INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [38 Pa.B. 3948]
[Saturday, July 19, 2008]Section 5(g) of the Regulatory Review Act (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 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Issued31-7 State Employees' Retirement Board
Priority of Taxation, Attachment and Assignment of Funds
38 Pa.B. 2062 (May 3, 2008)6/2/08 7/2/08 16A-4924 State Board of Medicine
Acupuncture Registration
38 Pa.B. 2059 (May 3, 2008)6/2/08 7/2/08 125-84 Pennsylvania Gaming Control Board
Releases
38 Pa.B. 2054 (May 3, 2008)6/2/08 7/2/08 125-85 Pennsylvania Gaming Control Board
Licensed Facility
38 Pa.B. 2053 (May 3, 2008)6/2/08 7/2/08 6-305 Department of Education
Auditing of Approved Private Schools and Chartered
Schools for the Education of Deaf and Blind Children
38 Pa.B. 2052 (May 3, 2008)6/2/08 7/2/08 16-41 State Athletic Commission
Mixed Martial Arts
38 Pa.B. 2155 (May 10, 2008)6/9/08 7/9/08 ____ State Employees' Retirement Board
Regulation #31-7 (IRRC #2689)Priority of Taxation, Attachment and
Assignment of FundsJuly 2, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 3, 2008, 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 Employees' Retirement Board (Board) to respond to all comments received from us or any other source.
Section 247.11. Priority of taxation, attachments and assignment of funds.--Statutory authority; clarity.
Subsection (a)(3) pertains to money that is owed on account of taxes. We have three concerns. First, would this subsection apply to taxes owed by a member not on account of the member's employment? For instance, would this subsection apply to taxes owed due to the sale of real estate by a member? We recommend that the provision be clarified to state that any obligations of a member must relate to their employment.
Second, what is the Board's statutory authority for this provision? If the Board is relying on particular statutes as justification for this subsection, references to those statutes should be included in the final-form regulation.
Third, assuming the Board has the statutory authority for Subsection (a)(3), what is the sequential priority for the various taxing authorities that might seek payment? For example, would a claim filed by the Internal Revenue Service for taxes owed take precedence over a claim filed by the Pennsylvania Department of Revenue or a local employment tax collection agency?
In addition, Subsection (a)(1) includes the phrase ''as otherwise provided by law'' and Subsection (c) includes the phrase ''under the operative forfeiture law.'' Both phrases lack clarity. We recommend that specific statutory citations be included in the final-form regulation.
____ State Board of Medicine
Regulations#16A-4924 (IRRC #2690)Acupuncture Registration July 2, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 3, 2008, 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 Medicine (Board) to respond to all comments received from us or any other source.
1. General.--Statutory authority.
In the Preamble, the Board's statutory authority is identified as Act 186 of 2006 (Act 186) which amended the Acupuncture Registration Act (Act) (63 P. S. §§ 1801--1806). The Board's specific rulemaking authority is found in Section 3 of the Act (63 P. S. § 1803). Section 3 should be included in the explanation of statutory authority in the Preamble and the Regulatory Analysis Form that are submitted with the final-form regulation. If the Board is relying on any other provisions for statutory authority, it should specifically cite them as well.
2. Section 18.15. Practice responsibilities of acupuncturist and practitioner of Oriental medicine who are not medical doctors.--Public health and safety; Reasonableness; Consistency; Clarity.
The proposed regulation contains a new Subsection (a)(4) which states that an acupuncturist or practitioner of Oriental medicine:
Shall, within 60 calendar days from the date of first treatment, refer the patient to a physician, dentist or podiatrist, as appropriate to the patient's condition, if the acupuncturist or practitioner of Oriental medicine determines that further acupuncture or Oriental medicine treatment is contrain- dicated for the patient or determines that the patient's condition has worsened. (Emphasis added.)
It is our understanding that, at least in part, the intent of this provision is to have the acupuncturist or practitioner of Oriental medicine refer a patient to another health care professional if medically necessary before the 60-day period has expired. However, the use of the phrase ''within 60 calendar days from the date of first treatment'' is unclear. We have two concerns.
First, the phrase ''within 60 calendar days'' could be interpreted as allowing an acupuncturist to wait until the 60th day before referring even though an earlier referral might be appropriate and necessary to protect the health and safety of the patient. Subsection (a)(4) also indicates that a referral to a doctor shall be made only when the acupuncturist determines the following:
1) Acupuncture or Oriental medicine is contrain- dicated; or
2) The patient's condition has worsened.
Acupuncturists should not wait until their patient's condition worsens if they can immediately determine that care from a medical doctor is appropriate and necessary to protect or improve the patient's health. The acupuncturist should refer a patient to a different provider as soon as he or she knows that the patient's condition is beyond the scope of acupuncture or herbal therapy. Even though acupuncture treatment may occur up to 60 days without one, Act 186 still requires a medical diagnosis. Hence, the statute recognizes the need for medical involvement. There is no limitation on the Board requiring an acupuncturist to make the proper referral at any time it is necessary.
There are examples of similar provisions in existing regulations. Current mandates at 49 Pa. Code §§ 18.6(6) and 18.509(a)(7) require midwives and athletic trainers to refer a patient to a physician if the patient presents a medical problem that is beyond their scope of practice. Another example is an existing regulation for physical therapists at 49 Pa. Code § 40.61(d)(3), which requires referral to a physician if a patient's case is beyond the education, expertise or experience of the physical therapist.
Second, the requirements of Subsection (a)(4) should not be limited to ''within 60 days.'' Even after the patient receives a diagnosis from a doctor, a situation may arise during acupuncture treatment when there is a need for the acupuncturist to refer the patient back to the doctor.
In the final-form regulation, the Board should delete the phrase ''within 60 days'' from Subsection (a)(4), and it should direct the acupuncturist and practitioner of Oriental medicine to refer a patient to a physician, dentist, or podiatrist as soon as it is appropriate and necessary to protect the patient. In addition, the Board should provide clear and thorough direction for when these referrals should occur.
____ Pennsylvania Gaming Control Board
Regulation #125-84 (IRRC #2691)Releases July 2, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 3, 2008, 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 Gaming Control Board (Board) to respond to all comments received from us or any other source.
General.--Need; Reasonableness; Clarity.
Right-to-Know Law reference
Three different subsections of this regulation require executed releases that would allow the Board to obtain further information under the Pennsylvania Right-to-Know Law (Law) and the federal Freedom of Information Act (Act). Board staff has indicated that this is partially to obtain certain criminal information about the applicant. However, we note that a public record request under the Law would not yield access to this information. Additionally, we note that, under the Law, public records are accessible even without a signed release from the subject of the records. Therefore, we question why the Law is included in the proposed regulation. The Board should explain the need for an applicant to execute a release from the Law or it should delete it from the appropriate sections.
Confidentiality of information
Numerous commentators have expressed concern about whether the information obtained through the execution of a release would be protected by the confidentiality restrictions that the Board currently has in place or the confidentiality of information provided for under the Law and the Act. The final-form regulation should specify how this information will be protected.
____ Pennsylvania Gaming Control Board
Regulation #125-85 (IRRC #2692)Licensed Facility July 2, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 3, 2008, 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 Gaming Control Board (Board) to respond to all comments received from us or any other source.
1. Section 401a.3.--Definitions.--Statutory Authority; Legislative Intent; Whether the Regulation is in the Public Interest; Fiscal Impact; Possible Conflict with Statute; Need; Whether the Regulation represents a Policy Decision of Such Substantial Nature that It Requires Legislative Review; Reasonableness; Clarity.
This proposed regulation changes the definition of ''licensed facility'' by restricting the location of the facility to ''[t]he gaming floor and all restricted areas servicing slot operations together with all adjacent and proximate amenities . . . .''
According to the Preamble, the Board has changed the definition because ''a number of questions have arisen as to how the term should be interpreted,'' in particular with respect to linear distance between gaming facilities.
The Board has received several comments in opposition to this regulation from members of the legislature and the public who reside in Lebanon County, in particular, East Hanover Township. The Gaming Act (Act) provides that licensees must pay a ''local share assessment'' into the Gaming Fund.
See 4 Pa.C.S. § 1403. These commentators are concerned that the new definition will deny Lebanon County residents their portion of the local share assessment paid by Hollywood Casino, a Category 1 licensee, because the commentators assert that facility operations span across both Dauphin and Lebanon counties, and the new definition would extend the facility only as far as Dauphin County. However, as a result of their close proximity to the casino, Lebanon County providers offer various ''associated'' services to the casino, including sewage and emergency services.
We raise five issues.
A. Statutory Authority, Possible Conflict with Statute and Clarity.
First, we join several commentators in questioning whether the Board has the statutory authority to change the definition of ''licensed facility'' found in the Act. The Act defines a licensed facility as ''the physical land-based location at which a licensed gaming entity is authorized to place and operate slot machines.'' 4 Pa.C.S. § 1103. The new definition adds language stating that the facility includes:
''[t]he gaming floor and all restricted areas servicing slot operations together with all adjacent and proximate amenities, including, but not limited to, food, beverage and retail outlets and other areas directly accessible from the gaming floor or the restricted areas servicing slot operations . . . . The term does not encompass areas or amenities exclusive to pari-mutuel activities, hotel activities and other amenities and activities not related to slot machine gaming operations.''
If the Board can demonstrate its authority for changing the statutory definition, the Board should then clarify whether ''physical land-based location'' refers to an entire property owned by a licensee, or whether it refers to an identified structure(s) on that property. Furthermore, how does the proposal's specific language relate to the Act's reference to a ''physical land-based location''? The Board should explain both how the proposed language is consistent with the Act, and the source of its statutory authority for changing the statutory definition.
Second, a commentator also questioned whether the Board has the authority to change this definition, because to do so would interfere with rights exclusively granted by statute to the Department of Revenue (Department). See 4 Pa.C.S. § 1403 and 61 Pa. Code Ch. 1001. Has the Board consulted with the Department to determine what impact, if any, this regulation will have on the Department's operations?
B. Legislative Intent and Whether the Regulation Represents a Policy Decision of Such a Substantial Nature That It Requires Legislative Review.
Third, several legislators have expressed concern that the proposed regulation does not reflect the legislative intent of the Act. Overall, opposition stems from the claim that to change the definition creates a policy whereby East Hanover Township will no longer stand to receive the approximately $350,000 in local share fees they believe they are entitled to under the Act. Senator Mike Folmer (48th Senatorial District) indicated that because this definition would preclude East Hanover Township from receiving its portion of the local share assessment, the regulation is ''profoundly unfair considering that the original intent of the Gaming Law was to compensate municipalities for costs incurred as a result of the gaming facilities being located within their jurisdiction.'' Representatives Gingrich (101st Legislative District), Swanger (102nd Legislative District) and Marsico (105th Legislative District) collectively commented that the original intent of the Act was to define ''licensed facility'' as ''the land-based location of the facility, as defined, whether they are part of the racetrack, part of a hotel, or even the parking lot.'' Additionally, Senator Tomlinson (6th Senatorial District) provided to the Board transcripts from the Senate floor debate on amendments to the Act.
The Board should explain how the final-form regulation is consistent with the intent of the General Assembly. Moreover, the Board should consider whether the underlying issues represent a policy decision of such a substantial nature that they require legislative review.
C. Whether the Regulation is in the Public Interest; Need; Fiscal Impact; Reasonableness.
Fourth, a Category 2 license applicant suggested changes to the second sentence of the definition, and indicated the definition should not include ''[d]istinctly hotel related operations such as stand-along [sic] food and beverage outlets, catering facilities including room service facilities serving the hotel, convention, meeting and multi-purpose facilities and stand-alone retail facilities.'' The commentator stated that, without their suggested changes, an ''unintended consequence'' could be that ''[e]mployees of . . . restaurants and retail shops that are leased to the tenants and not owned by the casino licensee . . . would have to be licensed by the Board as Non-Gaming employees.'' The commentator states that this could result in various regulatory and financial burdens. Has the Board considered the proposed changes recommended by this commentator? Without these changes, how will the Board avoid possible unnecessary costs for licensees?
Finally, the Preamble indicates that the rationale behind changing the definition is statutory provisions such as ''[t]he Act requires that no Category 3 license shall be located within 15 linear miles of another licensed facility.'' As a result, ''[q]uestions have been raised as to whether the 15 linear miles should be measured from the property line of the licensed facility or the building that houses the gaming floor.'' Given this concern, how does the proposed language address the confusion raised? If the purpose of the changes to the definition is solely to measure distance, has the Board considered including language restricting the new definition ''for purposes of measuring linear distance between facilities only?''
____ Department of Education
Regulation #6-305 (IRRC #2693)Auditing of Approved Private Schools and Chartered Schools for the Education of Deaf and Blind Children July 2, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 3, 2008, 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 Education (Department) to respond to all comments received from us or any other source.
General.--Statutory authority.
In paragraph 9 of the Regulatory Analysis Form, the Department has identified as the statutory authority for this proposed regulation two provisions of the Public School Code specifically authorizing it to promulgate interim and final standards. 24 P. S. §§ 13-1376(c.8) and 13-1376.1(f.5). The authority to establish standards does not include the authority to regulate. Where the legislature intends to authorize the promulgation of regulations, it has done so explicitly. Main Line Health, Inc., v. CAT Fund, 738 A.2d 66 (Pa. Cmwlth. 1999), affirmed 777A.2d 1048 (Pa. 2001). Therefore, with submittal of the final-form regulation, the Department should further explain its statutory authority enabling this rulemaking.
Section 171.202. General guidelines.--Fiscal impact; Need; Reasonableness.
A commentator is concerned with the requirement, under Subsection (9), that reports from the independent auditors must be limited to the Approved Private School (APS) Program. The commentator asserts that the cost of preparation of a separate audit report for the APS program in addition to the standard audit report will impose a financial burden and reduce the funds available for direct student expenses. It suggests that the word ''will'' be changed to ''may'' to allow the APS to have the choice of submitting a separate report or including the report on the APS program within the standard audit report. To give an APS the opportunity to maximize its funds, we recommend the Department adopt the commentator's suggestion, or explain the need for two audit reports.
____ State Athletic Commission
Regulation #16-41 (IRRC #2694)Mixed Martial Arts July 9, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the May 10, 2008, 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 Athletic Commission (Commission) to respond to all comments received from us or any other source.
1. General.--Protection of the public health, safety and welfare; Implementation procedures; Clarity.
Referees
According to the Regulatory Analysis Form submitted with the proposed rulemaking, the Commission anticipates that 100 professional and 180 amateur mixed martial arts (MMA) contestants will seek licenses to compete in Pennsylvania. In addition, the Commission estimates that five or six referees will become licensed and that 15 to 20 MMA events will be held each year. We have two concerns. First, if the number of professional and amateur contestants and the number of events held each year is greater than the estimates noted above, will there be enough qualified referees to officiate all of the matches?
Second, we believe that having a sufficient number of qualified referees familiar with the regulation and other safety protocols is essential to protecting the health and safety of the contestants. What implementation procedures are in place to ensure that a sufficient number of qualified referees are available for this new form of competition? We understand that the rules for boxing referees found at 58 Pa. Code § 21.11 would apply to MMA referees. Are those regulations sufficient to ensure that MMA referees are adequately trained and prepared to officiate an MMA contest?
Commission approvals
Several places in this regulation state that approval from the Commission is needed for contestant equipment, ring set-up and other match-related items. However, it is not clear how these approvals will be granted by the Commission. The final-form regulation should specifically state how contestants and promoters must obtain the approvals required through this regulation. The approvals in question include Sections 29.4(b)(4), (c)(4) and (c)(6), 29.9(a) through (d), 29.25(a) and (b), 29.26(a) and 29.27(a) through (f).
2. Section 29.3. General requirements.--Clarity.
Fees
Subsection (b) requires a professional contestant to be licensed by the Commission. Commission staff indicates that the fees for boxing apply also to MMA contestants. For clarity, the Commission should add a cross-reference to the appropriate boxing fees.
Commission-approved forms
Subsection (c) requires a debut professional contestant to complete a ''Commission-approved form.'' The final-form regulation should state how this form is obtained. A similar concern applies to debut amateur contestants under Section 29.22(d).
3. Section 29.4. Ring or fenced area requirements.--Reasonableness; Clarity.
Subsection (d) requires the promoter to ''thoroughly clean'' the ring area after each match. However, it is not clear what constitutes a ''thorough'' cleaning. Does the Commission intend for the ring area to be disinfected or merely washed down between matches? The final-form regulation should specify acceptable methods for cleaning the ring.
4. Section 29.5. Duration of rounds.--Clarity.
Subsections (a) and (b) both include the phrase ''except with the permission of the Commission or the Executive Director.'' Is written permission required or can it be oral? The final-form regulation should clarify this point.
5. Section 29.12. Acts constituting fouls.--Clarity.
It is not clear what constitutes a ''flagrant foul'' under Subsection (a). We note that the term is not defined in this section, in Section 29.2 (relating to Definitions) or in the Athletic Code relating to Boxing (5 Pa.C.S.A. § 302). To be clear, this term should be defined in the final-form regulation. A similar concern applies to Section 29.29(a).
6. Section 29.17. Promoter licensing and bonding requirements.--Clarity.
Subsection (3) requires that the Commission be given at least ten days notice prior to an event and that the promoters must receive written approval from the Commission in order to hold that event. We have two concerns. First, it is not clear whether the notification should be received by the Commission ''at least 10 days in advance of the event'' or if it merely should be postmarked by that date. This notice requirement should be clarified in the final-form regulation.
Second, in what timeframe will the Commission respond in order to allow enough time for the promoter to receive ''written approval'' before the event?
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 08-1348. Filed for public inspection July 18, 2008, 9:00 a.m.]
