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PA Bulletin, Doc. No. 08-74



Notice of Comments Issued

[38 Pa.B. 324]
[Saturday, January 12, 2008]

   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 regulations. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
125-72 Pennsylvania Gaming Control Board
General Provisions; and Applications
37 Pa.B. 5804 (October 27, 2007)
2-155 Department of Agriculture
Odor Management Certification Program
37 Pa.B. 5793 (October 27, 2007)


Pennsylvania Gaming Control Board
Regulation #125-72 (IRRC #2646)

General Provisions; and Applications

December 26, 2007

   We submit for your consideration the following comments on the proposed rulemaking published in the October 27, 2007 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.

Section 421a.6. Advertising.--Implementation procedures; Clarity.

Subsection (a)

   This subsection will require certain licensees of the Board to discontinue particular advertisements or promotions ''as expeditiously as possible'' if the Board determines that the advertisements or promotions are not ''within the spirit or intent of the act.'' Both of the quoted phrases lack clarity and do not provide licensees with a definitive standard to follow. We recommend that the phrase ''expeditiously as possible'' be replaced with a specific time period. We also recommend that the Board list the criteria that specify what it considers to be outside of the ''spirit or intent of the act.''

Subsection (b)

   The term ''advertisement'' is defined in this section. We have two questions. First, would an email from a licensee to a customer or a potential customer be considered advertising? Second, is a ''promotion'' different than an ''advertisement''? If so, we recommend that a definition of ''promotion'' be added to the final-form rulemaking.

Subsection (d)

   This subsection pertains to mandatory language regarding problem gambling that must appear in advertisements. It requires Board approval of the text and type size to be used in the advertisements. We have a suggestion and a question.

   First, a commentator has suggested that the regulation be amended to include the specific requirements for the mandatory language. They note that this would eliminate the need for review and approval by the Board which, in turn, would facilitate marketing initiatives and help avoid time delays. We agree with this suggestion and recommend the Board include more specific requirements pertaining to text and type size in the final-form regulation and eliminate the requirement for Board approval of advertisements.

   Second, do the requirements of this subsection apply to promotions?

Subsection (e)

   Under this subsection, slot machine licensees are prohibited from using an individual or ''a virtual facsimile thereof'' at a licensed facility to induce a person to gamble. A commentator has questioned what is meant by the term ''virtual facsimile.'' We agree that this term is unclear and ask the Board to define it in the final-form regulation.


Department of Agriculture
Regulation #2-155 (IRRC #2647)

Odor Management Certification Program

December 26, 2007

   We submit for your consideration the following comments on the proposed rulemaking published in the October 27, 2007 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 Department of Agriculture (Department) to respond to all comments received from us or any other source.

1.  Section 130f.2. Definitions.--Clarity.


   This term is defined as:

   (i)  Conflicts arising from the offsite migration of the odors from agricultural facilities.

   (ii)  The term does not include mental or physical health affects (sic), or changes in property values.

   It is not clear what is intended by the exclusion of health effects and property values in Paragraph (ii). In the statutory criteria for eligibility for financial assistance, the State Conservation Commission (SCC) must consider whether a project will ''improve the health, safety or environment of the people . . . .'' (3 Pa.C.S.A. § 511(b)(1)). Public health is also mentioned in civil penalties and remedies (3 Pa.C.S.A. § 514(d)). Moreover, what ''conflicts'' remain after the exclusion of health effects or changes in property value? Why would an odor that caused the health effect of loss of appetite be excluded from impacts? The Department needs to explain why Paragraph (ii) is appropriate in the definition of ''impacts.''

Odor management regulations

   This definition is dependent upon the SCC regulation which is not yet final as of the date of these comments. If possible, this final regulation should reference the final regulation by the SCC.

2.  130f.3. Fees.--Reasonableness; Clarity.

Fees for dual certification

   We note that the nutrient management specialist regulations (7 Pa. Code § 130b.3(a)(3)(ii)) impose a fee for dual certification. Subsections 130f.11(i), (j) and (k) provide for dual certification as an odor management specialist. Why didn't the Department include a fee for dual certification as an odor management specialist in Section 130f.3?

Fees required

   Subsection (a) does not state whether fees are required annually or whether they cover the entire three-year certification periods specified in sections 130f.22(c) and 130f.31(a). The regulation should clearly state how often fees are required to be paid to maintain certification.

3.  130f.11. Determination of competence.--Reasonableness.

Other areas and course work

   Paragraph (d)(11) requires training to include ''[ O ]ther areas and course work related to requirements set forth in the odor management regulations, as determined appropriate by the Department.'' How will the person or organization running the training course have adequate notice of an area determined to be appropriate by the Department and where could they find this determination by the Department?

4.  130f.21. Determination of competence.--Reasonableness; Clarity

Other applicable laws and regulations

   Paragraph (c)(9) is overly broad by requiring knowledge in ''[ O ]ther applicable laws and regulations.'' The regulation should clearly state what knowledge is required.

5.  130f.31. Recertification.--Reasonableness; Clarity.


   Related to our concern with Section 130f.3 regarding Fees, this section does not require payment of a fee. Assuming a fee is required for recertification, Subsection (a) should require payment of the fee along with the written documentation of continuing education and training.

6.  Miscellaneous Clarity.

   *  In Section 130f.2, the definition of ''BMP'' should include a reference to the Act.

   *  Subsection 130f.31(c) excludes ''coffee breaks'' from the calculation of credit hours. We recommend deleting the word ''coffee'' so that all breaks would be excluded from credit hours.


[Pa.B. Doc. No. 08-74. Filed for public inspection January 11, 2008, 9:00 a.m.]

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