RULES AND REGULATIONS
PENNSYLVANIA GAMING CONTROL BOARD
[ 58 PA. CODE CHS. 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a, 499a AND 511a ]
Rules of Practice and Procedures
[39 Pa.B. 3446]
[Saturday, July 11, 2009]The Pennsylvania Gaming Control Board (Board), under its general authority in 4 Pa.C.S. § 1202(b)(30) (relating to general and specific powers) and the specific authority in 4 Pa.C.S. § 1205 (relating to license or permit application hearing process; public input hearings), amends Chapters 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a, 499a and 511a to read as set forth in Annex A.
Purpose of the Final-Form Rulemaking
This final-form rulemaking makes a number of revisions to the Board's practice and procedure regulations to: improve their clarity; conform to current practice; and simplify some of the existing requirements.
Explanation of Amendments to Chapters 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a 499a and 511a
Throughout this proposed rulemaking, the phrase ''report or recommendation'' has been replaced with ''report or report and recommendation.'' This reflects what the presiding officer actually does.
The Board has also eliminated the definition of the term ''hearing officer'' and various provisions and references to the term. The existing provisions in Chapter 491a (relating to general rules of practice) include hearing officers and presiding officers, but in practice, the Board only uses presiding officers. Therefore, the provisions related to hearing officers are not needed. The Board has also deleted the definition of ''presiding officer'' from § 491a.2 (relating to definitions) and placed it in § 401a.3 (relating to definitions) because the term is used in more than just Subpart H (relating to practice and procedure).
In § 405a.6 (relating to enforcement action), an incorrect citation to § 493.2(d) in subsection (c) has been replaced with the correct citation to § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response).
In § 491a.3 (relating to Office of the Clerk), the address for the Office of the Clerk has been updated to reflect the current location.
In § 491a.7(c) (relating to presiding officers), ''issues of law'' has been added to ''a fact in issue'' as a matter that the presiding officer will not discuss with one party without giving notice and an opportunity to participate to the other parties.
In §§ 491a.8 and 493a.9 (relating to hearings generally; and prehearing and other conferences), language has been added to allow the use of video conferencing. This will make it easier for parties to participate in prehearing conferences and hearings.
Section 491a.8(j), which makes hearing transcripts available for public inspection, has been expanded to include language stating that if the Board receives a request for a hearing transcript that has not been prepared, the Board will prepare the transcript and make it available for public inspection within 30 days.
Section 493a.2 (relating to complaints) has been rewritten to improve its organization, eliminate duplicative provisions and move provisions related to answers to § 493.5 (relating to answers to complaints, petitions, motions and other filings requiring a response).
In § 493a.4 (relating to petitions generally), duplicative provisions have been deleted.
In § 493a.5, the section title has been changed and the section has been amended to delete duplicative provisions and add provisions pertaining to answers that previously were in § 493a.2.
In §§ 493a.5, 493a.10, 493a.13 and 494a.6 (relating to motions for summary judgment and and judgment on the pleadings; consent agreements; and reopening of records deadlines) have been shifted from date of service to date of filing. This will make it easier for the Board to determine if answers have been filed in a timely manner.
A new § 493a.10a (relating to motions to protect confidential information) has been added to Chapter 493a. What is considered to be confidential information under the act has been a controversial issue. Accordingly, the Board is adding this new section to establish a process that can be used in proceedings to address this issue.
In § 494a.8 (relating to rehearing or reconsideration), a new subsection (b) has been added to clarify that filing a petition for rehearing or reconsideration does not toll the 30-day appeal period.
In § 495a.1 (relating to form of documentary filings generally), subsection (d) has been amended to allow parties to indicate a fax number or email address when papers may be served instead of a mailing address. This is being done to make it easier and faster to serve documents.
Section 495a.6 (relating to number of copies) has been revised to only require that the original copy of documents be filed with the Board. Because the Board is using an electronic internal filing system, multiple copies of documents are no longer needed.
In § 497a.1 (relating to date of filing), new provisions have been added that allow documents to be submitted by means of electronic transmission. However, documents will not be deemed to be officially filed until the Board receives any required filing fees.
In § 499a.4 (relating to notice of appearance or withdrawal), subsection (c) has been deleted. The Board has never required and can not foresee a need to require a practitioner to file a power of attorney authorizing the practitioner to represent their client.
In § 499a.6 (relating to contemptuous conduct), subsection (a) has been amended to include contemptuous conduct before a presiding officer, as well as the Board, as a basis for exclusion from a hearing.
Comment and Response Summary
Notice of proposed rulemaking was published at 38 Pa.B. 5441 (October 4, 2008).
The Board received comments from Downs Racing, L.P. (Downs), Greenwood Gaming and Entertainment, Inc. (Greenwood) and Sands Bethworks Gaming, LLC (Sands). By letter dated December 3, 2008, the Independent Regulatory Review Commission (IRRC) also submitted comments. All of these comments were reviewed by the Board and are discussed in detail as follows.
IRRC pointed out that although § 403a.7 (relating to temporary emergency orders) uses the term ''presiding officer,'' there is no applicable definition to this term. Section 491a.2 (relating to definitions) defines that term, but that section applies only to Subpart H, not Subpart A (relating to general provisions), where § 403a.7 is located.
The Board concurs with IRRC. In response, the definition of ''presiding officer'' has been deleted from § 491a.2 and placed in § 401a.3 (relating to definitions), which applies to the entire part.
IRRC expressed concern that the amendments to §§ 493a.5, 493a.6, 493a.10 and 493a.12; which change the trigger dates for responsive filings from the date of service to the date of filing, could make it difficult for parties who are served several days after filing to respond in a timely manner.
The Board notes that if a party is slow in providing service, the disadvantaged responding party is able to file a motion under § 497a.5 (relating to extensions of time and continuances) requesting additional time. Moreover, because this rulemaking will allow for electronic service, the Board does not expect that slow service will be an issue in the future. In addition, the existing regulation allows 10 days for the filing of answers to motions for summary judgment. While the Board thinks this is sufficient, it will monitor actual practice and consider using a longer period if experience shows that more time should be allotted.
Comments from the licensed facilities primarily offered opposition to the new proposed § 493a.10a. As the comments submitted by the licensed facilities raised substantially the same objections, references to the commentators, as follows, includes Greenwood, Downs and Sands.
The commentators stated that the process contained in § 493a.10a for filing a Motion to Protect Confidential Information unreasonably shifts the burden of protecting the information from the Board to the filing parties. They pointed to current procedure under § 407a.3, whereby filing parties simply mark any information they deem confidential, as the proper way for the Board to implement its statutory duty to protect the confidential information of the licensees. They believe the effect of the proposed proposed rulemaking would be to require a licensee to prevail on a motion seeking the confidentiality of material already defined and protected by the Right-to-Know Law (65 P. S. §§ 67.101--67.3104) as confidential. IRRC echoed the commentators on this point and asked the Board to explain its authority in that regard.
The Board does not agree that § 493a.10a relieves the Board of its statutory duty to protect confidential information. The intent of § 493a.10a was not to establish an adversarial situation that requires the filing party to prevail on a contested motion to protect information from disclosure to the public. The Motion to Protect Confidential Information is intended to give the filing party the opportunity to clarify for the Board exactly what information should be protected and why that information falls within the scope of the protections provided by the act and the Board's regulations. Having this information on the record will assist the Board in dealing with requests for information made under the law.
In response to these comments, however, the Board has removed the language; ''a party or individual may seek to protect confidential information'' in § 493a.10a(a), and replaced it with; ''a party or individual may designate information as confidential.'' This clarifies that the purpose of the Motion to Protect Confidential Information is for the filing party to identify for the record the confidential information in its pleadings and provide the reason it should be so designated. If the Motion is acted on favorably, the Board will protect the confidential information from disclosure to other parties, under the act and its regulations.
The commentators also expressed concern over the treatment of the material sought to be protected during the pendency of the Motion to Protect Confidential Information. They questioned if the procedure in the proposed regulation would permit the information in question to be disclosed to another party prior to an interim ruling on the Motion by the Director of Hearings and Appeals.
The Board agrees that information sought to be designated confidential should be protected during the time it takes the Director of Hearings and Appeals to issue an interim order on the Motion to Protect Confidential Information. The process established by § 493a.10a will enable the Director to issue an interim order in a short amount of time. In response to the comments, however, the Board has added language to the final-form regulation ensuring that all information that is the subject of the Motion to Protect Confidential Information will be treated as confidential during its pendency.
The commentators also felt that compliance with § 493a.10a would create a negative fiscal impact on the filing parties. They assert that the necessity of filing a separate Motion to Protect Confidential Information with every pleading would significantly increase costs to the industry without any identifiable benefit. IRRC also commented that compliance with this section will result in some costs to the regulated community.
The Board acknowledges that compliance with proposed regulation § 493a.10a will result in some additional cost to licensed facilities that appear regularly before the Board. The Board feels, however, that the additional cost will be minimal and is justified in establishing a clear record of what the filing party considers to be confidential information and the justification for protecting it as such.
Finally, the commentators felt that the term ''pleading and other papers'' in the proposed § 493a.10a was vague. IRRC raised this concern in its comments, as well. In response, the Board has changed this language to ''any papers filed with the Clerk.'' This should clarify that anything filed with the Clerk can be the subject of a Motion to Protect Confidential Information.
In addition to reiterating some of the concerns of the licensed facilities, IRRC also raised several other issues regarding § 493a.10a. IRRC noted that § 493a.10a(a) refers only to ''information,'' while subsection (b) refers to ''information'' and ''documents'' in separate paragraphs, and subsection (c) only refers to ''documents.''
The Board's intent was to treat any ''documents that contain confidential information'' as confidential. No distinction between ''documents'' and ''information'' was intended. The proposed regulation has been changed to make clear and consistent reference to confidential information.
IRRC asked whether the interim order issued by the Director of Hearings and Appeals and the final order issued by the Board would protect the substance of the Motion to Protect Confidential Information, as well as the documents attached to it.
The Board has added language to the final-form rulemaking which clarifies that, to the extent that the motion contains confidential information, that information will be protected by both the Director's interim order and the final order of the Board.
Finally, IRRC questioned whether the Motion to Protect Confidential Information is intended to apply to information other than the information described in 4 Pa.C.S. § 1206.
In response to this question, the Board notes that this section is intended to apply to any information that is confidential under the act and the Board's regulations, as well as any other statutes.
Additional Revisions
In § 405a.6(c), the Board has corrected an incorrect citation to § 493.2(d) by replacing it with the correct citation to § 493a.5.
On March 19, 2009, IRRC voted to disapprove final-form Regulation No. 125-93. IRRC was concerned that that the final-form regulation would unreasonably disadvantage the regulated community and would be likely to create confusion amongst the regulated community. This confusion would be created by using the filing date instead of the date of service which is used by most other administrative agencies.
On April 22, the Board adopted, and submitted to IRRC, a revised final-form rulemaking. The Board disagreed with IRRC's conclusion that the regulated community would be unreasonably disadvantaged because the provisions of the final-form regulation would apply equally to the Board and other regulated entities. However, the Board agreed that using the filing date instead of the date of service could be confusing. To address this concern the Board made three other changes.
First, the Board amended §§ 493a.5(a), 493a.10(c), 493a.12(f) and 494a.6(c) of the final-form rulemaking to return to the preexisting language which ties the response periods to the date of service instead of the date of filing. This will eliminate the potential for confusion for parties that also deal with other regulatory agencies that use the date of service for calculating response dates.
Second, the Board deleted § 497a.1(c) which would have tied the filing date to receipt of filing fees. The Board agrees that this could make it difficult for parties to accurately determine filing deadlines. Additionally, the Board is considering eliminating fees for most filings, so there is no need for this provision.
Lastly, to address the Board's original concern that adequate time be provided to all parties for filing responses under § 493a.5(a), the time period for filing answers has been increased from 20 days to 30 days. This will ensure that mailing delays do not adversely affect any parties' ability to respond. For the same reason, the time period for filing responses to motions for summary judgments under § 493a.10(c) has been increased from 10 days to 15 days.
Affected Parties
This final-form rulemaking will affect entities and individuals who are involved in Board proceedings.
Fiscal Impact
Commonwealth
Because most of the revisions in this final-form rulemaking reflect current Board practice or reflect relatively minor changes, there will be no significant costs or savings to the Board or other state agencies as a result of these revisions. The Board will experience some savings from being allowed to file and serve some documents electronically.
Political Subdivisions
This final-form rulemaking will have no fiscal impact on political subdivisions of this Commonwealth.
Private Sector
Entities and individuals who are involved in Board proceedings will experience some slight savings from being required to submit fewer copies of documents and being able to file and serve documents electronically. Individuals who participate in videoconferencing for hearings should also experience savings from reduced travel. Parties seeking to protect confidential information may experience some increased costs related to filing motions to protect confidential information, but since this process replaces a matter that was previously dealt with at prehearing conferences, the costs should not be significant.
General Public
This final-form rulemaking will have no fiscal impact on the general public.
Paperwork Requirements
This final-form rulemaking reduces the number of copies of documents that must be filed with the Board and allows electronic service to replace mailing of documents to provide service.
Parties seeking to protect confidential information will have to file a motion to protect confidential information, but this will eliminate the need to resolve this issue as part of a prehearing conference.
Effective Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Contact Person
The contact person for questions about this final-form rulemaking is Richard Sandusky, Director of Regulatory Review at (717) 214-8111.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 24, 2008, the Board submitted a copy of this proposed rulemaking, published at 38 Pa.B. 5441, and a copy of the Regulatory Analysis Form to IRRC and to the Chairpersons of the House Gaming Oversight Committee and the Senate Community, Economic and Recreational Development Committee (Committees).
Under section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments received from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), the final-form rulemaking was deemed approved by the Committees on May 20, 2009. Under section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)) IRRC met on May 21, 2009, and approved the final-form rulemaking.
Findings
The Board finds that:
(1) Public notice of intention to adopt these amendments was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) The final-form rulemaking is necessary and appropriate for the administration and enforcement of 4 Pa.C.S. Part II (relating to gaming).
Order
The Board, acting under 4 Pa.C.S. Part II, orders that:
(a) The regulations of the Board, 58 Pa. Code Chapters 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a, 499a and 511a are amended by amending §§ 403a.7, 491a.2, 491a.3, 491a.7--491a.9, 493a.2, 493a.4, 494a.4, 494a.5, 494a.8, 495a.1, 495a.6, 499a.4, 499a.6, 511a.6 and 511a.9 and by deleting § 491a.6 to read as set forth at 38 Pa.B. 5441 and by amending §§ 401a.3, 405a.6, 493a.5, 493a.10, 494a.6 and 497a.1; and by adding § 493a.10a to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(c) This order shall take effect upon publication in the Pennsylvania Bulletin.
GREGORY FAJT,
Chairperson(Editor's Note: The proposal to amend § 493a.12, included in the proposed rulemaking at 38 Pa.B. 5441 has been withdrawn by the Board. Section 405a.6, included in this final-form rulemaking, was not included in the proposed rulemaking at 38 Pa.B. 5441.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 2902 (June 6, 2009).)
Fiscal Note: Fiscal Note 125-93 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 58. RECREATION
PART VII. GAMING CONTROL BOARD
Subpart A. GENERAL PROVISIONS
CHAPTER 401a. PRELIMINARY PROVISIONS § 401a.3. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Presiding officer--
(i) A member of the Board, or other person designated by the Board to conduct a proceeding.
(ii) This definition supersedes 1 Pa. Code § 31.3 (relating to the definitions).
* * * * *
CHAPTER 405a. BUREAU OF INVESTIGATIONS AND ENFORCEMENT § 405a.6. Enforcement action.
(a) Upon a determination by the Office of Enforcement Counsel that sufficient facts exist to support enforcement action against a person holding a license, permit, certification or registration issued by the Board, the Office of Enforcement Counsel will initiate a complaint in accordance with § 493.2 (relating to complaints), including a proposed order for an enforcement action and serve the complaint in accordance with § 491a.5 (relating to service by the Board).
(b) The complaint for an enforcement action will include a statement of the facts, the statute, regulation or statement of conditions that the person is being charged with violating and the remedy sought. The proposed order will be accompanied by a certificate of service demonstrating the date of service.
(c) Within 20 days from the date of service of complaint for an enforcement action, the person may file a notice of defense in accordance with § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response) and serve a copy of the notice of defense on the Office of Enforcement Counsel. Failure to file a notice of defense for an enforcement action complaint within 20 days will be deemed:
(1) A waiver by the person of any right to an administrative hearing before the Board.
(2) An admission by the person of all matters and facts alleged in the proposed order for enforcement action.
(3) Consent by the person to the entry of a final order by the Board disposing of the enforcement matter.
(d) Upon the person's failure to request a hearing within the prescribed 20 days, the Office of Enforcement Counsel will present the proposed enforcement order to the Board. The Board may, by resolution, adopt the proposed enforcement order.
(e) The Clerk will send a copy of the Board's final order to the person by first class mail.
Subpart H. PRACTICE AND PROCEDURE
CHAPTER 493a. PLEADINGS § 493a.5. Answers to complaints, petitions, motions and other filings requiring a response.
(a) Answers to complaints, petitions, motions and other filings requiring a response shall be filed with the Clerk and served on all other parties within 30 days after the date of service of the complaint, petition, motion or other pleading, unless a different time is prescribed by the Board or presiding officer.
(b) Failure to file a timely answer to a complaint or petition will constitute an admission of all matters and facts contained in the filing and may result in the waiver of the right to a hearing.
(c) Answers may contain the following:
(1) Admissions of the matter complained of and the alleged facts, in whole or in part.
(2) New matter or explanation by way of defense.
(3) Legal objections.
(4) Affirmative defenses.
(5) A request for a hearing.
(d) This section supplements 1 Pa. Code §§ 35.35--35.40.
§ 493a.10. Motions for summary judgment and judgment on the pleadings.
(a) Motion for judgment on the pleadings. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for judgment on the pleadings.
(b) Motion for summary judgment. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for summary judgment based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits.
(c) Answers to motions. An answer to a motion for summary judgment or a motion for judgment on the pleadings, including an opposing affidavit to a motion for summary judgment, may be filed with the Clerk and served on all other parties within 15 days of the date of service of the motion. An answer to a motion for summary judgment may be supplemented by pleadings and depositions, answers to interrogatories or further affidavits and admissions.
(d) Decisions on motions. If a motion is granted in whole or in part by a presiding officer, it will be in the form of a report or report and recommendation. The Board will make a final ruling on a motion for judgment on the pleadings or a motion for summary judgment.
(e) Supplementation. This section supplements 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 493a.10a. Motions to protect confidential information.
(a) A party or individual may designate information as confidential under § 407a.3 (relating to confidential information) in any papers filed with the Clerk by filing a Motion to Protect Confidential Information.
(b) A Motion to Protect Confidential Information must:
(1) Set forth the specific reasons why the information should be deemed to be confidential information and, therefore, protected.
(2) Label as confidential all documents or portions of documents in the filing containing the confidential information that the party or individual is seeking to protect.
(c) Upon the filing of the Motion to Protect Confidential Information, the Director of Hearings and Appeals will review the motion and accompanying filings and, upon determining that a substantial basis exists, shall issue an interim order to protect the information, whether in the motion or the accompanying filings, from disclosure until the Board considers the matter in accordance with 65 Pa.C.S. §§ 701--716 (relating to open meetings). At all times during the pendency of the motion, the information in the motion and the accompanting filings shall be treated as confidential.
CHAPTER 494a. HEARING PROCEDURE § 494a.6. Reopening of record.
(a) After the conclusion of the hearing, a party in a proceeding may file with the presiding officer, prior to the issuance of a report or report and recommendation, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition must set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred since the hearing was concluded.
(b) After the issuance of a report or report and recommendation by a presiding officer and before the Board issues its final order, a party in a proceeding may file with the Board, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition must set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred since the issuance of a report or report and recommendation.
(c) Answers may be filed within 10 days of service of the petition. If no answers are filed, objections to the granting of the petition are waived.
(d) After the filing of the petition and answer, the Board or presiding officer will grant or deny the petition.
(e) Prior to filing a report or report and recommendation, the presiding officer, after notice to the parties, may reopen the proceedings for the receipt of further evidence on his own motion, if the presiding officer has reason to believe that the facts or law have changed as to require, or that the public interest requires, the reopening of the proceedings.
(f) Prior to the issuance of a final order, the Board, after notice to the parties, may reopen the proceeding for the receipt of further evidence, if the Board has reason to believe that the facts or law have changed as to require, or that the public interest requires, the reopening of the proceeding.
(g) This section supersedes 1 Pa. Code §§ 35.231--35.233 (relating to reopening of record).
CHAPTER 497a. TIME § 497a.1. Date of filing.
(a) Whenever a pleading or other document is required or permitted to be filed under this part or by statute, it will be deemed to be filed on one of the following dates:
(1) On the date actually received in the Office of the Clerk.
(2) On the date deposited with an overnight express package delivery service as shown on the express delivery receipt attached to or included within the envelope containing the document.
(3) On the date deposited in the United States mail as shown by the United States Postal Service stamp on the envelope or on a United States Postal Service Form 3817 certificate of mailing. A mailing envelope stamped by an in-house postage meter does not constitute proof of the date of mailing.
(4) On the date that the pleading or other document is received by electronic transmission in the Office of the Clerk.
(b) Failure to include a legible delivery receipt with the document may result in an untimely filing.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.11 (relating to timely filing required).
[Pa.B. Doc. No. 09-1218. Filed for public inspection July 10, 2009, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
