Notice of Comments Issued
[33 Pa.B. 2326]
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 Committee 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 16A-528 State Board of Optometry 3/31/03 4/30/03 General Revisions (33 Pa.B. 1120 (March 1, 2003)) 16A-529 State Board of Optometry 3/31/03 4/30/03 Continuing Education (33 Pa.B. 1118 (March 1, 2003)) 16A-605 State Board of Vehicle Manufacturers, Dealers and Salesperson 3/31/03 4/30/03 Branch Lots (33 Pa.B. 1124 (March 1, 2003)) 16A-417 State Architects Licensure Board 3/31/03 4/30/03 Firm Practice (33 Pa.B. 1116 (March 1, 2003)) 57-223 Pennsylvania Public Utility Commission 3/31/03 4/30/03 Filing Requirements Relating to Water and Wastewater Public Utilities (33 Pa.B. 1106 (March 1, 2003))
State Board of Optometry Regulation No. 16A-528
April 30, 2003
We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Optometry (Board) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 23.1. Definitions.--Protection of the public health; Need; Clarity.
Means and methods for the examination, diagnosis and treatment of conditions of the visual system.
Examination, diagnosis and treatment.
The House Professional Licensure Committee (House Committee) commented requesting ''a detailed explanation of the training of optometrists in order to perform the 14 services listed in the proposed regulations, as well as an explanation as to how long each service has been part of optometric practice. Additionally, the Committee requests information as to the extent these services are considered to be within the scope of optometric practice in other states.'' The House Committee also listed the following specific concerns:
* Subparagraph (i)(C) appears to authorize optometric offices as facilities in which anesthesia may be administered.
* The House Committee noted the comments submitted by the Pennsylvania Medical Society (PMS) on subparagraph (i)(F) requesting that the use of lasers be limited to diagnostic imaging purposes.
* Subparagraph (i)(H) would appear to limit low vision rehabilitation exclusively to the practice of optometry. The House Committee fears this would have a negative impact on unlicensed individuals who are appropriately engaged in the practice of low vision rehabilitation.
* The House Committee noted the PMS comment that recommends deleting or modifying subparagraph (i)(I) relating to diagnostic and nonsurgical treatment of the lacrimal system.
* The House Committee questions why subparagraph (ii) includes all levels of evaluation and management services and not just those levels of evaluation and management services pertaining to the visual system.
We agree with the House Committee concerns and requests for additional supporting information regarding the scope of optometric practice.
Additionally, the public submitted comments questioning the list of procedures included in this definition as follows:
* Commentators believe subparagraph (i)(E) should not allow optometrists to provoke attacks of glaucoma which they believe is outside the scope of the practice of optometry.
* Commentators believe that under subparagraph (i)(K) an optometrist should not be allowed to order or calculate the lens implant power which they also believe is outside the scope of the practice of optometry.
* Commentators believe that under subparagraph (i)(L) the ordering of computer assisted tomography and magnetic resonance imaging scans is the practice of medicine and is outside the scope of the practice of optometry.
* Under subparagraph (i)(M), commentators believe that the ordering, interpretation and reporting of angiography studies is outside the scope of practice of optometry.
The Board should evaluate each comment and provide either an explanation of why each provision is appropriately within an optometrist's scope of practice under the Optometric Practice and Licensure Act, amend the provision to address the concern raised or delete the provision.
Placement within the definition section.
We have two concerns with the placement of this provision within the definitions section.
* Some of the provisions appear to be substantive, such as subparagraph (i)(C). Substantive provisions within a definition are not enforceable. Therefore, it is not clear how this definition would be applied.
* We only found this term used once within the regulation, in § 23.83. We question the need to define this term rather than explain it where it is used in the regulation.
For these reasons, the Board should move the provisions in the proposed definition to a section in the body of the regulation under the title ''Scope of Practice.''
2. Section 23.33. Practice.--Clarity.
Subsection (a) includes the phrase ''when practicing in his office.'' (Emphasis added.) The use of words that show gender distinction should only be used in a regulation that specifically applies to one sex. The Board should amend this phrase to be gender neutral.
Subsection (b) states, in part, ''. . . an optometrist may arrange the professional practice to include service to a licensed health care service facility, including in-patient or out-patient hospitals and emergency rooms, nursing homes and long-term care facilities, or any facility with the need for optometric services.'' We have two concerns.
First, the phrase ''or any facility'' is very broad. Is the intention of this subsection to allow optometrists to provide services in facilities other than licensed health care service facilities? Where would an optometrist be precluded from providing services?
Second, the phrase ''optometric services'' is vague. Would an optometrist be permitted to perform all of the services described in the definition of ''means and methods for the examination, diagnosis and treatment of conditions of the visual system''? Would an optometrist be required to comply with §§ 23.21 and 23.42? The Board should specify what services are allowed.
Under subsection (e), the phrase ''visual screening'' is used. However, this phrase is not defined. How does a visual screening differ from ''optometric services'' noted in subsection (b)? The final-form regulation should include a definition of the phrase ''visual screening.''
3. Section 23.34. Professional corporations.--Clarity.
Subsection (a) states, in part, ''An optometrist licensed by the Board may professionally incorporate with other optometrists, medical doctors, doctors of osteopathy, dentists, psychologists, podiatrists, chiropractors and other health care professionals. . . .'' (Emphasis added.) Besides the specific professions listed in this subsection, what other ''health care professionals'' may professionally incorporate with a licensed optometrist? The regulation should clearly state or cross reference who specifically the Board considers to be a ''health care professional.''
4. Section 23.71. Patient records.--Clarity; Reasonableness; Protection of the public health.
We have two concerns with subsection (b). First, this subsection states that requests for contact lens prescriptions may be given at the discretion of the optometrist. If an optometrist provides a contact lens prescription to a patient, subsection (c) requires that certain factors be considered before that prescription is provided. The preamble states that these factors were included to protect the optometrist from liability. Since these protections were included in the regulation, why is a patient's request for contact lens prescriptions ''at the discretion of the optometrist''?
Second, this subsection states that a patient's request for a spectacle prescription shall be complied with if the request was made within 2 years of the patient's last eye examination. To protect the public health, should a similar requirement be placed on contact lens prescription requests?
Subsection (c) includes the phrase ''in his discretion.'' (Emphasis added.) The Board should amend this phrase to be gender neutral.
5. Section 23.72. Prescriptions.--Clarity.
Subsection (a) describes the information that must be included in an optometric prescription. A phone number would allow the person filling the prescription to easily verify a prescription if a question arises. The Board should consider adding this requirement.
Subsection (b) addresses information that must be included in a contact lens prescription. It states, in part, ''. . . but in no case shall the expiration date be greater than 1 year.'' Does the 1-year expiration date refer to the date of the contact lens examination or the date when the optometrist wrote the prescription? The final-form regulation should address this concern.
State Board of Optometry Regulation No. 16A-529
April 30, 2003
We submit for consideration the following comment that includes a reference to the criterion in the Regulatory Review Act (71 P. S. § 745.5b) which has not been met. The State Board of Optometry must respond to this comment when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 23.83. Continuing education subject matter.--Clarity.
The first sentence of subsection (b) relates to the title of § 23.83 and is appropriately placed. However, the remainder of subsection (b) relates to course approval, course numbers and reevaluation. These provisions would be more appropriately placed in § 23.84 (relating to provider and program registration) or § 23.87 (relating to reporting of continuing education credit hours).
State Board of Vehicle Manufacturers, Dealers and Salespersons Regulation No. 16A-605
April 30, 2003
We submit for consideration comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
We have two general concerns with this regulation.
The House Professional Licensure Committee (House Committee) has questioned the appropriateness of placing this subchapter under the ''General Provisions'' heading of the current regulations. Since the subject matter of the proposed regulation specifically addresses dealerships, we agree and suggest that the Board move this proposed subchapter under the ''Dealership License'' heading of the current regulations.
Second, § 19.5(c)(2) states that this regulation does not apply to the placement of recreational vehicles, mobile homes or manufactured housing. Why did the Board provide for these exclusions in a regulation that isn't applicable to the mentioned products? The Board should delete this provision or explain why it is needed.
2. Section 19.5. Branch lots.--Clarity.
Subsection (b). Storage of vehicles.
Subsections (b)(3), (4), (6) and (7) begin with the phrases ''No salesperson. . . , no sign. . . , no literature. . . .'' This language expresses the negative in the actor. However, the negative in this instance belongs with the action, not the actor. Therefore, the Board should change the language in these subsections, placing the negative with the verb, and not with the subject of the sentence.
Subsection (b)(8) requires that ''potential customers are not able to communicate with a representative of the dealer from the lot, by telephone, e-mail, computer or otherwise. . . .'' The Board should clarify in this provision that the dealer may not provide a telephone, computer or other means of communication for the customer to contact the dealer from the unlicensed lot.
Subsection (c). Single vehicle display.
We have three concerns with this subsection.
First, the House Committee has suggested that this subsection should include a provision that requires a dealer to place a sign indicating that the vehicle is for display only, including notice that sales negotiations or transactions may not occur at the site. We agree.
Second, subsection (c)(1)(v) contains the phrase ''other documents.'' To what other documents does this phrase refer? To facilitate compliance and improve clarity, this phrase should be replaced with specific references.
Finally, subsection (c)(1)(vi) requires that ''the vehicle is locked or otherwise not capable of being entered. . . .'' This sentence should emphasize that it is the dealer's responsibility to ensure that the vehicle is locked and that the public is unable to gain entry in any manner.
State Architects Licensure Board Regulation No. 16A-417
April 30, 2003
We submit for consideration comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Architects Licensure Board (Board) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 9.162. Firm Practice.--Consistency with statute.
Paragraph (5) sets forth the criteria for an LLC. Paragraph (5)(iii) requires that ''At least one member or manager is a licensee of the Board.'' Section 34.13 of 63 P. S., which allows for LLPs and LLCs, does not contain this requirement. Therefore, the Board should explain why it included paragraph (5)(iii).
Pennsylvania Public Utility Commission Regulation No. 57-223
Filing Requirements Relating to Water and Wastewater Public Utilities
April 30, 2003
We submit for consideration comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Public Utility Commission (PUC) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Exhibit D--Clarity.
Section 53.53(b) defines ''test year'' as ''the test year chosen by the utility to support its filing, that is, presumably future test year data would be supplied in most cases.'' Our concern is that several different terms are used to reference time frames in Exhibit D, including:
* Data Request II.5 contains the phrase ''test year-end and year-end immediately preceding the test year.''
* Data Request III.18 includes the designation ''historic and future test years.''
* Data Request IV.11 contains the phrase ''test year income taxes or future year income taxes.''
* Data Request IV.18 references ''actual test year'' and ''proposed test year-end.''
We also found differing terms used in Data Requests IV.11, IV.18, V.13, VII.10 and VII.11. Data for rate filings is provided for specific time frames. The use of differing terms is confusing. The regulation should define the time periods, such as ''historic test year'' and ''future test year,'' and use those terms consistently throughout Exhibit D.
The proposed rulemaking contains terms that could be subject to misinterpretation. The PUC should amend the regulation so that there is a clear understanding of what information must be filed. Listed are the terms, an example of their context and citations to where they are found in the regulation.
* ''Significant''--For example, Data Request II.6, relating to miscellaneous water revenues, requires ''. . . a monthly breakdown and an explanation of significant monthly variances.'' (Emphasis added.) How would the reader know what is ''significant''? The term ''significant'' is found in Data Requests II.6, VI.1, X.7, X.9, X.10 and X.11.
* ''Major''--For example, Data Request III.9 requires ''. . . a schedule of advertising expense by major media categories. . . .'' (Emphasis added.) What distinguishes a major media category from a minor one? The term ''major'' is found in Data Requests I.A.1, III.8, III.9, III.11, III.12, IX.2.a and IX.2.b.
2. Section I. Statement of Income--Clarity.
Data Request I.A.2, Columns 1 and 2 require a ''book recorded statement.'' These requirements should specify ''income statements'' to be consistent with the other columns.
Data Request I.A.2, Col. 5 includes the term ''requested rates,'' whereas Data Request I.4.c contains the term ''proposed rates.'' One term should be used consistently.
3. Section II. Operating Revenues--Clarity.
In Data Request II.1.b, it is not clear what is meant by the phrase ''customer forfeited discount.'' The PUC should define this term.
Data Request II.3 requires the utility to ''provide increases to customers at various monthly uses. . . .'' The term ''various'' is vague. The regulation should specify in more detail what consumption levels are required.
The first sentence of Data Request II.12 does not specify what rates to apply to the ''test year.'' This sentence should specify which existing rates the PUC will require.
4. Section III. Operating Expense--Clarity.
Data Request III.3 states ''Sufficient supporting data must be provided.'' The regulation should specify what supporting data must be provided.
In Data Request III.7, the second sentence is missing some words. Should it read ''State the method used to calculate monthly or annual payments''?
In Data Request III.11, it is not clear what is meant by the phrase ''regulatory commission expenses.'' This should be clarified or defined in the final-form regulation.
5. Section V. Rate Base--Clarity.
Data Request V.3 requires companies that make claims for non-revenue producing construction work to include ''final completion data'' in the claim. The term ''final completion data'' is unclear. The PUC should provide examples of what data is required.
6. Section VI. Depreciation--Clarity.
Chapter 73 of the PUC's existing regulation requires annual depreciation report filings. These filings contain virtually identical information to the information requested by proposed Section VI. Also, § 73.9 statesIn subsequent ratemaking proceedings, the most recent annual depreciation report or service life study approved or deemed approved for accounting purposes only under this chapter, constitutes a rebuttable presumption as to the reasonableness of the accrued depreciation for ratemaking purposes, and the burden of proving the unreasonableness of the accrued depreciation shall be on the challenging party.
If a utility is required to file under Chapter 73, can the utility incorporate its annual depreciation report by reference under § 53.53(b)? If so, the regulation should include this provision. If not, the PUC should explain why the Chapter 73 information would not be sufficient to determine just and reasonable rates.
Further, Data Request VI.4 requires a company to provide a comparison of ''the respondent's calculated depreciation reserve v. book reserve.'' If a utility has been using a book reserve for ratemaking, what purpose would a calculated depreciation reserve serve?
7. Section VII. Rate of Return--Clarity.
Data Request VII.15.c requires companies to provide ''All SEC form 10Q reports issued within last year.'' For clarity and consistency, the PUC should include a specific time period such as the term ''historic test year.''
Data Request VII.20 states ''The response should identify for each projected issuance the date, dollar amount, type of security, and effective cost rate.'' (Emphasis added.) Are any or all of these categories optional? If not, the PUC should replace the word ''should'' with the mandatory ''shall.''
Data Request VII.25 provides that submitted financial projections will ''be treated in a confidential manner, if requested.'' We have two concerns. First, how will the PUC treat these documents in a confidential manner? The final-form regulation should include a cross-reference to the regulations governing the PUC's confidentiality requirements.
Second, how would a company request confidentiality treatment? This paragraph should include a cross-reference to the PUC's regulations describing how a company can request confidentiality for its projections.
8. Section VIII. Rate Structure and Cost of Service--Clarity.
Data Request VIII.2 requires companies to ''Provide a listing of negotiated special rate contracts.'' The term ''special rate contracts'' is unclear. The PUC should define this term in the final-form regulation.
9. Section IX. Quality of Service--Reasonableness; Clarity.
The information required in Data Request IX.1 may already be in the PUC's files under different venues. May a utility exercise § 53.53(b) to fulfill these data requests?
The citation to 25 Pa. Code § 109.401 in Data Request IX.1.a is incorrect because it is designated as reserved (that is, it has been deleted by the Environmental Quality Board). The PUC should correct this citation in the final-form regulation or delete this requirement.
The citation to § 65.5(a) in Data Request IX.2 refers to interruption of service rather than pressure standards. What is the correct cite?
Related to the Criterion of Clarity
In the process of reviewing this proposed regulation, we found the following typographical errors and clarity issues. We are bringing these to attention so that corrections can be made for the submittal of the final-form regulation.
The title ''A. WATER AND WASTEWATER UTILITIES'' that appears under the heading ''I. STATEMENT OF INCOME'' is misplaced. Since all of Exhibit D relates to water and wastewater utilities, this title should be moved so that the regulation reads ''Exhibit D--WATER AND WASTEWATER UTILITIES.'' This would also make the Exhibit D title consistent with § 53.53(a)(4) which references ''Exhibit D--Water and wastewater utilities.''
Section II. Operating Revenues
Data Request II.6 requires an ''analysis'' of miscellaneous water revenues. It is not clear what analysis could be done on miscellaneous water revenues. Is the intent to require a breakdown of the dollar amounts?
Section III. Operating Expense
Data Request III.5.h requires ''any deferred income and consultant fee.'' Should the conjunction be ''or''?
Data Request III.9.c uses the abbreviation ''etc.'' The regulation should specify what other information is required.
Section IV. Taxes
Data Request IV.1 includes the phrases ''PA corporate tax report'' and ''PA corporate tax settlement.'' Data Request IV.15 contains the phrase ''Pennsylvania taxes.'' For consistency, the PUC should use ''Pennsylvania'' consistently throughout this section, as well as the rest of this regulation.
Data Request IV.13 lacks clarity. We have four concerns. First, the word ''thereunder'' is repetitive and should be deleted.
Second, the closing sentence should not be in parentheses. Third, the phrase ''so state'' should be replaced with ''provide an explanation.'' Finally, the term ''interrogatory'' is inconsistent with § 53.53(a) which states the exhibits contain ''data requests.''
Section V. Rate Base
Data Requests V.2, .3 and .5 contain sentences and phrases in parenthesis. The parentheses are not needed and should be deleted.
Data Requests V.7.c, .d and .e contain the abbreviation ''Pa.'' As previously noted, the PUC should use ''Pennsylvania'' consistently throughout the regulation.
The phrase ''in providing water service'' in Data Request V.15 appears to be incomplete. As this regulation applies to water and wastewater public utilities, the term ''wastewater'' should be added to this paragraph.
Section VII. Rate of Return
Data Request VII.16 contains the phrase ''month/quarter.'' It is not clear whether the slash denotes ''and'' or ''or.'' The PUC should amend this language in the final-form regulation.
The PUC should not use the construction ''and/or'' in a regulation, as found in Data Request VII.22. For clarity, the PUC should replace ''and/or'' with specific filing requirements.
Data Request VII.32 includes the phrase ''data of company and/or parent.'' The regulation should not use the construction ''and/or.'' For clarity, the regulation should specify which information is required and under what conditions.
Section VIII. Rate Structure and Cost of Service
Data Request VIII.1 contains the phrase ''. . . approximately three years. . . .'' The term ''approximately'' is vague. The PUC should include a definitive time frame in the final-form regulation.
Section XI. Other Data
Data Request XI.1 requires companies to submit monthly balance sheets and income statements for each month. Why is this requirement included in this section, as opposed to elsewhere in the regulation, such as Section I?
Acronyms are used in Exhibit D, but are not defined. We found the following:
* Data Request IV.4 includes the acronym ''ADR.''
* Data Request V.12.m contains the acronyms ''PA-DEP'' and ''EPA.''
* Data Requests VII.6, .12.b, .12c, .28.d and .32.e contain the acronym ''AFUDC.''
For clarity, the PUC should define these acronyms.
Grammar and punctuation
* Data Request III.5.g states ''Support the annualized pension cost figures.'' The phrase ''by providing the following:'' should be added.
* In Data Request III.6.c, the word ''the'' should be added so that it reads ''Explain the basis . . . .''
* In Data Request III.9, the phrase ''national and institutional'' should be modified to replace the word ''and'' with a comma.
* In Data Request III.28, the word ''the'' should be added so that it reads ''. . . for the test year . . . .''
* For clarity, a ''the'' should be inserted between the words ''determining'' and ''claim'' in the last sentence of Data Request V.5.
* Data Request VI.1 contains the phrase ''utilized in calculating.'' For clarity and readability, the PUC should replace the phrase ''utilized in calculating'' with the phrase ''used to calculate.''
* Data Request VI.4 uses the term ''respondent's.'' For consistency with the other requirements in the regulation, the term ''respondent's'' should be deleted.
* Data Request VII.1 is missing a closed parenthesis.
* An ''a'' should be inserted between the words ''attach'' and ''chart'' in Data Request VII.13.
* For readability, the phrase ''This would'' should be deleted in Data Request VII.19.
* For clarity and readability, the words ''the '' and ''its'' should be inserted before ''company'' and ''parent,'' respectively, in Data Request VII.32.
JOHN R. MCGINLEY, Jr.,
[Pa.B. Doc. No. 03-885. Filed for public inspection May 9, 2003, 9:00 a.m.]
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