NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[26 Pa.B. 3776] The Independent Regulatory Review Commission met publicly at 11 a.m., Wednesday, July 3, 1996, and took the following actions:
Regulation Approved:
Department of Transportation #18-332: Mechanical, Electrical and Electronic Speed Timing Device (amends 67 Pa. Code Chapter 105)
Department of Agriculture #2-92: Conditions and Requirements under which Domestic Animals May be Offered as Prizes (amends 7 Pa. Code by adding a new Chapter 20)
Environmental Hearing Board #106-2: Practice and Procedure (amends 25 Pa. Code Chapter 1021)
Environmental Quality Board #7-265: Coal Mining (amends 25 Pa. Code Chapter 86 by adding Subchapter J, Sections 86.251--86.295)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
July 18, 1996Department of Transportation--Mechanical, Electrical and Electronic Speed Timing Devices; Doc. No. 18-332
Order On July 14, 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 105 under the authority contained in sections 3368 and 6103 of the Vehicle Code (75 Pa.C.S. §§ 3368 and 6103) relating to speed timing devices and promulgation of rules and regulations. The proposed regulation was published in the July 29, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on July 1, 1996.
Subsection 3368(d) of the Vehicle Code establishes that the Department may classify specific speed timing devices as being mechanical, electrical or electronic and that the Department ''shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made.'' Subsection 3368(c)(2) of the Vehicle Code distinguishes between mechanical, electrical and electronic speed timing devices by limiting the use of electronic speed timing devices utilizing radiomicrowaves (radar) to the Pennsylvania State Police. Subsection 3368(c)(3) provides an exception to this rule for electronic speed timing devices which calculate speed by measuring elapsed time between measured road surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points. Electronic speed timing devices meeting this condition may be used by local enforcement agencies.
The Department has determined that the Enradd (Model EJU-91), an electronic speed timing device (nonradar), meets the condition established under subsection 3368(c)(3) of the Vehicle Code because it measures the elapsed time between two sensors to calculate vehicle speed. Specifically, the Enradd speed timing device calculates the elapsed time between two timing strips which are spaced 5 feet apart as recommended by the manufacturer's specifications. When a vehicle passes over the strips, the unit will record the time interval between the activation of the first and second timing strips. This time interval, with the known distance between the two timing strips, is used to measure the speed of the vehicle. The speed of each vehicle is displayed by the Enradd in miles per hour.
The regulation requires three components for the accurate calibration of an Enradd speed timing device. These components are: two pulse generators; a dual channel oscilloscope or a frequency counter with interval capability; and a power supply of more than 5 volts. In addition, the regulation also provides a procedure for the precise measuring of the calibration of the Enradd. Further, if the comparison of the oscilloscope/frequency counter with the Enradd differs by more than 1 mile per hour (plus or minus) then the unit is to be returned to the manufacturer or an approved service center. The Department also amends Figures 7 and 8, contained in Appendix A, to indicate that the diagrams detailing the test setup and interconnection for the calibration procedures demonstrated in these figures apply to both the Speed Chek (another similar electronic speed timing device) and the Enradd.
Finally, the text of subsection 105.56(e) of the regulation, which requires timing and calibration equipment, timing strips and other devices actually used with a particular nonradar electronic device be used consistent with the manufacturer's specifications, has been relocated to a new subsection (f), entitled ''Equipment, timing strips and other devices.'' This change has been made so that the calibration rules for the Enradd speed timing device could be placed in subsection (e) thereby maintaining the existing organization of the entire section.
The proposed amendments will affect drivers of motor vehicles and State and local police officers. The Vehicle Code requires that these devices be tested every 60 days. The rulemaking will also affect the 16 private stations appointed by the Department which calibrate and test electronic (nonradar) speed timing devices.
The cost of the Enradd speed timing device is approximately $1,200, which the Department reports is half the cost of other devices in the same category. The Enradd is manufactured by Y.I.S. Incorporated, located in York, PA.
A prototype of the Enradd was tested by the State Police in a controlled laboratory setting and additional tests were performed under practical use during inclement weather. At our request, the Department forwarded a memo from the State Police which details the test results of the Enradd and includes the recommendations of the testing officer that this unit should be approved for use within the Commonwealth.
In our Comments, we pointed out an omission of the words ''chassis ground'' which indicates where the chassis ground must be connected to the speed timing device for the accuracy of the testing procedure in Appendix A, Figure 7, and two typographical errors which resulted in the wrong words being used in sections 105.56(e)(2)(ii) and 105.56(e)(2)(iii). In the final-form regulation, the Department corrected all of these errors.
We have reviewed this regulation and find it to be in the public interest. We are satisfied with the information provided by the Department regarding the proposal to add the requirements for the calibration of the Enradd speed timing device to section 105.56. The regulation will provide an additional, more cost-effective device for use by law enforcement agencies for the enforcement of posted speed limits.
Therefore, It Is Ordered That:
1. Regulation No. 18-332 from the Department of Transportation, as submitted to the Commission on July 1, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
July 18, 1996Department of Agriculture--Conditions and Requirements under which Domestic Animals may be Offered as Prizes; Doc. No. 2-92
Order On September 5, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking would amend 7 Pa. Code by adding a new Chapter 20. The authority for this regulation is Act 24 of 1994 (Act 24) (P. L. 146, No. 24) which amended 18 Pa.C.S. § 5511 and established 18 Pa.C.S. § 5511.1. 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 June 18, 1996.
The proposed regulation establishes conditions under which an agricultural, educational or vocational program may conduct a game at which a domestic animal may be offered or given away as a prize. Domestic animals are defined as ''[A] dog, cat, equine animal, bovine animal, sheep, goat, or porcine animal.'' The exemption for which the conditions are established is authorized in Act 24 which contains a general prohibition against offering or giving away live animals, except fish, as prizes in games. The proposal is limited to giving away domestic animals in connection with agricultural, educational or vocational programs sponsored or sanctioned by the Department. Animals must be weaned and a written certification of good health from a licensed veterinarian must accompany the animal.
During proposed rulemaking, the Department received a letter from the House Agriculture and Rural Affairs Committee (House Committee) which questioned application of the regulations to nonprofit raffles and awards. The Department provided answers in its Comment and Response document. Representative Jerry L. Nailor, prime sponsor of H. B. 1420, which became Act 24, commended the Department on the proposed regulation. The Pennsylvania Legislative Animal Network (PLAN) expressed support for the regulation and offered suggestions for changes. The Federated Humane Societies of Pennsylvania also supported adoption of the proposed regulation.
We raised several concerns in our Comments. Among our concerns was the reason for a provision that stated that ''[A] person who gives or offers to give away as a prize in a game a discount or coupon that would allow a domestic animal to be purchased for less than $50 shall be considered as giving or offering to give away a domestic animal as a prize in a game, for purposes of the Act and this chapter.'' We questioned how the Department determined that $50 could be considered to be equivalent to Act 24's requirement of giving or offering to give away, and requested an explanation. The Department responded by deleting section 20.4 from the final-form regulation.
In the proposed regulation, the Department defined the term ''live animal'' and used the phrase ''live domestic animal.'' We were concerned that the term ''living animal'' was based on an anticipated statutory change. We objected, reasoning the regulations must be based on statutory changes, not on a legislative proposal still before the General Assembly. We further questioned the need for the definition and recommended elimination of the definition in the final-form regulation, unless legislation was passed and signed by the Governor prior to the return of the regulation in final-form.
The Department responded to our recommendation by deleting the definition for ''live animal'' and revising the phrase ''live domestic animal'' to ''domestic animal'' throughout the regulation. However, due to a typographical error, the brackets were omitted to the word ''live'' in section 20.4(2) of the final-form regulation. The Department has provided a letter of explanation and a corrected page. We will recommend to the Attorney General that section 20.4(2) be amended to incorporate this change.
The Department also responded to our recommendation that penalty provisions be added to the final-form rulemaking by adding to section 20.8(b) (Violation of conditions and requirements), a sentence which states that a violation will be prosecuted as a summary criminal offense punishable by a fine of not more than $250. Additional changes, resulting from our Comments, include clarification of the application process for designation as a sanctioned program, more specific provisions for prompt notification, and the inclusion of the length of time for retention of records.
We have reviewed this regulation and find it to be in the public interest. The Department does not anticipate the administration of this proposal will appreciably increase Department costs. The likelihood of awarding domestic animals to unprepared recipients is diminished. Persons who conduct games at which domestic animals are offered will be required to incur the costs of obtaining a veterinarian's certification of the animal's general good health prior to awarding animals as prizes. Persons who win domestic animals in connection with agricultural, educational or vocational programs will be assured of receiving a healthy animal as a result of the veterinary certification requirements.
Therefore, It Is Ordered That:
1. Regulation No. 2-92 from the Department of Agriculture, as submitted to the Commission on June 18, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
July 18, 1996Environmental Hearing Board--Practice and Procedure; Doc. No. 106-2
Order On December 8, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Hearing Board (EHB), which would amend 25 Pa. Code Chapter 1021. The authority for this regulation is found in section 5(c) of the Environmental Hearing Board Act (35 P. S. § 7515(c)). The proposed regulation was published in the December 23, 1995 edition of the Pennsylvania Bulletin, with a 30-day public comment period. The final-form regulation was submitted to the Commission on June 26, 1996.
This rulemaking would amend the EHB's existing practice and procedure rules and add some new procedural rules. The amendments are based on an evolution and refinement of the EHB's practice under the procedural rules existing since the mid-1970's, precedents of the EHB and Commonwealth Court, and changes in environmental statutes. The changes address the following general areas: appeals; intervention; reopening the record prior to an adjudication; reconsideration of interlocutory orders; reconsideration of final orders; and awarding attorney fees and costs.
Comments on the proposed version of this rulemaking were submitted by the Department of Environmental Protection (DEP) and John N. Cox, Esquire, a private practitioner. Neither commentator opposed the proposed rulemaking, but each offered suggested clarifying amendments. In our Comments on the proposed version, we made several recommendations relating to conformance with statutory authority and suggested language revisions to improve the clarity of the regulation. The final-form regulation incorporates many of the recommendations of commentators. However, in connection with the final-form regulation, the EHB rejected as unnecessary our recommendations relating to section 1021.122 Reopening the record prior to an adjudication and section 1021.151 Application for counsel fees under more than one statute.
During the public comment period, a private practitioner pointed out that section 1021.122 (Reopening the record prior to an adjudication) does not specify if the evidence considered is new evidence, or evidence already in the record which should be reconsidered in light of a change in legal authority. The commentator noted that the EHB has an unofficial policy allowing new case law to be submitted to the EHB by letter. The commentator recommended that an official procedure be codified in the regulation for bringing new case law to the attention of the EHB, such as provided for under Rule 2501(b) of the Pennsylvania Rules of Appellate Procedure. In our Comments, we asked the EHB to reconsider its position on this issue because including a formal procedure in the regulation may assist those who do not regularly practice before the EHB.
In response, the EHB declined to establish such a formal procedure, stating that establishing a formal procedure is unnecessary because counsel is able to bring new case law to the EHB's attention even in the absence of a formal rule, and the EHB accepts such submissions in either letter or motion form. The EHB also emphasized that it has been a long-standing policy at the EHB for its members and staff to routinely remain abreast of current environmental law in Pennsylvania.
We believe that EHB has sufficiently explained and justified its position on this matter. In addition, we note that, in response to another commentator's suggestion, the EHB has amended section 1021.122(c) to clarify that a petitioner filing for reopening of the record prior to adjudication due to a change of law need not demonstrate when that evidence was discovered. This change will further clarify this provision of the regulation.
The EHB's existing procedural rules did not provide for recovery of attorney fees and costs under more than one statute. Therefore, the EHB proposes to add section 1021.151 entitled Application for counsel fees under more than one statute, to specifically address this circumstance. Section 1021.151 provides that an applicant seeking to recover counsel fees under more than one statute do so by filing a single application which sets forth, in separate counts, the basis for claiming fees and costs under each statute.
In our Comments, we suggested the EHB may improve clarity by further amending this section to provide additional instructional information regarding the application of this section, or incorporate a reference to other rules for how determinations will be made under this section. We suggested that the EHB provide procedures similar to those set forth in section 1021.142 (regarding applications for costs and fees).
The EHB did not incorporate our recommendation into the final regulation. The EHB stated that further clarification of section 1021.151 is unnecessary because the structure of the rule makes it obvious that the procedures set forth in the previous sections are to be followed except where those procedures are inconsistent with the specific statute under which the application is being made. According to the EHB, to provide further instruction would require a survey of procedures under many environmental statutes even though the EHB rarely receives applications for counsel fees under statutes other than the Costs Act or the Surface Mining Law. Finally, the EHB noted that it has asked its Procedural Rules Committee for a recommendation on a rule specific to fee applications under the Surface Mining Law and that it intends to propose a specific rule on this subject in the near future.
We believe the EHB has sufficiently explained and justified its rationale for not incorporating our recommendation. It is in the best position to judge the appropriateness of including or not including such procedures. Given its response and stated intention (relative to proposing a specific rule in the near future on fee applications under the Surface Mining Law), we believe this area can be left for a future refinement of this regulation.
The proposed regulation will affect all litigants before the EHB. Potential litigants include the DEP, other State agencies, individuals, businesses, Federal and State governments, and municipalities. During 1995, the EHB heard 271 cases, predominantly involving appeals from DEP determinations on surface mining, clean streams and the Solid Waste Management Act.
According to the EHB, the proposed regulation will have little cost impact on the public or private sector. The proposed rules on amendments of appeals, intervention and reconsideration may result in some cost savings by expediting the processing of a matter before the EHB, thus encouraging parties to stay before the EHB in lieu of filing more appeals with Commonwealth Court. The EHB states that litigants will benefit from procedures which are consistent with those of the trial courts of the common pleas system, and result in the expeditious processing of cases before the Board.
We have reviewed this regulation and find it to be in the public interest. These rulemaking changes will update and clarify the EHB's practice and procedure rules. Doing so will better protect the rights of all parties involved in EHB proceedings while making it easier for parties to comply with the governing procedural rules.
Therefore, It Is Ordered That:
1. Regulation No. 106-2 from the Environmental Hearing Board, as submitted to the Commission on June 26, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
July 18, 1996Environmental Quality Board--Coal Mining; Doc. No. 7-265
Order On April 5, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapter 86 by adding subchapter J, sections 86.251--86.295 relating to remining and reclamation incentives. The authority for this regulation is Section 4.2 of the Surface Mining Conservation and Reclamation Act (SMCRA) (52 P. S. § 1396.4b). The proposed regulation was published in the April 23, 1994 Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on June 20, 1996.
SMCRA, as amended by Act 173 of 1992 and Act 43 of 1996, directs the EQB to promulgate regulations to implement remining and reclamation incentives and to establish qualifications and criteria for coal mine operators proposing to remine abandoned mine sites. The goal is to encourage reclamation of abandoned mine lands by coal mine operators. This regulation sets forth provisions for the Remining Operators Assistance Program (ROAP). Through ROAP, operators may apply for financial assistance from the Department of Environmental Protection (DEP) to pay approved consultants to develop most of the information necessary for the preparation of permit applications to remine abandoned mine lands.
The regulation also establishes the rules and procedures for State backed financial guarantees to insure reclamation. A special account financially guarantees the bond obligation of a qualified operator in remining areas. The account is part of the Remining Financial Assurance Fund. It provides financial guarantees for qualified operators who remine in areas approved by DEP. For each approved permit of an operator for a remining area, DEP will reserve a portion of the financial guarantees special account in the Remining Financial Assurance Fund as collateral for reclamation obligations on the remining area.
In addition, the regulation provides for bond credits, free of charge, toward an operator's future bonding obligations if an operator completes the reclamation of an abandoned mine site. The bond credit program is underwritten by a special account of the Remining Financial Assurance Fund. This fund is financed by the Land and Water Conservation and Reclamation Act which authorized a $200 million bond issue for mining reclamation. SMCRA allows up to $5 million to be deposited into the Remining Financial Assurance Fund.
The DEP and EQB claim that this regulation imposes no mandatory costs, direct or indirect, on coal mine operators. In the preamble of the final-form regulation, they add:
However, operators who opt to avail themselves of the remining and reclamation incentives will find additional forms, reports, paperwork and, in some cases, engineering costs beyond that normally required for a coal mining activity permit. The incentives provided by these amendments should more than offset these costs.. . . These amendments place no additional regulatory requirements on the coal mining industry. The new regulations establish procedures and qualifications for the operators who voluntarily choose to participate in the remining and reclamation incentives programs. When the incentives become available, the Department [DEP] plans to provide notice to all licensed coal operators. Roundtable meetings will be held to help coal operators, their consultants and the public understand these incentives.On May 26, 1994, the EQB held a public hearing in New Stanton on the proposed rulemaking. Testimony was presented on behalf of the Pennsylvania Coal Association (PCA) and Penn Equipment Corporation, Port Carbon, PA (Penn Equipment). Subsequently, written comments were submitted by PCA, Penn Equipment, and White Pine Coal Company, Inc., Ashland, PA.
The final-form regulation was approved by the Mining and Reclamation Advisory Board (MRAB) on April 25, 1996. According to both DEP and MRAB, this regulation is the result of a collaborative effort. The MRAB, under section 18(g) of SMCRA (52 P. S. § 1396.18(g)), includes representatives from the coal mining industry, EQB's Citizens Advisory Council and General Assembly.
We have reviewed this regulation and find it to be in the public interest. EQB and DEP responded in a constructive fashion to most of the comments submitted by commentators and the Commission. Many of the comments on the proposed regulation were the basis for revisions to the final-form regulation. In addition, significant changes to SMCRA contained in Act 43 of 1996 were added to this regulation.
According to DEP, MRAB reviewed the comments on the proposed version of this regulation. MRAB's main concerns were expanding the definition of ''remining area'' to include lands used to support remining activities, revising the financial guarantees program to reduce the eligibility requirements for operators and increase the level of financial guarantees which may be approved by DEP, and revising the bond credit program to allow credits to be transferred and provide for termination of unused bond credits. The recommendations from MRAB were incorporated into the final-form regulation.
In several other areas in the regulation, the EQB and DEP responded to commentators' concerns with revisions that clarified provisions and either eased requirements or provided operators with greater flexibility. One example of the revisions is the deletion of subsection 86.253(a)(5) in the proposed regulation. This provision stated that an operator who had a single violation of one of the listed regulations would be ineligible for the remining and reclamation incentives programs. Deletion of this provision is consistent with section 4.10 of SMCRA (52 P. S. § 1396.4j) which states that DEP ''shall establish a program to assist and pay for the preparation of applications for licensed mine operators otherwise eligible to obtain a permit for remining abandoned mine land.'' (emphasis added).
Other examples of substantive revisions can be found in section 86.283(a)(1). In the proposed regulation, this provision set annual payments in the ''payment in lieu of bond'' program at 2.5% of the average per acre cost for DEP to reclaim a mine site multiplied by the number of acres in the remining area. Act 43 of 1996 replaced the ''payment in lieu of bond'' program with the ''financial guarantees to insure reclamation'' program. Payments under this program will excuse operators from the requirement to post a bond for their remining permits. Instead, the operators will make annual payments to the Remining Financial Assurance Fund. In the final-form regulation, the annual payment formula in section 86.283(a)(1) now applies to the financial guarantees to insure reclamation program. The final-form regulation reduced the annual payment formula from 2.5 to 1% of the total amount of the number of acres of remining area to be affected multiplied by DEP's current applicable bond rates. Not only is the percentage being reduced but substituting current applicable bond rates for the average per acre cost of reclamation also represents a substantial reduction in the cost of the annual payments.
The regulation's objective is to encourage coal mine operators to voluntarily mine and reclaim abandoned mine sites. The regulation strives to provide financial incentives to operators for this purpose. Successful reclamation of abandoned sites will eliminate hazards to human health and safety, abate pollution of surface and ground waters, reduce sediment erosion, and restore land to beneficial uses. The regulation is designed to invigorate the accomplishment of these tasks while simultaneously recovering the remaining coal resource in abandoned mine sites. We support these efforts.
Therefore, It Is Ordered That:
1. Regulation No. 7-265 from the Environmental Quality Board, as submitted to the Commission on June 20, 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. 96-1270. Filed for public inspection August 2, 1996, 9:00 a.m.]
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