1298 Notice of comments issued

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[40 Pa.B. 4043]
[Saturday, July 17, 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. § 745.5b).

 The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRRC Comments Issued
16A-5618	State Real Estate Commission Seller Property Disclosure Statement 40 Pa.B. 2281	6/1/10	7/1/10
16A-5122	State Board of Nursing IV Therapy Functions for Licensed Practical Nurses 40 Pa.B 2276	6/1/10	7/1/10
7-458	Environmental Quality Board Incidental Coal Extraction, Bonding, Enforcement, Sediment  Control and Remining Financial Guarantees 40 Pa.B. 2373	6/1/10	7/1/10
57-257	Pennsylvania Public Utility Commission Universal Services and Energy Conservation Reporting  Requirements And Customer Assistance Programs 40 Pa.B. 1764	6/2/10	7/2/10
16A-721	State Board of Massage Therapy Massage Therapy 40 Pa.B. 2428	6/7/10	7/7/10
16A-51	Bureau of Professional and Occupational Affairs Schedule of Civil Penalties—Veterinarians and Veterinary  Technicians 40 Pa.B. 2423	6/7/10	7/7/10

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State Real Estate Commission
Regulation #16A-5618 (IRRC #2838)

Seller Property Disclosure Statement

July 1, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the May 1, 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 Real Estate Commission (Commission) to respond to all comments received from us or any other source.

Section 35.284a. Disclosures required by the Real Estate Seller Disclosure Law.—Need; Implementation procedures; Clarity.

Subsections (a)(1) and (2)

 These subsections explain the duties of seller's agents. Subsection (a)(1) requires a seller's agent to advise sellers of their duty to disclose known material defects in the property, and Subsection (a)(2) requires the agent to provide the seller a property disclosure statement. The PA Association of Realtors (PAR) asserts that there are circumstances where a seller may be working with a transaction licensee and not a seller's agent, or the seller is working without licensed assistance. The final-form regulation should clarify who under these circumstances would be responsible for performing the duties required in Subsection (a)(1) and (a)(2).

Subsection (a)(3)

 In circumstances where a seller refuses to complete a disclosure form, this subsection directs the seller's agent to deliver the form marked ''refused'' to the buyer or the buyer's agent. Commentators question the need for this provision. PAR states that this subsection will increase the amount of refusals submitted, thus increasing liabilities for those involved in the transaction as well as defeating the purpose of property disclosure statements altogether. Has the Commission considered how this provision will impact the number of sellers who refuse to complete the disclosure statement and the liabilities of other parties involved in the transaction?

 Also, what does the Commission consider to be proper ''delivery'' of a refusal statement? Can it be submitted online? The final-form regulation should clarify this issue.

Subsection (b)(1)

 Subsection (b)(1) requires a buyer's agent to advise buyers of the seller's duty to provide a property disclosure statement. However, like the seller's agent, the buyer's agent may not perform the actual sale. According to PAR, the transaction may involve a subagent, or the buyer could make the purchase directly through the seller's agent. In these circumstances, which party would have the responsibility to advise the buyer that the seller has a duty to provide a completed property disclosure statement? The final-form regulation should clarify this issue.

Subsection (b)(2)

 Subsection (b)(2) requires the buyer's agent to deliver the property disclosure statement to the buyer before the execution of sale. PAR notes that someone other than the buyer's agent may have already delivered the statement, for example the licensee working with the seller. As a result, the commentator is concerned that sellers' agents could unnecessarily be held liable for faulty delivery. The Commission should clarify this issue in the final-form regulation.

Subsections (c) and (d)

 Like Subsections (a) and (b), Subsections (c) and (d) only refer to sellers' and buyers' agents. Did the Commission intend for these provisions to pertain to any licensee involved in the transaction? The final-form regulation should clarify this issue.

Section 35.335a. Seller property disclosure statement.—Implementation procedures; Clarity.

 This section details the content of a seller property disclosure statement. A commentator indicates that his real estate agency includes lead-based paint and mold addendums with their property disclosure statements. The Commission should consider including this information in the form contained in this section.

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State Board of Nursing
Regulation #16A-5122 (IRRC #2840)

IV Therapy Functions for Licensed Practical Nurses

July 1, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the May 1, 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 Nursing (Board) to respond to all comments received from us or any other source.

1. Effective date of the regulation.—Implementation procedures; Protection of the public health, safety and welfare.

 The Preamble states that the regulation ''will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.'' What effect will the regulation have on Licensed Practical Nurses (LPNs) currently administering IV therapy that have not meet the curriculum requirements of § 21.145b, pertaining to IV therapy curriculum requirements? Will those LPNs be able to continue to administer IV therapy? If not, has the Board considered providing a grandfathering provision or delaying the effective date of the regulation to allow LPNs the necessary time to meet the curriculum requirements?

2. Section 21.141. Definitions.—Consistency with statute; Clarity.

Focused assessment

 This term is defined as, ''Appraisal of an individual's current status and situation, which contributes to comprehensive assessment by the registered nurse and supports ongoing data collection.'' A commentator has stated that the Practical Nurse Law (Law) (63 P. S. § 651 et.seq.) does not allow for assessment by an LPN and questions if the use of the term is needed in the regulation. Does inclusion of this term expand the scope of practice of LPNs? If so, is that expansion consistent with the Law?

IV therapy

 As the title of this proposed rulemaking suggests, the subject matter of this regulation is IV therapy. However, this term is not defined in the Board's existing regulations, nor is it defined in the proposed regulation. The final-form regulation should include a definition of this term.

3. Section 21.145. Functions of the LPN.—Statutory authority; Need; Protection of the public health, safety and welfare; Clarity.

 Subsection (a)(2) states the following: ''An LPN shall obtain instruction and supervision if implementing new or unfamiliar nursing practices or procedures.'' It is unclear who will provide the instruction and supervision. We suggest that this provision be clarified to specify who must provide the instruction and supervision.

 Similar to the concern expressed on the definition of ''focused assessment,'' a commentator is concerned with the use of the word ''assess'' in Subsections (f)(2)(ii), (iii) and (iv). Under the Law, does an LPN have the authority to perform the assessments referenced in these subsections?

 Subsection (f)(4) includes the phrase ''readily available'' and Subsection (f)(5) includes the phrase ''immediate vicinity.'' These phrases are vague and lack clarity. We suggest that the final-form regulation include more precise standards that eliminate the ambiguity created by these phrases.

 Subsection (f)(5)(i) allows LPNs to provide IV therapy when a patient's condition is ''critical, fluctuating, unstable or unpredictable'' if the LPNs supervisor is present in the immediate vicinity. A commentator has stated that an LPN should not be assigned to a patient in this condition. In the Preamble to the final-form regulation, we ask the Board to explain why this provision is needed and how it adequately protects the health, safety and welfare of the patient.

4. Section 21.145b. IV therapy curriculum requirements.—Protection of the public health, safety and welfare; Reasonableness; Implementation procedures; Clarity.

 Under this section, IV therapy curriculum can be provided as part of LPN education curriculum as set forth in § 21.203 (related to specific curriculum requirements for practical nursing programs) or as a stand-alone course offered by a licensed health care facility. We have three concerns. First, should § 21.203 be amended to include a cross-reference to this section?

 Second, how will the Board ensure that the stand-alone courses are meeting the requirements of this Section? Will the courses have to be approved by the Board? If so, what process will the Board use to approve the courses? These issues should be addressed in the final-form regulation.

 Third, as noted by a commentator, has the Board considered adding standards for course length, clinical experience and instructor qualifications for IV therapy curriculums? We believe including such standards would help ensure the quality of the curriculum and help protect the health, safety and welfare of the public. We recommend that the Board include such standards in the final-form regulation.

5. Miscellaneous clarity.

 • § 21.145)(a)(1) uses the term ''RN'', but § 21.145(f)(1) uses the term ''licensed professional nurse.'' We recommend that only one of these terms be used in the final regulation.

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Environmental Quality Board
Regulation #7-458 (IRRC #2842)

Incidental Coal Extraction, Bonding, Enforcement, Sediment Control and Remining Financial Guarantees

July 1, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the May 1, 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 (Board) to respond to all comments received from us or any other source.

1. Section 86.1. Definitions.—Consistency with other regulations; Clarity.

 Subparagraph (iii)(E) of the definition of ''owned or controlled and owns and controls'' reads:

Based on the instruments of ownership or the voting securities of a corporate entity, owning of record a percentage of the entity as established in the definition of ''owned or controlled and owns or controls'' in 30 CFR [773.5] 701.5 (relating to definitions).

 The phrase ''owned or controlled and owns or controls'' does not appear as a definition in 30 CFR 701.5. There is a definition of ''own, owner or ownership'' in this section of the federal regulations. If the intent is to refer to this definition, then the subparagraph should be clarified in the final-form regulation.

2. Section 86.37. Criteria for permit approval or denial.—Consistency with other regulations; Clarity.

 New language is being added to Subsection (a)(8), which states:

For the purpose of this section, the term ''violation'' includes the types of violations listed in the definition of ''violation'' in 30 CFR 701.5 (relating to definitions).

 The Pennsylvania Coal Association (PCA) expresses concern over the fact that there are definitions for two different terms in 30 CFR 701.5 that include the word ''violation.'' One is ''violation'' and the other is ''violation, failure or refusal.'' The final-form regulation should clearly indicate which federal definition applies to this section.

3. Section 86.129. Coal exploration on areas designated as unsuitable for surface mining operations.—Fiscal impact; Reasonableness; Feasibility.

 Subsection (b)(5) states that an exploration permit in areas designated as unsuitable for mining ''may not exceed 2 years and the permit may not be renewed or transferred.'' A comparable time limit could not be found in the federal regulations at 30 CFR 772.12 and 938.16(ccc). After a substantial investment in complying with the permit application requirements, why is a company only given two years to explore rather than five years as is the case with other permits? The Board should provide a justification for this rule or delete it from the final-form regulation.

4. Section 86.159. Self-bonding.—Clarity.

 New language in Subsection (2) includes these words: ''. . . an affidavit certifying that the agreement is valid under all applicable Federal and State laws.'' This phrase may be overly broad. Specifically, what laws would be included in the reference to ''all applicable Federal and State laws''?

5. Section 86.282. Participation requirements.—Reasonableness; Clarity.

 In Subsection (a)(2), the ''letter of credit collateral bond'' is deleted as an option for a surety bond. In the Preamble, this change is explained by the statement that experience ''has shown that the ability to obtain a letter of credit from a bank is not a good test of financial responsibility.'' DEP and the Board should provide some evidence from the program's experience to provide a justification for this change or retain the existing language in the final-form regulation.

 The proposed regulation adds new language to Subsection (a)(2) which includes the term ''permitted remining site.'' This term does not appear in the existing provisions of Chapter 86. In Section 86.252 of the existing regulations, the definition of the term ''financial guarantee'' includes this phrase: ''. . . a qualified operator's permitted remining area.'' The term ''remining area'' is defined in Section 86.252. The PCA, in its comments, requests that the term ''permitted remining site'' be defined. The new term should be defined or replaced with the existing term ''remining area'' if this term matches the Board's intent for Section 86.282.

6. Section 87.119. Hydrologic balance: water rights and replacement.—Reasonableness; Clarity.

 The proposed regulation deletes ''attorney fees and expert witness fees'' from the list of recoverable ''reasonable costs incurred'' for mine operators or owners who appeal a DEP order. According to the Preamble, ''this correction is necessary due to a revision to the SMCRA [federal Surface Mining Control and Reclamation Act].'' However, the Preamble provides no details concerning the revision. PCA questions the basis for this deletion. In addition, attorney fees are specifically identified as costs that ''may be assessed against either party'' in SMCRA. See 30 U.S.C. § 1275(e). The Board needs to explain the need for this deletion or retain the existing language in the final-form regulation.

7. Section 90.112. Hydrologic balance: dams, ponds, embankments and impoundments—design, construction and maintenance.—Consistency with other regulations; Clarity.

 In its comments, PCA expresses concern that the amendments to Subsection (c)(2) do not include the word ''runoff.'' In contrast, the federal regulations at 30 CFR 938.16(jjj) specifically uses the word ''runoff.'' The Boardshould revise this subsection to match the federal language in the final-form regulation or provide justification for not using the term ''runoff.''

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Pennsylvania Public Utility Commission
Regulation #57-257 (IRRC #2674)

Universal Services and Energy Conservation Reporting Requirements and Customer Assistance Programs

July 2, 2010

 We submit for your consideration the following comments on the notice reopening the public comment period for this proposed regulation in the April 3, 2010 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b) (Act). Section 5.1(a) of the 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. The proposed regulation was originally published in the February 9, 2008 Pennsylvania Bulletin. These comments are supplemental to our comments dated May 19, 2008.

1. Sections 54.74 and 62.4—Review of universal service and energy conservation plans; funding and cost recovery.—Need.

 These sections require electric distribution companies and natural gas distribution companies to submit an updated universal service and energy conservation plan (Plan) in the form of a tariff filing. This filing includes: the Plan itself, the rules that apply to the Plan, documentation in support of funding and cost recovery for the Plan, and a proposed surcharge.

 The supplemental comments provided by the regulated community offer various suggestions concerning the content of the tariff. Some commentators argue that no Plan contents should be included in the tariff, while others support including the content in its entirety. Other commentators argue that Plan rates only should be included in the tariff. Finally, another commentator contends that Customer Assistance Program (CAP) rules should not be included in the tariff because it would result in utilities providing duplicative information that is already publicly available and would result in difficulty in modifying the CAP Plan.

 The final-form regulation should explain the need to include Plan contents, including CAP rules and rates and documents in support of funding and cost recovery. Will this information be part of the entire tariff or simply the filing requirements included in support of the proposed tariff provisions? The final-form regulation should clarify these issues.

2. General.—Reasonableness; Feasibility; Clarity.

 In the notice reopening the public comment period, the PUC invited comments on topics divided into six categories. Extensive comments were received in response to this invitation. If significant revisions to the regulation are being considered as a result of this input, the public should be afforded an opportunity to review and comment on the text of the regulation. Therefore, we recommend that the PUC publish an advance notice of final rule-making to allow the opportunity to review and resolve remaining issues before submittal of a final-form regulation.

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State Board of Massage Therapy
Regulation #16A-721 (IRRC #2843)

Massage Therapy

July 7, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the May 8, 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 Massage Therapy (Board) to respond to all comments received from us or any other source.

1. Section 20.1. Definitions.—Conflict with existing law; clarity.

 The following terms are used, but not defined, in the proposed regulation: ''soft issue manifestations;'' ''therapeutic massage techniques;'' ''treatment;'' and ''treatment plan.'' Both the Pennsylvania Physical Therapy Association (PPTA) and the Insurance Federation of Pennsylvania have expressed concern that the use of these terms without qualifying language which specifically relates them to the definition of ''massage therapy'' in the Massage Therapy Law, Act 45 of 2009 (Law), is confusing. We recommend that the Board define and clarify these terms in the final-form regulation.

Sexual harassment

 This section defines this term as: ''[d]eliberate or repeated comments, gestures or physical contacts of a sexual nature.''

 This definition appears inconsistent with how the term is defined in both federal and state law. For example, the U.S. Equal Employment Opportunity Commission has defined sexual harassment, a violation of Title VII of the Civil Rights Act of 1964, as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

 The PA Human Relations Commission defines the term in a similar fashion.

 Both of these definitions refer to conduct that is ''unwanted'' or ''unwelcome.'' Why did the Board omit this term? In order to be consistent with existing law, the final-form regulation should include the phrase ''unwelcome'' or ''unwanted'' at the beginning of the definition.

2. Section 20.3. Fees.—Reasonableness.

 Subsections (a) and (b) list various types of fees charged for services provided by the Board. How did the Board determine the amounts listed are appropriate?

3. Section 20.11. Minimum hour requirements for massage therapy programs.—Reasonableness; Clarity.

 Subsection (a) requires massage therapy programs to provide at least 600 hours of in-class instruction, and lists various subjects and the minimum contact hours required for each. How did the Board determine the appropriate number of contact hours?

4. Section 20.13. Required knowledge base.—Clarity.

 Subsection (a) lists 12 areas that massage therapy education must provide students with knowledge of, including Subsection (a)(6) which requires knowledge of ''legal requirements.'' Which ''legal requirements'' does this refer to? It is also unclear what level of ''knowledge'' massage therapy education must provide in these subjects to students. These phrases are vague and lack clarity. We suggest that the final-form regulation include more precise standards that eliminate the ambiguity created by these phrases.

5. Section 20.14. Student practice.—Implementation procedures; Clarity.

 In Subsection (f), what is the basis for the three-year time period to maintain student records? The same concern applies to Section 20.42(a)(19). In addition, Section 20.42(a)(19) also states that the records would be at least three years ''from the last date that services were provided to the client.'' Did the Board intend for the same time period to apply to student records? We recommend the same language contained in Section 20.42(a)(19) be included in Subsection (f).

 In Subsection (g), how does the Board intend for schools to clearly identify to clients students providing services as part of a clinical training program? Would students be required to wear badges? Would there be a sign notifying clients that students are working at that facility? The final-form regulation should include the means of complying with this provision.

6. Section 20.21. Application for temporary practice permit, initial licensure and licensure by reciprocity.—Statutory authority; Reasonableness; Need; Clarity.

 This section describes various types of applications. We raise five issues.

 First, the House Professional Licensure Committee (HPLC) indicates that Section 20.26(b) includes a cross-reference to Section 20.21, and this cross-reference is partly entitled ''licensure by endorsement.'' However, this type of application is not included in Section 20.21. Did the Board intend to include licensure by endorsement in this section? If so, then the final-form regulation should include a procedure for this type of licensure. If not, the phrase ''licensure by endorsement'' should be removed from Section 20.26(b) of the final-form regulation. We note that in the Preamble, the Board describes ''licensure by endorsement'' as being contained in Section 20.25, however, this section refers to ''licensure by reciprocity.'' To improve consistency, the Board should use one term.

 Second, Subsection (b)(2) requires applicants for licensure to submit to the Board a Criminal History Record for every state the applicant has resided in for the past five years. How did the Board determine five years was an appropriate limit on the years of review?

 Third, Subsection (d)(3) requires an applicant to submit an explanation to the Board of any arrests, charges, or convictions of a misdemeanor or felony in this Commonwealth or any other jurisdiction of the United States or a foreign country. However, the Law only prohibits those applicants from obtaining licensure who have been convicted of a felony (or of what would be considered a felony if committed in this Commonwealth) under The Controlled Substance, Drug, Device and Cosmetic Act. See 63 P. S. § 627.5(a)(6). Therefore, given this distinction, what is the Board's statutory authority for requiring the explanations and relevant documentation in this subsection?

 Fourth, Subsections (d)(4) and (5) refer to circumstances where an individual is unable to practice massage therapy ''with a reasonable skill and safety'' due to mental or physical conditions, and the use of alcohol, drugs, etc. Would a licensed professional make that determination? The final-form regulation should clarify who would decide in these instances whether a person is unable to practice. We also recommend that the final-form regulation require these individuals to provide written verifications to the Board confirming their diagnoses and conclusions.

 Additionally, how will these evaluators measure a massage therapist ability to practice ''with a reasonable skill and safety?'' The final-form regulation should define this standard. In Subsection (d)(4), an applicant may be unable to practice massage therapy due to the use of drugs, narcotics or ''any other type of material.'' This phrase is vague and should be explained further in the final-form regulation.

 Finally, Subsection (g) requires the licensure applicant to submit to the Board any missing documentation ''within 6 months from the date the application is executed.'' What is the basis for the six-month time period?

7. Section 20.22. Procedure for licensure denial.—Implementation procedures.

 Subsection (b) refers to an evaluation to determine if an applicant can safely practice. Who will conduct this evaluation? Will the applicant be notified of and have the opportunity to review the results? The final-form regulation should clarify the procedures for the evaluation and the means of notifying the applicant of the results of the evaluation.

 In addition, the HPLC questions what the appeals process is for an applicant whose license has been refused. The final-form regulation should explain the appeals process. Has the Board considered including in the regulation a cross-reference to Section 627.9 (c) of the Law, which discusses actions of the Board being subject to the administrative agency law (and therefore the appropriate appeals process therein)?

8. Section 20.23. Licensure examinations.—Reasonableness; Implementation procedures; Clarity.

 Subsections (b) and (c) require applicants to reapply if they are unable to take the required test within 90 days of being authorized by the Board to do so. What is the basis for the 90-day time frame?

 Subsections (b) and (d) refer to the ''FSBMT,'' however Section 20.1 references the ''FSMTB,'' which the Federation of State Massage Therapy Boards points out in their comments is the correct term. The final-form regulation should correct this typographical error.

 Subsection (e) establishes procedures requiring applicants who have failed licensure exams numerous times to obtain additional hours of instruction in massage therapy. Who will monitor these examination results and notify the applicants of the requisite hours necessary to complete? The final-form regulation should clarify this issue.

9. Section 20.24. Application requirements for existing practitioners.—Reasonableness; Clarity.

 Subsection (c) states that existing practitioners applying for licensure must demonstrate they have been in practice at least five years ''immediately preceding October 9, 2010.'' Why did the Board apply this date?

 While this section refers to licensure requirements for existing practitioners, the American Massage Therapy Association (AMTA) suggests that ''existing practitioners'' should also include massage therapy students who would graduate before the passage of the final-form regulation. Has the Board considered ''grandfathering'' the licenses of these massage therapists?

 Also, to improve clarity, we recommend the Board define the term ''existing practitioners'' in the final-form regulation.

10. Section 20.26. Application requirements for temporary practice permits.—Clarity.

 Subsection (e) states that those therapists with a temporary practice permit may not ''hold themselves out as a licensed massage therapist.'' However, the PPTA notes that this subsection does not explain what services these permit holders can perform or how they are supervised. We agree and recommend that the final-form regulation clarify what specific services can be performed under a temporary practice permit and set forth the supervision requirements.

 Subsection (e) also states that temporary permit holders may not ''advertise their practice of massage therapy.'' The PA Association of Private School Administrators is concerned that without advertising, these therapists may not be able to build a practice. Does Subsection (e) prohibit a person from advertising as a temporary permit holder? The final-form regulation should clarify this issue.

11. Section 20.32. Continuing education hours, maintenance of certificates of completion.—Implementation procedures.

 Under Subsection (g), under what circumstances would the Board determine an audit of a licensee is necessary?

12. Section 20.41. Scope of practice.—Statutory authority; Implementation procedures; Clarity.

 This section explains the scope of practice for massage therapists. However, as the AMTA points out, there are persons who hold dual licenses. While an act may be permitted within the context of a massage therapy license in Subsection (a), it may be prohibited under that same person's chiropractic license. For example, as PPTA states, the enumerated list of soft tissue manifestations in Subsection (a) contains items that are ''impairments, illnesses, diseases or disabilities which are expressly excluded from the definition of massage therapy.'' How will the Board regulate these forms of overlapping licensure? Additionally, how will the Board address the situation where a treated item in Subsection (a) is also a symptom of an underlying disease or medical condition? Will this be set forth in the final-form regulation?

 The Preamble to the final-form regulation should also explain what services those with dual licenses can perform and when they can perform them.

13. Section 20.42. Standards of professional conduct.—Implementation procedures; Clarity.

 Subsection (a)(11) requires massage therapists to ''act to safeguard clients from incompetent, abusive or illegal practices of other massage therapists or caregivers.'' How will a massage therapist comply with this subsection? Are there reporting requirements that would apply? If so, we recommend that these requirements be included in the final-form regulation.

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Bureau of Professional and Occupational Affairs
Regulation #16A-51 (IRRC #2844)

Schedule of Civil Penalties—Veterinarians and Veterinary Technicians

July 7, 2010

 We submit for your consideration the following comments on the proposed rulemaking published in the May 8, 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 Bureau of Professional and Occupational Affairs (Bureau) to respond to all comments received from us or any other source.

Comments of the House Professional Licensure Committee.—Need; Reasonableness; Protection of the public welfare; Implementation procedure; Clarity.

 On June 9, 2010, the House Professional Licensure Committee (Committee) voted to submit the following comments to the Bureau:

• The Committee recommends that the sections of this proposed regulation be re-organized so that each section remains consistent with the previously stated profession.

• The Committee requests information on how the Bureau monitors the civil penalty time periods to ensure compliance with the proposed regulation.

• The Committee questions the need for adding a new civil penalty time period of 25—30 months and requests an explanation on how the Bureau determined the amount of a civil penalty for practicing on a lapsed license.

• The Committee requests an explanation on why a category of failing to display a current certificate for CVTs (certified veterinary technicians) with civil penalty is not included.

 We will review the Bureau's responses to these issues in our determination of whether the final regulation is in the public interest.

ARTHUR COCCODRILLI, 
Chairperson

[Pa.B. Doc. No. 10-1298. Filed for public inspection July 16, 2010, 9:00 a.m.]