INDEPENDENT REGULATORY REVIEW COMMISSION Action Taken by the Commission [38 Pa.B. 4961]
[Saturday, September 6, 2008]The Independent Regulatory Review Commission (Commission) met publicly at 10:30 a.m., Thursday, August 21, 2008, and announced the following:
Regulation Deemed Approved Under Section 5(g) of the Regulatory Review Act--Effective August 20, 2008:
Insurance Department #11-234: Preparation and Filing of Forms for Approval (Fire and Casualty (deletes 31 Pa. Code Chapter 133))
Regulations Approved:
Department of Public Welfare #14-504: Licensure/Approval Appeal Procedure (amends 55 Pa. Code Chapters 20, 1181, 2380, 2390, 3130, 3140, 3270, 3280, 3290, 3680, 3700, 6400 and 6590)
Environmental Quality Board #7-416: Consumer Products (amends 25 Pa. Code Chapter 130, Subchapters B and C)
Pennsylvania Gaming Control Board #125-78: Slot Machine Testing and Control (amends 58 Pa. Code Chapter 461a)
Pennsylvania Gaming Control Board #125-79: Preliminary Provisions; Employees; Junket Enterprises; Slot Machine Licenses; Slot Machine Testing and Control; Possession of Slot Machine; and Accounting and Internal Controls (amends 58 Pa. Code Chapters 401a, 435a, 439a, 441a, 461a, 461b, 463a and 465a)
Regulations Disapproved:
Department of Labor and Industry #12-71: Registration of Sign Language Interpreters and Transliterators (adds 34 Pa. Code Chapter 501)
Department of Education #6-300: Keystone Educational Accountability Best Management Practices Standards (adds 22 Pa. Code Chapter 405)
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Approval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Department of Public Welfare--Licensure/Approval Appeal Procedure; Regulation No. 14-504 (#2552) On June 20, 2006, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Public Welfare. This rulemaking amends 55 Pa. Code Chapters 20, 1181, 2380, 2390, 3130, 3140, 3270, 3280, 3290, 3680, 3700, 6400 and 6590. The proposed regulation was published in the July 8, 2006, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 21, 2008.
This regulation adopts the General Rules of Administrative Practice and Procedure (1 Pa. Code Part II) for use in Department of Public Welfare certification appeals.
We have determined this regulation is consistent with the statutory authority of the Department of Public Welfare (2 Pa.C.S. §§ 501--508 and §§ 701--704; 62 P. S. §§ 921 and 1021) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Approval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Environmental Quality Board--Consumer Products; Regulation No. 7-416 (#2636) On August 29, 2007, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapter 130, Subchapters B and C. The proposed regulation was published in the September 15, 2007, Pennsylvania Bulletin with a 102-day public comment period. The final-form regulation was submitted to the Commission on July 18, 2008.
This regulation amends the existing provisions that limit the Volatile Organic Compound content of various consumer products.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. § 4005) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Approval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Pennsylvania Gaming Control Board--Slot Machine Testing and Control; Regulation No. 125-78 (#2666) On January 9, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Gaming Control Board (Board). This rulemaking amends 58 Pa. Code Chapter 461a. The proposed regulation was published in the January 19, 2008, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 11, 2008.
This final-form regulation amends the Board's existing regulations to address unredeemed gaming vouchers.
We have determined this regulation is consistent with the statutory authority of the Board (4 Pa.C.S. §§ 1202(b)(30) and 1207) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Approval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Pennsylvania Gaming Control Board--Preliminary Provisions; Employees; Junket Enterprises; Slot Machine Licenses; Slot Machine Testing and Control; Possession of Slot Machines; and Accounting and Internal Controls; Regulation No. 125-79 (#2677) On February 21, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Gaming Control Board (Board). This rulemaking amends 58 Pa. Code Chapters 401a, 435a, 439a, 441a, 461a, 461b, 463a and 465a. The proposed regulation was published in the March 8, 2008, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 11, 2008.
This regulation amends language based on organizational changes within the Board's organizational structure, adds new design standards for slot machines, deletes an obsolete technical standard, amends accounting and internal control requirements and expands provisions relating to merchandise jackpots.
We have determined this regulation is consistent with the statutory authority of the Board (4 Pa.C.S. § 1202(b)(30)) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Disapproval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Department of Labor and Industry--Registration of Sign Language Interpreters and Transliterators; Regulation No. 12-71 (#2556) On July 10, 2006, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Labor and Industry (Department). This rulemaking adds 34 Pa. Code Chapter 501. The proposed regulation was published in the July 22, 2006, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 8, 2008.
The purpose of the rulemaking is to implement the Sign Language Interpreter and Transliterator State Registration Act (Act). (63 P. S. §§ 1725.1--1725.11)
Based upon the information provided to us, the Commission has determined that one of the criteria set forth in the Regulatory Review Act has not been met. That criterion pertains to clarity and lack of ambiguity. (71 P. S. § 745.5b(b)(3)(ii)).
Our comments on the proposed version of this rulemaking identified specific sections that lacked clarity. The Department has made several changes to the rulemaking in response to those comments and also comments provided by the public. However, the following clarity concerns remain.
First, § 501.4, pertaining to registration and § 501.5, pertaining to exemptions, are written in a manner that requires a person to read both the regulation and the Act in order to understand all aspects of the registration process. In addition, the regulation is silent on the provisions of the Act pertaining to confidential communications. We recommend that §§ 501.4 and 501.5 be amended in a manner that more accurately informs the regulated community of the registration process and we recommend that a new section pertaining to confidential communications be added to the regulation. We note that the amendments to the exemptions in § 501.5 should include the exemptions contained in the Act and also the exemption created by Act 172 of 2006, which relates to court and administrative proceeding interpreters.
Second, we believe the definition of ''RID Generalist examinations'' found in § 501.1 remains unclear for two reasons. First, the definition does not reflect the fact that the examination is no longer given. In addition, the definition now includes the following undefined acronyms: CI/CT, CSC, MCSC, CDI, OTC and OIC:C. We recommend that this definition be amended to reflect the fact that the examination is no longer given and to define the acronyms.
Third, in our comment on § 501.5(e), we asked the Department to amend the final regulation in accordance with Act 92 of 2006 (Act 92), which relates to interpreting and transliterating in a public or private school. The Department added language to reference ''regulations promulgated by the State Board of Education.'' The State Board of Education recently promulgated two regulations, as required by Act 92. We acknowledge that when the final-form regulation was developed by the Department, the regulations of the State Board of Education were not finalized and it would not have been possible to include more specific citations. However, the State Board of Education's regulation are now finalized and we recommend that this final regulation include those specific citations (See 22 Pa. Code § 14.105 and § 711.5)
We have determined this regulation is consistent with the statutory authority of the Department (63 P. S. § 1725.3(4)) and the intention of the General Assembly. However, after considering the clarity criterion of the Regulatory Review Act discussed above, we find that promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
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Disapproval Order Public Meeting held
August 21, 2008Commissioners Voting: Arthur Coccodrilli, Chairperson; Karen A. Miller; John F. Mizner, Esq.
Department of Education--Keystone Educational Accountability Best Management Practices Standards; Regulation No. 6-300 (#2550) On June 20, 2006, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Education (Department). This rulemaking adds 22 Pa. Code Chapter 405. The proposed regulation was published in the July 1, 2006, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 21, 2008.
This final-form regulation implements the Keystone Educational Accountability Act of 2003 (Act). The purpose of the Act is to put in place an assessment system aimed at improving school district management practices and use of resources, as well as to identify potential cost savings, by providing for the establishment of best management practice standards covering a broad range of educational and operational programs and services.
Based upon the information provided to us, the Commission has determined that three of the criteria set forth in the Regulatory Review Act have not been met.
The first and most critical criterion that has not been met is whether the agency has the statutory authority to promulgate the regulation and whether the regulation conforms to the intention of the General Assembly in the enactment of the statute upon which the regulation is based. (71 P. S. § 745.5b(a)). In our comments on the proposed rulemaking, we stated that the regulation fails to establish the process for both self-assessment and the external review. In response to this comment, the Department added a new section pertaining to the review and self-assessment process (§ 405.14). Our concern is with the following new language in the section: ''Each school district of the Commonwealth shall be reviewed for compliance with the standards once every six years, to the extent that funds are provided for this purpose in the general appropriation act each year.'' (Emphasis added.) We believe that the Department does not have the statutory authority to limit compliance reviews to years when the General Assembly provides a specific appropriation. The controlling provision of the Act states, ''Every school district shall be subject to a best financial management practices review on a continuing six-year cycle.'' (24 P. S. § 25-2506-A(a)). We understand this to mean that every school district must undergo a review every six years, regardless of designated funding.
The Act does permit the Department some flexibility depending on the availability of specifically appropriated funds, but that flexibility is limited to situations involving the use of private firms to conduct these reviews. Specifically, the Act allows the Department ''to contract with a private firm or firms . . . to the extent that funds are provided for this purpose in the General Appropriate Act each year.'' 24 P. S. § 25-2506-A(c). We feel that the Department has mistakenly applied the flexibility permitted in Subsection (c) to the review process required in Subsection (a). Therefore, we conclude that § 405.14 of the regulation conflicts with the specific statutory directive to conduct financial management reviews of each school district once every six years. Further, the Department, by exceeding the scope of statutory authority granted by the General Assembly, is not conforming to the intention of that body. The Department should delete Section 405.14 from the regulation.
The second criterion that has not been met is whether the regulation is clear and lacks ambiguity. (71 P. S. § 745.5b(b)(3)(ii)). We believe the new section pertaining to definitions (§ 405.2) lacks clarity for the following reasons. First, the introductory paragraph of the section is not written in regulatory language and should be deleted. Second, most of the definitions included in the final rulemaking include the term that is being defined. Pursuant to the Pennsylvania Code and Bulletin Style Manual, the term being defined should not be included in the definition (§ 1.7(e)), and we recommend that the definitions be amended accordingly. Third, under the definition of ''Keystone District,'' the phrase ''is eligible to be certified by the Pennsylvania Secretary of Education as a Keystone District'' is substantive and should be moved to the body of the regulation.
The third criterion that has not been met is whether the Department has complied with the provisions of the Act and the regulations of Commission in promulgating the regulation. As noted above, a new section pertaining to definitions was added to the final regulation. The inclusion of this new section required renumbering of other sections contained in the regulation. However, the renumbering was not formatted in a manner consistent with the Commission's regulations under 1 Pa. Code § 307.3a(b)(1) and (2).
We have determined this regulation is not consistent with the statutory authority of the Department and the intention of the General Assembly. Additionally, after considering all of the other criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 08-1642. Filed for public inspection September 5, 2008, 9:00 a.m.]
