1262 Notice of comments issued?

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[40 Pa.B. 3921]
[Saturday, July 10, 2010]

 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. § 645.5b).

 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
16A-6916	State Board of Social Workers, Marriage and Family Therapists and Professional Counselors  Licensed by Endorsement; Hours of Supervised Clinical  Experience 40 Pa.B. 2131 (April 24, 2010)	5/24/10	6/23/10
16A-4316	State Board of Chiropractic Assistance of Unlicensed Supportive Personnel 40 Pa.B. 2128 (April 24, 2010)	5/24/10	6/23/10
14-518	Department of Public Welfare Revisions to the Special Allowance for Supportive Services  Requirements; Road to Economic Self-sufficiency through  Employment and Training (RESET) Program 40 Pa.B. 2111 (April 24 2010)	5/24/10	6/23/10
7-452	Environmental Quality Board Dam Safety and Waterway Management 40 Pa.B. 2211 (April 24, 2010)	5/24/10	6/23/10

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State Board of Social Workers, Marriage/Family Therapists and Professional Counselors
Regulation #16A-6916 (IRRC #2831)

Licensed by Endorsement; Hours of Supervised Clinical Experience

June 23, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the April 24, 2010 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Social Workers, Marriage/Family Therapists and Professional Counselors (Board) to respond to all comments received from us or any other source.

1. Section 47.12c. Licensed clinical social worker.—Consistency with statute; Need; Reasonableness; Economic Impact.

Consistency with statute

 Under 63 P. S. § 1908(b), the Board is required to issue licenses as follows:

Issuance of license.—The Board shall issue to each person who meets the licensure requirements of this act a certificate setting forth that such person is licensed to hold himself or herself out as a . . . licensed clinical social worker. . . . (Emphasis added.)

 Act 68 of 2008 (Act 68) amended 63 P. S. § 1907(d)(3) to state one of the qualifications for licensure as follows:

The applicant has completed at least three years or 3,000 hours of supervised clinical experience acceptable to the board as determined by regulation after the completion of the master's degree in social work. (Emphasis added.)

 Paragraph (a)(5) would delete the phrase ''3 years or,'' which is in the statute, and accept only the hourly clinical experience. We recommend that the Board retain this phrase, and provide in regulation what is considered to be three years of experience acceptable to the Board to qualify the candidate. If the Board does not retain this language, it should explain how Paragraph (a)(5) is consistent with the statute.

Paragraph (b)(9)

 The Board proposes to reduce the existing 1,800 hours to 1,500 hours of clinical experience. The Board states in the Preamble that this is a proportionate reduction related to the amendment to total hours by Act 68 from 3,600 hours to 3,000 hours. As amended, Paragraph (b)(9) would state:

The supervised clinical experience shall be completed in no less than 2 years and no more than 6 years, except that at least 500 hours and no more than 1,500 hours may be credited in any 12-month period.

 The National Association of Social Workers (NASW) commented with strong concern relating to the amended limitation of hours that can be counted for a 12-month period. NASW observes that a person working 40 hours per week for 50 weeks a year would work for 2,000 hours. NASW believes it would be more appropriate to leave the cap at 1,800 hours per year rather than reduce it to 1,500 hours per year. NASW also believes the reduction in hours creates a financial burden to social workers. NASW concludes that the 1,500-hour limitation is harmful to candidates and serves no logical purpose.

 We have two concerns. First, we request an explanation of the need to amend the limit on the number of hours that can be counted in a 12-month period. Using NASW's example, a person working 40 hours per week could only get credit for working 45 weeks of the year under existing regulation, and that credit would be reduced to 37.5 weeks under the proposed amendment. We did not find any similar limitation in the statute. Why is it reasonable and necessary for the Board to exclude as much as three months of experience in a 12-month period?

 Second, we question the efficacy of amending the number of hours in the 12-month limit. For a person working a 40-hour week without any limitation, it would take 75 weeks, or about 19 months to meet the 3,000 hours specified in Act 68. The proposed limitation to 1,500 hours in a 12-month period would only extend the time period to a little over 21 months. We request an explanation of the need to amend the number of hours in a 12-month period which only has a minimal practical effect.

2. Use of the terms ''state'' and ''jurisdiction.''—Clarity.

 The House Professional Licensure Committee (House Committee) questioned the lack of consistency in Sections 48.17(3) and (4) and 48.18(3) and (4) with reference to the terms ''state'' and ''jurisdiction.'' We note that Sections 47.16(4) and (5) also use these terms. The House Committee also questioned whether the word ''state'' includes a U. S. territory, possession or the District of Columbia. The Board should clarify this terminology in the final-form regulation.

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State Board of Chiropractic
Regulation #16A-4316 (IRRC #2832)

Assistance of Unlicensed Supportive Personnel

June 23, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the April 24, 2010 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Chiropractic (Board) to respond to all comments received from us or any other source.

Section 5.54. Assistance by unlicensed supportive personnel.—Statutory authority; Fiscal impact; Protection of Public health, safety and welfare; Need; Implementation procedures; Clarity.

Fiscal impact

 This proposed regulation permits unlicensed supportive personnel to perform certain activities supervised by a licensed chiropractor, as authorized by the PA Chiropractic Practice Act (Act). A commentator suggests that implementation of this rulemaking will cause a substantial fiscal burden on the regulated community, due to increased insurance premiums and increased paperwork from claims. The Regulatory Analysis Form that accompanied the proposed rulemaking does not include a detailed fiscal impact analysis of the regulation. We request that the Board include such an analysis with the submittal of the final-form regulation, taking into consideration the cost issues raised.

Subsection (a)

 Subsection (a) defines various terms. We raise three issues.

 First, Subsection (a) defines ''direct supervision.'' However, both the Act and Section 5.54 use the term ''direct on-premises supervision.'' (Emphasis added.) The final-form regulation also should include the phrase ''on-premises.''

 In addition, the final-form regulation should more clearly define ''direct on-premises supervision.'' For example, must the chiropractor be in the room with unlicensed personnel or just in the building?

 We note that Subsection (f) further explains the term ''on-premises'' by requiring the chiropractor to be ''physically present on the premises and able to intervene whenever necessary.'' We recommend that the Board incorporate language from Subsection (f) in the definition of ''direct on-premises supervision,'' and amend Subsection (f) to use the defined term.

 Second, Subsection (a) defines ''unlicensed supportive personnel'' as a ''person . . . regularly employed. . . .'' We agree with the House Professional Licensure Committee (HPLC) that the final-form regulation should replace the term ''person'' with ''individual.''

 Finally, what does the Board consider to be a person who is ''regularly employed''? The final-form regulation should define this term.

Subsection (b)

 Subsection (b) states that: ''[t]he chiropractor is professionally responsible for the actions of unlicensed supportive personnel. . . .'' (Emphasis added.) Both a public commentator and the HPLC suggest that the phrase ''professionally responsible'' does not explain what specific duties that phrase would impose on the chiropractor. We agree that this phrase is vague and should be defined.

Subsection (c)(1)

 The Act states that:

''[n]othing in this act shall prohibit a licensed chiropractor from utilizing the assistance of unlicensed supportive personnel . . . provided that a chiropractor may not delegate any activity or duty to such unlicensed individuals which requires formal education or training in the practice of chiropractic or the knowledge and skill of a licensed chiropractor.'' 63 P. S. § 625.601.

 Subsection (c)(1) lists activities or duties that a chiropractor may delegate to unlicensed supportive personnel ''performing under the chiropractor's direct on-premises supervision.'' Paragraph (c)(1)(vi) allows the delegation of ''Instructing and monitoring therapeutic exercises in the office.'' Paragraph (c)(1)(xxiv) allows the delegation of ''Performing therapeutic exercises and activities to include provision of direct one-on-one contact or constant attendance necessary to achieve the desired therapeutic results of the exercise.''

 Commentators have noted that the Act does not explicitly authorize chiropractors to perform therapeutic exercises. They further assert that specialized training and education is required to administer therapeutic exercises and there is no assurance that chiropractors have the necessary training and education to prescribe therapeutic exercises or to supervise the delegation of these exercises.

 It is unclear what is encompassed by the term ''therapeutic exercises'' because the term is not defined in the regulation. What do these exercises entail? Are chiropractors formally educated and trained in the performance of these exercises, and if so, do they constitute the practice of chiropractic?

 Commentators also have questioned whether other activities listed in this subsection fall under the scope of practice of a chiropractor, such as assisting in applying a cast, brace appliance or orthotic; performing range of motion testing and muscle testing; and performing extremity measurements and postural screening. We note that under the Act, chiropractors are not permitted to delegate activities or duties that require ''formal education or training in the practice of chiropractic. . . .''

 Consequently, we request the Board further explain its statutory authority for permitting delegation of all the activities, duties and procedures listed in Subsection (c)(1). Additionally, if the Board retains the provisions related to therapeutic exercises, it needs to define ''therapeutic exercises'' and explain the qualifications of the chiropractor to delegate and supervise these exercises.

Subsection (c)(2)

 Subsection (c)(2) permits a licensed chiropractor to delegate various adjunctive procedures, activities and duties to unlicensed supportive personnel. The Act defines adjunctive procedures as ''physical measures such as mechanical stimulation, heat, cold, light, air, water, electricity, sound, massage and mobilization.'' § 625.102. Commentators suggest that Subsection (c)(2) exceeds the Board's statutory authority since the Act requires chiropractic training and education to perform adjunctive procedures, and any procedures requiring chiropractic training and education cannot be delegated. Consistent with our comment on Subsection (c)(1), the Board needs to explain its statutory authority for permitting chiropractors to delegate each activity, duty and procedure listed in Subsection (c)(2) to unlicensed supportive personnel.

 Subsection (c)(2)(vi) refers to ''therapeutic'' laser therapy and Subsection (c)(2)(vii) refers to ''other therapeutic modalities classifiable as adjunctive procedures.'' The definition of ''adjunctive procedures'' in the Act does not reference therapeutic activities or modalities. The Board should specify its statutory authority for including provisions relating ''therapeutic'' activities or modalities in the regulation. If the Board retains these provisions, it should define ''therapeutic modalities.''

Subsection (e)

 This subsection references activities or duties identified in Subsections (b) and (c). Since Subsection (b) lists neither activities nor duties, we assume that the Board intended to include those referenced in Subsections (c) and (d). The final-form regulation should correct this error.

 A commentator also notes confusion with the purpose of Subsection (e). The Preamble states that this subsection allows any activity or duty not listed in the regulation to be evaluated in accordance with the Act, however the language contained in Subsection (e) does not reflect this. Therefore, what specific types of activities or duties would be covered by Subsection (e) that would not be covered by Subsections (c) and (d)? Also, the last sentence of Subsection (e) appears to be duplicative of the prohibitions contained in Subsection (d). The Board should clarify the need for including these provisions.

Subsection (g)

 This subsection states that: ''[a] chiropractor may not permit an unlicensed supportive person to perform any activity that the supportive person is not qualified by training, education or experience to perform.'' How will the Board ensure that unlicensed supportive personnel are adequately trained to carry out their duties? Additionally, the Board should clarify what ''qualified training'' is.

Subsection (h)

 The HPLC suggests that this subsection is redundant. We agree and recommend that the Board either explain the need or delete it from the final-form regulation.

Miscellaneous clarity

 Subsections (c)(2)(iii), (iv), and (vii) include the phrase ''provision of the supervision.'' To improve clarity, we recommend the Board delete the phrase ''provision of.''

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Department of Public Welfare
Regulation #14-518 (IRRC #2833)

Revisions to the Special Allowance for Supportive Services Requirements; Road to Economic Self-sufficiency through Employment and Training (RESET) Program

June 23, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the April 24, 2010 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 Public Welfare (Department) to respond to all comments received from us or any other source.

1. General—Appendix A. Work and Work-Related Special Allowances.—Fiscal and economic impact; Feasibility; Implementation procedures; Reasonableness; Need.

 In the Preamble, the Department describes the ''purpose'' of this proposed regulation as follows:

''This proposed rulemaking accomplishes the objective of maintaining the availability of special allowances in a fiscally responsible and cost effective manner given the current economic and budget crisis. This proposed rulemaking amends both the maximum amount and the frequency for special allowances to maximize scarce resources so that funds for special allowances are available to the greatest number of participants. Under section 408(c) of the Public Welfare Code [Code] regarding meeting special needs; and work supports and incentives, the Department is required to 'take into account availability, costs and the number of recipients needing services within the geographic area and shall seek to provide essential services to the greatest number of recipients. . . .' ''

 A major part of the Department's plan for attaining its objectives is the annual and lifetime limits for special allowances in the proposed amendments to Appendix A of Chapter 165. The Department is establishing annual and life-time limits on special allowances for work and education supportive services. These allowances include transportation, clothing, and books, supplies, tools or equipment for education or training programs. There are three areas of issues and questions.

 First, further explanation is needed of how the Department took ''into account availability, costs and the number of recipients needing services within the geographic area'' in determining the new limits for special allowances. The Department also needs to provide more detail as to how it examined the availability, costs or number of recipients needing services in developing the amendments to Appendix A.

 Second, the Department claims that the amendments will assist in providing services to the greatest number of recipients given the current budget crisis. However, commentators claim that spending has actually decreased in these programs through the years. In addition, commentators claim that the programs costs are a very small percentage of the available block grant funding. Therefore, the Department needs to provide more detail as to why the changes are necessary to provide services to the greatest number of individuals.

 Third, commentators contend that the limits will undercut participants' efforts to obtain better employment, and ultimately the proposed changes will defeat the purpose of the allowances. For example, there is a $1,500 annual private transportation limit. Commentators contend that between gas, repair costs, etc., it would be virtually impossible for a recipient not to exceed the limit. Other concerns are the limits on education expenses. Without these supports, commentators indicate that many will not be able to pursue educational programs that exceed more than one or two years, or go back for new or additional training or education later in their lifetimes. Employment objectives will be limited to low-paying jobs. Commentators argue that in the long run, this will impose more costs on taxpayers as fewer people will be able to permanently leave public assistance through better-paying careers.

 The Department should explain its methods for determining each of the annual and lifetime limits. In addition, the Department needs to address concerns of the affected communities related to the impact of each limit on the efforts of people seeking to improve their training and education, and obtain and maintain long-term employment and self-sufficiency. The Department also should provide a thorough fiscal analysis and an explanation of both the impact of and need for this proposed regulation.

2. Section 165.1. General.—Statutory authority; Protection of public health, safety and welfare; Reasonableness; Need.

 This proposed regulation amends provisions for special allowances for services for participants in the RESET program established in Chapter 165. Those exempted from RESET can also obtain special allowances. Subsection (a) permits these individuals to receive services by participating in a ''work or work-related activity'' and they must ''comply with the AMR [Agreement of Mutual Responsibility] and EDP [Employment Development Plan].'' Commentators contend that this language would require these volunteers to adhere to an hourly service requirement. However, Section 405.1(b) of the Code does not impose such a requirement, but states that: ''any applicant or recipient exempted from . . . [RESET] may participate in employment and work-related activities.'' (Emphasis added.) See 62 P. S. § 405.1(b). What is the Department's statutory authority for Subsection (a)?

 Commentators also argue this provision is not in the public interest. Examples of exempted RESET individuals include individuals with disabilities and domestic violence victims. Their circumstances could prevent them from committing to an hourly requirement. For example, a domestic violence victim, who does not want an abuser to know the victim's whereabouts, may not want to regularly leave a safe location. A disability may prevent a person from leaving their home altogether. Therefore, how would the Department protect these individuals while maintaining the hourly requirement? The Preamble to the final-form regulation should explain the need for requiring individuals who volunteer to participate in work or work-related activity to ''comply with the requirements of the AMR or EDP.''

3. Section 165.44. Verification for special allowances for supportive services.—Reasonableness; Need; Implementation procedures; Clarity.

 Commentators express concern with the deletion of the phrase ''only when it is not readily apparent'' from the existing language in Subsection (a)(2). The Department needs to explain the need for verification for authorization of every expense. Wouldn't the need for transportation expenses be readily apparent based on the address of the recipient and the job site or school? If not, the Department should provide examples of acceptable and readily accessible means of verification.

 With respect to verification of service, Subsection (b)(1)(i) states, in part, that the Department ''may require that the participant or provider or the supportive service, or both, verify that the participant received the approved special allowance for supportive services and that the provider received payment for the amount the participant was eligible to receive.'' What is the need for this provision? Additionally, under what circumstances would the Department require verification from both the participant and the provider?

 Subsection (b)(2) lists circumstances in which the Department will process supportive services overpayment referrals, including in Subparagraph (viii): ''The participant did not participate in or comply with RESET, including meeting hourly and other work and work-related requirements as specified in the AMR or EDP.'' Commentators are concerned that this language would result in overpayment referrals for full amounts, even though participants may have completed the majority of their required hours. What is the need for this provision? Will amounts that a participant is required to repay be pro-rated based upon hours completed? Finally, there is no Subparagraph (vii), and subparagraph (viii) therefore should be re-numbered.

4. Section 165.46. Types of special allowances for supportive services.—Economic impact; Need; Compliance with the Regulatory Review Act.

 The proposed regulation eliminates the existing Subsection (c)(5), thus removing special allowances for moving costs. However, Section 432.20 of the Code specifically allows for assistance for moving costs ''to ensure gainful employment.'' See 62 P. S. § 432.20. Given the language in the statute and the concerns expressed by commentators, the Department should examine the economic impact of this deletion and explain the need for this change.

 Proposed Subsection (c) states that: ''[t]he Department may amend Appendix A as necessary based on availability of funding and demand for supportive services. Revisions will be published as a notice in the Pennsylvania Bulletin for recommended codification in Appendix A.''

 This subsection does not comply with the requirements of the Regulatory Review Act. 71 P. S. §§ 745.1—745.15. First, regulations in this Commonwealth cannot be amended without being subject to the regulatory review process. The extensive comments filed on this proposed regulation indicate that amendments to Appendix A, which has been made part of this rulemaking, should be subject to review and comment by the public before adoption or implementation. In addition, codification cannot occur simply through notification in the Pennsylvania Bulletin without a regulation being reviewed and approved by both the Independent Regulatory Review Commission and the Office of the Attorney General. See id. at §§ 745.5b and 732-204(b). Therefore, this subsection should be removed from the final-form regulation.

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Environmental Quality Board
Regulation #7-452 (IRRC #2835)

Dam Safety and Waterway Management

June 23, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the April 24, 2010 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 Environmental Quality Board (EQB) to respond to all comments received from us or any other source.

1. Section 105.1. Definitions.—Statutory authority; Need; Clarity.

Person

 Subsection (i) contains provisions not included in the definition of ''person'' in the Dam Safety and Encroachments Act (Act). See 32 P. S. § 693.1 et. seq. For example, the terms ''firm'' and ''estate'' are not included in the statutory definition, and neither is the phrase ''or other legal entity which is recognized by law as the subject of rights and duties.'' Existing language contained in the regulation, such as the term ''public utility'' and ''political subdivision of this Commonwealth'' also are not included in the Act. The EQB should use the statutory definition in the regulation or explain its statutory authority for adding these terms and phrases to the proposed definition.

2. Section 105.4. Delegations to local agencies.—Clarity.

Subsection (b)

 The existing language of the regulation prohibits delegating the authority to issue permits. The proposed regulation changes this provision to allow such delegations, but does not provide a reason for this change. The Preamble to the final-form regulation should explain the basis for this revision.

Subsection (e)

 The proposed regulation removes a statutory citation from this subsection. Like Subsection (b), the Preamble also should provide an explanation for this amendment.

3. Section 105.13b. Proof of financial responsibility.—Economic and fiscal impact; Clarity.

 This section allows permit approval for Hazard Potential Category 1 or 2 dams only if they submit proof of financial responsibility or security assuring proper construction, repair, etc. of the facility. In the Preamble, the EQB states there are approximately 2,333 owners of 3,256 dams that are affected by these regulations. The EQB also provides a breakdown of the dams by ownership and category. The EQB explains that the cost is ''dam-specific based on the size and type . . . of dam.'' The EQB also states that ''if this amendment is not approved, the cost to the Commonwealth could be significant.'' While we recognize it is difficult to predict how dam owners will provide financial assurance, we request further information on the potential economic and fiscal impact of the regulation on Category 1 or 2 county owned, municipally owned, privately owned and state owned dams by category.

 Subsection (1)(i) includes as an example of proof of financial responsibility: ''[a] certificate of public convenience from the Public Utility Commission if the owner of the proposed facility is subject to regulation under 66 Pa.C.S. (relating to the Public Utility Code).'' A commentator is concerned that the proposed regulation did not contemplate deregulation of the utility industry, and as a result did not envision the undue hardship this provision could cause, given that many financial institutions are unwilling to provide these financial assurances in today's economy. Does the EQB know the number of deregulated companies that would be impacted by this proposed rulemaking? What would be the fiscal impact on these types of utilities?

4. Section 105.14. Review of applications.—Clarity.

 Paragraph (b)(1) states a broad declaration that the Department of Environmental Protection (Department) will consider potential threats to the environment created by a dam in its determination of impact. However, Paragraph (b)(4) specifically identifies several factors that will be considered and includes, in existing language, ''other significant environmental factors.'' A commentator is concerned that Subsection (b)(1) could be interpreted to mean that threats do not have to be significant to determine impact. We agree and question the need to amend Paragraph (b)(1) in addition to the detail provided in Paragraph (b)(4). We recommend deleting the amendment to Paragraph (b)(1). Alternatively, if it is retained, the EQB should explain why the amendment is needed and consistent with Paragraph (b)(4).

 Also, a commentator suggests that the ''existing and designated uses'' mentioned in the last sentence of Subsection (b)(4) are those defined in Chapter 93. The EQB should explain what uses will be considered and provide a cross-reference in the regulation to the existing and designated uses the Department will consider.

5. Section 105.42. Terms and conditions of Department permits and approvals.—Reasonableness; Economic impact; Clarity.

 This section has been revised to make the permittee or the owner responsible for both informing the contractor and for completing the acknowledgement form regarding the terms and conditions of the permit. The PA Department of Transportation (PennDOT) is concerned that this provision would result in PennDOT being responsible for permits obtained by developers for Highway Occupancy Permits that require roadway improvements within PennDOT's right-of-way. Could PennDOT be responsible for the construction of roadway improvements that are required as a result of private development? Similar concerns apply to Section 105.46. We will review the EQB's response to this issue in our consideration of whether the final regulation is in the public interest.

6. Section 105.45. Inspections by the Department.—Clarity.

 Who does the EQB consider an ''authorized agent'' of the Department? The final-form regulation should clarify this issue.

7. Section 105.81. Permit applications for construction and modification of dams and reservoirs.—Implementation procedures; Clarity.

 In Subsection (a)(3), what does the EQB consider ''sufficient detail'' contained in plan specifications and design reports to evaluate the safety and suitability of the proposed dam, reservoir and appurtenant works? This language should either be clarified in the final-form regulation, or deleted.

8. Section 105.91. Classification of dams and reservoirs.—Implementation procedures; Clarity.

 This section classifies dams and reservoirs based on size and hazard potential. Hazard potential is based on the amount of the population at risk and the degree of economic loss. A commentator recommends that the EQB incorporate environmental losses into the determination of hazard potential. Has the Board considered including these losses as a factor?

9. Section 105.96. Outlet works.—Implementation procedures; Clarity.

 Subsection (a) indicates that draining devices must be sized to pass a minimum of 70% of the ''highest mean monthly inflow.'' How is this type of inflow calculated? For example, is it based on storm potential, such as a 2-year/24-hour storm? The final-form regulation should clarify this issue.

10. Section 105.97. Stability of structures.—Need; Implementation procedures; Clarity.

 This section requires a safety factor for gravity dams of 1.7 for maximum pool in Paragraph (d)(2). A commentator notes that this factor is greater than that imposed by national standards. How did the EQB determine that 1.7 is an appropriate safety factor?

11. Section 105.102. Personnel and supervision.—Clarity.

 Subsection (a) refers to a ''professional engineer or a Department-approved representative.'' (Emphasis added.) When would the Department use a representative in lieu of a professional engineer and what qualifications would be required for approval as a representative?

12. Section 105.134. EAP.—Feasibility; Implementation procedures; Clarity.

 This section requires Hazard Potential Category 1, 2 and 3 dams to develop an Emergency Action Plan (EAP) to follow in the event of a dam hazard emergency.

 We raise three issues.

 First, this section is not clear regarding the role of local governments. Subsection 105.134(a) replaces ''local emergency management officials'' with ''the Pennsylvania Emergency Management Agency (PEMA)'' for approval of a plan. Paragraph 105.134(a)(2) requires the signature of ''county emergency management coordinators.'' However, it is only after approval of the plan that a copy is given to the ''municipal emergency management agencies'' under Subsection (b). We request an explanation of why this section is being amended so that local governments are no longer included in the review and approval of the EAP.

 Second, Paragraph (a)(4) states: ''[T]he EAP must be prepared in accordance with the most recent EAP guidelines developed by the Department and PEMA.'' How will the applicant know what are the most recent guidelines? Where can these be found? The same concern applies to Subsection (f).

 Third, Subsection (d) requires notice of the EAP to be posted in the ''city, borough and township buildings in the affected municipalities.'' Does the Department or a dam owner have the feasibility to require these locations to display these postings? The final-form regulation should clarify this issue.

13. Sections 105.134. EAP. and 105.135. Dam hazard emergencies.—Protection of the public health, safety and welfare; Implementation procedures; Clarity.

 These sections are not clear regarding the role of local governments in amended Section 105.134 and as it relates to Section 105.135. For example, relating to Subsection 105.135(c), a commentator suggests that the municipality or county should be notified and will be the authority to take action. We note that the following terms are used in these sections:

 • Paragraph 105.134(a)(2) ''county emergency management coordinators.''

 • Subsection 105.134(b) ''municipal emergency management agencies.''

 • Subsection 105.135(c) ''appropriate emergency management officials'' and ''authorities.''

 We recommend that the EQB review these sections and clearly identify which government entities would participate, approve, receive notifications and take action under each section.

ARTHUR COCCODRILLI, 
Chairperson

[Pa.B. Doc. No. 10-1262. Filed for public inspection July 9, 2010, 9:00 a.m.]