NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[29 Pa.B. 3269]

   Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) (act) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committee comment period. The Commission comments are based upon the criteria contained in section 5a(h) and (i) of the act (71 P. S. § 745.5a(h) and (i)).

   The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the dates indicated.

			Final-Form
Reg. No.	Agency/Title	Issued	Submission Deadline
7-339	Environmental Quality Board    Surface Coating Processes (RBI #4)	6/11/99	5/10/01
	(29 Pa.B. 1299 (March 6, 1999))
7-343	Environmental Quality Board    Nitrogen Oxides Allowance	6/11/99	5/10/01
	(29 Pa.B.1214 (March 6, 1999))
7-345	Environmental Quality Board    Interstate Ozone Transport Reduction	6/11/99	5/10/01
	(29 Pa. B. 1319 (March 6, 1999))
16A-693	State Board of Social Work Examiners    Verification Fee	6/11/99	5/10/01
	(29 Pa.B. 1897 (April 10, 1999))
16A-477	State Registration Board For Professional Engineers,    Land Surveyors and Geologists Verification/    Certification Fees	6/11/99	5/10/01
	(29 Pa.B. 1897 (April 10, 1999))
16A-578	State Board of Veterinary Medicine    Fees	6/11/99	5/10/01
	(29 Pa.B. 1897 (April 10, 1999))
16A-672	State Board of Occupational Therapy,    Education and Licensure Fees	6/11/99	5/10/01
	(29 Pa.B. 1896 (April 10, 1999))
16A-469	State Board of Dentistry    Verification/Certification Fees	6/11/99	5/10/01
	(29 Pa.B. 1895 (April 10, 1999))

Environmental Quality Board Regulation No. 7-339
Surface Coating Processes (RBI #4)
June 11, 1999

   We have reviewed this proposed regulation from the Environmental Quality Board (EQB) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specifies the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to reasonableness, economic impact and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Reasonableness of requiring compliance with presumptive RACT and Section 129.52--Reasonableness and Clarity.

   The EQB has asked for comment on whether the Department of Environmental Protection (DEP) should require certain wood furniture manufacturing facilities to comply with both the presumptive reasonably available control technology (RACT) requirements in §§ 129.101--129.107 and the surface coating requirements in § 129.52. The facilities affected would be those with actual emissions of, or the potential to emit, 25 tons per year or more of volatile organic compounds (VOCs). The presumptive RACT requirements are based on the U.S. Environmental Protection Agency's (EPA) Control Techniques Guidelines (CTG) and the Model Rule for Wood Furniture Finishing and Cleaning Operations (Model Rule).

   Wood furniture manufacturing facilities, which submitted comments, oppose requiring compliance with both presumptive RACT and § 129.52. Commentators assert that requiring compliance with two sets of regulations is burdensome, confusing and unnecessary. It will result in Pennsylvania's regulations being more stringent than federal requirements, without adequate justification. It would also place Pennsylvania's manufacturers at a competitive disadvantage with manufacturers in other states that require compliance only with the Federal CTG. Commentators further assert that requiring compliance with two sets of regulations is inconsistent with Executive Order 1996-1 and the DEP's own Regulatory Basics Initiative.

   The commentators raise valid concerns. Sections 1.e. and 1.i. of Executive Order 1996-1 state the following:

   e.  Where Federal regulations exist, Pennsylvania's regulations shall not exceed federal standards unless justified by a compelling and articulable Pennsylvania interest or required by State law.

*      *      *      *      *

   i.  Regulations shall not hamper Pennsylvania's ability to compete effectively with other states.

   The EQB has not demonstrated that compliance with both presumptive RACT and § 129.52 complies with the directives of Executive Order 1996-1. It is unclear what ''compelling and articulable Pennsylvania interest'' justifies requiring compliance with dual standards. We request the EQB explain the compelling public interest that justifies requiring certain wood furniture manufacturers to comply with both presumptive RACT and § 129.52. It is our opinion that the EQB should require compliance only with presumptive RACT.

   2.  Reasonableness of adopting the Federal reporting requirements at 40 CFR 63.7--63.10.

   The EQB has asked for comment on whether it should adopt the reporting requirements at 40 CFR 63.7--63.10. The Model Rule provides these reporting requirements as an optional State presumptive RACT program component.

   Since presumptive RACT requirements are based on the Federal CTG and Model Rule, it is reasonable to adopt the Federal reporting requirements. If the EQB elects to adopt these reporting requirements, we suggest that the best way to do so is to incorporate 40 CFR 63.7--63.10 by reference. In addition, the EQB should amend the proposed reporting requirements in §§ 129.105 and 129.106 as necessary to be consistent with the Federal reporting requirements.

   3.  Section 121.1. Definitions--Clarity.

Coating solids or solids.

   This definition states that ''Solids content is determined using data from the EPA Reference Method 24 or an alternative method.'' It is unclear if the ''alternative method'' must be approved by the EPA or the DEP. The EQB should clarify this point in the final regulation.

Enamel.

The definition of ''enamel'' reads as follows:

A coat of colored material, usually opaque, that is applied as a protective topcoat over a basecoat, primer or previously applied enamel coat. The term includes a coating that may be applied as a topcoat over the enamel.

   This definition is consistent with the federal Model Rule. However, the definition conflicts with the existing definition of ''opaque ground coats and enamels'' found in § 121.1. To eliminate this inconsistency, the EQB should define ''opaque ground coats'' and ''enamel'' separately.

   4.  Section 129.52. Surface coating processes--Clarity.

Table I.

   Table I, Category 11(e), includes ''all other coatings'' as a category. However, the defined term in § 121.1 is ''other coatings.'' The inclusion of the word ''all'' in the proposed regulation has caused confusion among commentators concerning whether coatings not included in the definition of ''other coatings'' are regulated under Table I. It is our understanding that the DEP did not intend to broaden the number of coatings that fall under Table I by using the phrase ''all other coatings.'' Therefore, the EQB should delete the word ''all'' in front of ''other coatings'' to be consistent with the existing definition of ''other coatings'' in § 121.1.

   5.  Section 129.102. Emission standards--Clarity.

Section 129.102(3) provides:

Using a control system that will achieve a reduction in emissions equivalent to 0.8 lb VOC/lb solids for topcoats and 1.9 lbs VOC/lb solids for sealers.

   This provision is inconsistent with the corresponding federal Model Rule, which specifies 0.8 lb VOC/lb solids for topcoats or 1.8 lb VOC/lb solids for topcoats and 1.9 lbs VOC/lb solids for sealers. The EQB should amend § 129.102(3) to be consistent with the Federal requirement or explain the compelling public interest which justifies a more stringent standard in Pennsylvania.

   6.  The final-form rulemaking should address how the adoption of presumptive RACT requirements will affect facilities with case-by-case RACT permits and those with case-by-case RACT permits pending before the DEP or the EPA. Sections 129.52(a) and 129.101--Economic Impact, Reasonableness and Clarity.

   The proposed regulation is silent on how the DEP's case-by-case RACT rules (25 Pa. Code §§  129.91--129.95) will be affected by the adoption of presumptive RACT.

   Commentators stated that case-by-case RACT imposes many additional and unnecessarily prescriptive requirements on Pennsylvania manufacturers. They asserted that this excessive regulation places them at a severe competitive disadvantage with manufacturers in other states. One commentator noted that complying with case-by-case RACT for a permit approval would result in several hundreds of thousands of dollars of additional operational costs than would be incurred under presumptive RACT.

   Presumptive RACT, as mandated by Section 182 of the Clean Air Act and the EPA-approved CTG, is intended to be the universal compliance standard for all wood furniture manufacturing and finishing operations subject to it. Therefore, unless the high standard of a ''compelling and articulable Pennsylvania interest'' under Executive Order 1996-1 justifies retaining both sets of RACT rules, the EQB should phase-out or modify the DEP's case-by-case RACT rules as part of phasing-in presumptive RACT.

   Consequently, the provisions of §§ 129.91--129.95 of 25 Pa. Code should be amended to reflect the adoption of presumptive RACT, in place of case-by-case RACT, for those facilities subject to it. Sections 129.52(a) and 129.101 should be similarly amended as necessary for consistency.

   The final-form rulemaking should also be amended to allow companies with existing case-by-case RACT permits and those with operating permits based on case-by-case RACT, but without State Implementation Plan approvals, to convert to presumptive RACT.

Environmental Quality Board Regulation No. 7-343
Nitrogen Oxides Allowance
June 11, 1999

   We have reviewed this proposed regulation from the Environmental Quality Board (EQB) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specifies the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to need, reasonableness and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 123.115. Initial NOx allowance NOx allocations--Need and Clarity.

   Subsection (b) would only apply to the Colver Power Project. Inter-Power/AhlCon Partners, L.P. commented that the Colver Power Project began operation on November 18, 1994. If the Colver Power Project is operating, why wasn't Subsection (b) deleted?

   2.  Appendix E--Reasonableness and Clarity.

NOx affected sources

   TOSCO commented that two boilers will no longer meet the definition of ''NOx affected source'' because their maximum heat capacity is less than 250 MMBtu. TOSCO is in the process of modifying the permit to be consistent with the capacity of the boilers. The EQB should delete these sources if the boilers do not meet the definition of ''NOx affected source.''

Allowance allocation

   Zinc Corporation of America (ZCA) believes their original allocation of allowances was not accurate. ZCA believes they are being further penalized by this rulemaking because they are losing two more allowances as a result of the accounting error adjustment. We note that some source allocations were adjusted and some were not. The EQB should explain why the allocation of allowances to ZCA is reasonable and why ZCA's allocation of allowances is being adjusted while some other sources are not.

Source designations

   PECO Energy and TOSCO commented on corrections to the ''County,'' ''Facility'' and ''Combustion Source Name'' of several sources. The EQB should make these corrections in the final-form regulation.

Environmental Quality Board Regulation No. 7-345
Interstate Ozone Transport Reduction
June 11, 1999

   We have reviewed this proposed regulation from the Environmental Quality Board (EQB) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specifies the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to reasonableness, economic impact, implementation procedures, timetable for compliance, feasibility and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Protection of Pennsylvania's competitive interests--Reasonableness, Economic Impact and Implementation Procedures.

   The Federal interstate ozone transport reduction program will affect 22 states and the District of Columbia. The design and timing of the program affects the competitiveness of the affected industries in each state. The Pennsylvania House of Representatives unanimously approved House Resolution No. 182, a concurrent resolution specifically directed at this rulemaking. As of the date of these comments, the concurrent resolution was sent to the Senate for consideration. House Resolution No. 182 resolved, in part, the following:

RESOLVED, That the Department of Environmental Protection revise its proposed regulations implementing the SIP Call (29 Pa.B. 1319, March 6, 1999) to give effect to the purpose and intent of this resolution, namely, to ensure that major fossil-fired steam electric generating units in Pennsylvania are not subject to emission control requirements more stringent than, or on a compliance schedule sooner than, those required by Phase II of the OTC Memorandum of Understanding, until and unless similar generating units in each state adjacent to Pennsylvania are subject to a comparable schedule of equivalent emission control requirements established in approved State Implementation Plans adopted in conformance with: (1) the EPA's Regional Ozone Transport Rulemaking; (2) the Federal Implementation Plans promulgated in accordance with the EPA's proposed Ozone Transport Federal Implementation Plan; or (3) a final rulemaking granting the relief requested in the petition filed by Pennsylvania on August 14, 1997, pursuant to section 126 of the Clean Air Act;

   Several commentators requested that language be added to the regulation to protect Pennsylvania's competitive interests. They are concerned that the rules may not go into effect in all states at the same time as planned. They are also concerned that ongoing court challenges may change the compliance deadlines and technical requirements. The commentators proposed adding language which would hold off implementation of the requirements until the overall program requirements are uniformly adopted.

   The unanimous adoption of House Resolution No. 182, and the concerns of the commentators raise serious concerns with the proposed regulation. Pennsylvania's industries could be competitively disadvantaged if they comply with requirements not imposed on adjacent states. Pennsylvania's industries could also be burdened if they must make investments to comply with this regulation, but the underlying federal requirements are subsequently modified by the courts. For these reasons, language should be added to the regulation to protect Pennsylvania's competitive interests.

   2.  Transition to Chapter 145--Reasonableness, Implementation Procedures and Clarity.

   The EQB requested comment on how to create as few additional administrative requirements as possible. Comments were submitted on minor conflicts between existing equipment requirements and the requirements of the new regulations. For example, the proposed regulation requires reporting in tons per hour, but one commentator's existing equipment records in pounds per hour. To deal with minor conflicts, the EQB should either incorporate a waiver process or reference an existing waiver process whereby a regulated NOx source could apply to the Department of Environmental Protection (DEP) for a waiver.

   3.  Section 145.2. Definitions--Clarity.

''Electric generating unit'' and ''Nonelectric generating unit''

   The terms ''electric generating unit'' and ''nonelectric generating unit'' are used in § 145.40. Each type of facility is allocated a portion of the state NOx budget allocation. However, these terms are not defined in § 145.2. The EQB should define these terms for clarity.

''Nameplate capacity''

   The term ''Nameplate capacity'' is used in § 145.4(1) Applicability. The model Federal rule has a definition of ''nameplate capacity.'' However, this definition was omitted in the proposed rulemaking. The EQB should add the Federal model definition of ''Nameplate capacity'' for clarity.

''NOx allowances held or hold NOx allowances''

   The definition of ''NOx allowances held or hold NOx allowances'' appears to have a typographical error. One portion reads ''. . .submitted for recordation this subchapter,. . . .'' The EQB should clarify this definition in the final-form regulation.

''NOx allowance transfer deadline''

   The definition of ''NOx allowance transfer deadline'' specifies November 30 as the annual deadline to submit allowances for compliance. Commentators requested that the deadline be changed to December 31 to give them greater flexibility to identify cost-effective means for compliance. The EQB should consider changing the deadline to December 31, or explain the need for the November 30 deadline.

''NOx Budget Trading Program'' and ''State''

   The definitions of ''NOx Budget Trading Program'' and ''State'' use the phrase ''under this subchapter.'' This phrase gives the impression that other states would fall under the requirements of Pennsylvania's regulation. For clarity, the EQB should modify these definitions.

''Unit''

   Commentators are concerned that the definition of ''unit'' does not clearly include cement kiln systems. This may affect their ability to ''opt-in.'' The EQB should clarify the definition of ''unit'' to include cement kiln systems.

   4.  Section 145.4. Applicability--Economic Impact, Need, Reasonableness and Clarity.

   We have two concerns with § 145.4. First, § 145.4(1) specifies that the regulation is applicable to units with a capacity greater than or equal to 15 MWe. The model Federal rule uses a cutoff of 25 MWe. The EQB should explain the need to regulate units between 15 and 25 MWe and the economic impact this would have on existing and future units or adopt the federal limit.

   Second, some commentators suggested adding a § 145.4(3) regarding an exemption for units that accept a 25-ton ozone season limit. We note that the model Federal rule has this exemption in § 96.4(b). Why wasn't this exclusion included in Pennsylvania's regulations?

   5.  Section 145.6. Standard requirements--Need and Reasonableness.

   Subsection (e) requires records to be kept onsite, at the source, for 5 years. Cost savings could be realized by keeping these records in central files for multiple units and made available upon request. Why is it necessary to keep this information onsite?

   Portions of the model Federal rule were not included in the proposed rulemaking. Specifically, the regulation does not include §§ 96.6(c)(8) and 96.6(f)(1) and (2) regarding recording allowances and liability for violations. Why didn't the EQB include these provisions?

   6.  Section 145.21. NOx budget permit applications--Timetable for Compliance and Clarity.

   We have two concerns with § 145.21. First, subsection (b)(1) requires permit applications to be filed within 6 months after the effective date of the final-form regulation. There is a possibility that Pennsylvania's permit applications would be required much earlier than would be required by the Federal model rule. The EQB should explain the need to require applications within 6 months of publication of the final-form regulation.

   Second, § 145.21 also does not provide a timetable for DEP to respond to the applications. The EQB should add a provision stating when DEP must act on a complete application.

   7.  Section 145.30. Compliance certification report--Need.

   This section specifies November 30 as the annual deadline to file the compliance certification report. Commentators requested that the deadline be changed to December 31 to give them greater flexibility to identify cost-effective means for compliance. The EQB should consider changing the deadline to December 31, or explain the need for the November 30 deadline.

   8.  Section 145.40. State trading program budget--Clarity.

   Paragraphs (1) and (2) use the phrase ''tons per season.'' For clarity, the EQB should designate these as ''tons per control period'' to be consistent with definitions in § 145.2.

   9.  Section 145.42. NOx allowance allocations--Need and Reasonableness.

Allocation method

   Commentators suggested several changes to the NOx allowance allocation method in § 145.42. Suggestions included the following:

   *  Change the allocation method for the year 2006 and thereafter,

   *  Subsection (a)(2) should be revised to give DEP more discretion,

   *  The EPA's SIP contains inaccuracies that should be corrected,

   *  Allocation of NOx allowances should be changed to provide more incentives for low emission units,

   *  Allocation periods should be longer,

   *  Allocations should be modified to better accommodate future planning,

   *  The size of the set-aside pool in Subsection (d) should be reduced.

   On the other hand, several commentators advocate adopting EPA's allocation approach without changes, despite its flaws. Any method will create some degree of advantages and disadvantages. The EQB should explain why the method used in the proposed rulemaking is the best alternative.

Exception to 0.15 lb/MMBtu allocation

   Subsection (b)(1) contains the phrase ''or allowable emission level, whichever is lower.'' This additional criteria is not in the federal model rule. Why is this criteria needed?

   10.  Section 145.54. Compliance--Reasonableness, Economic Impact, Feasibility and Clarity.

   Although the penalty provisions in Subsection (d) are contained in Chapter 123 and the Federal model rule, the penalties can be severe. Specifically, Subsection (d) requires:

   *  A deduction of three NOx allowances for every ton of excess emissions,

   *  Each ton of excess emissions will be viewed as a separate violation, and

   *  A fine. The potential exists for a violator to be penalized up to $25,000 a day for every day in the 153-day control period.

   Under these provisions, a violation could result in a fine of up to $3.8 million and a loss of allocations in the next control period. The EQB should explain the need and reasonableness of these deductions and penalties.

   Subsection (d)(3) indicates the fines will be assessed under ''the Clean Air Act or the act.'' It is not clear what penalties apply. For clarity, the EQB should reference the specific provisions in ''the Clean Air Act or the act'' which contain the applicable penalties for the violation.

   11.  Section 145.55. Banking--Economic Impact, Reasonableness and Clarity.

   Section 145.55(c)(9) allows facilities to carry over allowances they banked from 2000 to 2002 to the program under Chapter 145. We have four questions concerning the implementation of this provision.

   First, the regulation is not clear regarding how Pennsylvania will maintain compliance in 2003 if all of the banked allowances carried forward are used in that year. The EQB should explain how DEP will ration the banked NOx allowances to assure that Pennsylvania does not exceed its NOx allocation.

   Second, the regulation does not allow facilities to carry over allowances banked in 1999. Why can't allowances banked in 1999 be carried forward?

   Third, the section provides emission reduction credits for years 2001 and 2002. It is not clear if a facility can carry forward banked allowances and also receive emission reduction credits. The EQB should clarify whether a facility will receive credit for both a banked allowance and emission reductions, or if the facility will only be credited once.

   Finally, subsection (c)(10) provides that the compliance supplemental pool for Pennsylvania is 13,716. Why is it necessary to include the specific allocation in the regulation, especially if EPA may change it?

   12.  Section 145.70. General Monitoring--Need, Economic Impact and Reasonableness.

   Commentators expressed concern with the new monitoring requirements established in this rulemaking. They observe that regulated facilities incurred significant costs to comply with the monitoring requirements in Chapter 123 (which started in 1999). Now they would have to make further adjustments. The Commentators recommend that the monitoring requirements in Chapter 123 be maintained.

   The Preamble states the monitoring requirements are consistent with the existing NOx budget rule. The monitoring requirements contained in this rulemaking are the same as those contained in the EPA's model rule. However, there is no mandate that Pennsylvania must follow the EPA model rule.

   We have two concerns with § 145.70. First, the need to impose any variance in existing monitoring requirements is not clear. Has the EPA stated or implied that existing monitoring requirements are not acceptable under the new program? The EQB should consider maintaining the current monitoring requirements for those facilities currently in compliance with existing monitoring requirements.

   Second, if alterations are necessary, the EQB should provide an analysis of the additional costs generated by the new monitoring requirements. The EQB should then explain why these additional costs are necessary.

   13.  Section 145.71. Initial certification and recertification procedures--Consistency and Reasonableness.

   The EPA expressed concern that subsection (b)(3) does not require DEP to issue certification disapproval within 120 days. Adding a specific time period would provide notice to facilities of when the DEP will take action. The EQB should consider including this timeframe.

   14.  Section 145.74 Recordkeeping and Reporting--Clarity.

   Subsection (d)(1) provides that NOx budget units shall meet the annual reporting requirements of this subchapter. Clarification of whether ''annual'' refers to the term ''control period'' as defined in § 145.2 is needed.

   15.  Section 145.101. Applicability--Reasonableness, Economic Impact and Clarity.

Brake horsepower standard vs. emission based standard

   In Subsections (a)--(c), the EQB uses brake horsepower to determine which internal combustion engines (ICE) must comply with Subchapter B. Commentators suggested using emission-based standards, such as one ton of NOx per day, to determine which ICEs must comply. Since emissions control is the ultimate goal, why does the EQB use brake horsepower instead of emissions to determine which ICEs must comply with Subchapter B?

Exemptions

   We have four concerns with the exemption in subsection (d). First, subsection (d) may be overly prescriptive. Commentators are concerned that the language does not allow sufficient flexibility to exempt standby diesel generators. Why does the EQB need limitations such as a unit having ''the sole purpose of providing emergency electric service to the facility where it is located''? Why does the EQB need to prescribe anything beyond the limitation to 208 hours of operation?

   Second, the exemption is limited to electric generation units. Why wouldn't the exemption apply to ICEs used for other purposes?

   Third, the regulation does not include a EPA exemptions for start-up, shutdown, and malfunction emissions that do not exceed 36 consecutive hours. Why didn't the EQB include these exemptions?

   Finally, commentators stated there are instances where compliance costs are high, but the reduction of NOx is minimal. The regulation does not address alternatives when a NOx reduction may not be cost effective. The EQB should consider adding a process where a NOx source could ask for alternatives, or waivers if compliance costs are excessive in relation to the reduction of NOx.

   16.  Section 145.102. Definitions--Need and Clarity.

   We could not find the defined term ''permitted capacity factor'' in the body of this subchapter. Is this term needed?

   17.  Section 145.143. Standard requirements--Need, Economic Impact and Reasonableness.

   Commentators state that the federal model rule does not have an emissions rate or an emissions cap for cement kilns. They also state that the regulation does not allow alternatives for compliance such as the use of low-NOx burners or mid-kiln firing systems. Meeting the emissions rates is the only option available. The commentators believe the proposed standards will disadvantage 30 to 50% of the cement plants in Pennsylvania. The EQB should explain the need to vary from the federal model rule and explain why options available under federal guidelines were not included in Pennsylvania's regulation

   18.  Section 145.144. Reporting, monitoring and recordkeeping--Reasonableness.

   The regulation does not include EPA exemptions for start-up, shutdown and malfunction emissions. Why didn't the EQB include these exemptions?

State Board of Social Work Examiners Regulation No. 16A-693
Verification Fee
June 11, 1999

   We have reviewed this proposed regulation from the State Board of Social Work Examiners (Board) and submit for your consideration the following objections and recommendations. Sections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 47.4. Licensure fees--Fiscal Impact, Consistency and Clarity.

Administrative overhead costs

   In the proposed regulation's fee report forms, there are significant differences in the costs for both fees except for ''Bureau Average Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs for all boards by the number of active licensees for all boards. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.

   For overhead cost allocations, there appears to be no direct relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' pursuant to section 18(c) of the Social Workers' Practice Act (63 P. S. § 1918(c)).

   We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.

Board duties for certification and verification

   The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were very similar. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.

   Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.

State Registration Board for Professional Engineers, Land Surveyors and Geologists
Regulation No. 16A-477
Verification/Certification Fees
June 11, 1999

   We have reviewed this proposed regulation from the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board) and submit for your consideration the following objections and recommendations. Sections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 37.17. Schedule of fees--Fiscal Impact, Consistency and Clarity.

Administrative overhead costs

   In the proposed regulation's fee report forms, there are significant differences in the costs for both fees except for ''Bureau Average Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs for all boards by the number of active licensees for all boards. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.

   For overhead cost allocations, there appears to be no direct relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' pursuant to section 9(a) of the Engineer, Land Surveyor and Geologist Law (63 P. S. § 156(a)).

   We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.

Board duties for certification and verification

   The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were very similar. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.

   Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.

State Board of Veterinary Medicine Regulation No. 16A-578
Fees
June 11, 1999

   We have reviewed this proposed regulation from the State Board of Veterinary Medicine (Board) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 31.41. Schedule of fees--Fiscal Impact, Consistency and Clarity.

Administrative overhead costs

   In the proposed regulation's fee report forms, there are significant differences in the costs for both fees except for ''Bureau Average Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs for all boards by the number of active licensees for all boards. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.

   For overhead cost allocations, there appears to be no direct relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' pursuant to section 13(b) of the Veterinary Medicine Practice Act (63 P. S. § 485.13(b)).

   We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.

Board duties for certification and verification

   The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were very similar. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.

   Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.

State Board of Occupational Therapy, Education and Licensure Regulation No. 16A-672
Fees
June 11, 1999

   We have reviewed this proposed regulation from the State Board of Occupational Therapy, Education and Licensure (Board) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 42.17. Licensure fees--Fiscal Impact, Consistency and Clarity.

Administrative overhead costs

   In the proposed regulation's fee report forms, there are significant differences in the costs for both fees except for ''Bureau Average Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs for all boards by the number of active licensees for all boards. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.

   For overhead cost allocations, there appears to be no direct relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that these fees are ''necessary to the administration of this act'' pursuant to section 17(a) of the Occupational Therapy Practice Act (63 P. S. § 1517(a)).

   We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.

Board duties for certification and verification

   The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were very similar. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.

   Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.

State Board of Dentistry Regulation No. 16A-469
Verification/Certification Fees
June 11, 1999

   We have reviewed this proposed regulation from the State Board of Dentistry (Board) and submit for your consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.

   1.  Section 33.3. Fees--Fiscal Impact, Consistency and Clarity.

Administrative overhead costs

   In the proposed regulation's fee report forms, there are significant differences in the costs for both fees except for ''Bureau Average Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs for all boards by the number of active licensees for all boards. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.

   For overhead cost allocations, there appears to be no direct relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' pursuant to Section 4(b) of the Dental Law (63 P. S. § 123(b)).

   We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.

Board duties for certification and verification

   The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were very similar. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.

   Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 99-1030. Filed for public inspection June 25, 1999, 9:00 a.m.]

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