INDEPENDENT REGULATORY REVIEW COMMISSION Actions Taken by the Commission [26 Pa.B. 5181] The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, October 3, 1996, and took the following actions:
Regulations Approved:
Environmental Quality Board # 7-288: Stream Redesignations; Kettle Creek, et al (amends 25 Pa. Code Chapter 93)
State Board of Certified Real Estate Appraisers # 16A-705: Examination Fees (amends 49 Pa. Code § 36.6 Fees)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5103 (October 26, 1996).)
State Board of Physical Therapy # 16A-654: Examination Fees (amends 49 Pa. Code § 40.5)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5110 (October 26, 1996).)
State Architects Licensure Board # 16A-412: Examination Fees (amends 49 Pa. Code §§ 9.3, 9.44, 9.82, 9.85, 9.86, 9.111--.114, 9.117, and 9.118)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5101 (October 26, 1996).)
State Board of Certified Real Estate Appraisers # 16A-702: Definitions (amends 49 Pa. Code Chapter 36)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5105 (October 26, 1996).)
State Board of Medicine/State Board of Osteopathic Medicine # 16A-532: Respiratory Care Practitioners (amends Chapters 18 and 25 of 49 Pa. Code)
State Registration Board for Professional Engineers, Land Surveyors and Geologists # 16A-473: General Revisions (amends 49 Pa. Code §§ 37.1, 37.18, 37.58, 37.59 and 37.81--37.83 and adds sections 37.36 and 37.37)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5106 (October 26, 1996).)
Pennsylvania Public Utility Commission # 57-144: Limousine Service Supplemental (amends 52 Pa. Code Chapter 29 by amending sections 29.333(b) and 29.333(c))
Pennsylvania Public Utility Commission # 57-153: Taxicab Medallion Program (amends 52 Pa. Code Chapter 30)
Pennsylvania Public Utility Commission # 57-173: Termination of Utility Service to Health Care Facilities (adds sections 55.101--55.115 to 52 Pa. Code Chapter 55)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5111 (October 26, 1996).)
Orders Have Not Been Issued for the Following Approved Regulations:
State Board of Psychology # 16A-630: Child Abuse Reporting Requirements
State Board of Osteopathic Medicine # 16A-535: Child Abuse Reporting Requirements
State Board of Podiatry # 16A-442: Child Abuse Reporting Requirements
State Board of Medicine # 16A-492: Child Abuse Reporting Requirements
State Board of Nursing # 16A-515: Child Abuse Reporting Requirements
State Board of Chiropractic # 16A-436: Child Abuse Reporting Requirements
State Board of Dentistry # 16A-462: Child Abuse Reporting Requirements
State Board of Funeral Directors # 16A-484: Child Abuse Reporting Requirements
State Board of Optometry # 16A-523: Child Abuse Reporting Requirements
State Board of Physical Therapy # 16A-653: Child Abuse Reporting Requirements
State Board of Occupational Therapy Education and Licensure # 16A-671: Child Abuse Reporting Requirements
State Board of Examiners in Speech-Language and Hearing # 16A-682: Child Abuse Reporting Requirements
State Board of Social Work Examiners # 16A-691: Child Abuse Reporting Requirements
Regulation Disapproved:
Pennsylvania Public Utility Commission # 57-149: Small Water and Sewer Company Rate Methodologies (amends 52 Pa. Code Chapter 53)
Pennsylvania Public Utility Commission # 57-150: Gas Transportation Tariffs (amends 52 Pa. Code Chapter 60)
Regulation Deemed Approved under § 5(b.3) of the Regulatory Review Act--Effective September 24, 1996
Environmental Quality Board # 7-295: General Conformity (amends 25 Pa. Code Chapter 127, Subchapter J)
Regulation Deemed Approved under § 5(b.3) of the Regulatory Review Act--Effective October 4, 1996
State Board of Certified Real Estate Appraisers # 16A-703: Fees; Application Process (amends section 36.203 of 49 Pa. Code by adding new subsections (c) and (d) and deleting the reapplication fee under section 36.6)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5104 (October 26, 1996).)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Environmental Quality Board--Stream Redesignations; Kettle Creek, et al.; Doc. No. 7-288
Order On August 29, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend certain stream designations in the Department of Environmental Protection's (DEP) regulations in 25 Pa. Code Chapter 93. Chapter 93 sets forth part of Pennsylvania's water quality standards which implement The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402). Section 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-20) grants the EQB the authority to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law. The proposed regulation was published in the September 9, 1995 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 3, 1996.
The purpose of the Special Protection Waters Program is to maintain existing water quality in streams, to preserve exceptionally good quality waters, and waters that represent outstanding environmental resources. In determining whether streams and waterbodies are to be included in the Special Protection Waters Program, and meet the definition of ''High Quality Waters'' (HQ) or ''Exceptional Value Waters'' (EV) in 25 Pa. Code § 93.3, the DEP utilizes ''Special Protection Waters Selection Criteria'' found in its ''Special Protection Waters Implementation Handbook.''
The proposed changes are intended to provide the appropriate level of water quality protection for the streams proposed for redesignation, including those streams which possess environmental features meriting additional protection.
The stream redesignations affect streams in the following seven counties: Clinton, Potter, Tioga, Blair, Centre, Dauphin and McKean. As part of its ongoing review of water quality standards, the DEP recommended that the majority of the streams in this proposed rulemaking be upgraded to either HQ or EV. The streams include Kettle Creek and Cross Fork, Laurel Run, Wallace Run, Lick Run, Rattling Creek, Big Fill Run and the east branch of Tunungwant Creek. The EQB also recommended that some streams retain the existing water quality designation as the sample evidence indicated that they were already appropriately designated.
We did not file any comments on the proposed regulation, nor did we receive any negative recommendations on the proposed or final-form regulation from either the House or Senate Environmental Resources and Energy Committees. The final-form regulation contains one amendment which clarifies the location of the unnamed tributary to Wallace Run as being located at Gum Stump in Centre County. The reference is being included in the EV waters designation for the upper reach of the Wallace Run basin in Centre County.
The Pennsylvania Independent Petroleum Producers Association (Association) commented on the proposed changes relative to the east branch Tunungwant Creek in McKean County. The Association noted that generally streams in oil and gas producing regions have remained of high quality and that the proposed changes may adversely affect new and expanding discharges. The Association expressed its strong objection to the ''continued upgrading of our streams.''
The DEP responded to this comment by noting that it is not proposing any new regulatory restrictions on the existing oil and gas production operations within the affected basins because of the HQ or EV Waters designations. The existing operations are currently required to obtain and maintain applicable DEP permits, use best management practices, and must comply with applicable laws and regulations including The Clean Streams Law, the Oil and Gas Act, the Oil and Gas Conservation Act and these regulations. However, new or expanding oil and gas operations will be required to demonstrate that the proposed expansion or new operation will not have an adverse impact on the basin's water quality.
The DEP acknowledges that it is unable to predict all the future costs or impacts that will be incurred by an oil and gas operator as the result of an HQ or EV Waters redesignation. However, DEP notes that it encourages creative planning and discharge alternatives, and will work with the operators in order to develop options that will help them comply with the regulatory requirements.
We have reviewed this regulation and find it to be in the public interest. The proposed stream redesignations are consistent with the applicable water quality criteria. Overall, the quality of Pennsylvania's waters should benefit through more appropriate protection for the particular streams, which are an important part of the Commonwealth's natural resources.
Therefore, It Is Ordered That:
1. Regulation No. 7-288 from the Environmental Quality Board, as submitted to the Commission on September 3, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Certified Real Estate Appraisers--Examination Fees; Doc. No. 16A-705
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Certified Real Estate Appraisers (Board). This rulemaking would amend 49 Pa. Code § 36.6 Fees to increase the fee for applicants taking the certified real estate appraiser examination from $50 to $100. The authority for this regulation is found in sections 812.1(b) and (e) of The Administrative Code of 1929 (71 P. S. § 279.3a) and sections 5(6) and 9 of the Real Estate Appraisers Certification Act (63 P. S. §§ 457.5(6) and 457.9). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The fee increase is effective January 1, 1997. The Board found that public comment is not needed because section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a, Administration of Examinations) requires that candidate fees cover the cost of the examination. The fee, established by the regulation, represents the contract cost negotiated by the Commonwealth for examination services.
Candidates taking the examination on and after January 1, 1997, will be charged the new fee of $100. The fee covers only the cost of the testing service and is paid directly to the contractor, not the Board. The Board expects that approximately 300 candidates will take the examination each year based upon the number who took the examination in 1995.
The Senate Consumer Protection and Professional Licensure Committee approved this final-omitted rulemaking on September 25, 1996. The House Professional Licensure Committee also approved this final-omitted rulemaking on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. The contract for administration of the examination was awarded through a competitive bidding process and the resulting fee covers the cost of the examination consistent with section 812.1 of The Administrative Code of 1929.
Therefore, It Is Ordered That:
1. Regulation No. 16A-705 from the State Board of Certified Real Estate Appraisers, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Physical Therapy--Examination Fees; Doc. No. 16A-654
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Physical Therapy (Board). This rulemaking would amend 49 Pa. Code § 40.5. The authority for this regulation is found in section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a) and section 8 of the Physical Therapy Act (63 P. S. § 1308). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This rulemaking increases the testing fees for candidates taking the physical therapist examination effective as of March 1997. Section 812.1 of The Administrative Code of 1929 requires that examinations for professional licensure be prepared and administered by a professional testing organization under contract to the appropriate professional board. The Board has entered into a new testing contract with Professional Examination Services (PES) which will implement computer-based testing. Computer-based examinations are developed and administered on, graded by computer. The new contract will result in higher costs for examination services beginning in March 1997. Consequently, the Board promulgated this final-omitted regulation to increase the fee in the existing regulation to reflect the fee in the new contract.
Section 40.5 of the existing regulation lists the fee for the physical therapy examination as $245. The proposed change to this section of the regulation increases the fee for the examination to $260, an increase of $15. The fee increase reflects the increased administration costs for the examination under the Board's contract with PES.
The Senate Consumer Protection and Professional Licensure Committee voted to approve the regulation on September 25, 1996. The House Professional Licensure Committee voted to approve the regulation on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. This amendment will conform the Board's regulation on examination fees to the fee change mandated by the new contract between the Commonwealth and PES.
Therefore, It Is Ordered That:
1. Regulation No. 16A-654 from the State board of Physical Therapy, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Architects Licensure Board--Examination Fees; Doc. No. 16A-412
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Architects Licensure Board (Board). This rulemaking would amend 49 Pa. Code §§ 9.3, 9.44, 9.82, 9.85, 9.86, 9.111--.114, 9.117 and 9.118. The authority for this regulation is section 6(c) of the Architects Licensure Act (63 P. S. § 34.6(c)) and section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This regulation will delete existing provisions relating to the written Architect Registration Examination (ARE), add language relating to a new computerized ARE format, change the categories that comprise the ARE, and increase examination fees. The Board found that public comment is not needed because section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a. Administration of Examinations) requires candidate fees to cover the cost of the examination.
The Board uses the examination of the National Council of Architectural Registration Boards (NCARB). NCARB consists of the licensing boards of all 50 states, the District of Columbia, and United States territories and possessions. Each state has two voting members on NCARB.
The four-day written ARE was given for the last time in June of 1996. Beginning in February of 1997, NCARB will offer the ARE in a computerized format. The computerized examination will be offered year-round at a network of test centers provided by the contractor, Chauncey Group International, under contract with NCARB. Candidates will be able to pay for the examination by credit card, voucher or cash at the time the examination is taken. Computer-based examinations can be taken at any available location where the ARE is administered. The Chauncey Group will use eight testing centers in Pennsylvania located Statewide.
The amendments to § 9.3 alter examination categories and establish new examination fees. The current two categories of the examination for site design are proposed to be combined and renamed ''Site Planning.'' The current single category for building design is proposed to be split into two categories: ''Building Planning'' and ''Building Technology.'' The cost of taking any portion of the examination and the total examination will increase substantially. The cost for taking the entire ARE will increase from the current $485 to the proposed $980. The fees will be the actual charges of NCARB to schedule a candidate to take the examination. The current categories and fees in section 9.3. Fees, and proposed amendments are shown below.
Current Category Current Proposed Category Proposed Fee Amount Fee Amount Pre-Design $ 45 Pre-Design $ 92 Site Design-Graphic 70 Site Planning 129 Site Design-Written 45 Building Design 100 Building Planning 155 Building Technology 145 Structural-General/Long
Span45 General Structures 108 Structural-Lateral Forces 45 Lateral Forces 79 Mechanical, Plumbing,
Electrical and Life Safety
Systems45 Mechanical and Electrical 83 Materials and Methods 45 Materials and Methods 90 Construction Documents
and Services45 Construction Documents and
Services99 Registered Architect Exam
Review (Optional)75 Entire Examination 485 Entire Examination 980 Section 9.118 is proposed to be amended to provide a transition for candidates who already passed some categories of the current written examination and will need to successfully complete new computerized categories for registration. The remaining proposed amendments reflect changes in the available dates and locations of the examinations, procedures to schedule and take the examinations, and deletions of provisions that apply to the written examination.
On September 25, 1996, the Senate Consumer Protection & Professional Licensure Committee voted to approve this regulation. On October 1, 1996, the House Professional Licensure Committee also voted to approve this regulation.
In 1995, approximately 281 candidates took the examination in Pennsylvania. The costs of the examination will increase substantially. As stated above, the cost for taking the entire examination will increase from $485 to $980. NCARB's charge per candidate is the same in all of the states. The benefits of the proposed amendments are an increase in the frequency and availability of the examination and the maintenance of a uniform National examination. Candidates will also be able to pay for the examination by credit card, voucher or cash at the time the examination is taken.
We have reviewed this regulation and find it to be in the public interest. While we believe the fee increase is substantial, the fees established by the regulation represent the contract costs with NCARB for examination services provided by a professional testing service. The Board is required by statute to establish fees to cover the cost of the examinations. Furthermore, Pennsylvania has two voting members in NCARB, so Pennsylvania had some say in the collective decision to use computer-based examinations.
Therefore, It Is Ordered That:
1. Regulation No. 16A-412 from the State Architects Licensure Board, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Certified Real Estate Appraisers--Definitions; Doc. No. 16A-702
Order On November 28, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Certified Real Estate Appraisers (Board). This rulemaking would amend 49 Pa. Code Chapter 36. The authority for this regulation is section 3 of the Assessors Certification Act (63 P. S. § 458.3). The proposed regulation was published in the December 9, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The proposal adds two definitions and a new section titled ''Scope of Practice'' to the existing regulations for Certified Pennsylvania Evaluators (CPE). CPEs were established by Act 28 of 1992 (act). The act requires all assessors, persons responsible for the valuation of real property for ad valorem taxation purposes, to be certified as CPEs. To become a CPE, individuals must complete a minimum of 90 hours of basic courses of study of the appraisal assessing profession and successfully complete a comprehensive examination covering all phases of the appraisal process and the assessment function established by assessment statutes.
The Board proposed this rulemaking to clarify that assessors and revaluation company personnel who receive certification are certified to establish the value of real property for tax assessment or governmental purposes only. The Board added definitions for the terms ''Ad valorem taxation purposes'' and ''real estate tax assessment'' because it is aware of instances where CPEs have conducted nonassessment related appraisals. These types of appraisals can only be conducted by certified real estate appraisers and real estate brokers, both of which have separate licensing requirements.
The Senate Consumer Protection and Professional Licensure Committee approved the final-form rulemaking on September 25, 1996. The House Professional Licensure Committee approved the regulation on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. Our Comments questioned whether the Board's reason for adding the definitions was apparent. We suggested the Board add a ''Scope'' section to Chapter 36 to clearly state the limitations of appraisal authority of those certified as CPEs. The Board agreed with our recommendation by adding a ''Scope of Practice'' section which states:
Assessors and revaluation company personnel who receive certification as a Pennsylvania evaluator may perform appraisals of real property only in limited circumstances, that is, for tax assessment/governmental purposes.
The Board made editorial changes to the definitions of ''ad valorem taxation purposes'' and ''real estate tax assessment.'' It also adopted our second recommendation to include valuations placed on real property by revaluation company personnel in its definition of ''real estate tax assessment.'' In the final-form rulemaking, the definition is expanded to include revaluation company personnel on contract with a government.
Therefore, It Is Ordered That:
1. Regulation No. 16A-702 from the State Board of Certified Real Estate Appraisers, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Medicine and State Board of Osteopathic Medicine--Respiratory Care Practitioners; Doc. No. 16A-532
Order On February 9, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Medicine and State Board of Osteopathic Medicine (Boards). The Boards have joined together to amend Chapters 18 and 25 of 49 Pa. Code by adding provisions for the certification and practice of respiratory care practitioners to each chapter. Under section 422.13(c) of the Medical Practice Act of 1985 (MPA) (63 P. S. § 422.13(c)) and section 271.10(c) of the Osteopathic Medical Practice Act (OMPA) (63 P. S. § 217.10(c)), the Boards are authorized to promulgate regulations to establish procedures for application, credentials, examination, certification and fees. The proposed regulation was published in the February 24, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The Boards elected to jointly promulgate identical provisions for respiratory care practitioners within this regulation, as the amendments to both Boards' practice acts regarding respiratory care certification are identical. The MPA and the OMPA provide that respiratory care practitioners may obtain certification from either Board.
Both Boards have adopted identical fee schedules for respiratory care practitioners. The regulations establish five fees as follows:
* Temporary permit $ 15
* Initial certification $ 15
* Certification examination $ 90
(effective July, 1996) $100
* Reexamination $ 60
* Biennial renewal $ 25As authorized by the MPA and the OMPA, the regulations establish that only those persons holding a temporary permit or certificate from either Board may use the title ''respiratory care practitioner'' or use the designation of ''R.C.P.'' Further, a respiratory care practitioner may only provide services under the supervision of a licensed physician.
The regulations restate the list of 12 services and activities included in the scope of practice of respiratory care, as defined in the MPA and OMPA. The regulations recognize the National Board for Respiratory Care (NBRC) as the agency which credentials respiratory care practitioners and the Joint Review Committee on Respiratory Therapy Education (JRCRTE) as the educational program accrediting agency.
As set forth under the MPA and the OMPA, the regulations establish who is qualified to be issued temporary permits, which allow qualified individuals to practice respiratory care while awaiting the results of the certification examination. The regulations provide that a temporary permit expires upon notification of failure of the examination or 12 months from the date of issuance, whichever occurs first.
The regulations also establish the requirements under which the Boards will approve applicants for certification as respiratory care practitioners. In addition, the regulations provide that certificate holders may place their certifications on inactive status. Individuals applying to return to active status must submit a sworn statement and resume which covers the period of time when the certificate holder was not engaged in practice in the Commonwealth, and submit a letter of good standing from the licensing board of the other state or jurisdiction where the certificate holder is currently licensed.
The Boards have established fees for the issuance of temporary permits, certifications and biennial renewal for respiratory care practitioners. Revenue generated from these fees will be used to cover the costs of administration of the certification programs. In 1994, it was estimated that there would be approximately 2,000 candidates for certification as respiratory care practitioners and the certification fees were based upon this number. Because this is such a new certification category, neither the Medicine nor Osteopathic Board could give a better estimate.
The Boards indicate that the regulations may impose additional costs upon the private sector. In particular, health care facilities and home health care entities who provide respiratory care services may incur additional costs in bringing their facilities into compliance by employing or utilizing certified practitioners.
Additionally, persons wishing to obtain certification from the Boards will incur costs associated with the administration of the respiratory care practitioner certification program, as well as costs associated with the qualifying examination.
The Senate Consumer Protection and Professional Licensure Committee voted to approve the final-form regulation on September 25, 1996. The House Professional Licensure Committee approved the final rulemaking on October 1, 1996.
We made a number of recommendations in our Comments to the Boards regarding the proposed wording of several sections of the regulations. The issues in these regulations were essentially those of clarity and consistency with the authorizing statutes. In response to each of our concerns, the Boards appropriately amended the final-form regulations.
We have reviewed this regulation and find it to be in the public interest. Those individuals requiring respiratory care services will benefit from these proposed regulations by being assured that services will be performed by persons who have demonstrated compliance with education requirements and who have passed a minimum competency examination.
Therefore, It Is Ordered That:
1. Regulation No. 16A-532 from the State Board of Medicine and State Board of Osteopathic Medicine, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Limousine Service Supplemental; Doc. No. 57-144
Order On August 3, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). It would amend 52 Pa. Code Chapter 29 by amending sections 29.333(b) and 29.333(c), relating to vehicle and equipment requirements, and adding a new section 29.335, relating to trip sheet requirements. The PUC states its authority to promulgate this regulation is found at section 501 of the Public Utility Code (66 Pa.C.S. § 501) and the Commonwealth Documents Law (45 P. S. § 1201 et seq.). The proposed version of this regulation was published in the August 13, 1994, edition of the Pennsylvania Bulletin, with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
These rulemaking amendments are intended to clarify and supplement those regulations which differentiate limousine service from taxicab ''call and demand'' service. The additional objective is to achieve more consistent interpretation and application of limousine regulations by the PUC and the limousine industry.
According to the PUC, there were 17 commentators on the proposed rulemaking version. Posten Taxi Inc. (Wilkes-Barre) and The Brotherhood of Unified Taxi Drivers/Owners (Philadelphia) submitted comments in favor of the proposed version of the rulemaking. The remainder of the commentators expressed varying degrees of opposition, with most recommending deletion of the proposed new tariff requirements for limousines.
In the proposed version of this rulemaking, the PUC sought comment on proposed amendments to three sections of its limousine service regulations. Under section 29.333(a), the seating capacity of a ''luxury type vehicle'' classified as a ''limousine'' would have been changed from ten to nine passengers, minus the driver. The intent was to better conform the PUC's definition with the definition of ''limousine'' under the Motor Vehicle Code. The latter defines a limousine as a motor vehicle, commercially available for hire, which carries up to nine persons (ex- cluding the driver). Given the array of differently configured ''limousines'' or luxury-type vehicles available today, however, we and a majority of commentators saw no rea- son to change the definition and recommended that the proposed change not be made. The PUC agreed and delet- ed this proposed change from the final-form regulation.
The PUC also proposed to clarify and expand the definition of a ''luxury type vehicle'' under section 29.333(b). To qualify, such vehicles must be manufactured or modified to have physical configurations and accessory features not found or commonplace in lower priced vehicles. Luxury-type vehicles must also provide patrons with a higher level of service and comfort than ordinarily available in call or demand, paratransit, and airport transfer services. Section 29.333(b) also describes a list of the minimum features and other amenities that a luxury-type vehicle should have. These provisions have been retained with some modifications in the final-form regulation. The PUC also added some clarifying language we suggested for the basic definition.
The proposed version of section 29.333(b) also provided that classic and antique vehicles, as defined in the Motor Vehicle Code, may be included. It also stated that vans which meet the definition be included, but it specifically excluded station wagons and all-purpose vehicles. Responding to commentators' concerns opposing the blanket exclusion of station wagons and all-purpose vehicles, the PUC amended the final-form regulation to delete all references to specific types of vehicles in section 29.333(b).
The PUC proposed a new section 29.333(c), which sets forth categories of required information a company would have to provide to the PUC about vehicles the company intended to acquire and use in its business. After review-ing commentators' comments, the PUC decided to delete this new subsection because its requirements may unduly delay applicants' ability to put additional luxury-type vehicles into service. We note that even without these requirements there is some additional delay in the process of getting a new license plate issued for a vehicle. The Department of Transportation (DOT) does not issue license plates for such PUC-registered vehicles until it has confirmed that the applicant is in good, current standing with the PUC.
The PUC originally proposed to amend section 29.333(d) to provide that all vehicles licensed as limousines are required to bear a limousine license plate. The final-form regulation deletes that requirement because of the PUC's decision not to conform its definition of a ''limousine'' to the definition of the same term under the Motor Vehicle Code.
If a luxury-type vehicle used in commerce for hire has the capacity to carry no more than nine passengers, DOT will issue a ''limousine'' license plate (except in Allegheny County, where a passenger car license plate will be issued--provided the owner/operator certifies to DOT that the vehicle will remain within the boundaries of Allegheny County). A commercial luxury vehicle which carries 10 or more passengers will be issued a ''bus'' license plate. A limousine or luxury-type vehicle used privately (for example, not available for hire) will be issued a passenger car license plate, regardless of the number of passengers it can carry.
The most controversial part of this rulemaking in the proposed stage involved the proposed new provisions in section 29.334, relating to tariff requirements. This section currently provides that limousine rates may be based on mileage or time, or both, and must be set forth in a tariff filed, posted and published under statute and this chapter.
The proposed amendments provided (in Subsection (a)) that the primary rate structure for limousine service shall be based on time, with supplemental charges based on mileage assessable where round trip mileage exceeds 100 miles. Subsection (b) proposed to establish a minimum charge of not less than the charge for 1 hour at the rate provided in the respective primary rate structure. Subsection (c) provided that rate levels, as fully detailed in the carrier's tariff, would be based on the nature of the luxury vehicle provided. Subsection (d) provided that charges for nontransportation services were not to be included in the carrier's tariff. Lastly, proposed Subsection (e) provided for the filing, posting and publishing of limousine tariffs, to be accompanied by financial justification and other supporting documentation.
These proposed changes in tariff requirements were intended to more clearly differentiate limousine services from taxicab services. Commentators raised a variety of objections. Some asserted that these proposed new tariff provisions were an unacknowledged attempt to resolve competitive antagonisms which apparently have developed in Philadelphia between the taxicab industry and those limousine services providers which function as limousine/taxi hybrids, known as ''executive sedan'' services.
Other commentators with no financial interest or stake in the limousine and executive sedan sector (CoreStates Bank, N. A. and the Philadelphia Convention and Visitors Bureau) stated that the changes would unnecessarily increase their costs and adversely affect their businesses. Kathrynann W. Durham, Republican Chairperson of the House Consumer Affairs Committee, stated in her comment letter that she could not understand the need for the PUC to further differentiate between call and demand service and limousine service, to the possible detriment of one industry and those members of the public who wish to use limousine service.
We agreed with these commentators and noted in our Comments that the PUC's basic mandate is to serve the public interest. Our basic concern was that the PUC had not explained or justified the proposed revisions to section 29.334 in terms of what is in the best interest of the riding public. We recommended that the principal litmus test the PUC should apply to all proposed changes in this regulation is whether a currently available beneficial service to the riding public would be improved, or reduced or adversely affected as a consequence of these amendments.
The PUC deleted all of the proposed new tariff requirements from the final-form regulation. It did so based on its determination in the matter of Pa. PUC v. Metro Transportation Co., PUC Docket No. I-00940030, Order entered July 21, 1995. In that case, the PUC ordered an investigation into the competition between limousine services and taxicab services. The PUC stated that it recognized, in that case, there is some allowable overlap among the various types of passenger transportation. The PUC also concluded that the taxicab industry is withstanding competition fairly well. As a consequence, the PUC stated:
. . . we find that changing the tariff structure as proposed would not be in the public interests of the riding public. We will not penalize the public in order to referee a dispute between taxicabs and limousines. Obviously, the limousines are providing a service for a price that the public wants. . . . We will not frustrate the workings of the market place by establishing a limousine tariff structure that would only serve to increase costs of limousine services to the public.
Section 29.335 is a new provision which would require drivers of for-hire luxury-type vehicles to fill in a trip sheet with seven different categories of information in the vehicle to evidence its use in service. Such records will assist the PUC in ensuring that operators comply with this regulation. In response to our Comment on the subject, the PUC changed the records retention requirement for trip sheets from 2 years to 1 year.
The Senate Consumer Protection and Professional Licensure Committee met and voted to approve the final-form regulation on September 25, 1996.
The final-form regulation will eliminate or at least substantially reduce any industry confusion about what constitutes a luxury-type vehicle, which will benefit the industry, the public and the PUC. The regulation will affect primarily owners and operators of limousine and luxury-type vehicles licensed by the PUC throughout the Commonwealth. However, those impacts will be much less than under the proposed version of the regulation by virtue of the PUC eliminating certain unpopular and restrictive provisions such as the controversial new tariff provisions and the requirement to submit information and photos of a vehicle for PUC approval before the vehicle can be put into service.
We have reviewed this regulation and find it to be in the public interest. The marketplace has clearly demon-strated in recent years the public's desire to hire limousine service vehicles unfettered by basic restrictions on mileage charges, method of payment (cash or credit), and with no minimum time advance calling requirements. This final-form regulation reflects the PUC's acknowledgment of that reality by providing less regulation rather than more regulation.
Therefore, It Is Ordered That:
1. Regulation No. 57-144 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
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[Continued from previous Web Page] Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Registration Board for Professional Engineers, Land Surveyors and Geologists--General Revisions; Doc. No. 16A-473
Order On December 1, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board). This rulemaking would amend 49 Pa. Code §§ 37.1, 37.18, 37.58, 37.59 and 37.81--37.83, and add new sections 37.36 and 37.37. The authority for this regulation is section 4(I) of the Engineer, Land Surveyor and Geologist Registration Law (Law) (63 P. S. § 150(I)). The proposed regulation was published in the December 16, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The basic purpose of this regulation is to implement Act 151 of 1992. This act transformed the State Registration Board for Professional Engineers and Professional Land Surveyors into the State Registration Board for Professional Engineers, Land Surveyors and Geologists. This regulation establishes the education and experience requirements for licensure of professional geologists.
Most of the changes are editorial in nature. In existing sections of 49 Pa. Code Chapter 37, the amendments are simple insertions of words such as ''geology,'' ''professional geologist,'' and ''Registered Professional Geologist'' in sections related to reactivation of licensure status, registration number and seal, and disciplinary process and conduct. The additions to the chapter include the design of a new authorized ''Commonwealth of Pennsylvania'' seal for use by a Registered Professional Geologist.
The proposal also adds two new sections, 49 Pa. Code §§ 37.36 and 37.37, which set forth the education and experience requirements for an applicant seeking to become a licensed geologist. An applicant needs to provide the Board with evidence of having graduated from an accredited institution with a major in geology, geophysics, geochemistry or engineering geology and a minimum of 30 semester or 45 quarter hours in these areas or their subdivisions. To fulfill the ''experience'' requirement, an applicant needs to have at least 5 years of experience in professional geological work. Both the ''education'' and ''experience'' requirements included details about excep-tions or alternatives for meeting the requirements. The regulation also adds two new terms, ''Professional geological work'' and ''Responsible position,'' to the existing definitions section at 49 Pa. Code § 37.1.
The Board contends that these amendments will have no negative fiscal impact on the Commonwealth, its political subdivisions or the general public.
During the proposed rulemaking stage, comments were submitted by Bryan J. McConnell of Cecil, Pennsylvania; Michael M. Ryan, P. E., Deputy Secretary for Highway Administration, Department of Transportation (DOT); and American Institute of Professional Geologists.
The Senate Consumer Protection and Professional Licensure Committee approved the final-form regulation on September 25, 1996. The House Professional Licensure Committee approved the regulation on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. The Board used our Comments on the proposed regulation to improve the regulation by clarifying terms, standards and procedures. For example the definition of ''professional geological work'' in the proposed regulation was unclear. The definition of this term is important because it delineates the types of experience required of an applicant to become a ''registered professional geologist'' in Pennsylvania. The definition of ''professional geological work'' in the proposed rulemaking excluded certain tasks beyond the tasks or types of work excluded by the specific language of the Law. We recommended that the additional language be deleted from the regulation. The Board made this revision in the final-form regulation and added new language which clarifies its intent and is consistent with the Law.
Another example of constructive revision is found in the Board's amendments to the regulation's reference requirements. The proposed regulation required an applicant to obtain references from professional geologists under whose direction the applicant had worked. The proposed regulation contained no exception to this rule even though the Law allows applicants to meet the experience requirement with 3 years of work under a qualified geologist or 5 years of work in a responsible position in geological work. We questioned whether an applicant with 5 years of independent work experience would be able to meet the reference requirement if he or she had never worked under the supervision of another geologist. The Board amended the regulation to allow applicants with 5 years of experience to use references who are not geologists.
Finally, the Board clarified another term, corrected a typographical error, and added a provision stating that it would notify an applicant when it decides to investigate the applicant's application. The outcome is that the Board has revised the regulation in a constructive fashion that serves the public interest by bringing the regulation into greater conformity with the Law.
Therefore, It Is Ordered That:
1. Regulation No. 16A-473 from the State Registration Board for Professional Engineers, Land Surveyors and Geologists, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson-Dissenting; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman-Dissenting
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Taxicab Medallion Program; Doc. No. 57-153
Order On April 11, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would amend 52 Pa. Code Chapter 30 relating to the taxicab Medallion Program by revising sections pertaining to equipment and reporting requirements and by adding new enforcement and administrative provisions. The authority for this regulation is section 2404(a) of the act of April 4, 1990 (Medallion Act) (66 P. S. § 2404(a)) which directs the PUC to establish regulations pertaining to taxicab inspection and recording requirements in cities of the first class. The proposed regulation was published in the April 22, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The Philadelphia taxicab industry has undergone major changes due to the passage of the Medallion Act in 1990, and the implementation of the PUC's first regulation in 1991. As proposed, this regulation furthers the goals established within the Medallion Act and makes revisions as a result of the PUC's experience in regulating the taxi industry.
The PUC is proposing to amend section 30.31 relating to ''Vehicle Equipment Requirements'' to add a requirement for functioning door locks in a taxicab which will provide greater safety for the customer. This section also requires taxi meters to have a PUC seal on the meter at all times after the meter has passed an accuracy test. The regulation requires that if the seal becomes broken or damaged, the vehicle is to be removed from service immediately.
The regulation requires that the medallion number be permanently affixed to the sides of the taxicab. The PUC intends this requirement to eliminate magnetic or temporary markings which may be easily obscured or eliminated. In addition, this section prohibits the use of any in-vehicle device which alters the approved rate of a taxi meter. This provision is to protect customers from taxi drivers who overcharge customers with fare-increasing devices.
Section 30.33(c)(6) provides for the reinspection of a taxicab which has been placed out of service for safety violations by a PUC enforcement officer or a police officer employed by a city of the first class. If the vehicle does not comply with the PUC's safety requirements after inspection, the medallion will be removed and held by the PUC. A hearing is to be held within 10 days following the date of the removal of the medallion. This requirement is designed to increase taxicab safety by providing the PUC with an easy means of identifying taxicabs with known safety violations.
In the final-form regulation, the PUC added a section which specifies that fines for violations of this subchapter will range from $250 to $1,000. The PUC amended section 30.54(e) by providing the presiding officer (also known as the administrative law judge), instead of the parties, with the discretion to require proposed findings of fact and conclusions of law. This change would remedy an error in the original rulemaking and give effect to the original intent of this section. This section would also require a presiding officer to render a written decision within 30 days (rather than 25 days) after a hearing or receipt of any proposed findings of fact and conclusions of law. The extra 5 days are intended to provide additional time for completing the decision.
New language in section 30.72(j) provides for the disqualification of a taxi driver certificate applicant who fails to be truthful on the application. Applicants who knowingly lie on their applications will not be issued a taxi driver's certificate. Subsection (k) provides for the suspension and confiscation of a taxi driver's certificate if the certificate holder's driver's license has been suspended or revoked, the certificate has expired or the certificate holder has made a false statement on the certificate application which would impact upon the public health or safety. This provision is intended to protect customers by eliminating unfit taxicab drivers. In addition, the PUC added language to the final-form regulation which specifies that a hearing on the suspension will be held within 30 days of the date of suspension.
Section 30.74(a) requires the original taxi driver's certificate to be clearly displayed on the taxicab's protective shield. Furthermore, subsection (b) requires that the certificate not be mutilated, damaged or unreadable, and subsection (c) requires that only one taxi driver's certificate may be displayed at any one time. The purpose of these provisions is to allow the customer to be able to easily identify the taxi driver.
Section 30.75 requires fare schedules to be printed with letters and numbers at least half-an-inch in size to help eliminate unreadable fare schedules. Other changes to this section require taxi drivers to report a change of legal name or address within 15 days to improve the accuracy of the PUC's records.
Finally, section 30.76(e) provides that operation of a taxicab by an individual not holding a current and valid taxi driver's certificate may result in cancellation of the medallion holder's taxi driver's certificate or cancellation of the medallion holder's certificate of public convenience.
The House Consumer Affairs Committee commented on the proposed regulation and requested that the PUC include guidelines for fees imposed upon violation of the regulation. The PUC agreed to this request.
The Senate Consumer Protection and Professional Licensure Committee met and voted to approve the final-form regulation at a meeting held on September 25, 1996.
In our Comments, we recommended a number of revisions to the PUC in order to resolve conflicts in the proposed regulation with the provisions of the Medallion Act or to clarify the final-form regulation. In response, the PUC amended several sections of the final-form regulation by adding provisions for post-deprivation hearings to address some of our due process concerns as well as other amendments.
We have reviewed this regulation and find it to be in the public interest. The regulation is designed to benefit persons who use taxicab service by improving the condition and maintenance of vehicles in service, and streamlining regulatory enforcement by the PUC and local government enforcement officers. The public will benefit from the added safety features which will enhance responsibility and accountability on the part of the taxicab industry. The PUC will also benefit to the extent that the current regulation is clarified and will be better able to track taxi drivers.
Therefore, It Is Ordered That:
1. Regulation No. 57-153 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Termination of Utility Service to Health Care Facilities; Doc. No. 57-173
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would add sections 55.101--55.115, relating to termination of utility service to health care facilities, to 52 Pa. Code Chapter 55. The authority for this regulation is contained in sections 501, 1501 and 1504 of the Public Utility Code (66 Pa.C.S. §§ 501, 1501 and 1504). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This regulation mandates that utilities provide advance notice to health care facilities before they terminate service to such a facility. The regulation contains a two-tiered system of providing notice of termination to health care facilities. First, section 55.104 requires a utility to send a service termination notice to a health care facility at least 37 days before terminating service. The utility is also required to send a copy of the termination notice to the agency which issued the license or certificate for the facility and the PUC's Bureau of Consumer Services. Second, a utility may not terminate service without personally contacting the facility's administrator or an individual designated by the facility.
To identify existing utility customers that are health care facilities, the PUC's Bureau of Consumer Services will obtain listings of licensees that match the regulation's definition of health care facilities from the Departments of Aging (Aging), Health (Health) and Public Welfare (DPW). The utilities will use these lists to identify customers that are health care facilities and to assure compliance with this regulation. When initiating service with a new nonresidential customer, each utility will ascertain whether the applicant is a health care facility and code its records to insure compliance with this regulation. The utility may ask the facility for a copy of its license from Aging, Health or DPW. The health care facility must provide this documentation within 10 days of the utility's request.
The costs imposed on the utilities by this regulation are minimal. There will be a ''one-time'' cost to the utilities for processing the lists of currently licensed facilities provided by Aging, Health and DPW, and using the lists to identify customers as health care facilities. The PUC, Aging, Health and DPW claim that this regulation will impose no additional costs on the Commonwealth.
The PUC claims this regulation may cut costs by reducing the number of emergency situations created by a pending termination of utility service to a health care facility that places facility patients at risk. Under existing rules, utilities need only give 3 days notice to health care facilities before terminating service. The existing rules can lead to crisis situations when patients or residents need to be quickly relocated. These situations often require diverting public and private staffs from other duties, and compel expedient solutions that include additional financial burdens and overtime costs. An orderly procedure with ample notice will foster a smooth and less costly resolution to service termination, and transfer and relocation of patients or residents.
The Senate Consumer Protection and Professional Licensure Committee approved this regulation on September 25, 1996. We also received letters of support for this regulation from the Hospital Association of Pennsylvania and DPW, and additional comments from Aging and Health.
We have reviewed this regulation and find it to be in the public interest. This regulation is a revised version of Regulation # 57-120. Regulation # 57-120 was disapproved by this Commission on May 24, 1995. This version of the regulation contains revisions which address the concerns expressed by the House Consumer Affairs Committee (House Committee) and this Commission with the previous regulation in May 1995. These revisions are the result of a compromise drafted by the PUC staff and based on comments and suggestions from representatives from the utilities, health care associations, House Committee staff, and Aging, Health and DPW staffs. All participants in this process are to be commended for their diligence in working toward a feasible regulation that serves the public interest.
This compromise addresses two primary concerns identified by the House Committee and this Commission. Last year's final-form version of Regulation # 57-120 contained a provision that would have required a utility to ''conspicuously post a written notice of termination'' at a health care facility that is scheduled for service termination in 10 days. Both the House Committee and the Commission stated that this requirement was duplicative and unnecessary since utilities were required to personally contact a designated individual at the health care facility as well as the agency which licensed the facility and the PUC Bureau of Consumer Services. In response to these concerns, the PUC removed the 10-day posting requirement from the current version of this regulation.
In addition, the House Committee and utilities opposed provisions in the previous regulation that required utilities to contact their current customers who were identified as health care facilities on the lists of licensees provided by Aging, Health and DPW. Through this contract, utilities would request that each existing facility in their service areas designate an individual to serve as the first point of contact for delivery of a notice of termination. The House Committee suggested that this requirement was unnecessary and excessively burdensome. With the agreement of the utilities and House Committee staff, and with help from representatives from the health care associations, the PUC developed a compromise whereby the utilities would use the listings of licensees from Aging, Health and DPW to identify customers who were health care facilities without any requirement to contact current customers. The departmental listings include the name of an administrator or responsible person at a health care facility. Utilities would list this person in their records as the ''designated individual'' who would be given the advance notice of termination. This compromise is now a part of the current regulation.
The final product represents a compromise that places little to no significant burdens on utilities while still realizing the objectives of the original regulation. The protection provided by this regulation is very important for patients or residents of health care facilities. These people are more vulnerable and less able to react to utility service termination than able-bodied residents of apartment complexes or other dwellings. Given the recent history of rapid change and inflation in health care costs, the financial solvency of health care facilities is subject to continuing stress. If facilities are unable to pay their bills, this regulation will provide additional time for resolving financial difficulties or the transfer of patients and residents to other suitable facilities.
Therefore, It Is Ordered That:
1. Regulation No. 57-173 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Small Water and Sewer Company Rate Methodologies; Doc. No. 57-149
Order On August 30, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would amend 52 Pa. Code Chapter 53. The authority for this regulation is contained in sections 1301, 1305, 1307 and 1311 of the Public Utility Code. The proposed regulation was published in the September 10, 1994 edition of the Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The PUC is proposing this rulemaking to assist small water and wastewater utilities in the Commonwealth. The PUC observes that many of these small utilities are presently and unjustifiably unable to obtain the needed rate relief under a rate base/rate of return ratemaking model. Additionally, the PUC claims that many small water utilities are financially unable to comply with recent State and Federal safe drinking water regulations. Therefore, the PUC is proposing four specific provisions that it believes will solve these problems.
First, the PUC is proposing to allow small water and wastewater utilities to establish their rates based upon an operating ratio methodology, instead of the traditional rate base/rate of return methodology. The PUC believes that an operating ratio will allow the utilities to establish rates that are more sufficient because many small utilities have limited capital investment. The operating ratio is calculated as a ratio of operating expenses to operating revenues, with the PUC determining the target ratio.
The second substantive change is allowing small water and wastewater companies to establish an emergency maintenance and operation fund (emergency fund). The purpose of this fund is to pay for extraordinary repairs and maintenance because of drought conditions, environmental and physical damages, floods, storms, freeze-ups, or other health and welfare threatening situations. The amount in this fund may not exceed 45 days of the average operating expenses, excluding taxes and depreciation.
The third provision in the regulation would permit the establishment of a reserve account. The reserve account will be a segregated account to be funded by customer contributions collected through base rates for the purpose of making future capital improvements to a utility's plant pursuant to a long range plan developed in conjunction either with the PUC or the Department of Environmental Protection (DEP). The amounts to be allocated to the reserve account will be determined by the Commission after review of the utility's proposed capital budget and the justification for that budget.
The final major provision of the regulation will allow a water utility to establish a sliding scale of rates, upon 60 days notice to customers, to recover the cost of purchased water obtained from municipal authorities.
On September 25, 1996, the Senate Consumer Affairs and Professional Licensure Committee approved the final-form rulemaking.
We submitted detailed comments expressing concern with the legality of the PUC establishing the emergency fund and the reserve account, as well as the appropriateness of the operating ratio. The PUC did not make any changes to the regulation in response to our Comments or those of other commentators. As we will discuss, our concerns remain with the rulemaking.
During the proposed rulemaking stage, the OCA commented that the PUC does not have the authority to establish the emergency fund because it would enable small water and wastewater utilities to violate sound regulatory policy by permitting these companies to charge for contingencies which may never occur. Similarly, both the OCA and the PUC's Office of Trial Staff (OTS) commented that the reserve accounts violate section 1315 of the Public Utility Code because the regulation would allow a utility to collect, through rates, revenues to be used for capital improvements before capital improvements are ''used and useful.'' They note that the Supreme Court has held, in Barasch v. Pa. PUC (Barasch) 532 A.2d 325 (Pa. 1987), that a utility may not base rates on future capital projects.
In our Comments, we agreed with the OCA's and OTS's position on this issue. In reviewing the decision in Barasch, we believe the OTS and the OCA have raised a legitimate legal concern. In Barasch, the OCA objected to the PUC allowing utilities to recover the cost of obtaining land and capital for the construction of nuclear plants, which were subsequently canceled. The court, agreeing with the OCA, stated:
We therefore hold that section 1315 of the Code must be read as prohibiting an electric utility from recovering the costs of canceled plants from ratepayers, either by making such costs part of its rate base or by converting them into operating expenses through amortization. . . . One of the cardinal principles of this state's public utility law is that, in the setting of rates for services to the public, a utility company is entitled to a return only on such of its property as is used and useful in the public service. . . . Given what we have already said about the fundamental principle of this state's public utility jurisdiction, it should be clear that no utility of any type is permitted, without express and valid legislative authorization, to charge ratepayers for property which is not used and useful in the production of current utility service. (Emphasis added)
In a subsequent Commonwealth Court case, Staffaronei v. Pa. PUC, 562 A.2d 414 (Pa. Cmwlth. 1989) the OCA objected to the PUC including the principal and interest of a loan obtained by a water company. The OCA observed that the loan was not used by the water utility to provide water service to ratepayers. The OCA argued that the PUC could not include this loan in establishing rates because it was not used for purposes directly related to providing services to ratepayers and therefore contradicted the Supreme Court's decision in Barasch. The PUC argued that the decision in Barasch applied only to electric utilities and not water utilities.
The Commonwealth Court disagreed with the PUC's assertion that the Barasch decision did not apply to water companies. The court stated:
It is clear that Barasch first is a restatement in case law of the long held premise that property owned by a utility may not be included in its rate base unless it is used and useful in the public service . . . The court next made it clear that the used and useful principle applies to all Pennsylvania public utilities, not merely the electric utilities that were parties to Barasch.
In our Comments, we observed that the establishment of the emergency fund and the reserve account would allow a water utility to base part of its rates for the purpose of funding future projects that the utility may need to provide service in the future. In essence, ratepayers would be asked to pay for projects that may never be implemented or when a project is completed, a ratepayer who contributed to the fund may no longer be a customer of the utility. Therefore, we recommended the PUC delete the provisions relating to the reserve account and the emergency account.
The PUC did not adopt our recommendation. The PUC's response only discusses its belief that it had the legal authority to establish an emergency fund; it did not discuss the legality of the reserve account. With respect to the emergency fund, the PUC believes that it is clearly ''use and useful'' in that it provides a reserve for coping with emergencies in a manner similar to insurance. The PUC justifies the legality of the emergency fund by comparing it to contributions in aid of construction, which are legal. Finally, at the Commission's October 3, 1996 public meeting, the PUC asserted that a September 19, 1995 Pennsylvania Supreme Court decision, Papowsky v. Pennsylvania Public Utility Commission et. al., 665 A.2d 808 (Pa. 1994) distinguished Barasch and supports the legality of the reserve account and the emergency fund.
We disagree with the PUC's response. First, the PUC's assertion that the emergency fund is ''use and useful'' because it provides a reserve for emergencies ignores the Barasch decision that states ''. . . no utility of any type is permitted, without express and valid legislative authorization, to charge ratepayers for property which is not used and useful in the production of current utility service'' (emphasis added). We believe the decision is clear that revenues generated from rates may only be used for current utility services. Since the revenues placed in the emergency fund (as well as the reserve account) will not be used for current utility service, but for an unknown future project, it contradicts the holding in the Barasch decision.
Second, we believe the PUC's comparison of the emergency fund to contributions in aid of construction to be inappropriate. Contributions in aid of construction are contributions a ratepayer makes to a utility for a specific utility service, such as extending water lines to a secluded home. In this instance, the customer will directly be using and benefiting from the utility service. In contrast, the emergency fund and reserve fund will pay for future projects that may not be used by the ratepayers who contributed to the fund.
Finally, we disagree with the PUC's assertion that the Supreme Court's decision in Popowsky limits the Barasch decision on this rulemaking. In Popowsky, the court was considering whether the PUC could base rates, in part, on the cost associated with the decommissioning of a nuclear plant. The court ruled that the PUC could include these costs because it is reasonably anticipated that the utility will have to incur the costs with decommissioning the nuclear plant under Federal law. However, the Popowsky decision distinguished between property that has been use and useful in the actual production of utility service and that property that was or has not been placed into service. Specifically, the Supreme Court in Popowsky stated the following:
While Barasch and Penelec bar a utility from earning an investment return on property that is not used and useful, and protect ratepayers from being charged for property that was never placed in service, neither prevents expenses related to properties that were previously in service from being charged to ratepayers where a balance of consumer and investor interests make it just and reasonable to do so. (emphasis added)
We believe the distinction between something that may never be used and that which has been used in the production of utility service is important to this rulemaking. Specifically, the emergency fund and reserve account are for potential future projects and are not comparable to the costs associated with removing a facility that has provided utility service. Since the revenues placed into the emergency fund and reserve account will be for projects that may occur at some point in the future or not at all, we do not believe the Popowsky decision either limits the application of Barasch to this proposal nor supports the creation of these two funds.
Therefore, for the reasons stated we continue to believe the PUC lacks the necessary authority to allow utilities to create either the emergency fund or the reserve account and recommended they both be deleted from the rulemaking.
Our second concern is with the lack of justification for the use of an operating ratio. Our Comments expressed concern with the economic basis of using an operating ratio. Specifically, we questioned how the use of an operating ratio will insure that a small water or wastewater company will invest the capital necessary to improve its water system or comply with new State and Federal regulations. Although the use of an operating ratio may result in increased revenues, we noted that there were no guarantees that the company will use the increased revenues for capital improvements. We also noted that the PUC had asked commentators to address the questions of whether there was any economic or financial theory that supports the use of an operating ratio for these types of utilities or if it will discourage utility management from operating efficiently. In our Comments, we agreed these were legitimate questions, but also believed the PUC has the duty to answer these questions to justify the use of an operating ratio.
The PUC did not directly respond to our questions on the rationale for using an operating ratio. Instead, the PUC stated that their goal remains, under any ratemaking methodology, to set just and reasonable rates and that it cannot make the ratemaking process so arduous and expensive that small companies cannot obtain the rate relief to which they are otherwise entitled. The PUC believes that the current costs associated with filing a revision to a tariff under a rate base/rate of return system are cost prohibitive. The PUC believes that the use of an operating ratio will decrease these costs.
We continue to question the appropriateness of the use of an operating ratio for small water and wastewater utilities. First, the PUC still has not shown that there is any economic or financial theory that supports the use of an operating ratio for water utilities or demonstrate that it will encourage the utilities to upgrade their system. Second, while we understand the PUC's concern that the current ratemaking system may be too cost prohibitive for a small water or wastewater utility, we believe that the costs of filing a new rate case will still be significant with an operating ratio. Specifically, the questions on what are the utility's legitimate and reasonable operating expenses will remain and arguments over what constitutes a reasonable rate of return will be replaced with debates as to what is the appropriate target ratio. If the current ratemaking process is too costly for small water utilities and wastewater utilities, perhaps the PUC should consider amending their internal processes for these ratemaking processes instead of proposing to use an unproven rate methodology.
Finally, in our Comments we expressed concern with the proposal that would not allow a water utility to recover all costs associated with an increase in their purchased water costs. Specifically, a utility using a purchased water cost adjustment must pass the entire amount of any reduction in purchase water costs to its ratepayers. However, if purchased water costs increase, the utility may only collect increases prospectively from the date it files for an increase, not the date of the increase when the purchased water costs occurred. Depending on the amount of notice the utility receives, this could result in a utility not being able to recover a significant portion of all its costs. This could create additional problems for small utilities which, in theory, these regulations have been promulgated to help. Therefore, we recommended that this provision be revised to allow utilities to recover all increases in purchased water costs.
The PUC responded that our observation was correct that a utility may not be able to collect all of its increased cost. However, the PUC did not amend the regulation to allow for a utility to collect for the increased costs. The PUC believes that the provision prevents companies from attempting to ''net out'' cost increases and decreases by delaying the reporting of purchased water cost decreases until later increases have netted out the difference.
We disagree with the PUC's response. First, we do not believe the PUC should be crafting a regulation based upon the assumption that a utility will not act in a responsible manner. If the intent of the regulation is to provide relief for small water utilities, than the PUC should allow these companies to recoup all increased purchased water costs. Second, a water company may not have notice of the increase cost of water and would be unable to file a revision to its tariff until after the price increase. Therefore, we continue to believe the regulation should allow the water utility to collect all increases in purchased water costs.
We have reviewed this regulation and find it not to be in the public interest. We believe the PUC lacks the necessary authority to allow water utilities and wastewater utilities to establish either the emergency fund or the reserve account because they violate the used and useful clause in section 1315 of the Public Utility Code. In addition, we believe that the PUC has not provided adequate justification that demonstrates the use of an operating ratio will help resolve the current financial problems facing small water and wastewater utilities. Finally, we believe the regulation should allow a water utility to collect all costs associated with a purchased water increase.
Therefore, It Is Ordered That:
1. Regulation No. 57-149 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is disapproved;
2. The Pennsylvania Public Utility Commission shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;
3. The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and
4. This Order constitutes a bar to final publication of Regulation No. 57-149 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).
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[Continued from previous Web Page] Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Gas Transportation Tariffs; Doc. No. 57-150
Order On August 3, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would amend 52 Pa. Code Chapter 60. The authority for this regulation is contained in sections 501, 1301 and 1501--1508 of the Public Utility Code. The proposed regulation was published in the August 13, 1994 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
In 1986, the PUC adopted a regulation which required utilities to offer natural gas transportation services and outlined the methods to establish the rates for this service. The intent of the initial rulemaking was to provide gas customers the ability to directly contract with gas producers and suppliers to obtain a more competitive rate for gas. With this rulemaking, the PUC is updating the gas transportation regulations to improve access for gas transportation customers and ensure that all transportation customers are paying their fair share for the service. The regulation modifies the rules for how the transportation rates will be determined, the provisions for the balancing of gas deliveries and withdrawals, and the stand-by requirements for essential human needs customers.
On September 25, 1996, the Senate Consumer Affairs Committee and Professional Licensure Committee disapproved the final-form regulation. On October 2, 1996, the House Consumer Affairs Committee also disapproved the final rulemaking.
We received letters from the Pennsylvania Gas Association, Columbia Gas, and National Fuel Gas Distribution Company opposing the regulation. The Independent Oil and Gas Producers of Pennsylvania submitted a letter indicating its support for the regulation.
We recognize the significant steps the PUC has taken to solicit public input and directly involve affected parties in the development of the regulation. Although the PUC has made some amendments in response to public comments, we still have several concerns with the regulation and believe the PUC must resolve these issues prior to final adoption.
First, our Comments on the proposed rulemaking and draft final-form regulation opposed the use of individual operational balancing agreements (OBA). These agreements will allow a utility, at its discretion, to contract with individual transportation customers for balancing provisions that are different than those contained in the regulation and a utility's tariff. The agreements will not be reviewed by the PUC nor will they be publicly available. Our Comments on the proposed rulemaking opposed individual OBAs because they could circumvent the intent of the rulemaking of avoiding cross subsidization between customers. In our Comments on the draft final form rulemaking, we continued to oppose the inclusion of individual OBAs because we believed it was the duty of the PUC to assure that a gas utility did not enter into a specific agreement which may result in cross subsidization between customers or is discriminatory. Therefore, our Comments on the draft final-form rulemaking recommend that if the PUC believes that individual OBAs are necessary, then it should amend the rulemaking to require these agreements be reviewed and approved by the PUC prior to their implementation. By requiring the PUB to review these agreements, the PUC can assure that an OBA is not discriminatory or results in cross subsidization between the customers of the utility.
The PUC did not agree with our recommendation and continues to permit individual OBAs. The PUC believes that OBAs will be of primary interest to large industrial customers with operating characteristics or requirements which present special or unusual service needs to the utility. Although the PUC intimates that we should not be concerned with the OBAs because they will be few in number, at the same time it also opposes reviewing these agreements because it would be an ''injudicious waste of regulatory resources for us (PUC) to review every such arrangement in the absence of the existence of a real and immediate controversy.'' In making this statement, the PUC did not detail the time or the costs that would be involved in reviewing these documents.
We continue to oppose the use of individual OBAs. The purpose of having balancing provisions is to ensure that the transportation customers properly balance their intake of gas. Failure of a transportation customer to properly balance their intake of gas can result in costs to the utility and ultimately the ratepayers. The regulation and the utility's tariff establish provisions that require the transportation customers to take the appropriate amount of gas and the penalties that will be imposed when a customer is not in balance. It is not in the public interest to allow a gas utility to ignore these standards that were reviewed and approved by the PUC and provide for potentially more lenient balancing provisions that may result in cross subsidization between customers. Therefore, we continue to believe that if the PUC believes individual OBAs are appropriate, it must, at a minimum, require that these agreements be reviewed and approved by the PUC prior to their implementation.
Our second concern relates to a conflict between Subsections 60.3(c) and 60.3(e). Subsection (c) includes apartment buildings under the definition of residential human needs customers, thus requiring apartment buildings to obtain stand-by service from the utility. In contrast, Subsection (e) allows an owner of an apartment building to sign an affidavit indicating they will not be obtaining stand-by service for 100% of its maximum daily quantity. Therefore, the PUC needs to amend the regulation to provide consistent stand-by provisions for apartment buildings. Specifically, we recommend that the PUC delete apartment buildings from Subsection (e), thus clearly requiring apartment buildings to obtain stand-by service from the utility.
Our third concern is with the classification of nursing homes, hospitals and dormitories as non-residential human needs customers. The PUC's intent for creating the classification of nonresidential human needs customers is to recognize that individuals in these buildings can be easily housed elsewhere if the facility did not adequately contract for stand-by service from a third party or if alternative fuel capability is not sufficient to meet their energy needs. In contrast, the creation of the residential human needs customer category is to recognize that individuals in these buildings cannot be easily moved elsewhere and need reliable stand-by service. Thus, to avoid the situation of a gas utility terminating service to residential human needs customers, the PUC is requiring these customers to obtain stand-by service from the utility.
We do not believe that nursing homes, hospitals and dormitories meet the definition of non-residential human customers because these facilities house people for long periods of time and they cannot be easily moved elsewhere. As a practical matter, if the facility does not have an adequate supply of gas and does not have adequate alternative fuel capability, the facility will have to rely on the utility to supply gas in order to heat the facility. The utility may not be able to provide service, especially during high demand periods, because without a requirement to purchase stand-by service from the utility, it may not have an excess supply of gas. Therefore, given the potential implications of terminating service to nursing homes, hospitals and dormitories, we believe they must be defined as residential human needs customers, thus requiring them to obtain stand-by service from the gas utility.
In the draft-final-form rulemaking, the PUC added new provisions in section 60.3, relating to essential human needs customers. Our comments on the draft final-form rulemaking requested clarification on several terms contained in section 60.3(d) and believed they should be defined in the rulemaking. Specifically, we recommend that the terms essential human needs service, alternative fuel capability, equivalent service, and maximum daily quantity be defined in the rulemaking. The PUC did not define these terms and provided no explanation for not doing so.
We continue to believe that it is necessary to define these terms. Although the meaning of the terms may be clear to the PUC, they are specific regulatory terms that can impact the intent and clarity of the regulation. In fact, the PUC has already defined two of these terms, alternate fuel capability and essential human needs service, in its policy statement on gas curtailment. However, since a policy statement is not legally binding, the terms need to be defined in the regulation.
Finally, the Pennsylvania Gas Association has expressed a concern that the modifications made to the requirements for stand-by service will result in stranded costs to the utility. The PGA believes that since the regulation will increase the number of transportation customers who will not be required to obtain stand-by service from their local distribution company, gas utilities will be saddled with the costs associated with presently contracted pipeline capacity. In making this assertion, the PGA did not quantify the actual potential impact that may occur because of this new provision. Although we recognize that utilities may have some excess contracted pipeline capacity because of the change in stand-by service, we believe the impact can be mitigated outside the rulemaking. First, as the PGA stated at the Commission's October 3, 1996 public meeting, the excess contracted pipeline capacity can be sold to other utilities, albeit at a lower price than originally contracted. Second, the PUC stated at the Commission's public meeting that any resulting costs from unused pipeline capacity will be dealt with in the utility's tariff. We agree with the PUC's approach and encourage it to take careful consideration of these potential costs when a gas utility files a rate revision as a result of the provisions in the rulemaking.
The PGA also expressed concern with the use of a cost of service study for determining rates and the requirement that utilities provide unbundled services. However, we have previously commented in favor of a cost of service study and the unbundling of transportation services and continue to believe these specific provisions are in the public interest.
We have reviewed this regulation and find it not to be in the public interest. As discussed, we do not believe that utilities should be given the discretion to enter into OBAs without prior review and approval by the PUC. We also believe the PUC needs to delete apartment buildings from section 60.3(e), thus clearly requiring owners of apartment buildings to obtain stand-by service from the gas utility. In addition, we believe that hospitals, nursing homes, and dormitories should be classified as residential human needs customers. Finally, we believe the PUC should define the terms used in section 60.3(d) to improve the clarity of the rulemaking. These recommended amendments will enable the PUC to proceed with important revisions to its gas transportation regulation and allow gas transportation customers in the Commonwealth to obtain competitively priced gas, without shifting costs to the utilities' other customers.
Therefore, It Is Ordered That:
1. Regulation No. 57-150 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is disapproved;
2. The Pennsylvania Public Utility Commission shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;
3. The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and
4. This Order constitutes a bar to final publication of Regulation No. 57-150 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Environmental Quality Board--General Conformity; Doc. No. 7-295
Order On March 5, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board. This rulemaking would amend 25 Pa. Code Chapter 127, Subchapter J. The authority for this regulation is found in section 5 of the Air Pollution Control Act (35 P. S. § 4005). The proposed regulation was published in the March 16, 1996 Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on September 3, 1996.
Section 176(c) of the Federal Clean Air Act Amendments of 1990 (CAA) requires that Federal departments and agencies ensure the projects they undertake or provide financial support for conform to the applicable State Implementation Plan (SIP). The SIP is the State's plan to achieve or maintain National Ambient Air Quality Standards (NAAQS). Section 176(c) of the CAA also requires that the State amend its SIP to incorporate the criteria and procedures for conformity designations. In response to the mandates in section 176(c) of the CAA, the proposed regulation adopts by reference the Federal General Conformity Rule (40 CFR Part 93, Subpart B) promulgated by the United States Environmental Protection Agency under section 176(c) of the CAA.
General conformity is designed to make the sponsoring agency for an activity responsible for the emissions that result from the activity. The goal is to prevent Federal actions from undermining the State's air pollution prevention or reduction programs. According to the Department of Environmental Protection, the proposed regulation will ensure that Federal actions do not interfere with Pennsylvania's timely attainment of NAAQS or with emission reduction plans leading to attainment.
Prior to taking any action on a project in Pennsylvania, the sponsoring Federal agency will be required to determine that the proposed action conforms to Pennsylvania's SIP and to make the determination available for public review. The conformity determination addresses direct and indirect emissions of criteria pollutants which are caused by Federal action, are reasonably foreseeable, and can be controlled by the Federal agency. Criteria pollutants include carbon monoxide, lead, nitrogen, ozone, particulate matter and sulfur dioxide.
Examples of Federal actions which must conform to the State SIP include:
* leasing of Federal land;
* airport construction/modification grants;
* private construction on Federal land;
* construction of Federal office buildings;
* prescribed burning;
* reuse of military bases; and
* water treatment plants.
The final-form regulation contains no changes from the proposed regulation. We did not file any comments on the proposed regulation. Furthermore, we did not receive any negative recommendations on the final-form regulation from the House or Senate Environmental Resources and Energy Committees.
Therefore:
The Commission will notify the Legislative Reference Bureau that Regulation No. 7-295 from the Environmental Quality Board, as submitted to the Commission on September 3, 1996, was deemed approved under section 5(b.3) of the Regulatory Review Act (71 P. S. § 745.5(b.3)) on September 24, 1996.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Certified Real Estate Appraisers--Fees; Application Process; Doc. No. 16A-703
Order On November 28, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Certified Real Estate Appraisers (Board). This rulemaking would amend the application process for certified evaluators under section 36.203 of 49 Pa. Code by adding new Subsections (c) and (d) and deleting the reapplication fee of $35 under section 36.6. The authority for these revisions is found in section 3 of the Assessors Certification Act (act) (63 P. S. § 458.3) which empowers the Board to promulgate rules and regulations consistent with the statutes of the Commonwealth to administer and enforce the provisions of the act. The proposed regulation was published in the December 9, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The proposed amendments address how long an approved application (which authorizes an applicant to report for the certification examination at their leisure) is valid, and how long an applicant (whose application has been disapproved) has to correct the deficiencies without having to file a new application. These regulatory changes are consistent with the currently established procedures for certifying certified real estate appraisers.
The proposed rulemaking amendments are designed to remedy some inadequacies in the current regulation. First, current Board regulations do not address how long an approved application is valid. Second, there is no regulatory provision governing how long an applicant has to correct deficiencies, which resulted in the disapproval of the application, before being required to file a new application under criteria then in effect. As a consequence, the Board has been unable to determine with certainty that applicants who report for certification examinations on given dates actually meet the then current minimum education and experience requirements.
The proposed new language of section 36.203(c) relates to ''approved applications.'' The rulemaking provides that approval of a candidate's application for certification will be valid for 1 year from the date of the Board's approval. This means that if the Board approves a candidate's application, the approval only authorizes the candidate to take the certification examination at any time during the year following the date of approval. If an applicant fails to report for the certification examination within this 1-year period, the applicant's application will be considered to have been withdrawn. Should the applicant wish to take the examination after 1 year from the date of approval, a new application accompanied by the appropriate fee would be required. As proposed, the application would then be reviewed in accordance with the act and regulations in effect at the time that the new application is received by the Board.
The Board believes that establishing a 1-year cutoff limit is reasonable for an applicant while affording itself the opportunity to ensure that applicants reporting for the certification examination have met the current minimum education and experience requirements.
Under proposed section 36.203(d), which deals with ''disapproved applications,'' an applicant whose application has been disapproved by the Board will be notified in writing of the reasons for disapproval and be given 1 year from the date of disapproval to file a request for reconsideration. If an applicant's request for reconsideration is denied, or an applicant is unable to correct the deficiencies within 1 year from the date of disapproval, a new application accompanied by the prescribed fee will be required. As proposed, the application would then be reviewed in accordance with the act and regulations in effect at the time that the new application is received by the Board.
Also, under proposed section 36.203(d), requests for reconsideration of a disapproved application must include a reason for the request and be accompanied by any relevant documentation not previously submitted. In addition, the applicant may request an informal interview with the Board.
Lastly, the Board proposes to amend section 36.6 by deleting the reference to a reapplication fee of $35. The reapplication fee is unnecessary because the Board has proposed new Subsections (c) and (d) which address circumstances under which applicants who fail to report for the certification examination within 1 year from the date of an approved application or who fail to correct a deficiency within 1 year from the date of a disapproved application will be required to file a new application with the Board if they wish to take the exam. The reapplication fee, which was originally intended to cover only the cost associated with a review of updated information, will no longer be applicable.
The rulemaking will affect two types of applicants: those who fail to take the certification examination within 1 year of receiving the Board's approval to take the examination; and those who fail to cure a deficiency in an application within 1 year of the date of notification of the Board's disapproval of their application.
First, additional paperwork requirements will be imposed on applicants because of the need to file an entirely new application. Second, in doing away with the present reapplication fee of $35, the proposed rulemaking will increase by $20 (from $35 to $55) the fee to file a new application for certification.
The proposed new procedures, when finalized, will enable the Board to send out notification letters to all of the potentially affected applicants advising them of the need to take appropriate action within 1 year or be faced with starting all over again by filing a whole new application (accompanied by the $55 application fee). Initially, the new procedures will increase the paperwork and processing time for the Board's staff. The Board notes that it receives approximately 20 new and corrected applications per month.
There are no issues or problems presented by this proposed rulemaking. The added requirements will clarify the procedures that applicants must follow in the event that they have missed the reasonable 1-year deadline to utilize a Board approved application or respond to a Board disapproved application to become certified Pennsylvania evaluators. This proposal implements procedures for applicants to become certified Pennsylvania evaluators which are already in place for applicants to become certified Pennsylvania real estate appraisers and are consistent with the statutory limitations on certified Pennsylvania real estate appraisers.
The final-form regulation contains no changes from the proposed regulation. We did not file any comments on the proposed regulation. Furthermore, the final-form regulation was approved by the Senate Consumer Protection and Professional Licensure Committee on September 25, 1996, and by the House Professional Licensure Committee on October 1, 1996.
Therefore:
The Commission will notify the Legislative Reference Bureau that Regulation No. 16A-703 from the State Board of Certified Real Estate Appraisers, as submitted to the Commission on September 13, 1996, was deemed approved under section 5(b.3) of the Regulatory Review Act (71 P. S. § 745.5(b.3)) on October 1, 1996.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 96-1810. Filed for public inspection October 25, 1996, 9:00 a.m.]
