing
vouchers and coupons shall either:
(A) Maintain an electronic record of all information required by
paragraphs (b)(5)(ii) through (vi) of this section; or
(B) Generate two identical copies of each voucher or coupon issued,
one to be provided to the player and the other to be retained within
the machine for audit purposes.
(5) Valid vouchers and coupons shall contain the following:
(i) Gaming operation name and location;
(ii) The identification number of the Class II gaming system
component or the player interface number, as applicable;
(iii) Date and time of issuance;
(iv) Alpha and numeric dollar amount;
(v) A sequence number;
(vi) A validation number that:
(A) Is produced by a means specifically designed to prevent
repetition of validation numbers; and
(B) Has some form of checkcode or other form of information
redundancy to prevent prediction of subsequent validation numbers
without knowledge of the checkcode algorithm and parameters;
(vii) For machine-readable vouchers and coupons, a bar code or
other form of machine readable representation of the validation number,
which shall have enough redundancy and error checking to ensure that
99.9% of all misreads are flagged as errors;
(viii) Transaction type or other method of differentiating voucher
and coupon types; and
(ix) Expiration period or date.
(6) Transfers from an account may not exceed the balance of that
account.
(7) For Class II gaming systems not using dollars and cents
accounting and not having odd cents accounting, the Class II gaming
system shall reject any transfers from voucher payment systems or
cashless systems that are not even multiples of the Class II gaming
system denomination.
(8) Voucher redemption systems shall include the ability to report
redemptions per redemption location or user.
Sec. 547.12 What are the minimum technical standards for downloading
on a Class II gaming system?
This section provides standards for downloading on a Class II
gaming system.
(a) Downloads. (1) Downloads are an acceptable means of
transporting approved content, including but not limited to software,
files, data, and prize schedules.
(2) Downloads of software, games, prize schedules, or other
download packages shall be conducted only as authorized by the tribal
gaming regulatory authority.
(3) Downloads shall use secure methodologies that will deliver the
download data without alteration or modification, in accordance with
Sec. 547.15(a).
(4) Downloads conducted during operational periods shall be
performed in a manner that will not affect game play.
(5) Downloads shall not affect the integrity of accounting data.
(6) The Class II gaming system or the tribal gaming regulatory
authority shall log each download of any download package. Each log
record shall contain as a minimum:
(i) The time and date of the initiation of the download;
(ii) The time and date of the completion of the download;
(iii) The Class II gaming system components to which software was
downloaded;
(iv) The version(s) of download package and any software
downloaded. Logging of the unique software signature will satisfy this
requirement;
(v) The outcome of any software verification following the download
(success or failure); and
(vi) The name and identification number, or other unique
identifier, of any individual(s) conducting or scheduling a download.
(b) Verifying downloads. Following download of any game software,
the Class II gaming system shall verify the downloaded software using a
software signature verification method that meets the requirements of
Sec. 547.8(f). Using any method it deems appropriate, the tribal
gaming regulatory authority shall confirm the verification.
Sec. 547.13 What are the minimum technical standards for program
storage media?
This section provides minimum standards for removable, (re-
)writable, and nonwritable storage media in Class II gaming systems.
(a) Removable program storage media. All removable program storage
media shall maintain an internal checksum or signature of its contents.
Verification of this checksum or signature is to be performed after
every restart. If the verification fails, the affected Class II gaming
system component(s) shall lock up and enter a fault state.
(b) Nonrewritable program storage media. (1) All EPROMs and
Programmable Logic Devices (PLDs) that have erasure windows shall be
fitted with covers over their erasure windows.
(2) All unused areas of EPROMs shall be written with the inverse of
the erased state (e.g., zero bits (00 hex) for most EPROMs), random
data, or repeats of the program data.
(3) Flash memory storage components intended to have the same
logical function as ROM, i.e. not to be dynamically written, shall be
write-protected or otherwise protected from unauthorized modification.
(4) The write cycle shall be closed or finished for all CD-ROMs
such that it is not possible to write any further data to the CD.
(5) Write protected hard disks are permitted if the hardware means
of enabling the write protect is easily viewable and can be sealed in
place Write protected hard disks are permitted using software write
protection verifiable by a testing laboratory.
(c) Writable and rewritable program storage media. (1) Writable and
rewritable program storage, such as hard disk drives, Flash memory,
writable CD-ROMs, and writable DVDs, may be used provided that the
software stored thereon may be verified using the mechanism provided
pursuant to Sec. 547.8(f).
(2) Program storage shall be structured so there is a verifiable
separation of fixed data (e.g. program, fixed parameters, DLLs) and
variable data.
(d) Identification of program storage media. All program storage
media that is not rewritable in circuit, (e.g. EPROM,
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CD-ROM) shall be uniquely identified, displaying:
(1) Manufacturer;
(2) Program identifier;
(3) Program version number(s); and
(4) Location information, if critical (e.g. socket position 3 on
the printed circuit board).
Sec. 547.14 What are the minimum technical standards for electronic
random number generation?
This section provides minimum standards for electronic RNGs in
Class II gaming systems.
(a) Properties. All RNGs shall produce output having the following
properties:
(1) Statistical randomness;
(2) Unpredictability; and
(3) Non-repeatability.
(b) Statistical Randomness. (1) Numbers produced by an RNG shall be
statistically random individually and in the permutations and
combinations used in the application under the rules of the game. For
example, if a bingo game with 75 objects with numbers or other
designations has a progressive winning pattern of the five numbers or
other designations on the bottom of the card and the winning of this
prize is defined to be the five numbers or other designations are
matched in the first five objects drawn, the likelihood of each of the
75C5 combinations are to be verified to be statistically equal.
(2) Numbers produced by an RNG shall pass the statistical tests for
randomness to a 99% confidence level, which may include:
(i) Chi-square test;
(ii) Equi-distribution (frequency) test;
(iii) Gap test;
(iv) Poker test;
(v) Coupon collector's test;
(vi) Permutation test;
(vii) Run test (patterns of occurrences shall not be recurrent);
(viii) Spectral test;
(ix) Serial correlation test potency and degree of serial
correlation (outcomes shall be independent from the previous game); and
(x) Test on subsequences.
(c) Unpredictability. (1) It shall not be feasible to predict
future outputs of an RNG, even if the algorithm and the past sequence
of outputs are known.
(2) Unpredictability shall be ensured by reseeding or by
continuously cycling the RNG, and by providing a sufficient number of
RNG states for the applications supported.
(3) Re-seeding may be used where the re-seeding input is at least
as statistically random as, and independent of, the output of the RNG
being re-seeded.
(d) Non-repeatability. The RNG shall not be initialized to
reproduce the same output stream that it has produced before, nor shall
any two instances of an RNG produce the same stream as each other. This
property shall be ensured by initial seeding that comes from:
(1) A source of ``true'' randomness, such as a hardware random
noise generator; or
(2) A combination of timestamps, parameters unique to a Class II
gaming system, previous RNG outputs, or other, similar method.
(e) General requirements. (1) Software that calls an RNG to derive
game outcome events shall immediately use the output returned in
accordance with the game rules.
(2) The use of multiple RNGs is permitted as long as they operate
in accordance with this section.
(3) RNG outputs shall not be arbitrarily discarded or selected.
(4) Where a sequence of outputs is required, the whole of the
sequence in the order generated shall be used in accordance with the
game rules.
(5) The Class II gaming system shall neither adjust the RNG process
or game outcomes based on the history of prizes obtained in previous
games nor make any reflexive or secondary decision that affects the
results shown to the player or game outcome. Nothing in this paragraph
shall prohibit the use of entertaining displays.
(f) Scaling algorithms and scaled numbers. An RNG that provides
output scaled to given ranges shall:
(1) Be independent and uniform over the range;
(2) Provide numbers scaled to the ranges required by game rules,
and notwithstanding the requirements of paragraph (e)(3) of this
section, may discard numbers that do not map uniformly onto the
required range but shall use the first number in sequence that does map
correctly to the range;
(3) Be capable of producing every possible outcome of a game
according to its rules; and
(4) Use an unbiased algorithm. A scaling algorithm is considered to
be unbiased if the measured bias is no greater than 1 in 100 million.
Sec. 547.15 What are the minimum technical standards for electronic
data communications between system components?
This section provides minimum standards for electronic data
communications with gaming equipment or components used with Class II
gaming systems.
(a) Sensitive data. Communication of sensitive data shall be secure
from eavesdropping, access, tampering, intrusion or alteration
unauthorized by the tribal gaming regulatory authority. Sensitive data
shall include, but not be limited to:
(1) RNG seeds and outcomes;
(2) Encryption keys, where the implementation chosen requires
transmission of keys;
(3) PINs;
(4) Passwords;
(5) Financial instrument transactions;
(6) Transfers of funds;
(7) Player tracking information;
(8) Download Packages; and
(9) Any information that affects game outcome.
(b) Wireless communications. (1) Wireless access points shall not
be accessible to the general public.
(2) Open or unsecured wireless communications are prohibited.
(3) Wireless communications shall be secured using a methodology
that makes eavesdropping, access, tampering, intrusion or alteration
impractical. By way of illustration, such methodologies include
encryption, frequency hopping, and code division multiplex access (as
in cell phone technology).
(c) Methodologies shall be used that will ensure the reliable
transfer of data and provide a reasonable ability to detect and act
upon any corruption of the data.
(d) Class II gaming systems shall record detectable, unauthorized
access or intrusion attempts.
(e) Remote communications shall only be allowed if authorized by
the tribal gaming regulatory authority. Class II gaming systems shall
have the ability to enable or disable remote access, and the default
state shall be set to disabled.
(f) Failure of data communications shall not affect the integrity
of critical memory.
(g) The Class II gaming system shall log the establishment, loss,
and re-establishment of data communications between sensitive Class II
gaming system components.
Sec. 547.16 What are the minimum standards for game artwork, glass,
and rules?
This section provides standards for the display of game artwork,
the displays on belly or top glass, and the display and disclosure of
game rules, whether in physical or electronic form.
(a) Rules, instructions, and prize schedules, generally. The
following shall at all times be displayed or made readily available to
the player upon request:
(1) Game name, rules, and options such as the purchase or wager
amount stated clearly and unambiguously;
(2) Denomination;
(3) Instructions for play on, and use of, the player interface,
including the functions of all buttons; and
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(4) A prize schedule or other explanation, sufficient to allow a
player to determine the correctness of all prizes awarded, including;
(i) The range and values obtainable for any variable prize;
(ii) Whether the value of a prize depends on the purchase or wager
amount; and
(iii) The means of division of any pari-mutuel prizes; but
(iv) For bingo and games similar to bingo, the prize schedule or
other explanation need not state that subsets of winning patterns are
not awarded as additional prizes (e.g. five in a row does not also pay
three in a row or four in a row), unless there are exceptions, which
shall be clearly stated.
(b) Disclaimers. The Class II gaming system shall continually
display:
(1) ``Malfunctions void all prizes and plays'' or equivalent; and
(2) ``Actual Prizes Determined by Bingo [or other applicable Class
II game] Play. Other Displays for Entertainment Only.'' or equivalent.
Sec. 547.17 How does a tribal gaming regulatory authority apply for a
variance from these standards?
(a) Tribal Gaming Regulatory Authority approval. (1) A tribal
gaming regulatory authority may approve a variance from the
requirements of this part if it has determined that the variance will
achieve a level of security and integrity sufficient to accomplish the
purpose of the standard it is to replace.
(2) For each enumerated standard for which the tribal gaming
regulatory authority approves a variance, it shall submit to the
Chairman within 30 days, a detailed report, which shall include the
following:
(i) An explanation of how the variance achieves a level of security
and integrity sufficient to accomplish the purpose of the standard it
is to replace; and
(ii) The variance as granted and the record on which it is based.
(3) In the event that the tribal gaming regulatory authority or the
tribe's government chooses to submit a variance request directly to the
Chairman for joint government to government review, the tribal gaming
regulatory authority or tribal government may do so without the
approval requirement set forth in paragraph (a) (1) of this section.
(b) Chairman Review. (1) The Chairman may approve or object to a
variance granted by a tribal gaming regulatory authority.
(2) Any objection by the Chairman shall be in written form with an
explanation why the variance as approved by the tribal gaming
regulatory authority does not provide a level of security or integrity
sufficient to accomplish the purpose of the standard it is to replace.
(3) If the Chairman fails to approve or object in writing within 60
days after the date of receipt of a complete submission, the variance
shall be considered approved by the Chairman. The Chairman and the
tribal gaming regulatory authority may, by agreement, extend this
deadline an additional 60 days.
(4) No variance may be implemented until approved by the tribal
gaming regulatory authority pursuant to paragraph (a)(1) of this
section or the Chairman has approved pursuant to paragraph (b)(1) of
this section.
(c) Commission Review. Should the tribal gaming regulatory
authority elect to maintain its approval after written objection by the
Chairman, the tribal gaming regulatory authority shall be entitled to
an appeal to the full Commission in accordance with the following
process:
(1) Within 60 days of receiving an objection, the tribal gaming
regulatory authority shall file a written notice of appeal with the
Commission that may include a request for an oral hearing or it may
request that the matter be decided upon written submissions.
(2) Within 10 days after filing a notice of appeal the tribal
gaming regulatory authority shall file a supplemental statement
specifying the reasons why the tribal gaming regulatory authority
believes the Chairman's objection should be reviewed, and shall include
supporting documentation, if any.
(3) Failure to file an appeal or submit the supplemental statement
within the time provided by this section shall result in a waiver of
the opportunity for an appeal.
(4) If an oral hearing is requested it shall take place within 30
days of the notice of appeal and a record shall be made.
(5) If the tribal gaming regulatory authority requests that the
appeal be decided on the basis of written submission, the Commission
shall issue a written decision within 30 days of receiving the
supplemental statement.
(6) The Commission shall uphold the objection of the Chairman, only
if, upon de novo review of the record upon which the Chairman's
decision is based, the Commission determines that the variance approved
by the tribal gaming regulatory authority does not achieve a level of
security and integrity sufficient to accomplish the purpose of the
standard it is to replace.
(7) The Commission shall issue a decision within 30 days of the
oral hearing unless the tribal gaming regulatory authority elects to
provide the Commission additional time, not to exceed an additional 30
days, to issue a decision. In the absence of a decision by the
Commission within the time provided, the decision of the tribal gaming
regulatory authority shall be deemed affirmed.
(8) The Commission's decision shall constitute final agency action.
Dated: September 24, 2008.
Philip N. Hogen,
Chairman.
Norman H. DesRosiers,
Vice Chairman.
[FR Doc. E8-23084 Filed 10-9-08; 8:45 am]
BILLING CODE 7565-01-P