Notice of Comments Issued [46 Pa.B. 2385]
[Saturday, May 7, 2016]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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comments Reg No. Agency/Title Comment Period Issued 57-312 Pennsylvania Public Utility Commission
Reduce Barriers to Entry for Passenger
Motor Carriers
46 Pa.B. 1016 (February 27, 2016)3/28/16 4/27/16
7-522 Environmental Quality Board
Handling and Use of Explosives
46 Pa.B. 996 (February 27, 2016)3/28/16 4/27/16 18-467 Department of Transportation
Hauling in Excess of Posted Weight Limit
46 Pa.B. 991 (February 27, 2016)3/28/16 4/27/16
Pennsylvania Public Utility Commission
Regulation # 57-312 (IRRC # 3135)Reduce Barriers to Entry for Passenger Motor Carriers April 27, 2016 We submit for your consideration the following comments on the proposed rulemaking published in the February 27, 2016 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. Determination of whether this regulation is in the public interest.
The PUC states in the Preamble's Executive Summary, in part:
Upon consideration of the acknowledged benefits of increased competition among passenger motor carriers and advances in technology, the Commission believes that it is appropriate to reduce the current barriers to entry for qualified applicants by eliminating the requirement that an applicant for passenger motor carrier authority establish that approval of the application will serve a useful public purpose, responsive to a public demand or need. Rather than determining public need by means of a complex, costly and time consuming administrative process, public need or demand will be determined in the marketplace by competition among passenger carriers in regard to price, quality and reliability, as well as the experienced demand for their services by consumers who may freely choose among those competing carriers.
Similarly in regard to limited competition, this regulation streamlines the supporting financial information required to change tariffed rates and eliminates territorial restrictions that accompany a carrier's certificate of public convenience. These objectives are reflected in proposed deletions of portions or all of 52 Pa. Code §§ 1.43, 3.381, 3.382, 3.383, 3.384, 5.235, 23.64 and 23.68. The remaining amendments are additions to clarify the applicability of the regulation to passenger carriers based on the number of passenger and limousine carriers, as well as some editorial amendments.
The Preamble also explains that passenger carriers will continue to be required to establish that they have the technical and financial ability to provide the proposed service safely, reliably and legally, and that they are fully insured. In addition, passenger carriers will continue to be required to submit filings notifying the Commission of tariff changes and to provide the basic operational and financial data to support those filings.
The proposed amendments will substantially alter established practice in the passenger carrier industry with tangible results. In this instance, the rulemaking eliminates many protections the PUC formerly found to be in the public interest. Removal of some of these protections has raised concerns expressed in comments by the House Consumer Affairs Committee, Legislators and current certificate holders.
Among the issues raised in public comments are questions of whether the regulation meets the statutory provision at 66 Pa.C.S. § 1103(a) which requires a PUC finding that ''granting such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. . . .'' This regulation is intended to reduce barriers to entry and introduce limited competition. However, the commentators explain that in rural areas they provide transportation services to persons who either do not drive or cannot afford a car, such as elderly and disabled persons. Passenger carrier services are needed to provide these people with transportation to medical appointments, shopping and recreational activities. Additionally, commentators state and provide documented support that in every jurisdiction where taxi deregulation has occurred, the consumer has suffered with poor service, decrepit fleets of taxis and higher prices. How has the PUC determined that the amendments to introduce competition will provide this portion of the rural population with the transportation services they need in the long term?
The PUC does not convincingly substantiate its statement in the Preamble that ''Upon consideration of the acknowledged benefits of increased competition among passenger motor carriers and advances in technology. . . .'' Based on the information provided in the proposed regulation, we believe further information and explanation is needed to establish that competition will adequately address and resolve these concerns. In regard to our criteria to determine whether a regulation is in the public interest, we ask the PUC to better establish that this regulation and the accompanying information fully explore and address whether the regulation represents a policy decision of such a substantial nature that it requires legislative review; the economic impact of the regulation; protection of the public health, safety and welfare; need for the regulation; implementation procedures; whether the regulation is supported by acceptable data and whether a less costly or less intrusive alternative of achieving the goal of the regulation has been considered because this regulation will impact small businesses.
2. Legislative Comment—Policy decision of such a substantial nature that it requires legislative review; Need; Economic impact; Reasonableness; Protection of the public; Implementation procedures.
House Consumer Affairs Committee
Representative Godshall, Chairman of the House Consumer Affairs Committee and Representative Daley, Minority Chairman, submitted a joint comment asking the PUC to withdraw the proposed regulation. They believe the proposed regulation is premature because Senate Bill 984 (SB984) is pending in the legislature which will modernize Pennsylvania's transportation industry, and there will have to be integration of SB984 and the PUC's regulations. We ask the PUC to establish how the regulation is in the public interest in relation to our consideration of whether the regulation represents a policy decision that requires legislative review and how the regulation will be implemented should SB984 become law.
Comments by Representative Hanna, Democratic Whip, Representative Harper and Representative Murt
Representative Hanna commented on behalf of Lock Haven Emergency Medical Services and volunteer ambulance services throughout Pennsylvania. Representative Hanna asks that the PUC review any possible negative effects of ambulatory transportation in rural communities before updating any transportation regulations. He states that local volunteer ambulance companies need to have access to non-emergency revenue in order to remain operational.
Representative Harper commented on behalf of Transnet which is concerned the proposed regulation will harm their ability to provide transportation for seniors and disabled people. She asks the PUC to consider the effect of the proposed regulation on Transnet and the population it serves.
Representative Murt opposes the proposed regulation because it is basically deregulation and will undermine established businesses. He states the proposed changes would destabilize and damage our paratransit industry.
We will review the PUC's responses to these legislative comments as part of our consideration of whether the final regulation is in the public interest.
3. Public Comment—Consistency with statute; Need; Economic impact; Impact on small business; Acceptable data; Reasonableness; Protection of the public; Implementation procedures.
There were 13 separate public comments submitted during the public comment period that closed on March 28, 2016. The issues raised in the public comments include:
• There is a need to regulate the number of passenger carriers and territories, and existing entry standards are not burdensome;
• Competition in the taxi industry has been tried elsewhere and it does not work and the PUC has no empirical data or evidence to the contrary which supports its move to deregulate;
• Competition will have a negative effect on small businesses that will far outweigh any benefit to the public;
• There is already substantial competition in the industry, and the industry is saturated with carriers;
• Competition can be a disincentive to operational investment;
• How will geographical limits and special conditions currently specified in certificates and tariffs be changed?;
• Requiring tariff approval while opening entry to the marketplace creates a situation that is not conducive to free market pricing;
• Substantial investment in operations and equipment will be placed in jeopardy if the proposed amendments are implemented;
• There will be more protests based on ''fitness'' and ''propensity for safe operations'' contrary to the PUC's projected cost savings of $4.5 million;
• Eliminating territorial restrictions would actually erect new barriers to entry for qualified applicants because any provider within the state would have standing to challenge applications; and
• Emergency medical services will be harmed if they lose the revenues they generate by also providing passenger carrier services.
Again, this rulemaking eliminates many long standing protections the PUC formerly found to be in the public interest and relies upon competition to provide services. The public commentators challenge many of the basic principles the PUC uses as the basis for amending the regulation. In regard to the arguments presented by public commentators who oppose the amendments, the PUC should further explain how the amendments will result in better services and how the merits of the amended regulation outweigh the many concerns presented in the public comments. We also ask the PUC to explain how it will monitor the success or failure of an amended regulation and what actions it may take in the event the amendments do not provide the results that were intended.
4. Elimination of territorial Rights—Economic impact; Reasonableness; Implementation procedure.
This rulemaking eliminates PUC-regulated passenger carrier's territorial restrictions that accompany a carrier's certificate of public convenience and the Preamble states that by eliminating the current territorial restrictions ''passenger carriers will be deemed to have statewide authority.'' There are two agencies that regulate passenger carriers in Pennsylvania. The Philadelphia Parking Authority (PPA) regulates passenger carriers within the City of Philadelphia, and the PUC regulates the remainder of Pennsylvania's passenger carriers. We note that the PUC stated in the response to Regulatory Analysis Form (RAF) Question 13 that this regulation will not affect regulations of other state agencies. This raises questions as to what the PUC means by ''statewide authority.'' If PUC-regulated passenger carriers are granted ''statewide authority,'' does that affect territories within PPA's jurisdiction? Can a PUC-regulated passenger carrier perform call and demand services within the City of Philadelphia? We ask the PUC to further explain what is meant by ''statewide authority'' for the passenger carriers it regulates and what effect it has on PPA-regulated passenger services.
5. Required supporting documentation—Compliance with the Regulatory Review Act; Economic impact; Acceptable data; Implementation procedure; Reasonableness.
The comments of Yellow Taxi of Pittsburgh challenge information the PUC provided in the responses to RAF Questions 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 23(a), 24, 25, 26, 27, 28 and 29, as well as the proposed rulemaking order. The PUC should review these comments, as well as its other RAF responses, and revise the RAF responses and its order as appropriate to provide the best information possible in each circumstance.
6. Deletion of Sections 3.383, 3.384 and 3.385—Consistency with statute.
The PUC is deleting Section 3.383, 3.384 and 3.385 that deal with Temporary Authority and Emergency Temporary Authority. Subsection 3.383(a) explains and quotes the controlling legislation of 66 Pa.C.S. §§ 1103(d) and 2509 which state in regard to ''Temporary authority'' that the PUC ''under such regulations as it shall prescribe may . . . consider and approve certificates of public convenience. . . .'' Given the wording of the statute, the PUC should explain its authority to delete these regulatory provisions and how reliance on 52 Pa. Code §§ 3.1—3.12 will adequately meet the statute.
7. Miscellaneous Clarity.
The term ''small passenger carrier'' is replaced in Section 23.68 with the term ''passenger carrier.'' Should Section 23.69 Stay-out provision also be amended or deleted? Additionally, should the definition of ''small passenger carrier'' in Section 23.1 be amended or deleted?
Environmental Quality Board Regulation # 7-522 (IRRC # 3138) Handling and Use of Explosives April 27, 2016 We submit for your consideration the following comments on the proposed rulemaking published in the February 27, 2016 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P.S. § 745.5b). Section 5.1(a) of the RRA (71 P.S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.
1. Determining whether the regulation is in the public interest.
Commentators state that several of the proposed requirements conflict with, duplicate or are more stringent than federal requirements. We ask EQB to ensure that the final-form regulation does not conflict with or duplicate other state or federal requirements. If the final-form regulation is more stringent than federal requirements in any areas, EQB should explain in the Preamble and final-form Regulatory Analysis Form (RAF) the compelling Pennsylvania interest that demands stronger regulations.
2. Economic or fiscal impacts; Reasonableness of requirements, implementation procedures and timetables for compliance; Compliance with the RRA.
We have concerns related to several aspects of the proposed regulation addressing fees.
EQB proposes several new or increased fees related to blaster's licenses, blasting activities and explosive storage magazines. Commentators state that the increases, some of which are between 300 and 500 percent, seem excessive and would be a hardship for the regulated community. RAF # 18 asks EQB to explain how the benefits of the regulation outweigh any costs or adverse effects. Related to new or increased permit fees, EQB states that ''the increased costs to the regulated community reflected by the proposed fee schedule are necessary to support the explosives program without reliance on general fund monies.'' We ask EQB to explain in the final-form Preamble and RAF the reasonableness of imposing significant fee increases on the regulated community, and how any adverse effects of the fee increases are outweighed by the benefits of the regulation.
RAF # 19 requires a specific estimate of the costs and/or savings to the regulated community associated with compliance, and an explanation of how the dollar estimates were derived. EQB responds that:
• The new blasting activity permit fees are expected to cost the permittees, collectively, about $65,000 per year. This is based on about 500 applications per year at a cost of $130 per application.
• Increased magazine licensing fees are expected to cost the regulated community about $175,000 per year.
• Increased blaster license fees will cost each individual blaster an additional $50 per year.
How did EQB derive the $175,000 in revenue generated by magazine licensing fees?
The Fee Report Form attached to the RAF shows a proposed fee schedule which includes the three fees mentioned above. However, there are seven additional fees on the schedule which are not mentioned in response to RAF # 19. In the final-form Preamble and RAF, we ask EQB to provide specific estimates of all of the costs associated with compliance and an explanation of how the dollar estimates were derived.
Additionally, the Fee Report Form states the recommended fees are estimated to generate about $300,000 annually, which will support the program. EQB should ensure that final-form RAF # 19 shows the fees totaling the revenue necessary to support the program.
3. Section 210.13. General.—Economic or fiscal impacts; Reasonableness of requirements, implementation procedures and timetables for compliance.
Subsection (b) states that a blaster's license will only be issued or renewed after it is verified that the applicant has undergone a background check by the United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as either a responsible person or an employee possessor. A commentator notes that this requirement is a hardship, if not an improbable step, for certain individuals who want to maintain their licenses but are not directly involved with handling or distributing explosives. The commentator suggests an exemption for individuals such as retired, unemployed or laid off blasters, as well as consultants and engineers where a license is critical to offer services such as independent blast design evaluations and expert witness testimony. Regarding this segment of the regulated community, how will EQB implement this requirement? Are there alternative methods for obtaining an ATF background check for those who are not employed by a company with an explosives permit? We ask EQB to address the reasonableness of this requirement, including its economic impact on this segment of the regulated community.
4. Section 211.101. Definitions.—Economic or fiscal impacts; Protection of the public health, safety and welfare; Clarity and lack of ambiguity; Need for the regulation; Reasonableness of requirements, implementation procedures and timetables for compliance.
Commentators request that EQB consider using ATF definitions because many companies have multi-state operations and deal with multiple government agencies. Commentators believe that standardizing definitions as much as possible would eliminate some confusion and improve safety. We ask EQB to explain the need for and reasonableness of defining terms that are already defined at the federal level. Additionally, EQB should ensure that final-form definitions do not conflict with federal definitions and are clear for the regulated community to implement.
Blast area
EQB proposes to revise the definition of blast area to include prevention of ''the potential for'' injury to persons and damage to property. Commentators are concerned that ''potential'' is vague and ambiguous, and they assert that requiring the area around the blast site ''to be cleared and secured'' sets a clear standard. One commentator asserts that the addition of ''the potential for'' makes the proposed definition more stringent than federal regulations. We ask EQB to delete the phrase ''the potential for'' from the final-form definition, or to explain why the proposed definition is reasonable and how it sets clear standards for compliance.
Nuisance
According to the Preamble, EQB is adding a definition for nuisance for use regarding enforcement actions by DEP. Commentators strongly object to the new term which they argue is ambiguous, highly subjective in nature, and likely to lead to inconsistent application in the field.
A nuisance is something that is annoying or inconvenient, but EQB defines it as a hazard, which is generally understood as an unavoidable danger. We have concerns that taking a commonly understood term and defining it in an unexpected way creates ambiguity.
EQB uses the term nuisance only once in the regulation in Section 211.151 (relating to prevention of damage or injury). Subsections 211.151(a) and (b) both are new proposed language.
Subsection (a) states, ''Blasting shall be conducted to prevent injury to persons or damage to private or public property. . . .'' (Emphasis added.)
Subsection (b) states, ''Blasting shall be conducted in a manner that does not cause a nuisance.'' (Emphasis added.)
If blasting is conducted to prevent injury to persons as required in Subsection (a), then by default the blasting would not cause a nuisance (an unavoidable danger) as defined by EQB. We ask EQB to delete the term nuisance and Subsection 211.151(b), or to explain why the final-form definition is necessary and how it sets clear standards for the regulated community.
Person
EQB is adding municipalities to be included under the definition of person. A commentator expresses concern that municipal bomb squads, who detonate explosives to ensure public safety, should not be regulated in the same manner as construction and mining operations. We ask EQB to explain in the RAF and Preamble of the final-form regulation the reasonableness of regulating public safety entities in the same category as industry.
Unauthorized handling and use of explosives
A commentator expresses concern that EQB's definition eliminates the 30-day grace period for vetting and obtaining clearances for new workers. If the definition used in the final-form regulation continues to eliminate the grace period, we ask EQB to address the reasonableness of the definition, as well as any economic impact it would have on the regulated community.
5. Section 211.103. Enforcement.—Protection of the public health, safety and welfare; Clarity and lack of ambiguity; Reasonableness of requirements, implementation procedures and timetables for compliance.
Subsection (d) states that the Department ''will not'' issue a permit or license to any person who has done any of the items listed in Paragraphs (1) through (4). Is it EQB's intention to never issue a permit or license to any person under these circumstances? Can a person correct a non-compliance requirement and at some point be issued a permit or license? We ask EQB to ensure that the final-form regulation makes clear how the regulation will be implemented.
6. Section 211.124. Blasting activity permits.—Economic or fiscal impacts; Protection of the public health, safety and welfare; Clarity and lack of ambiguity; Reasonableness of requirements, implementation procedures and timetables for compliance.
Paragraph (a)(2)
Elsewhere in the regulation, a printed signature is required. Will EQB accept an electronic signature under Paragraph (a)(2), or should this be clarified to require a printed signature?
Paragraphs (a)(10) and (17)
Commentators ask for additional clarity in Paragraphs (a)(10) and (17) if there is more than one blast.
Paragraph (a)(20)
What is the need for extending the distance in Paragraph (a)(20)? Commentators state that this change will cause unnecessary or excessive burden and costs. We ask EQB to explain the reasonableness of the change in distance and how the benefits outweigh the cost to industry.
Paragraph (e)
If an electronic version of the permit is acceptable in Paragraph (e), we ask EQB to clarify the language in the final-form regulation.
7. Section 211.151. Prevention of damage or injury.—Clarity and lack of ambiguity.
Subsection (d) addresses how blasts shall be designed and conducted. EQB proposes to modify the phrase ''maximum allowable peak particle velocity'' to ''allowable particle velocity,'' but then uses the phrase ''maximum allowable peak particle velocity'' in the last sentence. EQB uses this same phrase in Subsection (g). EQB should review this section to ensure the language is consistent and clear for the regulated community to comply.
8. Section 211.152. Control of noxious gases, including carbon monoxide and oxides of nitrogen.—Clarity and lack of ambiguity; Need for the regulation.
The title of this section addresses control of noxious gases, but EQB is inserting the term ''toxic'' in Subsections (a) and (b) to describe the gases. We ask EQB either to use one of these terms in the final-form regulation, or to explain the need for using both terms.
9. Section 211.155. Preblast measures.—Clarity and lack of ambiguity; Reasonableness of requirements, implementation procedures and timetables for compliance.
Item (7) addresses circumstances where there are no specific access points. In these cases, ''a minimum of four signs shall be posted on all sides of the blast site. . . .'' It is unclear how EQB intends for this provision to be implemented. For example, does EQB require one sign or four signs on each side? What is considered a ''side''? We ask EQB to clarify this provision. Additionally, we ask EQB to explain in the Preamble of the final-form regulation how it determined that 100 feet from the blast site is the appropriate placement of warning signs.
10. Subchapter J. Civil penalties.—Statutory authority; Conforms to the intention of the General Assembly; Determining whether the regulation is in the public interest; Economic or fiscal impacts; Need for the regulation; Reasonableness of requirements, implementation procedures and timetables for compliance.
What is EQB's specific statutory authority for this new subchapter imposing civil penalties? Based on the response provided by EQB in RAF # 8, it is not evident that the legislature intended for EQB to have the authority to impose civil penalties under Chapter 211 (related to the storage, handling and use of explosives).
Under Subchapter J. Civil penalties in the Preamble, EQB states that this subchapter provides an alternative to filing summary citations with local magistrates. Provided EQB demonstrates its statutory authority, EQB should explain the need for establishing civil penalties, including why the current system of enforcement is insufficient. Further, EQB should explain the basis for the amount of each penalty established within the subchapter, including setting $10,000 as the maximum penalty per day for each violation. EQB should address the economic impact and reasonableness of each penalty.
Department of Transportation Regulation # 18-467 (IRRC # 3139) Hauling in Excess of Posted Weight Limit April 27, 2016 We submit for your consideration the following comments on the proposed rulemaking published in the February 27, 2016 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.
1. Determining if the regulation is in the public interest.
The Preamble included with this proposal does not provide enough information to allow for a proper evaluation of the rulemaking. In addition, many of the provisions use the word ''may'' and include language that is more appropriate for a guidance document or statement of policy. As written, it is unclear if these provisions are optional or required. This approach is not appropriate for a regulation because regulations have the full force and effect of law and establish binding norms.
The lack of information in the Preamble, coupled with the non-regulatory language in the rulemaking itself, prevent this Commission from determining if the rulemaking is in the public interest. In the preamble to the final-form regulation, we ask the Department to include a more detailed explanation of the intent and need for each definition and for all new language included in the rulemaking. As the Department develops the final-form of this rulemaking, we suggest that it consult with the Legislative Reference Bureau to ensure that language is written and formatted in a manner appropriate for a regulation.
2. Section 189.2. Definitions.—Implementation procedures; Clarity.
At-risk industry sector
The first part of this definition is based on statutory language found at 75 Pa.C.S.A. § 4902(a)(4) and reads as follows, ''Industry sectors defined by the Department of Labor and Industry as having experienced a 20% or more decline in Statewide employment between March 2001 and March 2011. . . .'' The remainder of this definition continues to state, ''. . . and additional industry sectors that the Department determines, in consultation with the Department of Labor and industry, to show evidence of economic decline.'' We have three concerns with the second part of this definition. First, what is the Department's specific statutory authority for this provision? The statute allows the Department of Labor and Industry to identify industry sectors that experienced a decline between March 2001 and March 2011, but does not contemplate any additional determinations to be made by the Department. Absent specific authority granted to it by the General Assembly, we recommend that this provision be deleted from the final-form regulation.
If the Department can demonstrate that it has the statutory authority for this provision, we question how it will be implemented. What criteria will be used to make that determination? We recommend that the final-form regulation specify the type of evidence that will be evaluated in making that determination. The criteria should be included in the body of the regulation, not the definition.
Third, we recommend that the final-form regulation specifically identify where a person can find out if an industry sector qualifies as an ''at-risk industry sector'' under this rulemaking.
Commercial site
This term is defined as, ''A place including the rooms, buildings and interior or exterior places where commodities or services are exchanged, bought or sold.'' Would structures that fall under this definition have to be permanent in nature? This should be clarified in the final-form regulation.
Develop
This term is defined as, ''The processes associated with conventional and unconventional oil and gas development.'' This section of the rulemaking provides a definition for ''unconventional oil and gas development'' that explains what processes are associated with that industry. However, there is not a corresponding definition for ''conventional oil and gas development.'' To improve the clarity of this definition and the regulation, we recommend that the term ''conventional oil and gas development'' be defined.
Excess maintenance
The phrase ''caused by use of over-posted weight vehicles'' is being deleted from this existing definition. Commentators have suggested that instead of deleting the phrase, it should be replaced with the phrase ''caused by user vehicles.'' We believe the suggestion offered would improve the clarity of the regulation and make it consistent with the statutory changes on which this rulemaking is based. We ask the Department to amend the final-form regulation as suggested.
Extract
The proposed definition for this term is: ''The processes associated with gathering or removal of minerals, wind and other natural resources from the air, surface or subsurface, including, but not limited to, coal, stone, water and related site preparation, construction and onsite stockpiling.'' We have three concerns. First, how can wind be gathered or removed? Second, the proposed definition of ''natural resources'' includes wind and minerals. Therefore, there is no need to include wind and minerals in this definition. Third, the overall meaning of this definition is unclear. We recommend that it be amended to improve its clarity.
Freeze-thaw period
This term is defined as: ''The calendar period between February 15th and April 15th during which time thawing of previously frozen roadbed materials compromises the structural integrity of the pavement system. The posting authority may alter or modify this time period based on recent and anticipated weather conditions for a permit or agreement.'' We have two concerns. First, the second sentence is substantive and is not appropriate for the definitions section of a regulation. If this provision is retained in the final-form rulemaking, we recommend that it be moved to the body of the regulation. Second, how will the regulated community know if a freeze-thaw period has been changed by a posting authority? We recommend that notice provisions be included in the final-form rulemaking.
Industry sector
This term is defined as, ''Sectors included in the North American Industry Classification System.'' Commentators believe that these sectors can be broad and not specific enough for proper implementation of this rulemaking. When making determinations pertaining to ''at-risk industry sectors'', will the Department and Department of Labor and Industry use the subsector stratification that is also part of the North American Industry Classification System? If so, this definition should be amended to reflect that fact.
Letter of local determination
This definition states, ''A determination made by the Department identifying particular vehicles, routes or uses as local in nature.'' We have two concerns. First, we note that 75 Pa.C.S.A. § 4902(a)(3) allows the Department to issue a statement of policy ''adopting an appropriate methodology to provide letters of local determination that identify particular vehicles, routes or uses as local in nature.'' The Department is also charged with promulgating regulations to implement the statutory provisions of 75 Pa.C.S.A. § 4902. See 75 Pa.C.S.A. § 4902(c)(3). What methodology has the Department developed to provide letters of local determination? Since local governments can also issue letters of local determination, we believe it is important to establish a defined methodology that all posting authorities can use to make these determinations. This will create consistency throughout the Commonwealth. We ask the Department to include the methodology in the body of the final-form regulation.
Second, commentators have suggested the term ''Department'' be changed to ''posting authority.'' We agree that this change would improve the clarity of the regulation. We note that the term ''Department'' is also used in § 189.4(b)(1)(ii), (iv), and (vi). We ask the Department to review these provisions to ensure that the term ''Department'' is appropriate compared to using the term ''posting authority.''
Permanent coal reprocessing or preparation plant
Paragraph (ii) states the following, ''The term does not include ancillary facilities located separately from the initial processing facility site or at the coal extraction site.'' A commentator has noted that certain constraints prohibit ancillary facilities from being located adjacent to a plant. In the Preamble to the final-form rulemaking, we ask the Department to explain the rationale for the language included in Paragraph (ii).
Permanent forest product processing mill
We have three concerns with this definition. First, under Paragraph (ii), what is meant by ''log stockpile facility''? A commentator questions if this means any facility where forest products can be stockpiled or does it mean a permanent facility. We ask the Department to clarify this provision.
Second under Paragraph (iii), portable saw mills are not to be included in this definition ''unless the portable sawmill has become permanently affixed to the real estate.'' Once the portable sawmill becomes permanently affixed to real estate, it is no longer portable. Therefore, we recommend that this provision be deleted from the final-form rulemaking.
Third, as noted above, the definition of ''permanent coal reprocessing or preparation plant'' includes a paragraph addressing ancillary facilities located separately from the initial processing facility.'' When drafting this proposed rulemaking, did the Department consider adding a similar provision for this definition? In the Preamble to the final-form regulation, we ask the Department to explain the rationale for including ancillary facilities in the preceding definition, but not this definition.
Reachable only through posted highways
Commentators have expressed concern with the clarity of this definition and how this definition and the definition of ''local traffic'' will be implemented. As an example, one commentator believes this definition may be interpreted in two ways. The first is to absolutely prohibit the use of posted highways as part of the ''most direct route.'' The second is to allow the use of posted highways as part of the ''most direct route'' if an alternative nonposted highway is either not available or not reasonable to use. We ask the Department to revise the definition to provide greater clarity and consistency with definition of ''local traffic.''
Unconventional oil and gas development
A commentator has suggested that the following language be added to this definition to improve clarity, ''These activities do not include routine maintenance or operational activities of constructed assets.'' Would these activities fall under this definition? This should be explained in the Preamble, and if appropriate, the suggested language should be added to the final-form regulation.
3. Section 189.3. Local traffic.—Reasonableness; Implementation procedures; Clarity.
Subsection (c) Self-certification; proof of local traffic status.
Subsection (c) pertains to self-certification and proof of local traffic status. It specifies the types of documents the operator of a user vehicle can use to prove that it is allowed to be traveling on a particular highway. A commentator notes that the types of documents are all hard-copy paper documents. Since a user vehicle's destination can change during the course of a route, they suggest that electronic documents also be allowed as evidence. Under this provision, would electronic copies of documents be considered acceptable proof?
4. Section 189.4. Use under permit.—Whether the regulation is consistent with legislative intent; Reasonableness; Implementation procedures; Clarity.
Subsection (a) General rule.
We raise two concerns with this subsection. First, commentators believe it is unreasonable for users to carry an original or copy of the issued permit in the vehicle at all times. They note that it is impractical for bonded users that engage the services of multiple contractors. Under the rulemaking, can a bonded user allow its contractors to operate under its permit? If so, we agree with the commentators' concern and ask the Department to revise the final-form rulemaking to accommodate a bonded user that may use multiple contractors.
Second, the last sentence of Subsection (a) states the following: ''The Department may determine through policy to allow use of electronic permits and self-certification documents to be utilized as acceptable proof of authorized hauling.'' This is non-regulatory language and should be deleted from the rulemaking. We believe the use of electronic permits and self-certification documents is appropriate and should be included in regulation and not implemented through non-regulatory documents.
Subsection (b) Permit categories.
We have 11 concerns with this Subsection. First, Paragraph (b)(1) includes the phrase ''local determination highway.'' A commentator has noted that highways are not local determinations, rather, users of highways are designated as such. This phrase is also used in Paragraph (b)(vi). To improve the clarity of these provisions, we ask the Department to revise this terminology.
Second, can user vehicles qualify for more than one type of permit under Paragraph (b)(1)? This should be explained in the Preamble to the final-form rulemaking.
Third, a commentator believes that the inclusion of the phrase ''in accordance with § 189.3'' in Paragraph (b)(1)(i) is confusing and could lead to misinterpretation by some local authorities. In the Preamble to the final rulemaking, we ask the Department to explain how this provision will be implemented.
Fourth, 75 Pa.C.S.A. § 4902(a)(4) provides an exemption for at-risk industry sectors that haul on posted highways. This exemption is included under Paragraph (b)(1)(ii) of the proposed rulemaking. Per 75 Pa.C.S.A. § 4902(a)(5), the exemption expires on December 31, 2018. Neither the Preamble nor Annex of this proposal reference the expiration of the exemption. To improve the manner in which this regulation is implemented, we suggest that statutory expiration of the exemption for at-risk industry sectors that haul on posted highways be included in the Preamble and Annex.
Fifth, under Paragraph (b)(1)(ii), should ''at risk'' permits require clarification similar to ''minimum use'' permits found in Paragraph (b)(1)(iv) regarding use during the freeze-thaw period? We ask the Department to explain why minimum use permits are restricted during the freeze-thaw period, but at-risk permits are not.
Sixth, under (b)(1)(ii), a commentator has stated that the phrase ''and is hauling on a posted highway currently bonded by an unconventional oil and gas development company'' is not consistent with 75 Pa.CSA § 4902(a)(4) and should be deleted. Why is the quoted phrase included in this regulatory provision? This should be explained by the Department in the Preamble to the final-form regulation.
Seventh, Paragraph (b)(1)(iii) states that hauling activity, as defined by Chapter 190, a statement of policy that is currently being revised by the Department, may be authorized as a local determination permit category. We recommend that the definition of hauling activity be included in this rulemaking and the reference to Chapter 190 be deleted.
Eighth, a commentator has asked how would one qualify for a minimum use permit under Paragraph (b)(1)(iv). We recommend that the final-form regulation provide more detail on how a user can qualify for this type of permit.
Ninth, a commentator has asked why the nonbonded local determination categories in subparagraphs (b)(1)(ii)—(iv) do not apply to local authorities and why those authorities would need to enact an ordinance to make those subparagraphs applicable. We ask the Department to explain the rationale for this provision in the Preamble to the final-form regulation.
Tenth, Paragraph (b)(1)(vi) pertains to the use of local determination permits. It prohibits the use of a permit by anyone other than the owner or operator of the permit. A commentator notes that this prohibition is impractical because many industries use contractors to perform various tasks. What is the basis for this provision and how will the Department implement it? Will contractors be allowed to operate under the permit of a user? This should be explained in the Preamble to the final-form regulation.
Lastly, Paragraph (b)(2) establishes annual and seasonal bonded permits. Commentators have questioned the need for two separate permits and suggest that both be replaced with one bonded permit. In the Preamble to the final-form regulation, we ask the Department to explain the difference between the two types of permits and why both are needed.
Subsection (d) Security
The duration security must be kept is addressed under Paragraph (d)(1)(ii). We have two concerns with this paragraph. First, in addition to bonds, users may purchase or make available ''any bond or other acceptable security for any appropriate duration for use during annual bonded or seasonal bonded permit periods.'' This standard is vague and does not establish a binding norm. We recommend that it be deleted or amended to provide more direction to the regulated community as to what is acceptable. Second, the last sentence of this paragraph states, ''The security will remain in effect until it is released by the posting authority.'' A commentator has stated that there should be criteria related to the release of the security or the result would be that the authority could hold the security indefinitely. We agree and recommend that the final-form regulation be amended to include a mechanism for the release of the security.
Subsection (e) Multiple users
Paragraph (e)(2) is being amended to state that a posting authority ''may'' make certain determinations if multiple bonded users cannot agree on their relative responsibilities. Commentators believe the existing regulatory language, which states that posting authorities ''will'' make those determinations, should be retained. We agree that the original language, that requires a posting authority to act, is more appropriate for a regulation and suggest that it be retained in the final-form regulaton.
Subsection (f) Determination of highway condition
This subsection establishes how inspections and reinspections will be conducted. We have two concerns. First, commentators have suggested that the subsection be amended to incorporate or reference Department publications that provide more specificity on how inspections are to be performed. To assist with the implementation and clarity of the provisions of this subsection, we ask the Department to include more detail, consistent with its existing practice and procedure, in the final-form regulation.
Subsection (f)(3) allows posting authorities to conduct roadway condition surveys and Subsection (f)(5) requires costs associated with the surveys to be paid for by the users. A commentator notes that since users must pay for the surveys, users should be notified of the surveys and be allowed to participate in those surveys. We find this suggestion to be reasonable and ask the Department to amend the final-form regulation to allow for notification and participation by the users.
5. Section 189.5. Investigations and audits.—Whether the regulation is consistent with legislative intent; Reasonableness; Implementation procedures; Clarity.
This new section implements statutory language found at 75 Pa.C.S.A. § 4902(i), relating to authority to conduct investigations and audits. Commentators note that the terms ''investigations'' and ''audits'' are not defined. They also note that this section allows for investigations for any permit category, yet the statute and this rulemaking limit audits to local determination permit categories. Will permit holders be notified of an investigation in writing? In the Preamble to the final-form rulemaking, we ask the Department to explain how it will implement this section, as it pertains to investigations.
6. Section 189.6. Suspending, revoking or denying agreements or permits.—Reasonableness; Need; Implementation procedures.
This section allows a posting authority that determines that a user has violated a legal or contractual obligation to suspend, revoke and/or deny current and future agreements and permits ''under its jurisdiction.'' We are concerned that the inclusion of the phrase ''under its jurisdiction'' would prevent other posting authorities, such as the Department or other local governments from suspending, revoking and/or denying agreements when they have knowledge that a user violated a legal or contractual obligation under the jurisdiction of another posting authority. What is the rationale for including ''under its jurisdiction'' in this section of the regulation? Would a posting authority reviewing an application for a new agreement or permit be precluded from considering a violation of a user that occurred under the jurisdiction of a different posting authority? We ask the Department to explain how this provision is to be implemented.
7. Section 189.7. Use of special hauling permits for certain vehicles.—Implementation procedures; Clarity.
This section reads as follows: ''Users using permits under Chapter 179 (relating to oversize and overweight loads and vehicles) may be exempt from obtaining a permit under this chapter if adequate security is otherwise provided.'' We have three concerns. First what is meant by ''adequate security''? Second, what process what would a user follow to request an exemption? Third, what criteria will be used to determine if an exemption will be granted? We suggest that the final-form regulation be amended to provide greater clarity on how this provision will be implemented.
GEORGE D. BEDWICK,
Chairperson[Pa.B. Doc. No. 16-802. Filed for public inspection May 6, 2016, 9:00 a.m.]
