NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[37 Pa.B. 270]
[Saturday, January 13, 2007]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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
PeriodIRRC
Comments
Issued125-48 Pennsylvania Gaming Control Board 11/27/06 12/27/06 Slot Machine Testing and Control; Possession of Slot Machines 36 Pa.B. 6517 (October 28, 2006) 41-18 Board of Probation and Parole 11/27/06 12/27/06 County Probation and Parole Officers' Firearm Education and Training Commission 36 Pa.B. 6510 (October 28, 2006) ____
Pennsylvania Gaming Control Board Regulation #125-48 (IRRC #2572)
Slot Machine Testing and Control; Possession of Slot Machines
December 27, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the October 28, 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) allows the Board to promulgate temporary regulations until April 15, 2007. The temporary regulations are not subject to two statutes that guide agencies when promulgating regulations: 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. Therefore, 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 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, the RAF does not contain a detailed fiscal impact and cost benefit analysis. 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 the detailed information required under § 745.5(a) of the RRA.
2. Economic or fiscal impact; Clarity and lack of ambiguity; Reasonableness of the requirements.
This regulation contains many phrases that are vague. Examples include: ''in an alternative manner approved by the Board''; ''technical standards adopted by the Board''; ''additional documentation adopted by the Board''; ''when applicable''; ''in the manner prescribed by the Board''; ''unless otherwise determined by the Board''; ''with prior Board approval''; and ''other requirements requested by the Board.'' These phrases are problematic for three reasons.
First, a regulation has the full force and effect of law. It establishes binding norms on the regulated entity and the agency that promulgated the regulation. The vague phrases in question would allow requirements to be imposed at the agency's discretion without the opportunity for comment or review through the regulatory process. Therefore, without adequate notice as to what requirements the agency is imposing, it would be difficult if not impossible for regulated parties to discern what actions on their part would constitute compliance.
Second, incorporation of non-regulatory documents, such as ''technical standards adopted by the Board,'' is problematic because those documents cannot be used to enforce standards contained in regulation. In addition, this approach would allow an agency or department to bypass the formal regulatory review process and the laws that govern the promulgation of regulations.
Third, many sections in which the vague phrases are found lack details that would allow the regulated community to comply with the regulation. These sections also fail to provide the criteria the Board will use to evaluate a particular action or request. This lack of clarity would place the regulated community at a distinct disadvantage because the rules and expectations of the Board could change.
We urge the Board to evaluate all of the vague phrases we have identified in bold text in Appendix A. The Board should either delete the language or add the needed detail that would allow the regulated community to know what they are expected to do and how the Board will evaluate their actions.
3. Section 461.1. Definitions.--Clarity and lack of ambiguity.
Conversion--The definition of ''modification'' includes changes or alterations to ''associated equipment.'' Should this definition also include a reference to ''associated equipment''?
Player tracking system--The last sentence of this definition states the following: ''Player activity may be tracked generally or on an individual player basis.'' This is a substantive provision. Substantive provisions contained in definitions are not enforceable. This provision should be moved to an appropriate section in the body of the regulation.
4. Section 461.3. Testing and approval generally.--Implementation procedures; Reasonableness; Clarity and lack of ambiguity.
Subsection (d) requires the Board to establish and maintain an independent slot machine testing facility by July 5, 2007. The cost and operation of the facility is to be paid by each licensed manufacturer ''in accordance with a schedule adopted by the Board.'' Subsection (e) requires the costs for testing and approval of slot machines and associated equipment to be paid ''in accordance with a schedule adopted by the Board.''
These subsections are problematic because they have the potential to impose significant costs on the regulated community, but do not indicate how those costs will be calculated. The mechanism or formula for determining the costs should be included in the final-form regulation and, as noted in our first comment, those costs should be detailed in the RAF and the Preamble.
5. Section 461.4. Submission for testing and approval.--Clarity and lack of ambiguity.
Subsections (e) and (f) state that the Board may ''periodically'' prescribe certain checklists and requirements. This term is vague and should be deleted.
6. Section 461.12. Progressive slot machines.--Need; Reasonableness.
Subsection (m) limits the amount of progressive jackpots that meet certain criteria to an amount less than $1,200. What is the basis for this monetary threshold?
7. Section 461.24. Waivers.--Implementation procedures; Clarity and lack of ambiguity.
This section allows the Board to waive requirements applicable to slot machines as long as the Board determines that the ''operational integrity requirements'' of the Act are met. The procedures for requesting a waiver should be included in the final-form regulation.
8. Section 461.25. Disputes.--Implementation procedures.
If a dispute over alleged winnings arises between a patron and a slot machine licensee, Subsection (a) requires the slot machine licensee to notify the patron of their right to contact the Board. We recommend that notification be in writing and that the notification contain an appropriate phone number and email address for the Board.
9. Section 463.6. Notice to central control computer system.--Statutory authority.
Under this section, slot machine licensees are required to ''provide the Department with notice of the slot movement, in a form and pursuant to a time frame prescribed by the Department.'' We note that these requirements are to be established by the Department of Revenue. The Board has no authority to require compliance with the requirements of another state agency. Therefore, this section should be deleted.
10. Undefined terms.--Clarity and lack of ambiguity.
The terms or phrases noted below are found throughout the regulation. Clarity would be improved if these terms were defined.
* promotional program
* bonus award
* slot machine bill validator
* wide area progressive system
* progressive payout
* reset amount
* progressive rate
* related systems
* pseudo random number generator
* reel strips
* paytables
* theoretical payout percentage
* ''double up'' games
* per pay table basis
* manufacturer's par sheet
* progressive awards
* hand pay
* gaming day
* slot operations department
* slot accounting department
* currency cassettes
* slot system operator
* remote system access
* educational institution
* common carrier
* Slot Machine Master List
* high-boy
11. Reference to temporary regulations.--Clarity and lack of ambiguity.
The following sections of the regulation contain references to the Board's temporary regulations. The Board's 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.
* § 461.7(b)(2)
* § 461.8(d)
* § 461.8(i)
* § 461.8(k)
* § 461.8(n)
* § 461.10(b)
* § 461.12(g)(2)
* § 461.18(c)
* § 461.20(e)
* § 461.21(e)
* § 461.22(c)
* § 463.3(b)
Appendix A
Section 461.1 (Definition of ''coupon system'') The collective hardware, software, communications technology and other ancillary equipment used to facilitate the issuance of coupons, the acceptance of a coupon by a slot machine or its redemption at an automated coupon redemption machine, cashiers' cage or other locations, and in an alternative manner approved by the Board. 461.1 (Definition of ''gaming voucher system'') The collective hardware, software, communications technology and other ancillary equipment used to facilitate the issuance of gaming vouchers and the redemption of gaming vouchers by slot machines, automated gaming voucher redemption machines, the cashiers' cage or in other locations, and in alternative manners, as approved by the Board. 461.4(c)(11) Other associated equipment specifically identified by the Board. 461.4(d) Slot machine prototypes and associated equipment prototypes, and any modifications thereto, which are subject to testing and approval under this section will be evaluated by the Board for overall operational integrity and compliance with the act, this subpart and technical standards adopted by the Board. In addition, with regard to any slot machine, or modification thereto, the Board will test for compatibility and compliance with the central control computer and protocol specifications approved by the Department including the ability to communicate with the central control computer for the purpose of transmitting auditing program information, real time information retrieval and activation and disabling of slot machines. 461.4(h)(2)(iv) In the professional's opinion, the equipment, device or software complies with the act, this subpart and technical standards adopted by the Board. 461.4(h)(7) Any hardware, software and other equipment, inclusive of technical support and maintenance applicable thereto, required by the Slot Lab to conduct the abbreviated testing and approval process contemplated by the act, this subpart and technical standards adopted by the Board. The testing equipment and services required by this paragraph shall be provided at no cost to the Board. 461.4(h)(8) Additional documentation requested by the Board. 461.4(i)(2) Certifications required under subsection (f) providing assurances from the manufacturer that the product was properly and completely tested and emulated by the manufacturer prior to its submission to the Board and that the product, device or software complies with the act, this subpart and technical standards adopted by the Board, including applicable requirements related to the central control computer. 461.4(i)(5) Any hardware, software and other equipment, inclusive of technical support and maintenance applicable thereto, required by the Slot Lab to conduct the testing and approval process contemplated by the act, this subpart and technical standards adopted by the Board. The testing equipment and services required by this paragraph shall be provided at no cost to the Board. 461.4(i)(6)(x) For meters required by this subpart or technical standards adopted by the Board, a cross reference of product meters to the required meters, if necessary. 461.4(i)(6)(xx) Additional documentation requested by the Board. 461.4(i)(7)(v) Additional documentation requested by the Board. 461.4(i)(8)(xi) When requested by the Board, all source codes. 461.4(i)(8)(xii) When applicable, a complete, comprehensive and accurate description, accompanied by applicable diagrams, schematics and specifications, of the creation of a voucher and the redemption options available. 461.4(i)(8)(xiii) When applicable, a complete, comprehensive and technically accurate description, accompanied by applicable diagrams, schematics and specifications, of the creation of a coupon and the redemption options available. 461.4(i)(8)(xiv) Any specialized hardware, software or other equipment, inclusive of technical support and maintenance applicable thereto, required by the Slot Lab to conduct the testing and approval process contemplated by the act, this subpart and technical standards adopted by the Board. The testing equipment and services required by this paragraph shall be provided at no cost to the Board. 461.4(i)(8)(xv) Additional documentation requested by the Board. 461.4(i)(9)(iii) Additional documentation requested by the Board. 461.4(n) Notwithstanding subsection (m), the Board may authorize installation of a modification to a slot machine prototype or associated equipment prototype on an emergency basis to prevent cheating or malfunction, upon the written request of a licensed manufacturer in the manner prescribed by the Board. The request must expressly detail the name and employer of any persons to be involved in the installation of the modification and the manner in which it is to be effected. Within 15 days of receipt of any authorization to install an emergency modification, the manufacturer shall submit the modification for full testing and approval in accordance with this subpart. 461.4(o) A slot machine licensee shall immediately notify the Board, in a manner and form the Board prescribes, of any known or suspected defect or malfunction in any slot machine or associated equipment installed in its licensed facility. The slot machine licensee shall comply with instructions issued by the Board with regard to the continued operation of the slot machine or associated equipment. 461.4(q) The testing of equipment, devices or software under this subpart may require the dismantling of the product and testing that may result in damage to, or destruction of, one or more systems or components. Once submitted for testing, equipment, devices or software will not be returned to the manufacturer unless otherwise determined by the Board. 461.5(2) Give prior notice of a slot machine conversion to the Slot Lab in writing in the manner prescribed by the Board. 461.6(1) The equipment, device or software is not in compliance with the act, this subpart or technical standards adopted by the Board. 461.7(d) In addition to the requirements of subsections (a), (b) and (c), the volatility of a slot machine must verify that the theoretical payout percentage equals or exceeds the minimum payout requirement of 85% within 10 million plays. The criteria used to calculate the volatility must be in accordance with technical standards applicable to volatility adopted by the Board. 461.7(e)(2) As determined by the Board, a random number generator must pass a standard chi-squared test for goodness of fit. 461.7(h) Slot machines approved for use in a licensed facility must be equipped with the following meters that comply with the technical standards adopted by the Board: 461.7(h)(22) Additional requirements. Other meters required by technical standards adopted by the Board. 461.7(l) A slot machine must have a meter which stores the number of games played, in the manner and for a duration specified in this subpart or in technical standards adopted by the Board, since the following events: 461.7(o) A slot machine must be equipped with a tower light capable of effectively communicating the status of the slot machine in accordance with technical standards on tower lights and error conditions adopted by the Board. 461.7(p) A slot machine must be equipped with a device, mechanism or method for detecting, displaying and communicating to a slot monitoring system error conditions. The error conditions detected, displayed and communicated by a slot machine, and the method to be utilized to clear the message with regard to the error condition, must be in accordance with technical standards on tower lights and error conditions adopted by the Board. 461.8(b) The design specifications for a gaming voucher, the expiration terms applicable thereto, the voucher verification methodologies utilized, and any limitation on the value of a gaming voucher must be in compliance with technical standards on gaming vouchers adopted by the Board. 461.8(c) The design specifications for a gaming voucher system must be in compliance with technical standards on gaming voucher systems adopted by the Board. 461.8(d)(2) Procedures for issuance, modification and termination of a unique system account for each user in accordance with technical standards adopted by the Board. 461.8(d)(3) Procedures used to configure and maintain user passwords in accordance with technical standards adopted by the Board. 461.8(d)(4) Procedures for restricting special rights and privileges, such as administrator and override capabilities, in accordance with technical standards adopted by the Board. 461.8(d)(6) A description of physical controls on all critical hardware such as locks and surveillance, including the location and security protocols applicable to each piece of equipment as approved by the Board. 461.8(d)(7) Procedures for the backup and timely recovery of critical data in accordance with technical standards adopted by the Board. 461.8(f) At the end of each gaming day, the gaming voucher system must generate reports, as approved by the Board, which reports are provided to the slot accounting department, either directly by the system or through the information technology department, and which, at a minimum, contain the following information: 461.8(g) A slot machine licensee shall immediately report to the Board, in a manner prescribed by the Board, any evidence that a gaming voucher has been counterfeited, tampered with, or altered in any way which would affect the integrity, fairness, reliability or suitability of the gaming voucher. 461.8(o) A gaming voucher system must be configured to alert a slot machine licensee to any malfunction. Following a malfunction of a system, a slot machine licensee shall immediately notify the Board and may not utilize the system until the malfunction has been successfully eliminated. Notwithstanding the foregoing, the Board may permit, in accordance with approval procedures the Board prescribes, a slot machine licensee to utilize the system prior to its being successfully restored, for a period not to exceed 72 hours, provided that: 461.9(a) A slot machine licensee may utilize coupons and a coupon system that has been tested and approved by the Board under § 461.4 (relating to submission for testing and approval) and complies with technical standards on coupon systems adopted by the Board. 461.9(b) The design specifications for a coupon, the expiration terms applicable thereto, the coupon verification methodologies utilized, and any limitation on the value of a coupon must be in compliance with technical standards on coupons adopted by the Board. 461.9(c)(3) A unique serial number, which is automatically generated by the system in accordance with this subpart and technical standards adopted by the Board. 461.9(c)(6) A bar code or magnetic strip which enables the coupon system to establish the validity of the coupon and its value in accordance with this subpart and technical standards adopted by the Board. 461.10(c) An automated gaming voucher and coupon redemption machine must have the capability of establishing the validity of a gaming voucher or coupon by comparing the instrument's unique serial number, automatically generated by the respective gaming voucher or coupon system in accordance with this subpart and technical standards adopted by the Board with electronic records within the gaming voucher system or coupon system. 461.10(d) The method or methods utilized to comply with subsection (c) shall be submitted to and approved by the Board in the context of the testing of a gaming voucher system or coupon system. 461.10(j) Access controls relating to the operating system or applications of the automated gaming voucher and coupon redemption machine, and ancillary systems, applications and equipment associated with the reconciliation thereof, must employ security measures that require authentication of the user and recording and maintaining of data regarding access and modifications made. Authentication must be in accordance with this subpart and technical standards adopted by the Board. 461.10(k) A gaming voucher or coupon accepted by an automated gaming voucher and coupon redemption machine shall be cancelled immediately upon exchange in a manner that effectively prevents its subsequent redemption by the cashiers' cage, another automated gaming voucher and coupon redemption machine or its acceptance in a slot machine bill validator. The method utilized to comply with this requirement shall be in accordance with this subpart and technical standards adopted by the Board. 461.10(r)(8) Additional requirements. Other meters as may be required by technical standards adopted by the Board. 461.12(b)(5) A key and key switch to reset the progressive meter or meters or other reset mechanism as may be approved by the Board. 461.12(b)(7) Dual key control by the security department and slot accounting department, or alternative key controls as the Board approves, of the compartment housing the microprocessor or other unit that controls the progressive meter or meters. The compartment shall be in a location approved by the Board. 461.12(d)(1)(ii) A notice approved by the Board indicating the proportional probability of hitting the progressive jackpot on the a linked progressive system is conspicuously displayed on each linked slot machine. 461.12(d)(2) The probability of winning a progressive jackpot offered on linked slot machines may vary among the slot machines when necessary to enable a slot machine licensee or, as applicable, a slot system operator, to institute a change in the probability which is otherwise permitted by this subpart, if the change is completed expeditiously in accordance with procedures that have been filed with and approved by the Board. 461.12(f) A slot machine that offers a progressive jackpot may not be placed on the gaming floor until the slot machine licensee or, as applicable, the slot system operator, has submitted to the Board, in a manner the Board directs, and the Board has approved, the following: 461.12(g)(3) The progressive jackpot has, with prior Board approval, been transferred to another progressive slot machine or wide area progressive system in accordance with this subpart. 461.12(g)(4)(i) For progressive jackpots governed by subsection (b), an explanation shall be entered on the progressive slot summary required by this subpart and the Board shall be notified of the resetting in writing in a manner the Board directs. 461.12(g)(4)(ii) For progressive jackpots governed by subsection (m), an explanation shall be entered on the machine entry authorization log required under this subpart unless the slot machine automatically addresses the malfunction in a manner approved by the Board. 461.12(j)(1) A slot machine licensee may establish a payout limit for a progressive jackpot provided that the payout limit is greater than the then current payout amount on the progressive jackpot meter. The slot machine licensee shall notice the Board, in a manner the Board directs, of the imposition of a payout limit on a progressive meter or a modification thereto concurrent with the setting of the payout limit. 461.12(j)(4)(ii)(A) The progressive meter for a slot machine or wide area progressive system with the same or greater probability of winning the progressive jackpot, the same or lower wager requirement to be eligible to win the progressive jackpot, and the same type of progressive jackpot (cash, annuity, annuity/cash option or a combination/alternate jackpot). However, if no other slot machine or wide area progressive system meets all of these qualifications, the Board may authorize a transfer of the jackpot to the progressive meter of the most similar slot machine or wide area progressive system available if the Board finds the transfer would be in the public interest. 461.12(j)(4)(iv) Notice of intent to transfer the progressive jackpot is provided in writing to the Board, in a manner the Board directs, at least 30 days prior to the transfer of the progressive jackpot. 461.12(j)(5)(ii) Provided in writing to the Board, in a manner the Board directs, at least 30 days prior to the removal of the progressive jackpot. 461.13(a) Two or more slot machine licensees may, with the prior written approval of the Board, operate linked progressive slot machines that are interconnected between two or more participating licensed facilities. The slot machines participating in the link shall be collectively referred to as wide area progressive system. 461.13(b) A wide area progressive system shall at all times be installed and operated in accordance with relevant requirements of the act, this subpart and technical standards on wide area progressive systems adopted by the Board. 461.13(c) A wide area progressive system shall be operated and administered by participating slot machine licensees in accordance with the terms and conditions of a written agreement executed by the participating slot machine licensees. The agreement shall be referred to as a slot system agreement. Slot system agreements must be approved in writing by the Board prior to implementation and comply with the act, this subpart and technical standards on wide area progressive systems adopted by the Board. 461.13(d) Slot machine licensees participating in a slot system agreement may delegate, in whole or in part, the operation and administration of a wide area progressive system to a licensed manufacturer provided that the slot system agreement is executed by the licensed manufacturer and its express terms are determined by the Board to be in compliance with the act, this subpart and technical standards on wide area progressive systems adopted by the Board. The persons designated in a slot system agreement as being responsible for the operation and administration of a wide area progressive system shall be referred to as the slot system operator. 461.13(f)(4) Other requirements requested by the Board, including those required to comply with technical standards on wide area progressive systems adopted by the Board. 461.13(g) A wide area progressive system shall be controlled and operated from a computer monitoring room approved by the Board. The computer monitoring room must: 461.13(g)(1) Be under the sole possession and control of, and maintained and operated by, employees of the slot system operator designated in the slot system agreement for that system. The employees shall be licensed or permitted as the Board deems appropriate based on an analysis of specific duties and responsibilities. 461.13(g)(2) Have its monitoring equipment subjected to surveillance coverage either by the surveillance system of a slot machine licensee participating in the slot system agreement or by a dedicated surveillance system maintained by the slot system operator. Surveillance coverage must be in accordance with technical standards adopted by the Board. 461.13(g)(5) Reside within a participating licensed facility or other location approved by the Board. 461.14(b) A slot monitoring system must comply with the act, this subpart and technical standards on slot monitoring systems adopted by the Board. 461.15(b) A casino management system must comply with the act, this subpart and technical standards on casino management systems adopted by the Board. 461.16(b) A player tracking system must comply with the act, this subpart and technical standards on player tracking systems adopted by the Board. 461.17(d) An external bonusing system must comply with the act, this subpart and technical standards on external bonusing systems adopted by the Board. 461.18(b) A cashless funds transfer system must comply with the act, this subpart and technical standards on cashless funds transfer systems adopted by the Board. 461.18(d) Transfer of electronic credits to a slot machine under this section shall be initiated by a patron using an access control approved by the Board. Access controls must require the use of a unique access code for each patron. The access code shall be selected by and only available to the patron. 461.19(b) Remote system access shall be performed in accordance with technical standards on remote system access adopted by the Board. 461.20(c) A server supported slot system must comply with the act, this subpart and technical standards on server supported slot systems adopted by the Board. 461.21(c) A server based slot system must comply with the act, this subpart and technical standards on server based slot systems adopted by the Board. 461.22(b) An automated jackpot payout machine must comply with the act, this subpart and technical standards on automated jackpot payout machines adopted by the Board. 461.23(b) Use of alterable storage media. Any use of alterable storage media in a slot machine or associated equipment must be in compliance with the act, this subpart and technical standards on alterable storage media adopted by the Board. 461.25(b) When a slot machine licensee refuses to pay winnings claimed by a patron and the patron and the slot machine licensee remain unable to resolve the dispute after 7 days, the slot machine licensee shall, on the next day, notify the Board in writing of the dispute in a manner and form the Board prescribes. The notice must identify the parties to the dispute and shall state the known relevant facts regarding the dispute. 463.1(b) The following persons and any employee or agent acting on their behalf may possess slot machines in this Commonwealth for the purposes described herein, subject to the terms and conditions imposed by the Board, provided that the slot machines are stored in secure locations specifically approved in writing by the Board and that any slot machines located outside of a licensed facility are not used for gambling activity: 463.1(b)(4) An educational institution, as authorized in writing by the Board, for the purpose of teaching slot machine design, operation, repair or servicing 463.1(b)(5) A manufacturer or supplier of slot machines not licensed within this Commonwealth, as authorized in writing by the Board, for the limited purpose of temporary exhibition or demonstration. 463.1(b)(8) Other persons authorized in writing by the Board upon a finding that the possession of slot machines by those persons in this Commonwealth is not contrary to the goals and objectives of the act. 463.3(a) A gaming floor must consist of one or more areas within a licensed facility approved by the Board for the placement and operation of slot machines. 463.5(a) Prior to the commencement of operations at a licensed facility, an applicant for, or holder of, a slot machine license shall file with the Board's Director of Gaming Laboratory Operations, in writing or in an electronic format approved by the Board, a complete list of slot machines possessed by the applicant or licensee on its gaming floor, in Board-approved restricted areas off the gaming floor but within the licensed facility, and in Board-approved storage locations in this Commonwealth off the premises of the licensed facility. The list shall be denoted as a Slot Machine Master List. 463.5(b)(4) Additional documentation requested by the Board. 463.5(c) Once a slot machine has been placed in an authorized location on the gaming floor or is stored in a Board-approved restricted area off the gaming floor but within the licensed facility, all subsequent movements of that slot machine within the licensed facility shall be recorded by a slot department member in a machine movement log which includes the following: 463.6 To insure activation or disabling, as appropriate, in the central control computer system and the retrieval of real time meter information from the slot machine coincident with the movement of a slot machine, the slot machine licensee shall provide the Department with notice of the slot movement, in a form and pursuant to a time frame prescribed by the Department. The notice is required prior to any of the following: ____
Board of Probation and Parole Regulation #41-18 (IRRC #2576)
County Probation and Parole Officers' Firearm Education and Training Commission
December 27, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the October 28, 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 Board of Probation and Parole to respond to all comments received from us or any other source.
1. General.--Economic or fiscal impact; Clarity and lack of ambiguity; Reasonableness of the requirements.
This regulation contains many phrases that are vague. Examples include ''as specified by the Executive Director,'' ''compliance with a Student Code of Conduct as established by the Commission,'' ''in-service training, the specifics of which the Commission will publish,'' ''follow an application process specified by the Commission,'' ''on a form and in a format prescribed by the Executive Director'' and requiring ''supporting documentation.'' These phrases are problematic for three reasons.
First, a regulation has the full force and effect of law. It establishes binding norms on the regulated entity and the agency that promulgated the regulation. The vague phrases in question would allow requirements to be imposed at the agency's discretion without the opportunity for comment or review through the regulatory process. Therefore, without adequate notice as to what requirements the agency is imposing, it would be difficult if not impossible for regulated parties to discern what actions on their part would constitute compliance.
Second, reference to non-regulatory documents is problematic because those documents cannot be used to enforce standards contained in regulation. In addition, this approach would allow an agency or department to bypass the formal regulatory review process and the laws that govern the promulgation of regulations.
Third, many sections in which the vague phrases are found lack details that would allow the regulated community to comply with the regulation. These sections also fail to provide the criteria the Commission will use to evaluate a particular action or request. This lack of clarity would place the regulated community at a distinct disadvantage because the rules and expectations of the Commission could change.
We urge the County Probation and Parole Officers' Firearm Education and Training Commission (Commission) to evaluate all of the vague phrases we have identified in bold text in Appendix A. The Commission should either delete the language or add the needed detail that would allow the regulated community to know what they are expected to do and how the Commission will evaluate their actions.
2. Section 79.2. Definitions.--Clarity; Reasonableness.
CFI--Certified Firearms Instructor
This definition uses the phrases ''. . . minimum qualifications . . . as established by the Commission.'' However, in addition to meeting minimum qualifications, Section 79.61(b) of the regulation requires instructors to be approved by the Commission. This definition should be amended to be consistent with the regulation.
County-conducted training
This definition states, ''Commission-approved training not presented by the Commission.'' Section 79.61(a)(2) includes training by the FBI, Pennsylvania State Police and the National Rifle Association. These courses would not necessarily be conducted by a county, but would be included under this definition. This definition needs to be amended to include only courses conducted by the county.
In-service training
This definition is not clear. In-service training is defined as ''continuing training necessary . . . to maintain certification under the Act.'' (Emphasis added.) The phrase ''under the Act'' is not needed and could be confusing. The County Probation and Parole Officers' Firearm Education and Training Law (Act) addresses in-service training at 61 P. S. § 332.5(7) by requiring the Commission to establish ''a minimum number of hours in in-service training as provided for by regulation. . . .'' (Emphasis added.) Hence, we recommend deleting the phrase ''under the Act'' from the regulatory definition.
MI--Master Instructor
We have three concerns.
First, in addition to meeting minimum qualifications, Section 79.61(b) of the regulation requires instructors to be approved by the Commission. This definition should be amended to be consistent with the rest of the regulation.
Second, this definition should use the defined term ''CFI'' rather than ''Commission-CFI.''
Finally, a cross-reference should be added to the minimum qualifications.
3. Section 79.3. Enrollment.--Consistency with statute; Reasonableness.
Discretion of the Executive Director
This provision states ''Enrollment in programs under this part will be at the discretion of the Executive Director.'' This language is inconsistent with the Act and overly broad. The Act (61 P. S. § 332.7) specifies four minimum requirements to participate in the training program or be granted a waiver. The regulation should be amended to be consistent with the Act.
4. Section 79.13. Requirements for completion.--Consistency with statute; Reasonableness; Clarity.
Prescribed training program
Paragraph (1) requires ''Attendance at the entire prescribed training program.'' (Emphasis added.) It is not clear what is meant by a ''prescribed'' program or who prescribes the program. Sections 79.61 to 79.65 are titled ''Approval of instructors, schools and vendors.'' We recommend replacing the word ''prescribed'' with ''approved.''
Student Code of Conduct for the programs as established by the Commission
In order to satisfactorily complete basic training, Paragraph (2) requires ''Compliance with Student Code of Conduct for the programs as established by the Commission.'' The phrase ''for the programs as established by the Commission'' is vague because it is not clear when the Commission establishes the Student Code of Conduct or where a copy of the document can be obtained. The regulation should include these details to make this provision enforceable.
If applicable, attainment of a passing score
The requirement in Paragraph (3) sets forth a requirement for satisfactory completion that ''If applicable, attainment of a passing score on any and all written, oral or range components of a training program.'' It is not clear under what circumstances a passing score on a component would not be applicable and who would make that determination. Without an evaluation of the candidate's knowledge and skills, how would the Commission determine a candidate ''satisfactorily completed basic educational and training requirements'' as required by 61 P. S. § 332.5(11) for certification? We recommend deleting the phrase ''if applicable.'' Alternatively, the Commission should explain why it is needed and how it would be applied.
5. Section 79.15. Failure to complete basic training.--Clarity.
Subsection (b)
For consistency, we recommend replacing the phrase ''for the reasons under § 79.13'' with the phrase ''requirements for completion under § 79.13.''
Range and firing range
Subsection (d) uses the term ''firing range'' whereas Subsection (c) and Sections 79.22 and 79.23 use the term ''range.'' For consistency, Subsection (d) should use the term ''range.''
Request to the Executive Director
Subsection (d) allows the officer's chief probation officer to submit ''. . . a request to the Executive Director seeking permission . . . .'' However, the regulation does not state when or how the Executive Director will respond to that request. The regulation should specify a time frame for the Executive Director to respond with approval or disapproval of the request.
6. Section 79.21. Maintenance of certification.--Consistency with statute; Clarity.
''Minimum number of hours in in-service training''
The Act (61 P. S. § 332.5(7)) directs the Commission ''To require in accordance with this act county probation and parole officers to attend a minimum number of hours in in-service training as provided for by regulation . . . .'' The minimum number of hours of in-service training should be established either within this section or elsewhere in the regulation.
Publication
Paragraph (a)(1) requires a certified officer to complete ''In-service training, the specifics of which the Commission will publish by the end of the first quarter of each calendar year.'' The regulation should specify the in-service training requirements including the number of hours. Further information such as the date, location and time are appropriate for publication elsewhere, but the regulation should specify where this will be published and how certified officers can readily access to that publication.
7. Section 79.22. Range requalification examinations.--Need.
Requalification conducted between April 1 and October 31
Subsection (c) limits range requalification examinations to the period between April 1 and October 31. Why is this limitation needed?
8. Section 79.23. Failure to complete range requalification or in-service training.--Clarity.
Time limit
Subsection (a) permits one additional opportunity to achieve a passing score. The regulation should specify a time limit for achieving the passing score.
9. Section 79.24. Extensions.--Reasonableness; Clarity.
Cross reference
In Subsection (d), the cross-reference should be corrected to § 79.21(a)(2).
Date of suspension
Under Subsection (e), certification is suspended on October 31 if an extension is granted. However, under Section 79.14 a certification remains valid through December 31. The Commission should reconcile these provisions.
10. Section 79.31. Reasons for revocation of certification.--Statutory authority; Reasonableness; Clarity.
Revoke certification for any reason
Under the Act (61 P. S. § 332.5(2)), the Commission has the specific power and duty ''to revoke an officer's certification for failure to comply with educational and training requirements established by the Commission.'' The opening sentence of this section of the regulation states, ''The Commission may revoke an officer's certification for any reason . . . .'' (Emphasis added.) The Commission should either amend this provision to be consistent with the Act or explain its statutory authority to revoke certification for any reason.
Commission-sponsored event
Regarding Paragraph (3), there is no definition of a ''Commission-sponsored event'' in the regulation or the Act. The regulation should define this term.
Failure to timely comply with requests for information
There are three concerns with Paragraph (5).
First, how does this provision relate to the requirement to comply with educational and training requirements in the Act (61 P. S. § 332.5(2))?
Second, how can an officer's certification be revoked for failure to provide information on the part of the county or a group of officers? The Commission needs to explain why an individual officer's certification should be revoked due to the actions or inactions of others.
Third, as written, the regulation would allow certification to be revoked when a certified officer may not even have knowledge of an information request or may not recognize the request. The regulation should specify what information the Commission intends to request, whether the request must be in writing and who within the Commission is authorized to make the request.
11. Section 79.32. Revocation of certification for failure to pass range requalification examination.--Reasonableness.
Immediately revoked
Under Subsection (a), certification is revoked immediately if an officer fails to requalify. However, under Section 79.14 a certification remains valid through December 31. The Commission should reconcile these provisions.
October 31
Relating to our comment on Section 79.22(c), why are range requalification examinations not permitted after October 31 under Subparagraph (b)(2)(iii)?
12. Section 79.42. Failure to complete range requalification within required time frames.--Need, Reasonableness; Feasibility; Clarity.
In no case later than March 31st
Subsection (b) limits requalification to ''in no case later than March 31st of the year in which the application is filed with the Executive Director.'' We have two questions.
First, how can an officer comply by March 31 when Subsection (a)(3) and Section 79.22(c) limit range requalification examinations to the period between April 1 and October 31? These provisions need to be reconciled.
Second, this would limit requalification to the months of January, February or March. Why is the limitation to March 31 needed? Can an officer reasonably meet this requirement?
13. Section 79.44. Nonrecertifiable revocations.--Clarity.
As printed in the Pennsylvania Bulletin, the cross reference to Section 79.31(a) or (d) should be corrected to Section 79.31(1) or (4).
14. Section 79.61. Approval of instructors.--Clarity; Reasonableness.
Appeal procedure
Under Subsection (d), the Commission reserves the right to revoke instructor certification without notice. Subsection (d) should also include a cross-reference to how an instructor can appeal that action by the Commission. It is also appropriate to include this cross-reference in Sections 79.71 and 79.72.
15. Section 79.72. Procedure for officers or schools seeking reconsideration.--Need; Reasonableness; Clarity.
Letter-rulings
Paragraph (a)(5) states, ''Results and opinion in letter-rulings will have no precedential authority and are subject to withdrawal or change at any time to conform to new or different interpretations of the law.'' It is not clear what value a letter-ruling has if it is ''subject to withdrawal or change at any time to conform to new or different interpretations of the law.'' We have several concerns and questions.
First, what or who could establish ''new or different interpretations of the law''? While it is reasonable for these interpretations of the law to stem from court decisions, the wording of the regulation also would allow the Commission to independently reverse decisions based on internal ''new or different interpretations of the law.'' The regulation should be amended to narrow the scope of what new or different interpretations of the law would result in change or withdrawal of a letter-ruling.
In addition, how can an officer or school rely on letter-ruling decisions if they can be changed or withdrawn? What notice would the officer or school receive? How would withdrawal of a letter-ruling be reasonable and what would then be the status of the officer or school after they relied upon a favorable letter-ruling? Why would a letter-ruling be withdrawn rather than changed?
Finally, the opportunity to appeal a change or withdrawal is not clear in the regulation and may actually be prohibited in certain circumstances. Section 79.82(a) requires an officer or school that wishes to pursue an appeal to a formal hearing ''no later than 30 calendar days after the mailing of the Commission's letter-ruling regarding the request for consideration.'' If the change or withdrawal occurred after 30 days, the officer or school could not appeal under the regulation. The regulation should allow appeal to a formal hearing when a letter-ruling is changed or withdrawn.
16. Section 79.84. Hearings.--Clarity.
''Identical to 1 Pa. Code § 35.111''
Subsection (d) states, ''This subsection is identical to 1 Pa. Code § 35.111.'' It is not clear how this provision is ''identical'' to 1 Pa. Code § 35.111. We recommend amending Subsection (d) to clarify its relationship to 1 Pa. Code § 35.111.
17. Section 79.86. Failure to appear at a hearing.--Need; Reasonableness.
Subsection (c)
This subsection states, ''If neither the officer or school nor the Commission or their representatives appear at the hearing, the hearing examiner will reschedule the hearing.'' Why is this provision needed in regulation? Why is there no ''without good cause'' requirement as included in Subsections (a) and (b)?
18. Section 79.87. Hearing examiner recommendation.--Clarity.
Cross references
The Commission should review and explain the cross-reference to appeals ''in accordance with Pa.R.A.P. and 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law).''
Appendix A
Section 79.2(a) (Definition of ''CFI--Certified Firearms Instructor'') A firearms instructor who meets the minimum qualifications for instructors as established by the Commission. 79.12(b) Application procedures to participate in training programs approved by the Commission will require any officer or county, or both, to submit information required on a form and in a format and within time parameters as specified by the Executive Director. 79.13(2) Compliance with Student Code of Conduct for the programs as established by the Commission. 79.21(a)(1) In-service training, the specifics of which the Commission will publish by the end of the first quarter of each calendar year. 79.22(e) Counties or departments desiring to conduct a range requalification examination shall follow an application process specified by the Commission. 79.24(a) An officer who is unable to comply with § 79.21 (relating to maintenance of certification) due to extraordinary circumstances may, through the officer's chief probation officer, submit a written request, on a form and in a format prescribed by the Executive Director, to the Executive Director by October 31 of the year in which the officer's current certification will expire. 79.24(a)(1)(iii) Supporting documentation. 79.31(3) Unprofessional conduct during a Commission-sponsored event. 79.31(5) Failure on the part of a county, an individual officer or group of officers to timely comply with requests for information which may be made from time to time by the Commission. 79.41(1) Submit an application to the Executive Director in a form approved by the Executive Director . . . . 79.42(a)(1) . . . The application must be in a form approved by the Executive Director and co-signed by the chief probation officer. 79.42(b) The requirements for recertification in § 79.42 (relating to failure to complete range requalification within required time frames) shall be completed within the time frame specified by the Executive Director, but in no case later than March 31st of the year in which the application is filed with the Executive Director. 79.43(a) When an officer's certification is revoked due to the officer's failure to meet any mandatory in-service training requirements established by the Commission, the officer seeking recertification shall do the following: 79.43(a)(1) Submit an application to the Executive Director which must be in a form approved by the Executive Director and also co-signed by the chief probation officer. 79.43(a)(2) Enroll in, attend and complete a Commission-sponsored basic training program, or enroll in, attend and complete the next available offerings of any mandatory in-service training, which were not completed as required by the Commission. 79.43(b) The requirements for recertification in § 79.43 (relating to failure to meet mandatory in-service training requirements) shall be completed within a time frame established at the discretion of the Executive Director. 79.51(a) Subject to the availability of funds, the Commission may assume the costs or reimburse expenses incurred, or both, during an officer's attendance at a basic training program or in-service training (including range requalification). The reimbursement will not include personnel costs. Expenses determined eligible by the Commission will be reimbursed at rates that are currently recognized by the Commonwealth, but will, from time to time, be further specified by the Commission. 79.51(d) The Commission may reimburse, in accordance with Commission policies in effect on the dates of the county-conducted basic training or county-conducted in-service training, the county for selected expenditures associated with the county-conducted basic training or county-conducted in-service training, or both. . . . 79.61(a) An individual seeking approval to become a CFI or MI in programs offered by the Commission shall submit an application to the Executive Director on forms established by the Commission. An individual may apply for designation as an Academic CFI, Range CFI, or both, or as an MI. 79.61(a)(1) The application for approval as an Academic CFI in areas of instruction other than range firearms techniques will include, but not be limited to, a resume or materials, or both, which evidence the education, qualifications and experience deemed appropriate by the Commission for the particular area of instruction. 79.64(a) Basic training conducted by a county must be carried out in accordance with policies and procedures established by the Commission. 79.64(c) A county desiring to conduct basic training shall submit an application for county-conducted basic training, including the required documentation, to the Executive Director on forms and under procedures established by the Executive Director. 79.64(d) County-conducted basic training must be conducted on training sites, both classroom and range, that meet Commission standards and are preapproved by the Executive Director. 79.64(g) Upon request of the Executive Director or at the conclusion of the training, the county shall submit all forms and materials required by the Executive Director in the time frame specified. 79.65(a) Counties may conduct in-service training courses that have been approved and adopted by the Commission in accordance with policies and procedures established by the Commission. 79.65(c) A county desiring to conduct in-service training shall submit an application for county-conducted in-service training, including the required documentation, to the Executive Director on forms and following procedures as established by the Executive Director. 79.65(d) County-conducted in-service training must be conducted on training sites, both classroom and range, that meet Commission standards and are preapproved by the Executive Director. 79.65(g) Upon request of the Executive Director or at the conclusion of the training, the county shall submit the forms and materials required by the Executive Director in the time frame specified. 79.71 Commission instructors have the authority to summarily and immediately terminate an officer's participation in any Commission-sanctioned training activity if any Commission instructor believes, in the Commission instructor's sole discretion, that an officer presents a safety concern, disrupts the learning environment or violates the Commission's Student Code of Conduct. 79.72(a)(2) The request for reconsideration must be in a format acceptable to the Executive Director and must, at a minimum, contain the following details: ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 07-55. Filed for public inspection January 12, 2007, 9:00 a.m.]
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