PENNSYLVANIA GAMING CONTROL BOARD [58 PA. CODE CHS. 403, 405, 421, 435, 491 AND 493] Temporary Regulations [36 Pa.B. 3943]
[Saturday, July 22, 2006]The Pennsylvania Gaming Control Board (Board), under 4 Pa.C.S. § 1203(a) (relating to temporary regulations), adopts temporary regulations to facilitate implementation of 4 Pa.C.S. Part II (relating to gaming), enacted by the act of July 5, 2004 (P. L. 572, No. 71) (Act 71). The Board's temporary regulations will be added to Part VII (relating to Gaming Control Board). Section 403.5, entitled delegation of powers, is added to Chapter 403, entitled Board operations and organization, under Subpart A, entitled general provisions. Section 405.6, entitled investigatory subpoena, is added to Chapter 405, entitled Bureau of Investigations and Enforcement, under Subpart A. Section 421.1, entitled general requirements, is amended to read as set forth in Annex A. Section 435.1, entitled general provisions, is amended to read as set forth in Annex A. Section 491.3, entitled service by the Board, is added to Chapter 491, entitled general rules of practice, under Subpart H, entitled practice and procedure. Section 493.2, entitled formal complaints, is amended to read as set forth in Annex A. Section 493.12, entitled discovery, is amended to read as set forth in Annex A. Section 493.14, entitled consent agreements, is added to Chapter 493, entitled pleadings, under Subpart H.
Purpose and Background
Under 4 Pa.C.S. § 1203(a), the Board is authorized to promulgate temporary regulations to facilitate the prompt implementation of Act 71. The regulations are necessary to enhance the credibility of the licensed operation of slot machines and associated equipment within this Commonwealth and to carry out the policy and purposes of the Board. To invite public input, the Board published draft regulations on the Board's website and 5-day public comment period was provided.
Under 4 Pa.C.S. § 1203(b), the temporary regulations adopted by the Board expire no later than 3 years following the effective date of Act 71 or upon promulgation of regulations as generally provided by the law. These temporary regulations shall not be subject to sections 201--205 of the act of July 31, 1968(P. L. 769, No. 240) (45 P. S. §§ 1201--1208), known as the Commonwealth Documents Law (CDL), or to the Regulatory Review Act (71 P. S. §§ 745.1--745.15).
Financial Impact
Act 71 and the regulations will provide for the implementation and management of gaming within this Commonwealth and the collection of fees and taxes from entities and individuals authorized by the Board to be employed by, provide gaming related services to or operate gaming facilities. The appropriations from the Commonwealth for the implementation of Act 71 and costs of administering 4 Pa.C.S. Part II will be reimbursed by the licensed entities as specified within Act 71. Individuals and entities that wish to obtain licenses as gaming entities shall pay to the Gaming Fund significant licensing fees to obtain the authority to do business within this Commonwealth. Part of these fees shall reimburse the Board and the Pennsylvania State Police for licensing processes and background investigations. The licensing, registration, certification and permitting of individuals and other classes of applicants will be reimbursed by the applicants through fees established by the Board. It is anticipated that all expenses of the Board and all associated activities shall be reimbursed by the applicants and gaming entities as previously specified. The Board shall have no financial impact on the State budget.
Statutory Authority
The Board is authorized under 4 Pa.C.S. § 1203(a) to adopt and publish temporary regulations to implement the policies and purposes of Act 71.
Regulatory Review
Under 4 Pa.C.S. § 1203(b), the Board's authority to adopt temporary regulations expires 2 years from the effective date of Act 71.
Findings
The Board finds that:
(1) Under 4 Pa.C.S. § 1203(a), the temporary regulations are exempt from the requirements of the Regulatory Review Act and sections 201--205 of the CDL.
(2) A 5-day public comment period was held prior to the adoption of the temporary regulations.
(3) The adoption of the temporary regulations provided by this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Board, acting under the authorizing statute, orders that:
(a) The Board, acting under the authority of Act 71, adopts as its final-form temporary regulations, the draft regulations as amended by resolution at the June 28, 2006, public meeting. The temporary regulations pertain to delegation of powers, investigatory subpoena, general licensing requirements, wagering by employees, service by the Board, formal complaints, discovery and consent agreements.
(b) The temporary regulations of the Board, 58 Pa. Code Chapters 403, 405, 421, 435, 491 and 493 amended by amending §§ 421.1, 435.1, 493.2 and 493.12 and by adding §§ 403.5, 405.6, 491.3, and 493.14 to read as set forth in Annex A.
(c) The temporary regulations are effective June 28, 2006.
(d) The temporary regulations shall be posted in their entirety on the Board's website and published in the Pennsylvania Bulletin.
(e) The temporary regulations shall be subject to amendment as deemed necessary by the Board in accordance with the purpose of Act 71 and to further the intent of Act 71.
(f) The Chairperson of the Board shall certify this order and deposit the regulations with the Legislative Reference Bureau as required by law.
THOMAS A. DECKER,
ChairpersonFiscal Note: 125-39. No fiscal impact; (8) recommends adoption.
Annex A TITLE 58. RECREATION PART VII. GAMING CONTROL BOARD Subpart A. GENERAL PROVISIONS CHAPTER 403. BOARD OPERATIONS AND ORGANIZATION § 403.5. Delegation of powers.
(a) The Board may, consistent with the act and this part, delegate its authority to perform any of its functions to a Board member or member of the Board's staff.
(b) Any delegation of Board authority will be effected by promulgation of a regulation or the adoption of a formal resolution at a public meeting of the Board. The regulation or resolution will specify:
(1) The specific authority delegated.
(2) The Board member or Board staff members to whom the authority is delegated.
(3) Any limitations or conditions imposed on the authority delegated.
(c) Delegations of authority made under this section will remain in effect indefinitely unless otherwise specified in the implementing regulation or resolution.
(d) A delegation of authority adopted by the Board may be modified or rescinded by the Board through promulgation of a regulation or the adoption of a subsequent formal resolution at a public meeting of the Board.
(e) Notwithstanding any other provision of this section, any matter that has been delegated to the Board staff may alternatively be presented to and determined by the Board on its own motion, at the discretion of the Chairperson or at the request of the Board staff.
CHAPTER 405. BUREAU OF INVESTIGATIONS AND ENFORCEMENT § 405.6. Investigatory subpoena.
(a) The Director of the Office of Enforcement Counsel is authorized to require the attendance and testimony of witnesses and the production of any books, accounts, papers, records, documents and files necessary for all action within the authority of the Bureau under the act or this part.
(b) The Director of the Office of Enforcement Counsel or a representative may issue subpoenas.
(c) In case of disobedience of any subpoena or the contumacy of any witness appearing before the Director of the Office of Enforcement Counsel or a representative, the Director of the Office of Enforcement Counsel or the representative may invoke the aid of the Commonwealth Court or any court of record of this Commonwealth to require the person subpoenaed to obey the subpoena or to give evidence or to produce books, accounts, papers, records, documents and files relative to the matter in question.
(d) The issuance of a subpoena under this section will not be required to secure the cooperation of a person who is an applicant for, or the holder of, a license, permit, certification or registration issued by the Board, or to secure the voluntary cooperation of any person.
Subpart B. LICENSING, REGISTERING, CERTIFYING AND PERMITTING CHAPTER 421. GENERAL PROVISIONS § 421.1. General requirements.
* * * * * (h) An applicant shall at all times have the burden of proof. It shall be the applicant's affirmative responsibility to establish the facts supporting its suitability under the act and this subpart by clear and convincing evidence, including why a license, certificate, permit or registration should be issued or renewed by the Board.
CHAPTER 435. EMPLOYEES § 435.1. General provisions.
* * * * * (o) An individual who is required to hold a license or permit as a condition of employment or qualification may not wager at any licensed facility in this Commonwealth.
(p) A registrant or employee who is not subject to licensure or permitting may not wager at the licensed facility in which the registrant or employee is employed.
(q) Any licensed, permitted or registered employee shall wait at least 30 days following the date that the employee either leaves employment with a slot machine licensee or is terminated from employment with a slot machine licensee before the employee may wager at the licensed facility in which the employee was formerly employed.
Subpart H. PRACTICE AND PROCEDURE CHAPTER 491. GENERAL RULES OF PRACTICE § 491.3. Service by the Board.
(a) Service by the Board may be made by any competent adult. Service will be made by certified mail or personally delivering a copy:
(1) Directly to the person named in the notice, pleading or order.
(2) At the residence of the person named in the notice, pleading or order, to an adult member of the family with whom the person named resides. If no adult member of the family is found, then to an adult person in charge of the residence.
(3) At the residence of the person named in the notice, pleading or order, to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which the person named resides.
(4) At any office or usual place of business of the person named in the notice, pleading or order, to his agent or to the person for the time being who is in charge thereof. For purposes of this subsection, the phrase ''any office or usual place of business of the person named in the notice, pleading, or order'' will include the following locations:
(i) The licensed facility at which the person named is employed, licensed in connection therewith, or routinely performs his duties of employment.
(ii) The office of the agent identified by the person named to receive service of process.
(b) Proof of service shall be evidenced by a return of service filed with the Office of the Clerk in the manner and form prescribed by the Board.
CHAPTER 493. PLEADINGS § 493.2. Formal complaints.
* * * * * (l) Except as otherwise expressly provided in the act or this part, a person who holds a license, certification, permit or registration shall at all times have the burden of proof in complaint proceedings. It shall be the person's affirmative responsibility to establish the facts of the case by clear and convincing evidence, including:
(1) Why the person should not be subject to Board-imposed administrative sanction or other discipline.
(2) Why the person does not owe an assessment, cost, fee, fine, penalty, restitution, tax or monetary sanction.
(m) This section supplements 1 Pa. Code §§ 35.9--35.11 and 35.14 (relating to formal complaints; and orders to show cause).
§ 493.12. Discovery.
(a) Upon written request from a party in a proceeding served upon another party in the proceeding, the requesting party shall be entitled to the name and address of any witness who may be called to testify on behalf of the responding party and all documents or other material in the possession or control of the responding party which the responding party reasonably expects will be introduced into evidence. The responding party shall be under a continuing duty to update its response to this request.
(b) The presiding officer may, upon request of a party, permit the testimony of a witness or the introduction of other evidence not disclosed pursuant to a request made under subsection (a), if following proffer by the party seeking to present the evidence, the presiding officer determines that justice so requires.
(c) Upon the request of a party in a proceeding and for good cause shown, the presiding officer may allow other discovery to be conducted, but the information furnished to or obtained by the Board or the Bureau from any source, including information contained in the Bureau of Licensing Suitability Report, or information or files in the possession of the Bureau, or information in the possession or control of an agency which relates to an ongoing civil or criminal investigation, will not be discoverable under this subsection.
(d) Depositions will be conducted in accordance with 1 Pa. Code §§ 35.145--35.152 (relating to depositions).
§ 493.14. Consent agreements.
(a) Parties in a proceeding may propose consent agreements to the hearing officer or to the Board at any stage of a proceeding, including prior to the entry of a final order or prior to the initiation of proceedings.
(b) Consent agreements must be in writing, signed by all parties in the proceeding, and accurately reflect the terms of the consent agreement, including the facts agreed to by the parties constituting the grounds for the action proposed in the consent agreement.
(c) If the consent agreement is proposed in a matter that is the subject of a proceeding before a hearing officer, the proposal of the consent agreement will stay the proceeding until the consent agreement is acted upon by the Board.
(d) The consent agreement shall be presented to the Board for its approval or disapproval. If the Board approves the consent agreement, it will become the final order of the Board. If the Board disapproves the consent agreement, the parties will be notified and the consent agreement and any documents solely relating to the consent agreement will not constitute part of the record.
[Pa.B. Doc. No. 06-1312. Filed for public inspection July 21, 2006, 9:00 a.m.]
