INDEPENDENT REGULATORY REVIEW COMMISSION Actions Taken by the Commission [26 Pa.B. 4371] The Independent Regulatory Review Commission met publicly at 1 p.m., Thursday, August 22, 1996, and took the following actions:
Regulations Approved:
State Ethics Commission #63-5: Statements of Financial Interest (amends 51 Pa. Code Chapters 11 and 19.)
Department of Agriculture #2-93: Nutrient Management Certification Program (establishes 7 Pa. Code Chapter 131.)
Department of Transportation #18-324: School Buses and School Vehicles (amends 67 Pa. Code Chapter 171.)
Environmental Quality Board #7-286: Storage Tanks, Certification Program (amends 25 Pa. Code Chapter 245.)
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
August 22, 1996State Ethics Commission--Statements of Financial Interest; Doc. No. 63-5
Order On August 31, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Ethics Commission (SEC). This rulemaking amends 51 Pa. Code Chapters 11 and 19. The authority for this regulation is contained in section (7)(l) of the Ethics Law (65 P. S. § 407(1)). The proposed regulation was published in the September 16, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 26, 1996.
The regulation provides that when a Statement of Financial Interest (FIS) is sent to the SEC by Facsimile Service (FAX), it will be considered officially filed on the date the FAX is received by the SEC provided that the signed, original document is delivered to the SEC within 5 business days from the date the FAX is sent. If the original document is not received within 5 days, the FIS will be considered officially filed on the date the original FIS is received. Accordingly to the SEC, there are instances such as judicial proceedings and administrative proceedings of other agencies when an original FIS is necessary. In these situations, a FAX is not acceptable. The proposed regulation will ensure that the SEC has the original document available when it is required for a specific proceeding.
In our Comments on the proposed rulemaking, we questioned why the requirement for sending an original document within 5 days of sending a FAX should not be applied to other ''official papers,'' and we recommended that the SEC define ''official papers.'' We also noted that in the definition of ''service'' found in section 11.1, there was no similar provision requiring that when the SEC serves a document by FAX transmission, the original document be delivered within 5 business days. We recommended that the definition of ''service'' include such a provision.
In a March 4, 1996 meeting with the SEC and representatives from the Senate Rules and Executive Nominations Committee and the House Judiciary Committee, the SEC responded to our concerns. The SEC explained that the proposed regulation was designed to address a specific problem relating to FIS filings and that it was not necessary to impose the same requirement on other ''official papers'' that are filed with or served by the SEC. The SEC further explained that creating a single definition of ''official papers'' would be difficult and would only cause confusion. Furthermore, since the SEC intended the regulation to apply only to FISs, there would not be confusion over the types of documents affected by the regulation.
We concurred with the SEC's position; however, we noted that the provision requiring receipt of the original FIS within 5 business days is a substantive provision relating to the filing of FISs. It is inappropriate to include this substantive provisions in the definition of ''filed'' found in section 11.1 Definitions. To address this problem, we recommended that the SEC create a new subsection (d) under section 19.1 Forms; filing. We provided the SEC with specific language to be used in section 19.1(d) which the SEC has incorporated into the final-form regulation in its entirety. The final-form regulation also includes a reference to section 19.1 in the definition of ''filed'' found in section 11.1.
We have reviewed this regulation and find it to be in the public interest. The SEC has explained the basis for the limited application of the requirement to submit the original document within 5 days of FAXing the FIS, and we believe the final-form regulation now clearly reflects the SEC's intent.
Therefore, It Is Ordered That:
1. Regulation No. 63-5 from the State Ethics Commission, as submitted to the Commission on July 26, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner, Irvin G. Zimmerman
Public meeting held
August 22, 1996Department of Agriculture--Nutrient Management Certification Program; Doc. No. 2-93
Order On October 4, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking would establish 7 Pa. Code Chapter 131. The authority for this regulation is contained in section 7 of the Nutrient Management Act of 1993 (act) (3 P. S. § 1707). The proposed regulation was published in the October 14, 1995 edition of the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on August 2, 1996.
The act requires all concentrated animal operations (CAO) to have a nutrient management plan that is developed by a nutrient management specialist. The act provides the Department with the authority to promulgate regulations to establish individual, commercial and public certification categories, as well as the establishment of fees, educational requirements and examinations for certification. The proposed regulation provides the specific procedures and requirements that an individual must follow in order to be certified as a nutrient management specialist.
In order to be certified as a commercial nutrient management specialist, an individual must complete a precertification training course that contains specific topics listed in the rulemaking, pass a written examination, and develop three nutrient management plans. Certification for a public nutrient management specialist requires completion of the precertification training course, passing the written examination, and development of one plan and review of two plans.
Following the precertification course and successful completion of the written examination, provisional certification, which is valid for 3 years, is issued for commercial and public nutrient management specialists. Once the provisional certification has been issued, a commercial nutrient management specialist must develop three nutrient management plans which are reviewed and approved by the State Conservation Commission or its designee. A public nutrient management specialist must develop one, and review two, nutrient management plans that are reviewed and approved by the State Conservation Commission or its designee.
In order to be certified as an individual nutrient management specialist, an individual must complete the precertification training course and successfully complete a written examination. Individual nutrient management specialists are exempt from the preparation and review of nutrient management plan requirements.
All nutrient management specialists must be recertified and complete continuing education requirements every 3 years. The Department will approve and assign credit hours to courses that meet the necessary continuing education requirements. Public and commercial nutrient management specialists must obtain ten credits; individual nutrient management specialists must take six credits.
The Commission submitted detailed comments on the proposed regulation. In response to our Comments, as well as those of other public commentators, the Department amended the regulation by adding several definitions to the regulation, clarified the examination requirements, clarified that interim certification will end on the effective date of the regulation, and provided justification for the administrative fees.
One of the more significant concerns raised on the proposed rulemaking concerned the ability of a public nutrient management specialist to develop nutrient management plans. The proposed rulemaking allowed a public nutrient management specialist to develop plans for a CAO. The Department received numerous comments in opposition to allowing a public nutrient management specialist to develop nutrient management plans. These commentators expressed a concern that if the public sector was allowed to develop plans, it would have a competitive advantage over the private sector because the public sector would be paying a lower certification fee and could potentially subsidize the costs of developing nutrient management plans. The commentators concluded that this would act as a disincentive for private sector businesses to become certified as nutrient management specialists, resulting in a shortage of nutrient management specialists.
In our Comments, we stated that we believed a public nutrient management specialist should be able to develop plans. We believed it was in the public interest to have a public nutrient management specialist be able to develop plans because it would provide more options to farmers in obtaining a specialist to develop their plans. However, we did recommend that the Department amend the regulation to require that the development of a nutrient management plan be a requirement to be certified as a nutrient management specialist.
The Department amended the regulation to only allow a public nutrient management specialist to review plans and a commercial nutrient management specialist to develop plans. It also amended the regulation to require a public nutrient management specialist to develop a plan in order to become certified. To address our recommendation that a public nutrient management specialist be able to develop plans, the Department added a provision to allow a public nutrient management specialist to become a commercial nutrient specialist (and thus be able to develop plans) by merely developing two more nutrient management plans.
Although we believe the Department should have retained its proposed language allowing a public nutrient management specialist to develop nutrient management plans, we believe the Department has crafted a fair compromise. The regulation will allow a local conservation commission to employ a person dually certified as a public and commercial nutrient management specialist who can develop nutrient management plans for affected farmers.
We have reviewed this regulation and find it to be in the public interest. The regulation is necessary for the Department to begin to certify individuals as nutrient management specialists. The regulation will ensure that the nutrient management specialists are properly qualified to develop and review nutrient management plans.
Therefore, It Is Ordered That:
1. Regulation No. 2-93 from the Department of Agriculture, as submitted to the Commission on August 2, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
August 22, 1996Department of Transportation--School Buses and School Vehicles; Doc. No. 18-324
Order On October 24, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Transportation (Department). This rulemaking would amend 67 Pa. Code Chapter 171. The authority for this regulation is §§ 4103, 4551--4553, and 6103 of the Vehicle Code (75 Pa.C.S. §§ 4103, 4551--4553, and 6103). The proposed regulation was published in the December 9, 1995 edition of the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 30, 1996.
The Department's proposal results from amendments to the Vehicle Code, and the need to bring the Department's regulations into conformity with changes to the Federal Motor Vehicle Safety Standards published in the Code of Federal Regulations. Additionally, the Department's amendments conform with recommendations of the Tenth, Eleventh and Twelfth National Conferences on School Transportation pertaining to minimum standards for school buses and their operation.
The regulation updates existing provisions governing the construction, conversion, maintenance and operation of school buses and school vehicles by amending Subchapters A--G of 67 Pa. Code Chapter 171. Subchapter A, General Provisions, includes changes to the definitions of ''school bus'' and ''school vehicle'' to conform to the amended definitions in the Vehicle Code.
Subchapter B, School Bus Chassis Standards make numerous modifications, the most significant of which are changes in color, tires and rims, adopting standards at 49 CFR Part 393 for regrooved tires used on school vehicles, and exhaust systems. Requirements for exhaust systems conform with 49 CFR 393.83 and address concerns with exhaust fumes filtering through open bus windows. The exhaust requirement will become effective June 15, 1998, to allow manufacturers time to convert.
Subchapter C, School Bus Body Standards, makes modifications to existing provisions including aisle clearance and emergency doors, and adds requirements for reflective material based on the recommendations of the Eleventh National Conference, specifying width of markings and placement to enhance visibility of buses. The name of the school district, school or contractor must be lettered on each side of the school bus. Dealer identification insignia are allowed in a specific area and size. Seat belts are required for school buses with a gross vehicle weight rating of 10,000 pounds or less, consistent with 49 CFR 571.222.
Subchapter D, Specially Equipped School Bus Standards, contains additional requirements for securement devices and safety restraints for wheelchairs. Subchapter E, School Vehicle Standards, applies to vehicles designed to carry 11 to 15 passengers including the driver registered in the Commonwealth as a bus and registered to a school prior to September 15, 1993, as well as motor vehicles designed to carry no more than 10 passengers including the driver.
Subchapter F, Mass Transit Pupil Transportation Bus Standards, contains changes pertaining to fire extinguishers, first aid kits, warning devices and seating. Subchapter G contains modifications for operations standards.
We have reviewed this regulation and find it to be in the public interest. During the proposed rulemaking, the Department received comments from the American Academy of Pediatrics, M. A. Brightbill Body Works, Inc., the Elwyne Institute, HMS School for Children with Cerebral Palsy, the Pennsylvania School Bus Association (PSBA), and the University of Pittsburgh School of Health and Rehabilitation Sciences, Rehabilitation Engineering Research Center. The Department responded to these comments through revisions to the final-form rulemaking and explanations in its preamble. Additionally, the Department continued to discuss concerns with commentators prior to submitting its final-form regulations.
In response to our Comments, the Department deleted the effective date of September 1, 1996. We were concerned that if the rulemaking was not approved and published prior to September 1, 1996, the requirements in the regulation would be retroactive. The Department responded by amending the final-form regulation, replacing the September 1, 1996 date with a provision for the rulemaking to become effective upon publication. Additionally, an exception in the Department's order to allow §§ 171.55(b) and 171.124(b) to become effective 1 year from the date of publication was added to the regulation. The exception allows contractors and districts time to make required identification changes on the exterior of buses.
The Department responded to a recommendation of the PSBA to allow the installation of air conditioners in school buses. After meeting with the PSBA and the Transportation Committee, the Department agreed to specify the acceptable locations for after-market air-conditioning units in its regulations at section 171.58, requiring conformance with Federal labeling regulations at 49 CFR 567.7 and 568.8.
Further modifications to the final-form rulemaking included a change to the definition of the term ''specially equipped school bus'' to focus on the needs of the student rather than the category of student, complete definitions for terms in place of statutory citations to definitions located in the Vehicle Code, and clarification of changes to requirements for reflective material and installation or attachment of exhaust pipes, mufflers, first aid kits and fire extinguishers.
School children will benefit from increased vehicle safety resulting from improved standards in roll over protection, body joint strength, seating crash protection and fuel system integrity. Chapter 171 of the Department's regulations at 67 Pa. Code will also be brought into conformance with the Vehicle Code and with Federal regulations.
Therefore, It Is Ordered That:
1. Regulation No. 18-324 from the Department of Transportation, as submitted to the Commission on July 30, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner, Irvin G. Zimmerman
Public meeting held
August 22, 1996Environmental Quality Board--Storage Tanks; Certification Program; Doc. No. 7-296
Order On November 6, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). It would amend 25 Pa. Code Chapter 245, relating to the administration of the Storage Tank and Spill Prevention Program. The authority for this regulation is section 106 of the Storage Tank and Spill Prevention Act (act) (35 P. S. § 6021.106). The proposed regulation was published in the November 18, 1995 edition of the Pennsylvania Bulletin, with a 60-day comment period. The final-form regulation was submitted to the Commission on July 24, 1996.
Section 102(b) of the act reflects the General Assembly's concern that storage tank releases pose a threat to public health and safety of the Commonwealth. Section 107(d) of the act authorizes the Department of Environmental Protection (DEP) to establish regulations governing certification and licensing programs for installers and inspectors of storage tanks and storage facilities. The regulatory scheme addresses the storage of regulated substances in existing and new storage tanks, provides for liability for damages sustained from release or discharge, and requires prompt cleanup and removal of offending substances.
This rulemaking was necessitated by a wide range of issues and concerns, many relating to the specific work performed by certified storage tank installers and inspectors, which developed over the past few years. The DEP formed an informal technical advisory committee (TAC) to review the comments submitted on the proposed version of this rulemaking and to assist it in preparing the final-form regulation. The TAC was comprised of storage tank industry experts, several of whom participated in the formulation of the original Chapter 245 regulation. TAC members have special expertise in the field of tank construction, installation, modification and removal.
Also, consistent with the mandate of section 105 of the act, the DEP worked closely with the Storage Tank Advisory Committee (STAC) in developing both the proposed and the final-form version of this rulemaking. The STAC is comprised of persons representing a cross-section of organizations (including petroleum, service station and auto repair, chemical industry, tank installers, and truck stop operators) having a direct interest in the regulation of storage tanks in Pennsylvania.
Storage tank regulation is governed by a combination of Federal and Pennsylvania law. Federal law includes the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C.A. §§ 6901--6987), as well as regulations promulgated under the authority of RCRA at 40 Code of Federal Regulations (CFR) Part 280. The latter deal with technical standards and corrective action requirements for owners and operators of USTs. The RCRA provides that states may adopt the Federal regulatory program, in full or in part, but the state program must be at least as stringent as the Federal program.
These amendments would modify the existing regulation concerning certification of installers and inspectors of storage tanks governed by the act to make it easier for qualified individuals to become certified. The objective is to increase the pool of certified tank inspectors. An increase in the pool of certified inspectors, in turn, will help achieve the tank inspection and safety goals of the act.
The final rulemaking would amend current Subchapters A and B of Chapter 245. The changes in Subchapter A (general provisions) include further changes in definitions, addition of tank tightness testing requirements, and clarification of which Federal UST rules have been incorporated by reference.
The changes to Subchapter B (certification program for installers and inspectors of storage tanks and storage tank facilities) make up the bulk of the regulation. The changes consolidate several certification categories, eliminate unnecessary certifications and change the requirements for certification approval. Other changes relate to suspension and revocation of certification, the renewal and amendment of certification, and examination requirements and performance standards.
Section 245.105, relating to certification examinations, was the subject of many commentators' comments. As published, the proposed rulemaking sought to amend section 245.105(d) to require an applicant to get a minimum score of 80% (instead of the current 90%) on the technical section of the examination. It also proposed to eliminate the current 90% passing score requirement for training programs and require an applicant achieve a minimum score of 80% on the administrative section of the examination.
In our Comments on section 245.105, we recommended that the EQB retain the current 90% minimum passing grade on the technical portion of the examination, but use the proposed 80% minimum passing grade on the administrative portion of the examination. We also noted that the present 90% minimum passing rate is not so high that it has resulted in a current shortage of permanently certified tank installers and inspectors. The final-form regulation was amended accordingly, reflecting the view that the technical portion of the examination is more important than the administrative portion. The final-form regulation also carried forward the elimination of the passing score requirement for training programs.
There were 20 commentators on the proposed version of this rulemaking in addition to the Commission's Comments. Almost all commentators expressed general support, but many also suggested amendments to certain specific provisions. The Agricultural Advisory Board and its subcommittee on storage tanks also had an opportunity to review and comment on the proposed rulemaking.
The DEP worked closely with the TAC and the STAC in reviewing the questions, suggestions and issues raised in the comments on the proposed rulemaking and in preparing the final-form regulation. The final-form regulation incorporated many of the changes suggested by commentators. At its meeting on May 8-9, 1996, the STAC reviewed and discussed the final-form amendments; it then issued a written report approving the final-form version of the regulation to be presented to the EQB.
These rulemaking amendments will affect owners and operators of regulated storage tanks as defined in the act. Affected parties include, among others: service station owners; heating oil distributors; owners of large heating oil storage tanks; commercial businesses; petroleum refineries; chemical manufacturers, distributors and users; Federal, State and local governments; installers of ASTs and USTs; storage tank inspectors and testers; companies employing certified inspectors and installers of ASTs and USTs; and manufacturers of field-erected ASTs and USTs.
The EQB and DEP have stated that there will be no net increase in costs on the private sector or for any person subject to the act and this regulation. The DEP expects, in fact, that the regulated community (including the private sector) will have reduced costs as a result of fewer required number of inspections combined with additional inspectors qualified to perform the work required. This rulemaking will also eliminate some heating oil tanks and Federally-exempt tanks from regulation, which will reduce costs to the owners of those tanks.
By consolidating several of the certified installer categories and reducing specialization categories, the EQB and the DEP expect that the final-form regulation should make it easier for owners and operators of storage tank facilities to employ only one installer to perform necessary tank handling activities.
We have reviewed this regulation and find it to be in the public interest. The EQB and DEP have incorporated into the final-form regulation the changes suggested by our Commission and many of those submitted by other commentators. Although the proposed version of the rulemaking did not include any of the amendments to the act made by Act 16 of 1995, all inconsistencies between the proposed version of this rulemaking and the amended act were corrected in the final-form regulation.
Therefore, It Is Ordered That:
1. Regulation No. 7-286 from the Environmental Quality Board, as submitted to the Commission on July 24, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 96-1489. Filed for public inspection September 6, 1996, 9:00 a.m.]
