INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [31 Pa.B. 2333] Sections 5(d) and 5(g) of the Regulatory Review Act (71 P. S. §§ 745.5(d) and (g)) provide that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committees' comment period. The Commission's comments are based upon the criteria contained in sections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).
The Commission issued comments on the following proposed regulations. The agencies must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the date indicated.
Final-Form Reg. Submission No. Agency/Title Issued Deadline 7-361 Environmental Quality
Board
Household Hazardous
Waste04/12/01 03/12/03 7-360 Environmental Quality
Board
Radiological Health04/12/01 03/12/03 35-28 Deputy Sheriffs'
Education and
Training Board
Deputy Sheriffs'
Education and
Training Board04/12/01 03/12/03 16A-601 State Board of Vehicle
Manufacturers,
Dealers and
Salespersons
Consignment Sales04/12/01 03/12/03 Environmental Quality Board Regulation No. 7-361 Household Hazardous Waste April 12, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 12, 2003, the regulation will be deemed withdrawn.
1. Status of regulation of household waste--Clarity.
Sections 261a.4, 271.1 and the Preamble describe a process to encourage certain household wastes to be disposed of as hazardous waste, rather than as municipal waste. However, as described, these provisions are confusing. It is unclear when the status of the waste changes from being regulated as municipal waste to being regulated as hazardous waste.
Section 261a.4. Exclusions.
The intent of paragraph (1) is unclear. It states, ''the exclusion of 40 CFR 261.4(b)(1) (relating to exclusions) does not apply to household hazardous waste as defined in § 271.1. . .'' The confusion is further compounded because the proposed definition of ''household hazardous waste'' in § 271.1 references 40 CFR 261.4(b)(1). The person in possession of this waste needs to clearly know whether to comply with Article VII. Hazardous Waste Management or Article VIII. Municipal Waste.
Section 271.1. Definitions.
The definition of ''household hazardous waste'' raises two concerns. First, designating waste as ''household hazardous waste'' is no longer relevant once it has been collected. After collection, this waste is regulated as hazardous waste, regardless of whether it was produced by a household. Since paragraph (i) describes hazardous waste, why is it needed in the definition of ''household hazardous waste?''
Second, related to our first concern, the definition contains a mix of what is and what is not regulated as hazardous waste. The definition should only describe the term ''household hazardous waste.'' The substantive provisions in paragraphs (i) and (ii) should be moved to the body of the regulation.
The Preamble
The Preamble also is unclear. The Preamble description of amendments to § 261a.4 states,
. . .the changes to the regulation will ensure that when household hazardous waste has been collected as part of a household hazardous waste collection program, it will continue to be managed and transported as a hazardous waste rather than as part of the municipal waste stream. (Emphasis added.)
The phrase ''continue to'' implies the household waste was regulated as hazardous prior to collection. Is the household waste regulated as hazardous waste prior to collection?
2. Section 271.1. Definitions.
The terms ''eligible entity,'' ''sponsor,'' ''collection contractor'' and ''collection event'' are defined in the Small Business and Household Pollution Prevention Program Act and are used throughout this regulation. For increased clarity, these four terms should be referenced in the definitions section of this regulation.
3. Section 272.314. Limits on Department's authority to award grants--Clarity.
Under subsection (b)(3), an applicant must demonstrate ''to the Department's satisfaction'' that it has complied with the Small Business and Household Pollution Prevention Program Act. What is the applicant required to provide to satisfy the Department?
4. Section 272.383. Grant application--Clarity.
Subsection (a)
This subsection requires an application to be accompanied by ''appropriate supporting documentation.'' How will an applicant know what supporting documentation is ''appropriate?'' The Department should describe the appropriate supporting documentation.
Subsection (b)
This subsection requires the grant applicant to ''ascertain that a record of operations'' has been sent to the Department. There are two questions. First, what purpose is served by the applicant ''ascertaining'' the Department is in possession of a record? Would this be included in the Department's review of the application?
Second, why is this requirement separate from the information on the form required by subsection (a)?
5. Section 272.531. Basic operational requirements--Clarity.
There is a typographical error in paragraph (a)(3). A closing parenthesis is missing.
Environmental Quality Board Regulation No. 7-360 Radiological Health April 12, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 12, 2003, the regulation will be deemed withdrawn.
1. Section 221.11. Registrant responsibilities--Reasonableness; Clarity.
Subsection (k)--''shall v. should''
This subsection replaces the word ''shall'' with the word ''should.'' The Preamble states this revision is ''necessary due to the wide range of spectral characteristics of X-ray films on the market today, which makes it difficult for practitioners to maintain an exact match.'' However, it does not appear that the existing language requires an ''exact match.'' Instead, the current language of this subsection uses the words ''spectrally compatible.'' This subsection needs to use the word ''shall'' if this is to be a binding requirement.
Subsections (g), (m) and (n)--''reducing unnecessary exposure''
Each of these three subsections contains rules designed to limit or prevent unnecessary exposure to X-rays. Are three separate subsections necessary? Can the three subsections be combined into a concise set of rules or a general rule?
Subsection (1)--guidelines
The existing language in this subsection states that a registrant's ''quality assurance program shall be in accordance with guidelines promulgated by the ACR (American College of Radiology), the AAPM (American Association of Physicists in Medicine) or another accrediting organization. . .''
The proposed regulation revises this rule to state that a ''quality assurance program shall be in accordance with guidelines established by the department (Department of Environmental Protection).''
The Preamble states:
This change will make it easier for the Department to add and change guidelines as needed without specifically acknowledging each new quality assurance guideline issued by medical specialty organizations.
It is our understanding that the guidelines will be enforced as requirements and registrants can be cited for nonconformance to the guidelines. Only a regulation is enforceable and provides adequate notice to affected parties. Hence, the specific content or source of the guidelines should be included in the regulation. Additionally, the regulation should indicate how registrants can obtain copies of the guidelines.
2. Miscellaneous Typographical Errors--Clarity.
Section 221.13. Information to be submitted by persons proposing to conduct healing arts screening.
In the Pennsylvania Bulletin, the word ''mammography'' in paragraph (14) is moved to the beginning of the sentence. It should be capitalized.
Section 228.36. Radiation monitoring requirements.
Also in the Pennsylvania Bulletin, the first five words of this section read: ''LAN independent radiation monitoring system. . .'' ''LAN'' is an apparent error and should be replaced by the word ''An.''
Deputy Sheriffs' Education and Training Board Regulation No. 35-28 Deputy Sheriffs' Education and Training Board April 12, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Deputy Sheriffs' Education and Training Board (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 12, 2003, the regulation will be deemed withdrawn.
1. Section 421.1. Definitions--Clarity.
Continuing education
The term ''periodically'' in this definition is vague. Section 2107(c) of the Deputy Sheriffs' Education and Training Act (act) (71 P. S. §§ 2103--2108) requires deputy sheriffs with less than 5 years of experience to meet all the requirements of the act within 2 years. As such, ''periodically'' should be replaced with ''2 years'' in the final-form regulation.
2. Section 421.3. Training required--Reasonableness; Clarity.
Subsection (a)
This subsection implements section 5 of the act (71 P. S. § 2105). Specifically, this section requires deputy sheriffs to undergo basic training ''in the amount of hours established by the Board.'' A 1998 amendment to section 5 of the act deleted the word ''regulation'' and allowed the Board to establish basic training requirements ''subject to the review and approval of the Commission.''
The Board interprets this amendment as authorizing it to establish the required number of hours for the basic training program through a Statement of Policy (SOP). However, nothing in the amendment precludes the Board from promulgating regulations. Furthermore, requirements should be established through regulation since regulations establish binding norms and have the full force and effect of law. An SOP, by definition, provides guidance, not binding norms. Therefore, an SOP is subject to challenge by anyone who believes that specific requirements should be waived in their case. If it is the Board's intention to require compliance with the basic training requirements in the SOP, these requirements should be contained in the final-form regulation.
Subsection (b)
The Board, in a similar vein, established the number of hours for continuing education in the SOP. For the reasons stated, the hourly requirements for continuing education should be contained in the final-form regulation.
Subsection (c)
Under this subsection, ''. . .a deputy sheriff shall attain at least a minimum score established by the Board. . .'' To successfully complete basic training, however, the minimum score which must be attained is not specified in the regulation. For clarity, the final-form regulation should list the required minimum score.
3. Section 421.4. Waiver of training--Reasonableness; Clarity.
Subsection (a)
This subsection states that the Board, ''upon request and for cause shown may grant additional time for a newly hired deputy sheriff to fulfill basic training requirements.'' We have two concerns with this subsection. First, the phrase ''for cause shown'' is vague. The Board should include examples that would meet ''for cause shown'' in the final-form regulation.
Second, the phrase ''additional time'' is unclear. For clarity, the Board should replace this phrase with a maximum time period.
Subsection (b)
This subsection states that the Board will make a waiver determination ''based upon. . .criteria set forth by the Board.'' The regulation does not list the criteria. Instead, they are set forth in § 421.103 of the Board's SOP. Included in the criteria are training requirements that deputy sheriffs must meet relating to training and certification (37 Pa. Code § 421.103(3) and (4)). For the reasons stated in Issue 2, these requirements should be contained in the final-form regulation.
4. Section 421.12. Continuing education--Clarity.
This subsection states that ''Continuing education will consist of topics to be determined periodically by the Board.'' We have two concerns. First, the term ''periodically'' is vague and should be deleted.
Second, the regulation does not convey how continuing education topics are determined and what those topics are. It is our understanding that continuing education is developed and administered as the result of outreach to deputy sheriffs and two request-for-proposal processes. Continuing education is then offered at locations throughout the State in a 20-hour block. Clarity would be improved by explaining the development and availability of continuing education in the preamble to the final-form regulation. Additionally, this section of the final-form regulation should be amended to state where deputy sheriffs can obtain information on continuing education requirements.
5. Section 421.31. Reimbursement to counties--Reasonableness; Clarity.
Subsection (c)
This subsection states ''Reimbursement will be given only for attendance at a school as defined in this chapter. The revised language replaces ''§ 421.1 (relating to definitions)'' with ''this chapter.'' However, the reference to § 421.1 is clearer than the vague reference to ''this chapter.'' Retaining the existing language would improve clarity.
Subsection (d)
Under this subsection, the county may apply to the Commission on Crime and Delinquency for reimbursement ''for each deputy sheriff who has attended the course.'' The term ''course'' is not defined in the regulations. However, the terms ''basic training'' and ''continuing education'' are defined in § 421.1. For clarity and consistency, the term ''course'' should be replaced with the defined terms ''basic training'' and ''continuing education.''
Subsection (f)
This subsection allows the Commission's executive director to notify the county and specify the reasons that an application and request for reimbursement do not meet the requirements of the act. We have two issues.
First, the regulation does not include time periods for the executive director to make this determination and notify the county. A specific time period should be included in the final-form regulation.
Second, this subsection deletes the existing provision that provides the executive director will notify the county of the determination in writing via certified mail, return receipt requested. As a result, the proposed regulation is silent on how notification will be made. The allowable means of notification should be included in the final-form regulation.
State Board of Vehicle Manufacturers, Dealers and Salespersons Regulation No. 16A-601 Consignment Sales April 12, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 12, 2003, the regulation will be deemed withdrawn.
1. Section 19.19(a)--Vehicle auction--Clarity.
Subsection (a) states ''A licensed dealer shall be permitted to engage in consignment sales without being licensed as a vehicle auction. . . .'' There are two concerns. First, how does the term ''vehicle auction'' relate to the statutory language? The statute (63 P. S. § 818.5 (f)(3)) refers to ''. . .a wholesale vehicle auction or public or retail vehicle auction . . .'' The statute also defines the phrases ''wholesale vehicle auction'' and ''public or retail vehicle auction'' in 63 P. S. § 818.2. For clarity, the phrase ''vehicle auction'' should be defined or amended to reflect the statute.
Second, the reference to licensure is unclear. Section 19.4 (relating to fees) of the existing regulation does not include licensure as a ''vehicle auction,'' ''public or retail auction'' or ''wholesale vehicle auction.'' Does the Board have provisions for licensure as a ''vehicle auction?''
2. Section 19.19(a)(1)--Consignment agreement--Reasonableness; Clarity.
This paragraph lists requirements for a written consignment agreement. The list does not include a period of consignment. If a consignment is for a specific period of time, should this also be included in the written agreement?
Additionally, we question whether one standard consignment agreement can cover multiple sales, or whether separate consignment agreements must be obtained for each vehicle that is on consignment.
3. Section 19.19(b)--Applicable Federal and State Statute--Clarity.
This subsection states ''In all activities involving the consignment sale of a vehicle, the dealer shall comply with applicable Federal and State law.'' What are the applicable laws? For clarity, this subsection should be deleted or replaced with a cross reference to the specific laws and regulations that apply.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 01-744. Filed for public inspection April 27, 2001, 9:00 a.m.]
