NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[36 Pa.B. 7180]
[Saturday, November 25, 2006]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 125-45 Pennsylvania Gaming Control Board
General and Operating Provisions; Board Procedures
36 Pa.B. 5690 (September 9, 2006)10/10/06 11/9/06 125-46 Pennsylvania Gaming Control Board
Recordkeeping and Fees
36 Pa.B. 5700 (September 9, 2006)
10/10/06 11/9/06 125-47 Pennsylvania Gaming Control Board
Diversity
36 Pa.B. 5687 (September 9, 2006)
10/10/06 11/9/06
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Pennsylvania Gaming Control Board Regulation #125-45 (IRRC #2561)
General and Operative Provisions; Board Procedures
November 9, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the September 9, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
1. Determining whether the regulation is in the public interest.
The Pennsylvania Horse Race Development Act (Act) (4 Pa.C.S.A. §§ 1101--1904) allowed the Board to promulgate temporary regulations until July 5, 2006. The temporary regulations were not subject to two statutes that guide agencies when promulgating regulations. Those statutes are the Commonwealth Documents Law (CDL) (45 P. S. §§ 1201--1208) and the Regulatory Review Act (RRA) (71 P. S. §§ 745.1--745.15). The Act requires all temporary regulations to be promulgated as permanent regulations by July 5, 2007. The conversion of temporary regulations to permanent regulations requires compliance with both the CDL and the RRA.
Section 5.2 of the RRA (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) in the regulatory analysis form (RAF).
The Preamble to this rulemaking states that the Board proposes to replace four chapters of its temporary regulations with permanent regulations. The explanation of the regulations in the Preamble and the information contained on the RAF is not sufficient to allow this Commission to determine if the regulation is in the public interest. While we commend the Board for involving the regulated community in the development of the temporary regulations, we note that a complete explanation of the need for each chapter and section was not provided in that process. Furthermore, there is no detailed fiscal impact and cost benefit analysis in the RAF. Without this information, we cannot determine if this proposed regulation is in the public interest. In the Preamble and RAF submitted with the final-form rulemaking, the Board should provide more detailed information required under § 745.5(a) of the RRA.
CHAPTER 401. PRELIMINARY PROVISIONS 2. Section 401.2. Construction.--Statutory authority; Implementation procedures.
Subsection (b) allows the Board to permit deviations from a requirement of Part VII of Title 58. Part VII pertains to all of the Board's regulations, both substantive and procedural. Under Subsection (c), 1 Pa. Code § 31.2 (relating to liberal construction) would be superseded by this section. 1 Pa. Code § 31.2 pertains only to rules of administrative practice and procedure. What is the Board's statutory authority for granting a waiver from a substantive requirement? Absent specific statutory authority, Subsection (b) should be deleted in its entirety and Subsection (c) should be amended to only reference Subsection (a).
If the Board has statutory authority to grant waivers of substantive requirements, the procedures for requesting and considering a waiver must be included in the final-form regulation. In addition, the final-form regulation must address who can request such a waiver and what criteria the Board will apply to determine if a waiver will be granted.
3. Section 401.3. Definitions.--Statutory authority; Implementation procedures; Clarity.
Gaming employee
Paragraph (i)(J) references personnel with SLOTS Link security administrator access and responsibilities. The term ''SLOTS Link'' is not clear. This term should be defined in the final-form regulation.
Under Paragraphs (ii) and (iii), certain employees of a manufacturer will be considered ''gaming employees.'' The definition of ''gaming employee'' found in § 1103 of the Act (4 Pa.C.S.A. § 1103) references only slot machine and supplier licensees. What is the Board's statutory authority for including certain employees of licensed manufacturers in this definition?
Paragraph (iv) states that ''other employees as determined by the Board'' may be considered a ''gaming employee.'' This provision lacks specificity and would make compliance with the regulation difficult for the regulated community. The final-form regulation should either delete this paragraph or list who the other employees are.
Key employee
This definition deviates from the statutory definition found in the Act in that paragraph (ii) of the regulatory definition includes manufacturer and supplier licensees. What is the Board's statutory authority for including these licensees in the definition of ''key employee''?
In addition, the statutory definition (§ 1103 of the Act (4 Pa.C.S.A. § 1103)) of this term includes the position of ''director of cage and or credit operations.'' Under Paragraph (i), why was ''credit operations'' not included in the regulatory definition?
Licensed entity
This term is defined as: ''A person, other than a natural person, licensed by the Board under this part.'' The phrase ''other than a natural person'' is not included in the statutory definition. The statutory definition includes the phrase ''other person'' and the definition of ''person'' in the Statutory Construction Act (1 Pa.C.S.A. §§ 1901--1991) includes ''natural person.'' What is the Board's statutory authority to exclude a ''natural person'' as a licensed entity?
Manufacturer's serial number
This definition states that the manufacturer's serial numbers will be affixed to the outside of the slot machine cabinet in a location approved by the Board. This is a substantive provision. Substantive provisions in definitions are not enforceable. We recommend that this provision be moved to a more appropriate section in the body of the regulation. The final-form regulation should also include the process the Board will use to approve locations of numbers affixed to slot machines.
Occupation permit
The statutory definition of this term is: ''A permit authorizing an individual to be employed or work as a gaming employee at a licensed facility.'' The regulatory definition excludes the phrase ''at a licensed facility.'' Will a gaming employee not working at licensed facility be required to obtain an occupation permit? If so, what is the Board's statutory authority for imposing this requirement?
Vendor certification and vendor registration
The Board has explained that the difference between these terms is the amount of expected goods and services the vendor may annually provide to a facility. In order for the regulated community to know whether they should apply for registration or certification, we recommend that the final-form regulation include the monetary amounts that trigger the need to obtain vendor registration or vendor certification.
CHAPTER 403. BOARD OPERATIONS AND ORGANIZATION 4. Section 403.6. Temporary emergency orders.--Implementation procedures; Clarity.
Subsection (c)
This subsection lists specific circumstances when a temporary emergency order may be issued. Subsection (c)(1) states that a person ''charged with or convicted of a felony, a criminal gaming offense, or crime of dishonesty or false statement or other disqualifying offense'' may be subject to a temporary emergency order. The phrase ''other disqualifying offense'' lacks clarity. This phrase should be deleted or the offenses should be listed in the final-form regulation.
Subsection (g)
Subsection (g) references § 491.3 (relating to service by the Board). Section 491.3 is a temporary regulation. The temporary regulations will cease to exist as of July 5, 2007, unless they are promulgated as permanent regulations by that date. We recommend that the Board delete references to temporary regulations unless the pertinent temporary regulations have been promulgated as permanent regulations prior to the Board's submittal of this final-form regulation. Other sections of this rulemaking that contain references to temporary regulations are: §§ 403.5(k)(2); 403.5(q); 403.5(r)(3) and 405.6(a).
Subsection (j)
This subsection pertains to the procedure for an informal hearing before the Executive Director or designee. Under Subsection (j)(5), how much time does the Executive Director have to render a decision and how will the person be notified of the decision? We recommend that the final-form regulation include provisions that address both of these concerns. This would allow a person that is the subject of a temporary emergency order to have a clear understanding of how this process works.
Subsection (m)
Under Subsection (m)(1), the Board may adopt a resolution ratifying or modifying the temporary emergency order. The Board has explained that the appeal process is contained in Chapter 494. The fact that a person has appeal rights and the procedure for filing an appeal should be referenced in the final-form regulation.
CHAPTER 405. BUREAU OF INVESTIGATIONS AND ENFORCEMENT 5. Section 405.1. General duties and powers.--Statutory authority; Clarity.
Paragraph (2) allows the Bureau of Investigation and Enforcement (Bureau) to investigate ''licensees, permittees, registrants, certified vendors and other persons for potential violations of the act.'' Section 1517(a)(1) of the Act (4 Pa.C.S.A § 1517(a)(1)) allows the Board to investigate ''all licensees, permittees and applicants.'' We question the Board's statutory authority to investigate a person not subject to some form of Board approval. This should be explained in the Preamble to the final-form regulation.
6. Section 405.2. Information.--Statutory authority; Clarity.
Subsection 405.2(c) states that other state and local law enforcement agencies ''shall'' provide information requested by the Bureau relating to an applicant. Section 1517(f) (4 Pa.C.S.A. § 1517(f)) of the Act states that these agencies ''may'' obtain or provide that information. To be consistent with the Act, the word ''shall'' should be changed to ''may.''
7. Section 405.6. Enforcement action.--Clarity.
This section allows the Office of Enforcement Counsel to initiate an enforcement action against a person holding a license, permit certification or registration issued by the Board. The term ''enforcement action'' is not defined. This term should be explained in the final-form regulation.
CHAPTER 407. PUBLIC ACCESS TO BOARD FILES 8. Section 407.1. Case files.--Reasonableness; Implementation procedures.
This section establishes the procedures the Board will follow when a request for confidential information has been made. A commentator has requested that a provision be added to this chapter that would require the Board to notify the applicant or holder of a license, permit, certification or registration of the request prior to the release of that holder's confidential information. We believe this is a reasonable request that would allow the holder to better manage its business interests and recommend that the Board consider adding language that would allow for proper notification.
9. Miscellaneous clarity.
To be consistent with the rest of § 403.6, the phrase ''or designee'' should be added to § 403.6(h).
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Pennsylvania Gaming Control Board Regulation #125-46 (IRRC #2562)
Recordkeeping and Fees
November 9, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the September 9, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
9. Determining whether the regulation is in the public interest.
The Pennsylvania Horse Race Development Act (Act) (4 Pa.C.S.A. §§ 1101--1904) allowed the Board to promulgate temporary regulations until July 5, 2006. The temporary regulations were not subject to two statutes that guide agencies when promulgating regulations. Those statutes are the Commonwealth Documents Law (CDL) (45 P. S. §§ 1201--1208) and the Regulatory Review Act (RRA) (71 P. S. §§ 745.1--745.15). The Act requires all temporary regulations to be promulgated as permanent regulations by July 5, 2007. The conversion of temporary regulations to permanent regulations requires compliance with both the CDL and the RRA.
Section 5.2 of the RRA (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) in the regulatory analysis form (RAF).
The Preamble to this rulemaking states that the Board proposes to replace two chapters of its temporary regulations with permanent regulations. The explanation of the regulation in the Preamble and the information contained on the RAF is not sufficient to allow this Commission to determine if the regulation is in the public interest. While we commend the Board for involving the regulated community in the development of the temporary regulations, we note that a complete explanation of the need for each chapter and section was not provided in that process. Furthermore, there is no detailed fiscal impact and cost benefit analysis in the RAF. Without this information, we cannot determine if this proposed regulation is in the public interest. In the Preamble and RAF submitted with the final-form rulemaking, the Board should provide more detailed information required under § 745.5(a) of the RRA.
10. Section 471.1. Fees generally.--Implementation procedures; Fiscal impact.
Subsection (d) states that each application submitted to the Board must be accompanied by a fee to cover the cost of the initial investigation and processing of the application. Subsection (e) states that an applicant may be subject to additional fees, which are based on the actual expenses incurred by the Board in conducting the background investigations. The procedures for determining the additional fee amount and for requesting the additional fee are not included in the regulation. We recommend that these procedures be included in the final-form rulemaking.
11. Section 471.2. Schedules of fees and Section 471.3. Adjustment of fees.--Implementation procedures.
Section 1208(1) of the Act (4 Pa.C.S.A. § 1208(1)) provides the Board the power to levy and collect fees. These fees are in addition to the fees set by §§ 1208, 1209 and 1305 of the Act (4 Pa.C.S.A. §§ 1208, 1209 and 1305). Section 1208(2) of the Act (4 Pa.C.S.A. § 1208(2)) states the following:
Two years following enactment of this part, the board shall have the authority to increase each year any fee, charge, cost or administrative penalty, but not any criminal fine or penalty, provided in this part by an amount not to exceed an annual cost-of-living adjustment calculated by applying the percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) for the Pennsylvania, New Jersey, Delaware and Maryland area for the most recent 12-month period for which figures have been officially reported by the United States Department of Labor, Bureau of Labor Statistics, immediately prior to the date the adjustment is due to take effect. (Emphasis added.)Under § 471.2, the Board proposes to establish fees and publish those fees in the Pennsylvania Bulletin and on its website. Those fees are not set by regulation. Section 471.3 allows the Board to adjust fees, charges, costs or administrative penalties specified in the Act by an amount not to exceed an annual cost-of-living calculation provided in the Act.
We have three suggestions. First, we question how the Board will increase the fees under § 471.2. All fees, whether established by the Act or set by the Board, can only be increased by the mechanism found in § 1208(2) of the Act. To avoid any confusion on how the fees in § 471.2 will be increased, we recommend that § 471.3 be amended to state that all fee increases will be calculated using the mechanism contained in § 1208(2) of the Act. Second, the final-form regulations should indicate when the fee schedule will be published in the Pennsylvania Bulletin. Third, the Board's website should be included in the final-form regulation.
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Pennsylvania Gaming Control Board Regulation #125-47 (IRRC #2563)
Diversity
November 9, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the September 9, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
12. Determining whether the regulation is in the public interest.
The Pennsylvania Horse Race Development Act (Act) (4 Pa.C.S.A. §§ 1101--1904) allowed the Board to promulgate temporary regulations until July 5, 2006. The temporary regulations were not subject to two statutes that guide agencies when promulgating regulations. Those statutes are the Commonwealth Documents Law (CDL) (45 P. S. §§ 1201--1208) and the Regulatory Review Act (RRA) (71 P. S. §§ 745.1--745.15). The Act requires all temporary regulations to be promulgated as permanent regulations by July 5, 2007. The conversion of temporary regulations to permanent regulations requires compliance with both the CDL and the RRA.
Section 5.2 of the RRA (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) in the regulatory analysis form (RAF).
The Preamble to this rulemaking states that the Board proposes to replace two chapters of its temporary regulations with permanent regulations. The explanation of the regulation in the Preamble and the information contained on the RAF is not sufficient to allow this Commission to determine if the regulation is in the public interest. While we commend the Board for involving the regulated community in the development of the temporary regulations, we note that a complete explanation of the need for each chapter and section was not provided in that process. Furthermore, there is no detailed fiscal impact and cost benefit analysis in the RAF. Without this information, we cannot determine if this proposed regulation is in the public interest. In the Preamble and RAF submitted with the final-form rulemaking, the Board should provide more detailed information required under § 745.5(a) of the RRA.
13. Section 481.1. Statement of purpose, policy and applicability.--Statutory authority.
Subsection (b) states that it is the policy of the Board to promote and ensure that regulated entities conduct all aspects of their operations in a manner that assures diversity of opportunity. This would include the provisions of goods and services utilized by regulated entities. Under Section 1212(a) of the Act (4 Pa.C.S.A. § 1212(a)), only slot machine licensees are required to meet the ''provisions of goods and services'' requirement. What is the Board's statutory authority for requiring all regulated entities to assure diversity of opportunity ''through the provisions of goods and services''?
14. Section 481.3. Diversity participation.--Clarity.
This section states that a regulated entity may use the list of minority and women's business enterprises certified by the Department of General Services to establish the eligibility of an enterprise for the purpose of promoting and ensuring minority and women's business participation. The inclusion of the word ''may'' in this provision implies that other methods for establishing the eligibility of a business would be acceptable. If other methods are available, they should be listed in the regulation. If other methods are not available, the word ''may'' should be changed to ''shall.''
15. Section 481.4. Establishment of diversity plan.--Statutory authority; Possible conflict with or duplication of statutes or regulations; Implementation procedures; Reasonableness; Clarity.
Subsection (a)
This subsection states the following:
Each regulated entity shall include in its application for licensure or certification a diversity plan that establishes a separate goal of diversity in the ownership, participation and operation of, and employment at the regulated entity. The Board will determine whether the stated goals set forth in each diversity plan are reasonable and represent a good faith effort to assure that all persons are accorded equality of opportunity in contracting and employment by the regulated entity and its contractors, subcontractors, assignees, lessees and agents.We have two concerns. First, we question why the Board is deviating from the language of the Act and the temporary regulations that allow an applicant to agree to develop a diversity plan. Section 1325(b)(1) of the Act (4 Pa.C.S.A. § 1325(b)(1)) states that a license or permit shall not be granted or renewed unless the Board finds that the applicant has developed and implemented or agreed to develop and implement a diversity plan. Section 423.3(a)(1)(i) of the Board's temporary regulations contains similar language to Section 1325 (b)(1) of the Act.
Second, what criteria will the Board use to determine if the diversity plan is reasonable? The criteria should be included in the final-form regulation.
Subsection (b)
This subsection states that a regulated entity may demonstrate achievement of its ''diversity goals'' through one of two methods. One method is contracting or transacting directly with minority and women's business enterprises. The other is contracting with a nonminority business enterprise under terms and conditions that establish a participation plan. We have three concerns. First, the term ''diversity goal'' should be defined in the final-form regulation.
Second, this section does not establish criteria that would allow the regulated entity to determine if they are satisfying the Board's requirement of contracting or transacting enough business with the appropriate enterprises. In order for the regulated entity to know what the Board expects, the final-form regulation should include provisions that specify how the Board will determine if the entity has achieved its diversity goals.
Third, Subsection (b)(1) uses the phrase ''contracting or transacting.'' Subsection (b)(2) only uses the term ''contracting.'' For consistency, we recommend that one phrase or term be used.
16. Section 481.6. Diversity audits.--Implementation procedures; Clarity.
This section allows the Board to perform audits to ensure compliance with this chapter. We recommend that the final-form regulation include procedures that will be used to notify the regulated entity of the audit.
ALVIN C. BUSH,
Chairperson
[Pa.B. Doc. No. 06-2318. Filed for public inspection November 22, 2006, 9:00 a.m.]
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