INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [34 Pa.B. 648] 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final-form regulation must be submitted within two years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 7-386 Environmental Quality Board 12/17/03 1/16/04 Triennial Review of Water Quality
Standards(33 Pa.B. 5190 (October 18, 2003)) 57-228 Pennsylvania Public Utility Commission 12/22/03 1/21/04 Electric Service Reliability (33 Pa.B. 4921 (October 4, 2003)) 6-280 State Board of Education 12/22/03 1/21/04 Pupil Personnel Services and Students (33 Pa.B. 5735 (November 22, 2003)) 16A-6510 State Board of Physical Therapy 12/22/03 1/21/04 Certificate of Authorization (33 Pa.B. 5742 (November 22, 2003))
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Environmental Quality Board Regulation No. 7-386 Triennial Review of Water Quality Standards January 16, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Environmental Quality Board (EQB) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 17, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 93.2. Scope.--Economic impact; Need for the rule; Clarity.
The proposed regulation would delete the phrase ''and will be considered by the Department [Department of Environmental Protection] in its regulation of discharges'' from subsection (a). The definition of ''discharge'' in § 92.1 seems to be limited to point sources. Beyond including ''nonpoint sources'' as defined in § 93.1, what is the need for the deletion?
Commentators including the Pennsylvania Farm Bureau and Pennsylvania Oil and Gas Association expressed concerns with the breadth of this change, its potential impact on permit review and compliance actions and lack of clarity. To increase clarity, the EQB should include the phrase ''point and nonpoint source'' before ''discharges'' rather than deleting language from § 93.2(a).
In addition, the proposed deletion raises serious questions over the types of activities that are currently regulated under Chapter 93. The Department needs to describe in detail in the regulation what will be regulated under Chapter 93. For example, how does Chapter 93 pertain to the regulation of stream withdrawals or mine subsidence?
2. Section 93.7. Specific water quality criteria.--Effect on this Commonwealth's natural resources; Consistency with Federal standards; Reasonableness; Clarity.
Commentators expressed serious concerns with the proposed changes in the dissolved oxygen (DO) criteria under Table 3 in § 93.7. The United States Environmental Protection Agency (EPA) Region 3 and the United States Fish and Wildlife Service both expressed support for the proposed changes in the DO criteria. However, they raised several issues related to clarifying the application of the criteria and the stratification process.
The EQB should clarify the new language in Table 3 or define the new phrase ''process of stratification'' in the final-form regulation. Another approach would be creating an exception that states the DO criteria will apply only to the epilimnion of a lake, pond or impoundment if stratification is documented.
3. Water Quality Issues raised by Commentators.--Fiscal impact; Effect on this Commonwealth's natural resources; Consistency with Federal statutes; Implementation procedure; Clarity.
Commentators raised several substantive concerns regarding Chapter 93 that were not addressed in this proposed regulation. The commentators indicated that they have been discussing many of these areas with the Department for years. These areas include the following topics:
* Adoption of the EPA recommendation concerning the use of E. coli or enterococci as an indicator of bacterial contamination instead of fecal coliform.
* EPA concern involving time extensions under § 95.4 that should be governed by variances under Chapter 93.
* EPA water quality criterion for chloride.
* DO criteria from EPA Goldbook.
* Addition of biological criteria in Chapter 93.
* Mixing zones.
* ''Cool water fishes'' or ''transitional fishes'' use.
* EPA criteria for methylmercury.
If the EQB finds merit in one or more of these issues and decides to amend its existing regulations, it should submit the amendments as a new proposed rulemaking. Section 303(c)(1) of the Federal Clean Water Act (33 U.S.C.A. § 1313(c)(1)) requires a state to hold public hearings for the purpose of modifying or adopting water quality standards. Submitting a proposed rulemaking would allow the EQB to meet the Federal requirement and insure all parties have an opportunity to comment on any additional changes to Chapter 93.
____Pennsylvania Public Utility Commission Regulation No. 57-228 Electric Service Reliability January 21, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Public Utility Commission (PUC) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 22, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 57.192. Definitions.--Clarity.
Section 57.192 defines ''performance benchmark'' and ''performance standard'' as ''the average historical performance'' and ''minimum performance allowed'' respectively. Clarity would be improved by specifying that performance benchmarks are established by the PUC based on each electric distribution company's (EDC) historical reliability performance, and performance standards are established by the PUC and tied to each EDC's performance benchmark.
2. Section 57.195. Reporting requirements.--Need; Reasonableness; Clarity.
Unnecessary or duplicative reporting
Section 57.195 identifies data that must be reported on an annual and quarterly basis. Some EDCs have challenged the need for the quarterly reports in addition to the annual reliability report. In the preamble, the PUC explains that quarterly reports are intended to give the PUC more frequent information about service reliability. The PUC further states that it will be able to ''identify potential problems in a timely manner and monitor the EDC's response to problems which may arise between annual reports.'' However, the preamble does not specify what actions will take place when problems are identified. In the preamble to the final-form regulation, we suggest that the PUC further explain the actions it may take in response to problems identified in a quarterly report.
Additionally, EDCs have commented that some of the reporting requirements are duplicative of information that is already reported to the PUC in another form. For example, an EDC notes that the required reporting of each ''major event'' duplicates information filed by EDCs in the existing Service Interruption Reports under § 67.1. The PUC should review this proposed regulation in comparison to other existing reporting requirements, and where appropriate, eliminate redundancies.
Proprietary data
Several EDCs assert that the data, which is required to be reported, is proprietary and should not be reported to the public. PUC staff explained that the PUC does not publish all the data that is collected and will not release proprietary data to the public. We note, however, that the regulation does not address the confidential treatment of proprietary data. It is unclear if the PUC intends to deem certain information proprietary, or if an EDC would have to apply for a protective order under § 5.423. In the final-form regulation, the PUC should specify the procedures for identifying and protecting the confidentiality of proprietary information.
Subsection (a)
This subsection requires EDCs to submit annual reliability reports on or before March 31 of each year. Currently, the annual reliability reports are due by May 31. Some EDCs have suggested that the proposed date for submission of these reports be changed from March 31 to April 30. According to these EDCs, this change would allow more time for them to analyze and review the service interruption data used to prepare the annual reliability report.
In the preamble, the PUC explains that the current May 31 submittal date should be changed because if an EDC performs poorly in the year being reported on, 5 or more months will pass before the PUC is aware of it. Therefore, the PUC proposes changing the submission date to March 31. Given that the PUC is also proposing to add a quarterly reporting requirement, which will provide reliability performance data in a timely manner, the problem of the PUC being unaware of poor performance prior to receiving the annual report should be alleviated. Therefore, the PUC should consider adopting the commentators' request for an April 30 submission date for the more detailed annual reliability reports.
Subsection (b)
Paragraphs (10) and (11) require reporting of transmission and distribution operation and maintenance expenses and capital expenditures detailed by Federal Energy Regulatory Commission (FERC) account. PPL Electric Utilities Corporation comments that it budgets by functional activity, and conversion of the data into FERC accounts would be burdensome. Has the PUC considered allowing reporting of this data in an alternate format to accommodate EDC operational practices? If so, the PUC should either specify the acceptable alternate formats in the final-form regulation, or include a cross-reference to the procedures outlined in § 1.91.
____State Board of Education Regulation No. 6-280 Pupil Personnel Services and Students January 21, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Education (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 22, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 12.4. Discrimination.--Clarity.
This section uses the term ''handicaps.'' A commentator suggests that this term be replaced with ''disability.'' We agree and recommend that the final-form regulation include this change.
2. Section 12.6. Exclusions from school.--Clarity.
Subsection (a) uses the term ''exceptional students.'' Based on discussions with Board staff, we understand this term applies to students with disabilities who are eligible for special education services. For clarity, the Board should replace ''exceptional students'' with ''students with disabilities.''
Subsection (e)(2), regarding the education of expelled students, states:
''Within 30 days of action by the school board of directors, the parents or guardian shall submit to the school district written evidence that the required education is being provided as described in paragraph (1) or that they are unable to do so. If the parents or guardian are unable to provide the required education, the district then shall make provision for the student's education.'' (Emphasis added.)
The Board has indicated that districts do not have a responsibility to provide the required education until after the 30 days has expired, regardless of when the parent or guardian notifies them that they cannot provide the education. The second sentence quoted previously could be interpreted to require a district to provide the required education as soon as they receive notification from the parent or guardian that they are unable to provide the required education. The final-form regulation should clarify when a district is required to begin providing the required education.
3. Section 12.8. Hearings.--Clarity.
Subsection (b)(ii) requires that ''sufficient notice of the time and place of the hearing shall be given.'' The final-form regulation should specify the minimum time period that qualifies as ''sufficient notice.''
4. Section 12.9. Freedom of expression.--Clarity.
Subsection (a) references the United States Supreme Court case Tinker v. Des Moines Community School District, 393 U.S. 503 (1969). Tinker was later distinguished by the United States Supreme Court in Bethel School District v. Fraser, 478 U.S. 675 (1986). Therefore, we recommend that the Tinker citation be replaced with the Bethel citation.
5. Section 12.32. Elements of the plan.--Reasonableness; Clarity.
Subsection (a) requires the plan for student services to ''conform to guidelines issued by the Department of Education.'' Requiring compliance with ''guidelines'' is problematic because guidelines are nonbinding. Based on discussions with Board staff, we understand there are multiple State and Federal statutes, regulations and associated directives with which school districts must comply. Since these laws, regulations and directives change frequently, Board staff explained that it would be difficult to maintain a complete and accurate list of these documents in the regulation. Instead, the Board instructed the Department of Education to compile a complete list of these documents in guidelines which will be published in the Pennsylvania Bulletin.
We recognize the difficulty in maintaining an accurate list of laws and directives which may change frequently. However, we note that subsection (b) specifically references the Federal Family Educational Rights and Privacy Act of 1974. If a complete list of applicable laws, regulations and directives will be published in a forthcoming guidance document, it is potentially confusing to specifically identify only one of the applicable laws in subsection (b).
As an alternative, the Board should consider amending the language in subsection (a) to require compliance with applicable State and Federal laws, regulations and associated directives which will be ''identified in guidelines issued by the Department of Education.'' Consistent with this approach, the Board should also delete subsection (b) to eliminate potential confusion regarding which laws apply.
6. Section 12.42. Student services.--Reasonableness; Clarity.
Subsection (b)
This subsection identifies services that must be provided by local education agencies in planning their student services programs. These services include ''developmental services,'' ''diagnostic, intervention and referral services'' and ''consultation and coordination services.'' Clarity would be improved by defining these terms, including the specific types of services encompassed by each of them.
Subsection (d)
This subsection requires parents to be informed when ''student assessments using individual standardized psychological tests are administered.'' It also grants parents ''the right to challenge the appropriateness of any individual standardized tests via procedures established by the local education agency.'' Commentators have raised several concerns with this subsection.
The Pennsylvania School Boards Association (PSBA) questions how ''appropriateness'' will be defined and what forum or procedure will be used to entertain challenges. The PSBA further comments that to the extent the testing is related to identification for special education or modification of a student's existing Individualized Education Plan, the forum for resolving disputes is contained in the Federal Individuals with Disabilities Education Act (IDEA) and the Board's existing Chapter 14 regulations. If the Board anticipates only special education challenges, the PSBA suggests that subsection (d) should expressly state that the parents' due process rights fall under IDEA.
The Education Law Center (ELC) comments that allowing parental challenges ''via procedures established by the local education agency'' appears to conflict with the complaint process for psychological testing established under IDEA. The ELC further comments that subsection (d) ''may also conflict with 20 USC § 1232h which prohibits schools from requiring students to submit to certain types of psychological evaluation.''
The Pennsylvania Psychological Association (PPA) also requests further clarification regarding a parent's right to challenge the appropriateness of psychological tests. The PPA states that it is unclear if the regulation refers to challenging a single test that may be administered to multiple students, or tests that are administered to a single student.
We agree with the commentators that subsection (d) needs further clarification. Specifically, the Board should clarify if the psychological testing and parental challenges apply to areas other than special education. If so, the Board should identify other instances in which psychological testing would be used and specify the procedures to challenge this testing. If subsection (d) applies only to special education services, the Board should reference the IDEA requirements and Chapter 14 appeal procedures that apply.
7. Miscellaneous clarity issues.
* Sections of this proposed rulemaking use the terms ''school board,'' ''board of directors,'' ''board of school directors,'' ''local education agency'' and ''governing body of every local education agency.'' For clarity, we recommend that one term be defined and used consistently throughout Chapter 12.
* Throughout the proposed regulation, there are references to both ''parents'' and ''parents or guardians.'' For consistency, the regulation should refer to ''parents or guardians'' throughout Chapter 12.
____State Board of Physical Therapy Regulation No. 16A-6510 Certificate of Authorization January 21, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Physical Therapy (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 22, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 40.2. Practice of medicine prohibited.--Consistency with statute.
This existing section states ''[T]he license issued to those practicing physical therapy does not authorize . . . the right to apply any of these treatments except upon the referral of a physician . . . .'' Act 6 of 2002 amended 63 P. S. § 1309(a) to state ''Except as provided in subsection (b), no person licensed under this act as a physical therapist shall treat human ailments by physical therapy or otherwise except by referral . . . .'' Subsection (b) of this statutory section provides the conditions for practice without referral. In addition to the amendments proposed, § 40.2 should be amended to be consistent with 63 P. S. § 1309.
2. Section 40.61. Certificate of authorization to practice physical therapy without a referral.--Consistency with statute; Reasonableness; Clarity.
There are three concerns with this section.
First, a physical therapist is required to refer patients to a licensed physician or other appropriate health care practitioner in ''cases for which treatment is beyond the education, expertise or experience of the physical therapist'' (63 P. S. § 1309(d)(3)). This provision is not reflected in the regulation. For example, subsection (a)(3)(i) and (ii) does not relate the type of patient care delivered in the past to the type of physical therapy that can be practiced without a referral. The statutory limitations of 63 P. S. § 1309(d)(3) should be added to the regulation.
Second, subsection (a)(5) defines continuous practice ''as a minimum of 200 hours each year in the delivery of direct patient care.'' The preamble explains that the Board determined that 200 hours per year represents approximately 10% of annual practice. How was this determined to be continuous practice? Why is a minimum of 200 hours per year the appropriate amount of experience to allow a physical therapist to practice without referral?
Finally, subsection (a) includes a list of requirements that a physical therapist must meet to be eligible to obtain a certificate of authorization. This list includes paragraph (5) which is a definition of ''continuous practice.'' Since this is a definition, it should not be listed as a requirement. For clarity, the Board should move this definition to paragraph (3) where the term is applicable.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 04-196. Filed for public inspection January 30, 2004, 9:00 a.m.]
