GFB-21-14-00008-E Rules Pertaining to Gaming Facility Request for Application and Related Fees and Related Hearings

7/16/14 N.Y. St. Reg. GFB-21-14-00008-E

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 28

July 16, 2014

RULE MAKING ACTIVITIES

NEW YORK GAMING FACILITY LOCATION BOARD

EMERGENCY RULE MAKING

 

I.D No. GFB-21-14-00008-E

Filing No. 564

Filing Date. Jun. 27, 2014

Effective Date. Jun. 27, 2014

Rules Pertaining to Gaming Facility Request for Application and Related Fees and Related Hearings

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

Action taken:

Addition of Parts 600 and 601 to Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 1306(4), (9) and 1319

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The New York State Gaming Facility Location Board (the “Board”) has determined that immediate re-adoption of these rules is necessary for the preservation of the general welfare. On March 31, 2014, the Board, which was established by the New York State Gaming Commission (“Commission”), issued a Request for Applications (“RFA”) for applicants seeking a license to develop and operate a gaming facility in New York State pursuant to the Upstate New York Gaming Economic Development Act of 2013, as amended by Chapter 175 of the Laws of 2013 (the “Act”). The Act authorizes four upstate destination gaming resorts to enhance economic development in Upstate New York. The immediate re-adoption of these rules is necessary to prescribe required fee information for applicants that plan to submit an application in response to the RFA, due June 30, 2014 and to enable the Board to have hearing procedures in place before any potential public hearing occurs. Standard rule making procedures would prevent the Board from commencing the fulfillment of its statutory duties.

Subject:

Rules pertaining to gaming facility request for application and related fees and related hearings.

Purpose:

To facilitate a fair and transparent process for applying for a license to operate a gaming facility.

Text of emergency rule:

Subtitle R of Title 9, Executive, of the NYCRR is amended to name such Subtitle “Gaming Facility Location Board” and add new Parts 600 and 601 as follows:

PART 600

PUBLIC HEARINGS

§ 600.1. Public Hearings.

(a) If the New York Gaming Facility Location Board conducts a public hearing, it shall cause the New York State Gaming Commission to post a notice of such hearing on the Gaming Commission’s website a reasonable period of time before such hearing.

(b) Any member of the New York Gaming Facility Location Board may preside over a public hearing as chair of the meeting. The conduct of the meeting shall be in the sole and absolute discretion of the chair, who may decide whom to recognize to speak and limit the time allowed to any speaker and the number of speakers. The chair of the meeting may receive written testimony in the discretion of the chair.

PART 601

GAMING FACILITY LICENSE FEES

§ 601.1. Gaming Facility License Fees.

(a) The license fee for a gaming facility license issued by the Gaming Commission pursuant to subdivision 4 of section 1315 of the Racing, Pari-Mutuel Wagering and Breeding Law shall be as follows, unless a gaming facility licensee has agreed to pay an amount in excess of the fees listed below:

(1) In Zone Two, Region One (Counties of Columbia, Delaware, Dutchess, Greene, Orange, Sullivan and Ulster), as such zone and region are defined in section 1310 of the Racing, Pari-Mutuel Wagering and Breeding Law, the following fees will apply to counties as designated below:

(i) $70,000,000 for a gaming facility in Dutchess or Orange Counties;

(ii) $50,000,000 for a gaming facility in Columbia, Delaware, Greene, Sullivan or Ulster Counties, if no license is awarded for a gaming facility located in Dutchess or Orange Counties; and

(iii) $35,000,000 for a gaming facility in Columbia, Delaware, Greene, Sullivan or Ulster Counties, if a license is awarded for a gaming facility located in Dutchess or Orange Counties.

(2) $50,000,000 in Zone Two, Region Two (Counties of Albany, Fulton, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie and Washington), as such zone and region are defined in section 1310 of the Racing, Pari-Mutuel Wagering and Breeding Law;

(3) In Zone Two, Region Five (Counties of Broome, Chemung (east of State Route 14), Schuyler (east of State Route 14), Seneca, Tioga, Tompkins, and Wayne (east of State Route 14)), as such zone and region are defined in section 1310 of the Racing, Pari-Mutuel Wagering and Breeding Law, the following fees will apply to counties as designated below:

(i) $35,000,000 for a gaming facility in Broome, Chemung, Schuyler, Tioga or Tompkins Counties;

(ii) $50,000,000 for a gaming facility in Wayne or Seneca Counties; and

(iii) $20,000,000 for a gaming facility in Broome, Chemung, Schuyler, Tioga or Tompkins Counties, if a license is awarded for a gaming facility located in Wayne or Seneca Counties.

(b) A gaming facility licensee shall pay the required license fee by electronic fund transfer according to directions issued by the Gaming Commission.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. GFB-21-14-00008-P, Issue of May 28, 2014. The emergency rule will expire August 25, 2014.

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

Corey Callahan, New York State Gaming Commission, One Broadway Center, P.O. Box 7500, Schenectady, New York 12301-7500, [phone], email: [e-mail]

Regulatory Impact Statement

1. STATUTORY AUTHORITY: Racing, Pari-Mutuel Wagering and Breeding Law (“Racing Law”) section 1306(1) and section 1312(1) prescribe that the Gaming Facility Location Board (“Board”), which is established by the Gaming Commission (“Commission”), shall issue a request for applications (“RFA”) for applicants seeking a license to develop and operate a gaming facility in New York State. On March 31, 2014, the Gaming Facility Location Board issued the RFA.

Racing Law section 1306(4) authorizes the Board to determine a gaming facility license fee to be paid by an applicant.

Racing Law 1306(9) authorizes the Board to promulgate any rules and regulations that it deems necessary to carry out its responsibilities.

Racing Law section 1319 authorizes the Board to conduct hearings concerning the conduct of gaming and applicants for gaming facility licenses.

2. LEGISLATIVE OBJECTIVES: This emergency rule making carries out the legislative objectives of the above referenced statutes by implementing the requirements of Racing Law section 1306(4) and section 1319.

3. NEEDS AND BENEFITS: This emergency rule making is necessary to enable the Board to carry out its statutory duty to prescribe the license fee for a gaming facility license issued by the Commission and prescribe public hearing procedures for the Board to follow in the event the Board conducts a public hearing concerning the conduct of gaming and applicants for gaming facility licenses.

4. COSTS:

(a) Costs to the regulated parties for the implementation of and continuing compliance with the rules: Those parties who choose to seek a gaming facility license will bear some costs, including the fee for the gaming facility license and the capital investment necessary to construct and operate a gaming facility.

(b) Costs to the regulating agency, the State, and local government: The rules will impose some costs on the Board to review gaming facility license applications and to conduct hearings, where necessary. The Board will rely on Commission staff to assist in these matters and the costs to the Commission are expected to be defrayed by the license fee and the $1 million application fee that each applicant will pay as required by Racing Law section 1316(8). The rules will not impose any additional costs on local government.

(c) The information, including the source or sources of such information, and methodology upon which the cost analysis is based: The cost estimates are based on the Commission’s experience regulating racing and gaming activities within the State.

5. PAPERWORK: The rules are not expected to impose any significant paperwork requirements for gaming facility applicants and licensees.

6. LOCAL GOVERNMENT: The rules do not impose any mandatory program, service, duty, or responsibility upon local government because the licensing of gaming facilities is strictly a matter of State law.

7. DUPLICATION: The rules do not duplicate, overlap or conflict with any existing State or federal requirements.

8. ALTERNATIVES: The Board is required to create these rules under Racing Law section 1306(4) and section 1319. Therefore, no alternatives were considered.

9. FEDERAL STANDARDS: There are no federal standards applicable to the licensing of gaming facilities in New York because such licensing is solely in accordance with New York State law.

10. COMPLIANCE SCHEDULE: The Board anticipates that affected parties will be able to achieve compliance with the emergency rules upon the adoption of the rules, which will occur upon filing.

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

This emergency rule making will not have any adverse impact on small businesses, local governments, jobs, or rural areas. The rules prescribe the license fee for a gaming facility license issued by the New York State Gaming Commission and prescribe public hearing procedures that the Gaming Facility Location Board must follow in the event the Gaming Facility Location Board (“Board”) conducts a public hearing concerning gaming and applicants for gaming facility licenses. It is not expected that any small business or local government will apply for a gaming facility license. To the extent that a small business or local government might participate in a Board hearing, each would be treated equally with any other participant in such hearing.

The rules impose no adverse economic impact or reporting, recordkeeping, or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. It is anticipated that the opening of up to four gaming facilities in upstate New York will create new job opportunities. The rules apply uniformly throughout the State to any applicant seeking a license to develop and operate a gaming facility in the State.

The rules will not adversely impact small businesses, local governments, jobs, or rural areas. It does not require a full Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, or Job Impact Statement.