PENNSYLVANIA GAMING CONTROL BOARD [ 58 PA. CODE CHS. 421a AND 423a ] General Provisions; and Applications [38 Pa.B. 1585]
[Saturday, April 5, 2008]The Pennsylvania Gaming Control Board (Board), under its general authority in 4 Pa.C.S. § 1202(b)(30) (relating to general and specific powers) amends Chapters 421a and 423a (relating to general provisions; and applications) to read as set forth in Annex A.
Purpose of the Final-Form Rulemaking
This rulemaking adds new provisions relating to advertising and abandoned applications.
Explanation of the Amendments to Chapters 421a and 423a
This rulemaking adds § 421a.6 (relating to advertising) which allows the Board to require slot machine, manufacturer and junket licensees to cease using inappropriate advertising; defines what will be considered to be advertising; prohibits the use of false or misleading information; requires the inclusion of a toll-free gambling assistance telephone number in any advertisement which must be approved utilizing the process contained in § 501a.2(g) (relating to compulsive and problem gambling plan); and bars slot machine, manufacturer and junket licensees from using individuals to induce patrons to engage in gaming or play a specific slot machine.
This rulemaking also amends § 423a.4 (relating to deficient applications) by adding new provisions governing abandoned applications.
Comment and Response Summary
Notice of proposed rulemaking was published at 37 Pa.B. 5804 (October 27, 2007).
The Board received comments from International Gaming Technology (IGT) during the public comment period. On December 26, 2007, comments on the proposed rulemaking were received from the Independent Regulatory Review Commission (IRRC). The comments were reviewed by the Board and are discussed in detail as follows.
On § 421a.6(a), IRRC commented that the phrases ''as expeditiously as possible'' and ''within the spirit of the act'' lacked clarity. IRRC suggested that a specific time period be established in lieu of ''as expeditiously as possible'' and that specific criteria be inserted to define what would be ''within the spirit of the act.''
The Board agrees that ''as expeditiously as possible'' does not set a specific time period. However, the wide range of types of advertisements restricts the Board's ability to set a reasonable specific time period that would work for all types of advertisements. For example, television and radio advertisements may be able to be discontinued within days but print advertisements may require much longer time frames. To provide some flexibility for the affected licensees, the Board is retaining the proposed language. The Board will work with licensees on a case by case basis to discontinue inappropriate advertisements as quickly as possible.
Concerning IRRC's second suggestion for this subsection, the Board has replaced the phrase ''is not within the spirit of the act'' with the phrase ''could adversely impact the public or the integrity of gaming.'' This should provide licensees with a better understanding of what the Board will be looking for in advertisements.
On § 421a.6(b), IRRC asked if this regulation would apply to emails to existing or potential customers and if there is a difference between ''advertisements'' and ''promotions.''
As IRRC has noted, many advertisers today use email as a direct means of reaching existing and potential customers. Accordingly, email has been added to the list of items that are considered to be advertisements in the final-form regulation.
Advertisements are intended to encourage individuals to come to a licensed facility. Promotions, which generally offer something to individuals as an inducement for the individuals to participate in gaming, are just one type of advertising. Therefore, the use of the term ''promotion'' in the regulation is somewhat redundant and is not necessary. For this reason, the Board has eliminated the term in the final-form regulation.
On § 421a.6(d), IGT had two suggestions. First, IGT suggested that the Board add specific language that would be acceptable to the Board so that individual reviews by the Director of the Office of Compulsive and Problem Gambling (Office) would not be necessary. Second, IGT suggested that messages transmitted to a player from a slot machine be exempt from this section. IRRC concurred with IGT's first suggestion and asked if this requirement would also apply to promotions.
To give licensees some flexibility, the Board has elected not to mandate specific language that must be used by all licensees. However, to reduce the need for numerous filings the Board has added the phrase ''if it has not been previously approved by the Director of the Office of Compulsive and Problem Gambling'' to subsection (d). This will substantially reduce the number of approvals the affected licensees will have to obtain. For example, if a slot machine licensee has received approval under § 501a.5(b) or § 421a.6 or the text and font size for print advertisements, each time the slot machine licensee does a new print advertisement, the slot machine licensee would not need to have the text and font size approved again unless it wanted to make a change. Additionally, the Board adopted a statement of policy on January 24, 2008, which provides guidelines on acceptable text and font sizes.
Concerning IGT's second suggestion, it was not the Board's intent to apply subsection (d) to the messages printed on slot machines at this time. The Board is currently reviewing the messaging capabilities of slot machines and slot monitoring and casino management systems. If the Board finds that there is a need to expand subsection (d) to include these messages, it will do a new proposed rulemaking.
As to IRRC's question concerning promotions, as noted previously the Board has deleted the term ''promotion'' because promotions are a type of advertisement.
In § 421a.6(e), IGT and IRRC asked for clarification of the term ''virtual facsimile.''
The Board's intent in this provision was to ban the use of individuals or video or electronic reproductions of individuals to pressure patrons to engage in gaming or to play a particular machine. However, it was not the Board's intent to prohibit slot machines from using general messages to attract a player's attention. Because technological advances in displays used on slot machines now allow life-like video reproductions, the Board has eliminated the phrase ''virtual facsimile'' from this subsection of the regulation. To further clarify the Board's intent, the term ''induce'' has been replaced with ''persuade or convince.''
Additional Revisions
In addition to the revisions discussed previously, the Board added the phrase ''or the statement required under subsection (d)'' to § 421a.6(c)(2) to make it clear that the prohibitions in subsection (c) also apply to the statement pertaining to assistance for gambling problems.
Additionally, minor formatting changes were made to § 421a.6(c) to improve clarity.
Affected Parties
Under this final-form rulemaking, slot machine, manufacturer and junket licensees will be required to cease using inappropriate advertising upon receipt of written notice from the Board and will have to have the language relating to a toll-free gambling assistance telephone number that will be used in any advertisement approved by the Director of the Office. There are 11 currently approved slot machine licensees, 16 licensed manufacturers and no licensed junkets.
Applicants whose applications are deemed abandoned, instead of being denied, will be able to file a new application immediately instead of having to wait 5 years.
Fiscal Impact
Commonwealth
There will be no new costs to the Board or other Commonwealth agencies as a result of this rulemaking. The Director of the Office currently reviews the toll-free gambling assistance telephone number message that is used in advertisements.
Political Subdivisions
This final-form rulemaking will have no fiscal impact on political subdivisions of the Commonwealth.
Private Sector
The Board anticipates that there will be no significant new costs or savings to slot machine, manufacturer and junket licensees as a result of these amendments because they reflect existing requirements.
Applicants whose applications are deemed abandoned will be able to apply for a license, permit or registration immediately thereby increasing their ability to be employed in the gaming industry.
General Public
This final-form rulemaking will have no fiscal impact on the general public.
Paperwork requirements
This final-form rulemaking does not change or add new reporting, recordkeeping or paperwork requirements.
Effective Date
The 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, (717) 214-8111.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (act) (71 P. S. § 745.5(a), on October 15, 2007, the Board submitted a copy of the proposed rulemaking, published at 37 Pa.B. 5804, and a copy of the Regulatory Analysis Form to IRRC and the Chairpersons of the House Gaming Oversight Committee and the Senate Committee on Community, Economic and Recreational Development.
Under section 5(c) of the act, 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 House and Senate Committees and the public.
Under section 5.1(j.2) of the act (71 P. S. § 745.5a(j.2)), the final-form rulemaking was deemed approved by the House and the Senate Committees. Under section 5.1(e) of the act (71 P. S. § 745.5a(e)), IRRC met March 6, 2008, 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.
(2) The final-form rulemaking is necessary and appropriate for the administration and enforcement of 4 Pa.C.S. Part VII (relating to gaming).
Order
The Board, acting under 4 Pa.C.S. Part VII, orders that:
(a) The regulations of the Board, 58 Pa. Code Chapters 421a and 423a, are amended by amending § 423a.4 to read as set forth at 37 Pa.B. 5804 and by adding § 421a.6 to read as set forth in Annex A.
(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.
MARY DIGIACOMO COLINS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 1646 (April 5, 2008).)
Fiscal Note: Fiscal Note 125-72 remains valid for the final adoption of the subject regulations.
Annex A TITLE 58. RECREATION PART VII. GAMING CONTROL BOARD Subpart B. LICENSING, PERMITTING, CERTIFICATION AND REGISTRATION CHAPTER 421a. GENERAL PROVISIONS § 421a.6. Advertising.
(a) Slot machine, junket and manufacturer licensees will be required to discontinue as expeditiously as possible the use of a particular advertisement upon receipt of written notice from the Board that the Board has determined that the use of the particular advertisement in, or with respect to, this Commonwealth could adversely impact the public or the integrity of gaming.
(b) For purposes of this section, the term ''advertisement'' means marketing materials including signs, billboards, print, radio and television advertisements, emails and any notice or communication by a slot machine, junket or manufacturer licensee or its agent to the public through broadcasting, publication, mailing or other means of dissemination.
(c) Advertisements used by slot machine, junket or manufacturer licensees may not:
(1) Contain false or misleading information.
(2) Use a font, type size, location, lighting, illustration, graphic depiction or color obscuring any material fact or the statement required under subsection (d).
(3) Fail to disclose any material conditions or limiting factors associated with the advertisement.
(d) Advertisements must contain a statement that is similar to the following: ''If you or someone you know has a gambling problem, help is available. Call (toll-free telephone number).'' The complete text of the statement and type size to be used for the statement, if it has not been previously approved by the Director of the Office of Compulsive and Problem Gambling, shall be submitted to the Director of the Office of Compulsive and Problem Gambling for approval utilizing the process contained in § 501a.2(g) (relating to compulsive and problem gambling plan).
(e) A slot machine, junket or manufacturer licensee or an agent thereof may not employ or contract with an individual, persuade or convince a person to engage in gaming or play a specific slot machine at a licensed facility.
[Pa.B. Doc. No. 08-622. Filed for public inspection April 4, 2008, 9:00 a.m.]
