INDEPENDENT REGULATORY REVIEW COMMISSION Actions Taken by the Commission [26 Pa.B. 814] The Independent Regulatory Review Commission met publicly at 11 a.m., Wednesday, February 7, 1996, and took the following actions:
Regulations Approved:
Department of Labor and Industry #12-36: Restroom Equity (Amends 34 Pa. Code by revising Chapter 50)
Office of Administration #99-5: Defense of Suits Against Commonwealth Employes (Amends 4 Pa. Code by revising Chapter 39)
Pennsylvania Public Utility Commission #57-126: Integrated Resource Planning for Gas Utilities (Amends 52 Pa. Code by revising Chapters 59 and 69)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice-Chairperson; Thomas P. Comerford, Jr.; John F. Mizner; Irvin G. Zimmerman
Public meeting held
February 7, 1996Department of Labor and Industry--Restroom Equity; Doc. No. 12-36
Order On December 10, 1993, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Labor and Industry (L & I). This rulemaking would amend 34 Pa. Code Chapter 50 under the authority found in section 4 of the Restroom Equity Act (act) (35 P. S. § 5820.4). The proposed regulation was published in the December 25, 1993 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 19, 1996.
The statutory amendment was enacted in response to public controversy over the long lines women are often forced to wait in in order to use a restroom at large public facilities. Section 4 of the act directs L & I to make and enforce regulations setting forth general restroom equity standards with respect to all public and private facilities where the public congregates, unless such facilities are exempt from coverage under section 6. Section 3 of the act stipulates that more lavatories shall be provided for women than for men by a ratio to be determined by L & I. In addition, the act provides that facilities shall conform with and be approved by L & I in accordance with the provisions of the Fire and Panic Act of 1927 (P. L. 465, No. 299).
The language of the proposed regulation mirrors that of the act in that L & I will apply the requirements of this regulation to facilities that are used as sports and entertainment arenas, stadiums, community and convention halls, specialty event centers, amusement parks, ski resorts and public middle and high schools. As directed by the act, L & I has established the requirement that at least two water closets for women will be provided for every one water closet, single-use urinal, or 20 inches of trough urinal provided for men. It also provides that this minimum two-to-one ratio shall apply to temporary facilities provided at parks for special events.
The regulation repeats the statutory exemption for hotels, public eating and drinking places and any community or municipal park with a fixed seating capacity for less than 500 persons. In addition, the regulation provides that these requirements apply to community and municipal parks with a fixed seating capacity for 500 or more persons.
These requirements will take effect for new facilities that have contracted for construction or have designs drawn up for construction after the date of final publication of the regulation. In addition, the requirements will apply to existing facilities for which contracts for the design or construction or the renovation, alteration or addition are executed on or after the date of publication of the final regulation.
Funds for the enforcement of these new requirements are to be drawn from funds allocated to operate the Fire and Panic approval and inspection program. L & I is responsible for enforcing this regulation under the provi-sions of the Fire and Panic Act except in cities of the first class, second class and second class A, where the cities will be responsible for enforcing the regulation. L & I does not anticipate any increased enforcement costs and it will not be requiring any additional paperwork.
L & I has resolved all issues raised in our Comments on the proposed rulemaking. In our Comments, we raised a number of questions concerning statutory authority and consistency with legislative intent.
We questioned the statutory basis for the proposed requirement which would restrict the application of the regulations to facilities that can accommodate 300 persons or more. The act is very specific in defining which facilities fall under the provision of the act and it exempts only certain facilities under section 6. For this reason, L & I deleted this proposed limitation from the final-form rulemaking.
We also requested that L & I more clearly define its jurisdiction with regard to specialty event centers and community and municipal parks with a seating capacity for 500 or more persons. L & I revised the final rulemaking to clarify that the regulations apply to specialty event centers whether or not they are located in public parks. However, to provide additional clarity, the regulation reflects that if the specialty event center is located in a community or municipal park then it is subject to the regulation only if it has a seating capacity for 500 or more persons.
Our Comments also questioned the proposed limitation for the seating capacity to be ''fixed'' seating capacity because this conflicted with the language of the act. In response, L & I deleted from the final rulemaking any reference to ''fixed'' when referring to seating capacity.
As proposed, L & I intended to apply the requirements of this regulation to any public building being renovated when the capacity of the facility increased. However, the act states that the requirements apply only when the rehabilitation of an existing building affects 50% or more of the gross floor area of the entire building. Our Comments noted that the act is specific in this regard. In addition, we noted that the regulation should not require any facility which constructs an addition to bring the entire facility in to compliance with the restroom ratio mandated by L & I. For these reasons, we recommended that L & I more closely align the rulemaking with the definition of ''renovation'' from the act in order to remain in compliance with the stated intent of the Legislature. L & I complied with this recommendation and conformed the final regulation exactly with the statutory language.
We have reviewed this regulation and find it to be in the public interest. These standards implement the act which was designed to end the inequitable delays which women face when they need to use restroom facilities in certain public places.
Therefore, It Is Ordered That:
1. Regulation No. 12-36 from the Department of Labor and Industry, as submitted to the Commission on January 19, 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, Chairperson; Thomas P. Comerford, Jr.; John F. Mizner; Irvin G. Zimmerman
Public meeting held
February 7, 1996Executive Board--Defense of Suits Against Commonwealth Employes; Doc. No. 99-5
Order On January 16, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the Executive Board (Board). This rulemaking would amend 4 Pa. Code Chapter 39. The authority for this regulation is found at section 709(f) of The Administrative Code of 1929 (71 P. S. § 249(f)) and the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin. On January 31, 1996, the Board submitted an amendment to its January 16, 1996 submittal.
The regulation makes several changes to Subchapter A of Chapter 39. First, the revisions clarify that if a defendant's conduct giving rise to the cause of action was within the scope of his employment and a good faith exercise of his authority, the Commonwealth or its insurance company will undertake the defense with an attorney of its choosing at its expense and will indemnify the defendant for the expense of a judgment against him or a settlement that is approved by the General Counsel or his designee. The regulation also clarifies that if the defendant engages his own attorney, indemnification and reimbursement of attorney fees will be at the discretion of the General Counsel.
Second, the regulation deletes the requirement that a defense will be provided to an employe whose conduct was a bad faith exercise of authority, malicious, or outside the scope of employment, if there are other defendants in the case that the Commonwealth's attorneys are defending. Instead, the regulation provides that in these instances, the General Counsel, in his sole discretion, will determine on a case-by-case basis whether a defense will be provided.
Third, the regulation currently provides that in cases involving alleged violations of Federal civil rights legislation, the Commonwealth will provide a defense to a defendant whose conduct was outside the scope of his employment if there are other defendants represented by Commonwealth attorneys. However, the defense would be limited to the argument that the defendant was not acting under color of State law. The proposed regulation deletes this language because the provision has presented problems in implementation and may conflict with an attorney's obligation to provide his client with a complete and vigorous defense.
Fourth, the regulation adds a provision that if the General Counsel, or his designee, initially determines that the defendant's conduct was a bad faith exercise in his authority, malicious, or outside the scope of his employment, and the defendant ultimately prevails in the civil action, the General Counsel, in his sole discretion, will determine if the Commonwealth will reimburse the defendant for the costs of defense and attorney fees.
Fifth, the amendments require that if the Commonwealth provides a defense, the employe must cooperate fully in the defense of the case. Finally, the regulation provides that to the extent the Commonwealth is indemnifying the employe, the Commonwealth is authorized to settle the case and to make other legal and strategic decisions relating to the defense of the case.
The House State Government Committee approved the regulation on January 31, 1996. On January 25, 1996, Michael Fox, Assistant to the Executive Director of the American Federation of State, County and Municipal Employees (AFSCME) Council 13, submitted a letter stating that AFSCME no longer objects to the adoption of the regulation.
When the regulation was initially submitted in December 1995, AFSCME and the Pennsylvania Social Services Union contended that the amendments were a topic subject to bargaining between the administration and the unions. In addition, AFSCME stated that the regulation is part of its collective bargaining agreement with the Commonwealth by reference.
To satisfy the concerns raised by the unions, the Board agreed to include language in the rulemaking stating that the revisions would not apply to or change the terms of any current agreement. However, the language only appeared in the Preamble to the regulation as submitted on January 16, 1996. By letter dated January 30, 1996, the Board amended the regulation to incorporate the language contained in the Preamble into a new section 36.6 entitled Applicability.
We have reviewed this regulation and find it to be in the public interest. The regulation deletes unwise public policy which currently requires the Commonwealth to provide a defense or pay attorney fees to represent an employe who has been sued because of criminal, malicious or bad faith actions. In addition, the regulation deletes provisions that conflicted with an attorney's obligations under the Code of Professional Responsibility.
However, we have one remaining concern. Subchapter B of Chapter 39 contains a statement of policy regarding the defense of suits. Because of the amendments to Subchapter A, a number of the provisions of Subchapter B will need to be deleted or revised. Therefore, we strongly encourage that amendments to the statement of policy be drafted and adopted in the very near future.
Therefore, It Is Ordered That:
1. Regulation No. 99-5 from the Executive Board, as submitted to the Commission on January 16, 1996, and as amended on January 31, 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; Thomas P. Comerford, Jr.; John F. Mizner; Irvin G. Zimmerman
Public meeting held
February 7, 1996Pennsylvania Public Utility Commission--Integrated Resource Planning for Gas Utilities; Doc. No. 57-126
Order On August 13, 1993, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would amend 52 Pa. Code, Chapters 59 and 69, relating to supply and demand reporting requirements of major jurisdictional gas utili-ties. The authority for this regulation is found at 66 Pa.C.S. §§ 308, 501, 504, 523, 1319 and 1501; 45 P. S. § 1201 et seq.; and 1 Pa. Code §§ 7.1 through 7.4. The proposed regulation was published in the August 28, 1993 Pennsylvania Bulletin with a 90-day public comment period. The final-form regulation was submitted to the Commission on November 15, 1995. At the Commission's December 6, 1995, public meeting, we disapproved the final-form regulation. On January 17, 1996, a revised final-form regulation was submitted to the Commission.
The PUC is proposing to consolidate supply and demand reporting requirements for natural gas utilities. The regulation, as amended, requires each jurisdictional public gas utility with annual sales of 8 billion cubic feet (Bcf) or more, including transportation sales, to submit an annual Integrated Resource Planning (IRP) report to the PUC. These utilities will also be required to submit an Annual Conservation Activities (ACA) report with the IRP report. By consolidating these reporting requirements, duplication of reporting and obsolete reporting requirements will be eliminated. The PUC will use the data from the IRP report and the ACA report to monitor and evaluate utilities' supply and demand planning activities.
According to the PUC, consolidating reporting requirements will reduce preparation time and administrative costs for the gas utilities. Additionally, the PUC's administrative costs associated with reviewing the reports will decrease.
The Senate Consumer Protection and Professional Licensure Committee voted to approve the revised regulation on January 30, 1996.
The PUC made several revisions to the proposed rulemaking as a result of comments made by individual gas utilities, the General Assembly and the Commission. First, the revisions establish June 1, 1996, as the due date for the first IRP report with subsequent IRP reports due on or before June 1 of successive years. Second, the revisions require the IRP reports to be filed every year, instead of every other year with incremental reports in the interim year, as originally proposed. Finally, the regulation requires utilities to use benefit-cost methodologies to evaluate their conservation and load management programs. The methodologies for the benefit-cost methodologies are not specified in the regulation, but the PUC will provide a guidance manual to assist the utilities in preparing benefit-cost evaluations.
In our Comments on the proposed rulemaking, we questioned the cost-effectiveness of requiring small gas utilities to meet the reporting requirements contained in the rulemaking and believed there needed to be some minimum exemption provided in the regulation. In response, the PUC indicated in its adoption order that it believed it may not be cost effective to require utilities with less than 8 Bcf of annual sales to complete the reporting requirements. However, section 59.81 of the final-form regulation, which the PUC submitted on November 15, 1995, provided that each jurisdictional public utility must submit to the PUC an annual IRP report, and section 59.82 provided that each jurisdictional gas utility must submit an ACA report. In addition, section 59.83 required each jurisdictional utility to utilize benefit-cost methodologies to evaluate conservation and load management programs. Therefore, while the PUC indicated that it may not be cost-effective for utilities with less than 8 Bcf of annual sales to have to comply with the reporting requirements contained in the rulemaking, the regulation required all gas utilities, regardless of size, to submit all of the information.
At our December 6, 1995 public meeting, we disapproved the regulation because of the discrepancy between the PUC's statement that it may not be cost-effective to require utilities with less than 8 Bcf of annual sales to complete the reporting requirements and the final-form regulation's requirement that all utilities must complete the reporting requirements. In our disapproval Order, we stated that it is essential for the regulation to specify who will be required to submit the annual IRP report and the ACA report to ensure adequate notice and consistent application of the exemption. Since the PUC indicated that it did not intend to require gas utilities with less than 8 Bcf of annual sales to complete the reporting requirements, we stated that the regulation should contain this exemption. We further stated that if the PUC decides in the future that the 8 Bcf exemption is inappropriate, it should submit a new rulemaking providing for a new exemption threshold to ensure adequate public review and opportunity for comment by affected gas utilities, the General Assembly, and the Commission. Consequently, in our disapproval Order we recommended that sections 59.81, 59.82 and 59.83 of the final-form rulemaking be amended to specifically provide that jurisdictional gas utilities with less than 8 Bcf of annual sales are exempt from the reporting requirements.
In response to our disapproval Order, the PUC revised the final-form regulation to specify that only utilities with annual sales of 8 Bcf or more, including transportation sales, must complete the reporting requirements. With this change, we find this regulation to be in the public interest. We commend the PUC's clarification of the regulation. The final-form regulation reflects the PUC's intent to exempt utilities with less than 8 Bcf of annual sales and, therefore, provides for cost-effective implementation of the reporting requirements.
Therefore, It Is Ordered That:
1. Regulation No. 57-126 from the Pennsylvania Public Utility Commission, as submitted to the Commission on January 17, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 96-261. Filed for public inspection February 23, 1996, 9:00 a.m.]
