INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [37 Pa.B. 732]
[Saturday, February 10, 2007]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 6-303 State Board of Education
Certification of Professional Personnel12/26/06 1/25/07 36 Pa.B. 7141 (November 25, 2006) 18-408 Department of Transportation
Roadside Rest Areas12/26/06 1/25/07 36 Pa.B. 7140 (November 25, 2006) State Board of Education Regulation
#6-303 (IRRC #2583)Certification of Professional Personnel January 25, 2007 We submit for your consideration the following comments on the proposed rulemaking published in the November 25, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.
1. Requirements related to instructional certificates issued on or after January 1, 2012.--Economic impact; Need; Reasonableness; Feasibility; Timetable for compliance.
Section 49.85(b) establishes grade level limitations for instructional certificates issued on or after January 1, 2012. These limitations relate to eight paragraphs of certifications listed in the regulation.
As described in the Preamble, the Board held extensive discussions in the course of developing this regulation. Despite this outreach, these provisions generated extensive public comment from professional associations, individual school districts, colleges and individuals. While there was favorable public comment, most of the commentators raised concerns with the amendments. Their comments included statements that the regulation will:
* Result in less flexibility to staff elementary schools.
* Put Pennsylvania student education graduates at a distinct disadvantage with those from other states; discourage teacher candidates from enrolling in Pennsylvania teacher preparation programs; and make Pennsylvania graduates less employable in other states. Every state on the eastern seaboard (with the exception of Georgia) has a K--6 certification (or something comparable) along with early childhood and Middle School certifications.
* Force graduating teachers to obtain dual certification (K--6 and 4--8) in order to be appropriately prepared to teach children in their future classes.
* Require future teachers to choose a certificate before they have the opportunity to experience the realities of teaching a range of age groups.
* Increase costs for the 95 colleges and universities with teacher education programs. Additional costs would also be placed on students because of the extra course work required and on the State, which helps to fund public education.
* Inappropriately place grade 4 and grade 8 in the same certificate preparation program when children in these grades are developmentally different.
* Require compliance before teacher education programs can adjust their programs.
* Narrow the preparation of elementary certificate holders at a time when teachers are expected to work with a broader range of performance in their classes.
* Lead to over-specialization at lower grade levels at a time when many curriculum experts are suggesting a wider range of content in teacher preparation programs.
* Lead to shortages in upper-elementary certified and special education teachers.
The commentators have raised significant, valid concerns with the proposed amendments. We will evaluate the Board's response to these concerns to determine if the Regulatory Review Act's criteria of economic impact, need, reasonableness, feasibility and timetable for compliance have been met.
2. Requirements outside the regulation.--Reasonableness; Clarity.
Sections 49.16(b), 49.17(a), 49.83(3), 49.85(d) and 49.86(a) refer to guidelines, standards and criteria that will be established outside this regulation. A regulation has the full force and effect of law. It establishes binding norms on the regulated entity and the agency that promulgated the regulation. The vague provisions in question would allow requirements to be imposed at the Board's or Secretary's discretion without the opportunity for comment or review through the regulatory process. Without adequate notice as to what requirements the Board is imposing, it would be difficult, if not impossible, for regulated parties to discern what actions on their part would constitute compliance. We urge the Board to evaluate all of the vague phrases identified above. The Board should either delete the language or add the needed detail that would allow the regulated community to know how to comply with the regulation.
3. Section 49.13. Policies.--Reasonableness; Timetable for compliance.
Number of credits and hours
Several commentators suggested changes to the number of required credits and hours specified in Subparagraph (b)(4)(i). Their concerns are that the new requirements could interfere with national accreditations or take time away from core studies. The Board should explain why the numbers of credits and hours specified in Subparagraph (b)(4)(i) are appropriate.
Timetable for compliance
Commentators questioned whether there will be enough time to implement the changes in a final regulation by January 1, 2010. One commentator does not believe there will be enough special education faculty available to meet the requirements. The Board should explain why compliance is needed by January 1, 2010, and how teacher education programs can reasonably comply.
4. Section 49.17. Continuing professional educa- tion.--Reasonableness.
Ensure compliance
Paragraph (a)(7) requires the plan to '' . . . include a description of how the school entity will ensure that all professional employees participate in continuing education focused on teaching diverse learners in inclusive settings.'' A commentator suggests that this is overly prescriptive and should only require the school entity to ''offer opportunities'' for professional employees to participate. The Board should explain why it is necessary to require the plan to describe how the school entity will ''ensure'' professional employees participate. The Board should also explain how the school entity could comply with this requirement.
5. Section 49.85. Limitations.--Reasonableness; Clarity.
Subsection (b)
We have five concerns with this subsection.
First, the Board should explain why the January 1, 2012 implementation date for transitioning to the proposed breakdown of instructional certificates under this subsection is reasonable and appropriate. Because teacher education programs take at least four years to complete, commentators fear that they will have less than a year to adequately revise programs to reflect the proposed new certifications.
Second, why has the Board chosen to include an overlap at age 11 between Elementary/Middle and Secondary certifications, but not between Early Childhood and Elementary/Middle certifications?
Third, the breakdown of certifications as Special Education/Primary and Special Education/Middle is not clear. Why does Special Education/Primary include up to age 14? Why does Special Education/Middle include pre-kindergarten, kindergarten and grades one through three?
Fourth, we question whether the proposed plan to replace the K--12 special certification with one of three dual certifications can be done within a 120 credit hour framework. In what timeframe does the Board anticipate students in education programs will be able to complete a dual certificate?
Finally, will the Special Education/Primary certification qualify teachers to teach K--5 or will they also have to have certification for K--3 and 4--8?
Paragraphs (b)(5), (6) and (7)
A commentator expressed concern about the Board's effort to split the special education certifications into different grade levels. The commentator also stated that the Council for Exceptional Children Standards does not group special needs children into grade levels. We also note that special needs students are not always functioning at the grade level in which they are currently placed. Therefore, the Board should explain why it is appropriate to create three different special education certifications that explicitly group students by grade level.
Subsection (f)
This subsection limits the exception to shortages of certified personnel ''that apply Statewide.'' Shortages could be local or could be caused by factors such as the pay or location of a school. Why did the Board restrict exceptions to a finding that a shortage is statewide?
Paragraph (f)(1)
Under this paragraph, the Secretary must provide a written notice to the Board that an exception has been granted. This notification must include '' . . . relevant information and justification of the need for the exception.'' Can the Board object to the Secretary's decision to grant an exception? Also, what criteria will the Secretary use in granting the exception? The Board should include these criteria in the final-form regulation.
Paragraph (f)(2)
Under this paragraph, exceptions are limited to 3 years. Can an exception be renewed? Is there a limitation to the number of times the same exception can be granted? If so, this information should be set forth in the final-form regulation.
6. Section 49.86. Accelerated program for Early Childhood and Elementary/Middle level certifi-cateholders.--Reasonableness; Clarity.
Subsection (a) states that ''The Department will establish standards for an accelerated program. . . .'' However, this section does not provide the details on how those standards will be developed. What process will the Department use to ''establish standards''? How will the public have input?
7. Sections 49.142. Vocational Instructional I. and 49.143. Vocational Instructional II.--Reasonableness; Clarity.
These sections require applicants to have completed a minimum amount of credits or classroom hours in classes relating to ''accommodations and adaptations for students with disabilities'' and ''English language learners in an inclusive setting.'' Are courses readily available to meet these new subject requirements?
Department of Transportation Regulation
#18-408 (IRRC #2584)
Roadside Rest Areas January 25, 2007 We submit for your consideration the following comments on the proposed rulemaking published in the November 25, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Transportation (Department) to respond to all comments received from us or any other source.
Section 443.2. Prohibited activities or actions.--Fiscal impact; Protection of public safety; Reasonableness; Implementation procedures; Clarity.
In the existing Chapter 443, this section consists of a list of prohibited activities. The proposed regulation adds new language to the list. In the proposed regulation, the opening paragraph of this section reads: ''The following specified activities or actions [shall be] are prohibited in roadside rest areas.'' Subsections (1)--(17) comprise the list of prohibited activities. We have identified the following areas for comment.
Obeying all signs and areas where driving or parking is not permitted
In the proposed regulation, the following statement has been added to Subsection (1): ''Drivers shall obey all posted traffic signs and markings.'' This statement does not describe prohibited activities, and is broader than the existing language in this subsection which reads: ''Driving or parking of a vehicle in areas other than those provided.'' Traffic signs and markings do more than inform drivers about the areas where parking or driving is prohibited. The new language should either be moved to a different section or re-written to match the style of the list. One possible re-write is: ''Failure to comply with all posted traffic signs and markings.'' The new statement should also be the only statement in Subsection (1) and the existing language, which is limited to preserving ''no parking'' and ''no driving'' areas, should be written as the new Subsection (2).
Time limits on parking
The existing language in Subsection (2) reads: ''Parking or standing of a vehicle for more than 2 hours in a single 24-hour period or in excess of the posted time limit.'' The new language added by the proposed regulation states that vehicles left for longer than 24 hours are ''subject to removal and storage at the sole cost and expense of the owner.'' There are two concerns.
First, as noted above on Subsection (1), this new language is not describing a prohibited activity. It describes a penalty. This new language should be moved to a new section added to the final-form regulation that describes the fines and penalties for violations of the provisions of Chapter 443. For example, people, who park their vehicles for more than two hours at rest areas would be subject to fines pursuant to Section 8 of the act of June 7, 1961 (P. L. 257, No. 151) (36 P. S. § 478.18), and ''vehicles unattended for more than 24 hours will be considered abandoned and subject to removal and storage at the sole cost and expense of the owner.'' The regulation should also state that public notices listing the fines for violations of the parking and other rules, including a warning that a vehicle is subject to towing after 24 hours, will be conspicuously posted at rest areas.
Second, it is unclear what a driver should do in an emergency situation when the vehicle won't run or it is unsafe to operate, and the driver may not be able to resolve the situation in less than two hours. The Department should consider providing an exception for emergencies when operators or owners alert the Department that they intend to move the vehicle as soon as possible but they may need more than two hours to get help with towing or emergency repairs. This would prevent dangerous or costly situations when people try to get vehicles out of rest areas before the vehicles are ready and safe for the open road.
Defacing facilities, skateboarding, smoking or not smoking, igniting fires and sleeping
The proposed regulation adds numerous new prohibited activities to Subsections (3) and (4). They read:
(3) Defacing or damaging buildings or other facilities[.], skateboarding, rollerblading, skating, biking or sledding, riding of all-terrain vehicles or smoking in areas designated as ''No Smoking.''
(4) Igniting or maintaining fires for heating or cooking equipment, except in areas or facilities designed for the purpose, camping overnight or setting up a tent, sleeping anywhere but in a legally parked vehicle, or remaining anywhere but in a legally parked vehicle for more than 2 hours.
Subsections (3) and (4) are too long and contain unrelated subjects. The purpose of a list is to delineate items, conditions or terms, and to avoid long statements or sentences. The existing language in the two subsections should continue to stand alone as parts of the list, and the new language should be set forth as at least three new subsections.
Emergencies and minor repairs
Subsection 443.2(8) of the proposed regulation expressly prohibits the ''maintenance or repairing of vehicles or attachments to vehicles'' at rest areas ''except in emergencies.'' The Pennsylvania Motor Truck Association (PMTA) suggests the addition of specific language to allow for minor repairs to commercial vehicles placed out of service by law enforcement after roadside inspections. PMTA claims that the exception for emergencies may not be interpreted by law enforcement officers to include minor repairs. In these cases even though the required repairs are minor, commercial vehicles would need to be towed at considerable expense to owners or operators. It is our understanding that the intent of the Department for this regulation is that a rest area should provide temporary parking for the broadest number of travelers and their vehicles. To this end, other provisions in this regulation limit parking to two hours. If a minor repair or adjustment can be completed during this two-hour period at a rest area, we do not see why this activity should be prohibited. We recommend that that the exception in this subsection be extended to include minor repairs or adjustments that can be performed in two hours or less.
Expressive activities and distributing written materials
New language in Subsections 443.2(17)(iii) and (iv) prohibits picketing, similar expressive activities, and distributing written materials. There are two issues.
First, Subsection 443.2(17)(iii) sets forth a complete prohibition on picketing and other types of expressive activity and, unlike Subsection 443(17)(iv), it does not allow for this type of activity with ''the written agreement of the Department.'' Subsection 443.2(17)(iii) needs to be amended in the final-form regulation to allow for such activity with a written agreement from the Department.
Second, there is no indication of how a person would apply for a ''written agreement'' with the Department or what criteria would be used by the Department in determining what activities would be allowed. These subsections should include a reference to a regulation that outlines the process whereby the public could file a request for a ''written agreement.''
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 07-219. Filed for public inspection February 9, 2007, 9:00 a.m.]
