291 Notice of comments issued

Notice of Comments Issued

[38 Pa.B. 955]
[Saturday, February 16, 2008]

   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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
57-255	Pennsylvania Public Utility Commission Retail Electricity Choice Activity Reports 37 Pa.B. 5895 (November 3, 2007)	1/2/08	2/1/08
57-256	Pennsylvania Public Utility Commission Implementation of the Public Utility Confidential Security Information Disclosure Protection Act 37 Pa.B. 6421 (December 8, 2007)	1/7/08	2/6/08
6-308	Department of Education Charter School and Cyber Charter School Services Programs for Children with Disabilities 37 Pa.B. 6405 (December 8, 2007)	1/7/08	2/6/08

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Pennsylvania Public Utility Commission
Regulation #57-255 (IRRC #2648)

Retail Electricity Choice Activity Reports

February 1, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the November 3, 2007 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 Pennsylvania Public Utility Commission (PUC) to respond to all comments received from us or any other source.

1.  Section 54.202. Definitions.--Economic impact; Reasonableness.

   Large, Medium and Small Commercial and Industrial (C & I) customers

   The definitions section separates customers into the following classes:

Term	Definition
Large C & I customers	Commercial and industrial customers with PLCs greater than 500 kW.
Medium C & I customers	Commercial and industrial customers with PLCs ranging from 25 kW up to and including 500 kW.
Small C & I customer	Commercial and industrial customers with PLCs less than 25 kW.
PLC--Peak Load Contributions	The highest level of demand for a particular customer, based on the PJM Interconnection, LLC, peak load contribution standard, or its equivalent for a Pennsylvania EDC outside of PJM.

   Several commentators stated that this breakdown is not consistent with their rate schedules and that the cost of converting data to meet the requirements in this regulation would be substantial. To the contrary, the PUC estimates that compliance costs will be minimal because both Electric Distribution Companies (EDCs) and Electric Generation Suppliers (EGSs) already collect and compile sales information for their own use. The PUC should provide a dollar estimate of the cost to EDCs and EGSs to report data using the customer classifications contained in the proposed regulation. The PUC should also explain why classifying customer classes based on existing rate schedules would not be sufficient.

PLC--Peak Load Contributions

   This definition contains the acronyms ''LLC'' and ''PJM.'' The regulation should define these acronyms.

   Definitions and uniform data

   The reporting requirements in Section 54.203(a)(4) use the undefined terms ''hybrid rate customer accounts'' in subparagraph (v) and ''green power customer accounts'' in subparagraph (vii). Without a specific definition of what accounts would come under these customer accounts, the data filed may not be uniform across EGSs. We recommend defining these terms so that uniform data is reported.

2.  Section 54.203. Reporting requirements.--Reasonableness; Need; Clarity

Total sales, total customers and total sales of all EGSs serving the territory

   Commentators requested the addition of ''total sales,'' ''total customers'' and ''total sales of all EGSs serving the territory'' to the list of reporting requirements in Paragraph (a)(2). In regard to EGS sales, we recognize that confidentiality has to be considered if there is only one EGS or just a few EGSs serving a territory. Nonetheless, the PUC should consider adding these reporting requirements.

No later than 15 days

   Paragraph (a)(5) requires reports ''no later than 15 days'' after the end of the quarter. Commentators have suggested a longer period such as 30 days so that sales data can be reconciled. The PUC should explain why data is needed ''no later than 15 days'' after the end of the quarter and how the EDCs can reasonably meet that requirement.

3.  Section 54.204. Public information.--Adverse effects on competition.

Confidentiality

   While there is general agreement that confidentiality is needed in relation to information provided by EGSs, the PUC has not explained how confidentiality will be accomplished. The handling of confidential information could affect competition and the reporting of data. What protocols and procedures will the PUC use to protect the confidentiality of EGS information in its possession?

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Pennsylvania Public Utility Commission
Regulation #57-256 (IRRC #2651)

Implementation of the Public Utility Confidential Security Information Disclosure Protection Act

February 6, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the December 8, 2007 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 Pennsylvania Public Utility Commission (PUC) to respond to all comments received from us or any other source.

1.  General--Consistency with statute; Clarity.

   The proposed regulation includes certain parts, verbatim, from the Public Utility Confidential Security Information Disclosure Protection Act (35 P. S. §§ 2141.1--2141.6) (CSI Act), while other provisions are not included. For example, various definitions are duplicated, while the exception for disclosure of confidential information contained in Section 2141.5(b) of the CSI Act is not mentioned or referenced in the regulation. Another example is the term ''violent offense,'' which is defined in the CSI Act, but not included in the proposed regulation. However, this term is used in the definition of ''terrorist act'' which is defined in the CSI Act and is included in the proposed regulation. The PUC should consider using references to the CSI Act for all the statutory definitions and substantive statutory provisions rather than including some but not others. If the final-form regulation continues to include only parts of the CSI Act, then the PUC needs to carefully explain why some statutory definitions and provisions are included and others are not.

2.  Section 102.2. Definitions.--Fiscal impact; Reasonableness; Implementation procedure; Clarity.

Confidential security information

   This definition defines ''confidential security information'' as: ''Information contained within a record maintained by the Commission [PUC] in any form . . . .'' (Emphasis added.) Does ''any form'' include ''electronic filings''? If so, this provision is inconsistent with Section 102.3(f), which states that electronic filings are not confidential. To improve clarity, the final-form regulation should reference the statutory definition. If the PUC opts to retain this definition verbatim in the final-form regulation, the PUC should consider changing the final-form rulemaking to state: ''in any form, except electronic filings.'' (Emphasis added.) Subsection (v) of this definition states that: ''[n]othing in this definition may be construed to prevent the disclosure of monetary amounts.'' This sentence is vague and the final-form rulemaking should clarify who would make such disclosures and for what purpose.

Member of the public

   Is the definition of ''member of the public'' limited to citizens of the Commonwealth? In light of the recent holding of the 3rd Circuit Court of Appeals in Lee v. Minner, which prohibits denying access to records based on the residency of the requester, the PUC should clarify the intent of this provision and consider the fiscal impact of implementing a regulation that seems to conflict with current federal case law. See 458 F.3d 194 (3rd Cir. 2006).

3.  Section 102.3. Filing procedures.--Consistency with statute; Reasonableness of implementation procedures; Fiscal impact; Clarity.

   (a)  Maintenance of records onsite.

   Subsection (a) provides proper procedures for utilities to maintain confidential security information onsite. We identified four issues.

   First, subsection (a)(2) requires a utility to certify that the record is present and up-to-date, and references Chapter 101. Would this certification process involve information added to the Self Certification Form (Form) described in Chapter 101? If so, how does this procedure address the concern raised by a commentator concerning confidential security information that may be transmitted with this Form?

   Second, how will PUC staff monitor ''onsite maintenance'' to verify that utilities are correctly classifying information as ''confidential''?

   Third, for how long is a utility required to maintain confidential records?

   Finally, is the utility required to follow the same filing requirements that the CSI Act sets forth for agencies? See 35 P. S. § 2141.3(d). For example, does the regulation establish a ''document tracking system'' for utilities to trace confidential information to a single person, as required by section § 2141.3(d)(5) of the CSI Act? The final-form regulation should clarify how the PUC intends to implement these statutory requirements.

   (b)  Filing requirements.

   The term ''affected page,'' as used in Subsection (b)(3), is vague. The PUC should clarify if this term applies to every page that actually contains confidential security information, or whether it could be read to include pages that are broadly ''affected'' by confidential security information contained in another document or page.

   In addition, Subsection (b)(3) appears to permit utilities to designate entire pages as confidential, no matter how minimal the amount of actual confidential material they contain. The PUC should explain the basis for protecting entire pages that may contain confidential as well as nonconfidential information. Has the PUC considered using redaction to eliminate confidential information from a page and allow access to the rest of the page? If not, how does this broad designation relate to the Right-to-Know Law, which allows agencies to redact only that information that is contained in a public record and is not ''subject to access''? See 65 P. S. § 66.3-2.

   (c)  Public utility's responsibility.

   This subsection declares that the public utility has the responsibility to identify records that contain confidential security information. The second and third sentences in the subsection read:

When the public utility fails to designate a record as containing confidential security information, it does not obtain the protections offered in this chapter and in Act 156 [CSI Act]. Any record that is not identified, stamped and separated as set forth in subsection (b), will be made available to the public under the Right-to-Know Law.

   The third sentence is overly broad because not every record may be accessible under the Right-to-Know Law. The word ''will'' should be replaced with ''may'' in the final-form regulation.

   (d)  Status of previously-filed unmarked records.

   Subsection (d) indicates that confidential documents filed with the PUC before May 29, 2007, are not covered by the protections in this chapter and in the CSI Act, and must be resubmitted to the PUC under the new filing procedures in order to ensure confidentiality. If a public utility follows this procedure, what guarantee will the PUC provide that the old files are now secure or have been destroyed? The PUC should review and develop cost estimates for the fiscal impact of this requirement on the regulated community. This information should be provided with the submittal of the final-form regulation.

   (e)  Commission's responsibility with unmarked records.

   This subsection asserts that: ''The Commission [PUC] and its staff are under no legal obligation to protect confidential security information already on file with the Commission that has not been marked 'Confidential Security Information.' This subsection contains non-regulatory language. Regulations establish binding norms of general applicability and future effect. They cannot establish limitations of liability for an agency. In addition, the first sentence of this subsection is redundant and the requirement that utilities are to re-file records is already established in Subsection (d). Hence, the first sentence is unnecessary and its narrative should be moved to the Preamble of the final-form regulation.

   The second part of Subsection (e) establishes what appear to be internal procedures for the PUC. It is also not necessary to include this segment in a regulation since it is not establishing rules or standards that apply to any regulated party. Therefore, the PUC should either provide this information in the Preamble of the final-form regulation or in a secretarial letter to the utilities, or both.

   (f)  Electronic submissions.

   This subsection is framed as an announcement or policy statement and contains non-regulatory language. These provisions need to be rewritten to set clear compliance standards. Subsection (f) should explicitly prohibit the submission of confidential security information in an electronic form. When the PUC is ready and able to accept electronic submissions and maintain their confidentiality and security, it will need to amend the regulation to allow utilities to use electronic filings.

4.  Section 102.4. Challenge procedures to confidentiality designation.--Consistency with the statute; Implementation procedures; Reasonableness; Need; Clarity.

   (a)  General rule for challenges or requests to review.

   Subsection (a) mentions that a person who is not a statutory advocate must provide certain information, including his/her Social Security number, to the PUC in order to review confidential information. The PUC should clarify its intent for requiring such information, and further explain how it will protect such information, which should be considered confidential.

   This subsection also includes these two sentences:

Only records filed with the Commission [PUC] as confidential security information are subject to a challenge or written request to review under this subsection and Act 156 [CSI Act]. Records maintained onsite by the public utility are not subject to challenge or request to review.

   These statements are overly broad and do not acknowledge that confidential security files may be accessed during litigation. If the intent is to state that onsite CSI cannot be challenged or reviewed via the process prescribed by this proposed regulation and the CSI Act, then this is what should be specifically stated. However, if the PUC is gaining access to onsite files and using them in its deliberations, why are others denied access? The PUC should explain this prohibition and describe other ways by which the statutory advocate or the public can obtain access to the utility's information. Based on a commentator's suggestion, has the PUC considered adding language similar to existing section 5.423 (52 Pa. Code § 5.423), which provides procedures to establish orders to limit availability of proprietary information?

   Subsections (a)(3)(iv) and (v) mention a 15-day time limit for various filings. How did the PUC determine that this was a reasonable time limit?

   (b)  Relevant factors to be considered.

   This subsection describes a balancing test for the PUC to use in determining access to confidential security information. What is the PUC's basis for this balancing test? Section 2141.3(c)(4) of the CSI Act uses different language to describe an agency's decision process, including the term ''reasonable grounds.'' Why isn't the statutory language used or referenced in the regulation? The PUC should review this language and provide a test that is consistent with the CSI Act.

   (d)  Appeal of Commission decision.

   Subsection (d) is essentially the same as section 2141.3 (c)(6) of the CSI Act. Is this subsection necessary? Has the PUC considered referencing the CSI Act rather than paraphrasing it?

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Department of Education
Regulation #6-308 (IRRC #2653)

Charter School and Cyber Charter School Services and Programs for Children with Disabilities

February 6, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the December 8, 2007 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 Education (Department) to respond to all comments received from us or any other source.

1.  Section 711.1. Definitions.--Clarity.

Cyber charter school

   This section defines a ''cyber charter school'' as that which: ''[u]ses technology to provide a significant portion of its curriculum and to deliver a significant portion of its instruction to its students through the Internet or other electronic means . . . .'' (Emphasis added.) We have two concerns. First, what would constitute a ''significant portion'' of curriculum as well as instruction? Second, the phrase ''other electronic means'' is vague and should be further defined.

IDEA

   The citation noted in this definition (20 U.S.C.A. §§ 1400--1485) differs from the citation noted in the Preamble (20 U.S.C.A. §§ 1400--1419). (Emphasis added.) The Board should review the citation in this definition, and make the appropriate changes to the final-form regulation.

Regional charter school

   The following sentences are being added to this existing definition: ''[a] regional charter school shall be organized as a public, nonprofit corporation. Charters may not be granted to any for-profit entity.'' This language is substantive. In order to assist the regulated community with compliance and to improve clarity, this language should be moved to the body of the final-form regulation.

2.  Section 711.2. Purposes and intent.--Clarity.

   The term ''pre-referral intervention strategies'' is used in Subsection (e), but it is not defined. The final-form rulemaking should include a definition for this term.

3.  Section 711.5. Personnel.--Reasonableness; Clarity.

Educational interpreters.

   Subsection (b) pertains to educational interpreters. We raise three issues. First, we recommend that the final-form regulation define the term ''educational interpreter.''

   Second, what are the bases for both the required minimum of 20 hours of staff development activities and for a score of 3.5 on the Educational Interpreter Performance Assessment? What effect will these requirements have on the availability of educational interpreters throughout the Commonwealth?

   Finally, the phrase ''staff development activities'' is vague, and should be defined in the final-form regulation.

4.  Section 711.10. Complaint procedure.--Clarity.

   This section states that the Department will establish a complaint procedure ''consistent with 34 CFR 300.151--300.153.'' Since the federal regulation already indicates to whom notice should be disseminated, the phrase ''and disseminate notice of that procedure'' should be deleted. See 34 CFR 300.151 (a)(2).

5.  Section 711.23. Screening.--Clarity.

   Subsection (c)(1) requires ''[v]erification that the student was provided with . . . appropriate instruction in math.'' We note that within Subsection (c)(1) the verification for reading includes the essential components of reading instruction. Why does that same paragraph not specify any criteria to evaluate appropriate math instruction?

   Subsection (c)(4) also requires ''research-based intervention'' to increase the student's rate of learning. This phrase is also used in Section 711.25(2)(i)(B). There are two concerns. First, it is not clear what a ''research-based intervention'' is, and therefore this term should be defined in the final-form regulation. Second, if a criterion of ''research-based intervention'' is used, would it have to be approved or sanctioned by the Department as effective?

6.  Section 711.24. Evaluation.--Clarity.

   Under Subsection (a), what are ''qualified professionals''? The Department needs to define this term in the final-form regulation.

7.  Section 711.25. Criteria for the determination of specific learning disabilities.--Implementation procedures; Clarity.

   This section requires charter schools and cyber charter schools to include procedures for determining specific learning disabilities in their charter application. (Emphasis added.) We have three concerns. First, the final-form regulation should explain how existing charter and cyber charter schools will inform the Department of their implementation procedures. (Emphasis added.) Second, how would a school prove that a student received ''high quality instruction'' under Paragraph (2)(i)(A)? Finally, what are ''qualified personnel'' as mentioned in Paragraph (4)(i)? The final-form regulation should provide further clarification of these terms.

8.  Section 711.42. Transportation.--Clarity.

   Subsection (c) states that: ''[i]f transportation is required as a related service in the IEP of the student with disabilities, who is enrolled in a cyber charter school, the cyber charter school shall provide the required transportation.'' Unlike Subsection (a) which provides transportation for students with disabilities who are charter school students, this subsection does not place a limit on the distance the cyber charter school is permitted to travel in order to pick up the students. To improve consistency, we recommend that this subsection also include a distance limit.

   In addition, the following sentence is non-regulatory language and should be deleted from the final-form regulation: ''[t]he act does not require that a student's school district of residence provide transportation for cyber charter school students.''

9.  Section 711.45. Access to instructional materials.--Clarity.

   Subsections (a), (b), (c) and (d) use the vague term ''timely manner.'' This term is subjective and does not give the regulated community direction regarding how to comply with this standard. This term should be replaced with clear time requirements.

10.  Section 711.46. Behavior support.--Protection of the public health, safety and welfare; Need; Reasonableness; Feasibility; Clarity.

Restraints in general

   This section relates to behavior supports, in particular in the form of restraints. The proposed amendments to Chapter 14 (''Special Education Services and Programs''), contain similar language which resulted in substantial public comment and concern. The public concerns included issues related to face down prone restraints, the 30 consecutive second time period and any use of restraints at all. Some of these same comments also were raised in response to this proposed regulation.

   As we suggested in our comments on Chapter 14, the Department should provide an overall explanation of restraints and how the use of restraints as described in the regulation meets the criteria of protection of the public health, safety and welfare; need; and reasonableness. We will review this explanation, as well as the Department's response to commentators, to determine whether the final-form regulation is in the public interest.

Definition of ''positive techniques''

   This definition in Subsection (b) lacks clarity because it uses the term being defined in the definition. This definition should be rewritten to improve clarity.

Definition of ''restraints''

   We have three concerns with this definition in Subsection (b). First, while we do not believe this was intended, the inclusion of the phrase ''that last longer than 30 consecutive seconds'' in the definition technically means a device is only a restraint during its use after 30 consecutive seconds. The definition should identify what specifically is a restraint. Substantive provisions and time specifications should be located in the body of the regulation.

   Second, why is a time period of 30 consecutive seconds needed? The Department needs to explain the basis for choosing ''30 consecutive seconds'' and why it is a safe and appropriate time limit.

   Third, this provision appears to be unenforceable and impractical. It seems that repeated use of these devices would be permitted as long as 30 consecutive seconds was never exceeded. Given the circumstances envisioned, such as aggressive behavior, how would the 30 consecutive second time period be measured, documented and enforced?

   Parental notification

   Subsection (c)(1) states:

When there is evidence to suggest that the emergency use of restrictive procedures, such as restraints may be necessary to ensure a student's safety or the safety of others, parental consent should be obtained. If a restrictive procedure is needed on an emergency basis, parents should be informed and consent for future uses obtained within 10 school days following the need for the use of a restrictive procedure. The need for restrictive procedures for safety should be noted in the student's IEP. (Emphasis added.)

   There are three concerns. First, the term ''should'' is non-regulatory language which indicates that these provisions are optional. It is inappropriate to include optional provisions in a regulation. Regulations establish binding norms of general applicability and future effect. These provisions need to be rewritten to set clear compliance standards.

   Second, this provision requires parental consent for future use of restraints ''within 10 school days'' of the use of an emergency restraint. However, it is not clear when parents are to be notified of the use of the emergency restraint. Does the 10 school day period apply? The final-form regulation should clarify the time frame for and required form of parental notice.

   Finally, related to our first concern, Subsection (c)(1) states that: ''[t]he need for restrictive procedures for safety should be noted in the student's IEP.'' (Emphasis added.) However, subsection (c)(2) refers to restraints and the ''[e]xplicit provisions of the existing IEP.'' (Emphasis added.) The regulation needs to clarify when restraint procedures must be included in the IEP, for example if restraint procedures are used in an emergency, should they then be added to the student's IEP?

Face down prone restraints

   Subsection (e) states:

The use of prone (face down) restraints is prohibited in educational programs, unless specifically directed by a physician and documented in the student's current IEP.

   We have three concerns. First, the regulation prohibits the use of face down prone restraints, but allows an exception if ''specifically directed by a physician and documented in the student's current IEP.'' If a physician determined this type of restraint is necessary and it could be documented in the student's IEP, can a school entity still find this type of restraint to be unacceptable or too hazardous?

   Second, the Department should explain how the restrained person's health, safety and welfare would be adequately protected by the school entity staff.

   Third, the regulation allows any physician to make the determination that restraint is necessary. Why doesn't the regulation require a determination by the student's personal physician?

11.  Miscellaneous Clarity.

   The following is a list of vague language in the regulation. The Department should clarify this language in the final-form regulation.

   *  Sections 711.23(b)(2), 711.23(c)(5) and 711.25(4)(ii) use the phrase ''reasonable intervals.''

   *  Section 711.25(2)(i) uses the phrase ''scientific, research-based intervention'' and Sections 711.25 (1) and 711.25(4)(i) use the phrase ''scientifically based instruction.''

   *  Sections 711.45(c) and (e) use the phrase ''reasonable steps.''

   *  Section 711.46(a) mentions ''demeaning treatment'' and Section 711.46(f)(7) mentions ''treatment of a demeaning nature.''

   *  Section 711.46(b) mentions ''systematic application'' in the definition of ''behavior support.''

ARTHUR COCCODRILLI,   
Chairperson

[Pa.B. Doc. No. 08-291. Filed for public inspection February 15, 2008, 9:00 a.m.]