SGC-35-13-00002-A Video Lottery Gaming Advertising

11/27/13 N.Y. St. Reg. SGC-35-13-00002-A

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 48

November 27, 2013

RULE MAKING ACTIVITIES

NEW YORK STATE GAMING COMMISSION

NOTICE OF ADOPTION

 

I.D No. SGC-35-13-00002-A

Filing No. 1107

Filing Date. Nov. 12, 2013

Effective Date. Nov. 27, 2013

Video Lottery Gaming Advertising

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of section 5116.6(b)(3) to Title 9 NYCRR.

Statutory authority:

Tax Law, sections 1604 and 1617-a; and Racing, Pari-Mutuel and Breeding Law, section 104

Subject:

Video Lottery Gaming advertising.

Purpose:

To conform with the Memorandum of Understanding between the Seneca Nation of Indians and the State of New York.

Text of final rule:

Pursuant to the authority granted by Section 104 of the Racing, Pari-Mutuel Wagering and Breeding Law and Sections 1604 and 1617-a of the Tax Law, the New York State Gaming Commission hereby promulgates this amendment of Section 5116.6 of Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York, to read as follows:

§ 5116.6. Advertising.

(a) Advertising generally.

(1) The content or concept of all advertising and any advertisement shall be provided as prescribed by the commission.

(2) A video lottery gaming agent shall be responsible for all advertising and advertisements that are made by the agents or representatives of such video lottery gaming agent, regardless of whether the video lottery gaming agent participated directly in such advertising’s development, preparation, placement or dissemination.

(3) Issuance of a video lottery gaming agent license pursuant to these regulations permits conducting video lottery gaming in a manner approved by the commission. Use of any name, logo or design owned by the commission or the video lottery gaming machine manufacturers without a valid license may constitute a violation of Federal and State copyright and trademark laws. Permitted use of the logo by a licensee must be in compliance with approved guidelines.

(b) Criteria governing advertising.

(1) Approved advertising criteria shall be published from time to time by the commission.

(2) The following practices shall be prohibited with respect to all advertisements:

(i) The use or statement of any information, representation, or description that contrasts or compares video lottery gaming agents or facilities with regard to total payout.

(ii) The failure to maintain any offer for the advertised period of availability or in a quantity sufficient to meet reasonably anticipated demand. Should anticipated demand be exceeded, items of equal or greater value may be substituted on notice to the commission.

(3) No video lottery agent [located] operating within the geographic area defined by:

(i) to the east, State Route 14 from Sodus Point to the Pennsylvania border with New York;

(ii) to the north, the border between New York and Canada;

(iii) to the south, the Pennsylvania border with New York; and

(iv) to the west, the border between New York and Canada and the border between Pennsylvania and New York,

is permitted, with respect to operations in such geographic area, to use the terms “slots,” “slot machines,” and “casino” or “casinos” for marketing or other purposes.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 5116.6(3).

Text of rule and any required statements and analyses may be obtained from:

Julie B. Silverstein Barker, Gaming Commission, One Broadway Center, PO Box 7500, Schenectady, NY 12301-7500, [phone], email: [e-mail]

Revised Regulatory Impact Statement

The unsubstantial changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement.

Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

Changes made to the last published rule do not necessitate revisions to the previously published Regulatory Flexibility Statement, Rural Flexibility Statement or Job Impact Statement. There will be no adverse impact on jobs, rural areas, small business or local governments.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:

An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue.

Assessment of Public Comment

One comment was received regarding this proposed rulemaking. The comment from the Seneca Nation of Indians requested that the text of the rule be revised to ensure that it is accurately interpreted regarding the restriction upon certain video lottery facilities from using certain terminology to describe such facilities. The commenter was concerned that the rule as previously written could be interpreted to allow a video lottery agent located outside the described geographic area to operate a video gaming facility within the described geographic area using the prohibited terminology. In response to the comment, the proposed rule was revised to clarify that a video gaming agent operating within the described geographic area is prohibited from using certain terminology with respect to operations within the described geographic area. The intent of the rule remains the same.