NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[29 Pa.B. 3492] The Independent Regulatory Review Commission met publicly at 10:30 a.m., Thursday, June 17, 1999, and took the following actions:
Regulations Approved:
Environmental Quality Board #7-310: Water Quality Amendments-Antidegradation (amends 25 Pa. Code Chapters 93 and 95).
Regulations Disapproved:
State Board of Education #6-258: Certification of Professional Personnel (amends Subchapters A, B, and C of 49 Pa. Code).
Lobbying Disclosure Committee #63-06: Lobbying Disclosure (amends 51 Pa. Code by adding Chapters 31--45).
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Commissioners Present: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson; Arthur Coccodrilli--dissenting; Robert J. Harbison, III; John F. Mizner
Public Meeting held
June 17, 1999Environmental Quality Board--Water Quality Amendments--Antidegradation; Regulation No. 7-310
Order On March 10, 1997, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking amends 25 Pa. Code Chapters 93 and 95. The authority for this regulation is contained in section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20) and section 5(b)(1) of The Clean Streams Law (35 P. S. § 691.5(b)(1)). The proposed regulation was published in the Pennsylvania Bulletin with a 60-day public comment period. The Department of Environmental Protection (DEP) published an advance notice of final rulemaking (ANFR) in the January 23, 1999 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 20, 1999.
This regulation is a response to the 1994 disapproval of the Commonwealth's antidegradation program by the United States Environmental Protection Agency (EPA). The regulation addresses concerns raised by EPA's disapproval. It is intended to bring Pennsylvania's water quality standards into greater consistency with the Federal program.
The EPA published final regulations effective January 8, 1997, for Pennsylvania's antidegradation program. This regulation will replace EPA's regulations for Pennsylvania. The regulation establishes a framework for designating streams for special protection. In order to receive special protection, streams must be examined for their chemical or biological characteristics.
We have reviewed this regulation and find it to be in the public interest. The regulation is necessary to adequately protect unique and high quality streams in the Commonwealth.
Therefore, It Is Ordered That:
1. Regulation No. 7-310 from the Environmental Quality Board, as submitted to the Commission on May 20, 1999, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
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Commissioners Present: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
June 17, 1999State Board of Education-- Certification of Professional Personnel; Regulation No. 6-258
Order On April 9, 1997, the Independent Regulatory Review Commission received this proposed regulation from the State Board of Education. This rulemaking amends Subchapters A, B, and C of 22 Pa. Code Chapter 49. The authority for this regulation is sections 1201--1268, 1109, 1141, 2603-B and 2604-b of the Public School Code (24 P. S. §§ 12-1201--12-1268, 11-1109, 11-1141, 26-2603-B and 26-2604-B). The proposed regulation was published in the April 19, 1997 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 17, 1999.
This regulation is the result of the Board's decennial review of certification rules and procedures. In response to comments from the Standing Committees, the public and the Commission, the Board made several major amendments to the final-form regulation. The Board removed controversial provisions for alternate entry, temporary waivers and professional development. The final-form regulation will add Program and Certificate principles, improve the assessment program for certification and collapse two levels of supervisory and administrative certificates into one level.
We have reviewed this regulation and have found that it is not in the public interest. We have two concerns with the final-form regulation. First, the provisions relating to the establishment of certification standards are not within the Board's statutory authority. Second, the Educational Specialist II certificate requirements do not meet the criteria of clarity and reasonableness.
Our first concern relates to the Board's delegation, in Subchapter B, of the authority to establish standards for individual certification to the Department of Education. In the proposed rulemaking, the Board amended the requirements for instructional certificates, educational specialist certificates, supervisory certificates and administrative certificates (Sections 49.81(b), 49.101, 49.111(a)(5) and 49.121(d)). The amendments are similar in that they provide that state certificates will be issued to candidates ''. . .who meet Department prescribed standards based on the following principles:'' (Emphasis added.)
Under the Public School Code and miscellaneous education laws, the authority to establish standards for certification resides solely with the Board. The Board's overall authority in this area is set forth in the Public School Code, 24 P. S. § 26-2606-B (Cooperation between the Board and the Department of Education), which provides:
Statements of policy, standards, rules and regulations promulgated by the board shall be binding upon the Department of Education. The department shall submit to the board for approval, modification or rejection, all rules and regulations proposed by the department in the areas under control of the board. The Department of Education shall furnish upon request of the board such data and information as the board may, from time to time, require, and the department shall provide administrative services for and on behalf of the board for the implementation of the board's statements of policy, standards, rules and regulations. [Emphasis added]This section must be read in pari materia with Miscellaneous Laws, 24 P. S. § 1226 (Powers and duties of the State Board of Education). This section provides, in part:
The State Board of Education shall have the power, and its duty shall be--* * * * * (b) To establish and promulgate standards of preliminary and professional education and training for teachers in such schools. [Emphasis added]Finally, 24 P. S. § 2070.2. (Certification requirements) provides:
No person shall teach in a public school in the Commonwealth unless he has met the certification requirements as established by the State Board of Education which are applicable to the institution where he is employed. [Emphasis added]While the Board states it approves certification standards as a matter of practice, there is no obligation, in the regulation, for the Board to approve the Department's prescribed standards. To meet its statutory requirements and the criteria of clarity, the regulation should require the Board to approve the standards for each certificate developed by the Department.
Our second concern relates to Educational Specialist Certificates. The existing regulation requires an applicant for an Educational Specialist II certificate to ''have completed 3 years of satisfactory service on a Level I Educational Specialist Certificate.'' (Emphasis added.) This section recognizes that some educational specialists do not teach.
In the proposed regulation, Section 49.103(2) altered this requirement by requiring an applicant to ''have completed 3 years of satisfactory teaching on an Educational Specialist I Certificate.'' (Emphasis added.) We recommended that the Board delete the requirement for teaching and continue the existing requirement for service in this provision.
The Board did not respond to our comment on this issue. Section 49.103(2) of the final-form regulation would require 3 years of satisfactory teaching. As drafted, Section 49.103(2) of the final-form regulation does not meet the criteria of clarity and reasonableness.
Therefore, It Is Ordered That:
1. Regulation No. 6-258 from the State Board of Education, as submitted to the Commission on May 17, 1999, is disapproved;
2. The State Board of Education shall, within seven days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;
3. The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and
4. This Order constitutes a bar to final publication of Regulation No. 6-258 under section 6(b) of the Regulatory Review Act.
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Commissioners Present: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
June 17, 1999Lobbying Disclosure Committee--Lobbying Disclosure; Regulation No. 63-6
Order On January 20, 1999, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Lobbying Disclosure Committee (LDC). This rulemaking amends 51 Pa. Code by adding Chapters 31--45. The authority for this regulation is contained in sections 1305(b)(3)(iii) and 1310(c) of the Lobbying Disclosure Act (Act) (65 Pa.C.S. §§ 1305(b)(3)(iii) and 1310(c)). The proposed regulation was published in the January 30, 1999 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 26, 1999.
This regulation is being promulgated to implement the Act. The proposed regulations, like the Act, outline what constitutes lobbying, who must register, what must be reported, and auditing and enforcement procedures.
Comments were filed on this final-form regulation by: Senators Brightbill, Mellow and Lemmond, the members of the subcommittee established by the Rules and Executive Nominations Committee; Stephen C. MacNett, General Counsel for the Senate Majority Caucus; and the Pennsylvania Association for Government Relations. On June 15, 1999, the House Judiciary Committee voted to disapprove the final-form regulation.
We have reviewed this regulation and find it not to be in the public interest. While the majority of this rulemaking tracks the language and intent of the Act, there are two areas where the regulation exceeds the authority granted by the Act.
First, in this proposal the LDC has created a new term, ''de minimis'' which is defined as ''insignificant.'' This term does not appear in the Act. However, it is used in the definition of ''lobbyist'' and in section 35.1(g)(6) which establishes reporting requirements for principals.
The statutory definition of ''lobbyist'' does not contain a de minimis exemption. Under the Act, a lobbyist is someone who ''engages in lobbying on behalf of a principal for economic consideration.'' Furthermore, section 1306(3) of the Act contains the only statutory exclusions from registration and reporting. It includes the following:
(II) An individual whose compensation for lobbying, from all principals represented, does not exceed $2500 in the aggregate during any reporting period.* * * * * (IV) A principal whose total expenses for lobbying purposes do not exceed $2500 during any reporting period. (emphasis added).There are two problems with these provisions. First, the LDC has not specified a dollar amount that would be considered de minimis. Second, clearly the Act requires lobbyists to aggregate all compensation and requires principals to total all of their lobbying expenses. There is no provision for any compensation or expenses to be considered de minimis because of the aggregating and totaling requirements of the Act.
The other area where the LDC has exceeded its statutory authority is in the provisions governing random audits. Under section 1308(g) of the Act, the Ethics Commission ''shall initiate, by lottery, random annual audits of registration statements and disclosure reports. . . .'' The final-form regulation, in sections 41.2(d) and (e), would allow the Ethics Commission to examine ''the relevant records of any other registrant'' as part of an audit of the randomly selected registrant. However, the statute does not give the Ethics Commission the authority to require a registrant, who is not the subject of an audit, to produce any records.
There are also areas which we raised in our Comments and which have been raised by the Senate that do not meet the reasonableness or clarity criteria of the Regulatory Review Act. For example, the definition of service (of official papers) should be revised to use the postmark date, not the date of mailing. Also, inserting ''related'' between ''other'' and ''practices'' in section 41.4(b) and refining the language in sections 41.3(c)(2)(ii) and (3) would clarify the conduct of audits. These changes, and the other Senate suggestions offering technical changes, would enhance the clarity of the regulation.
Therefore, It Is Ordered That:
1. Regulation No. 63-6 from the Lobbying Disclosure Committee as submitted to the Commission on May 26, 1999, is disapproved;
2. The Lobbying Disclosure Committee shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;
3. The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and
4. This Order constitutes a bar to final publication of Regulation No. 63-6 pursuant to Section 6(b) of the Regulatory Review Act.
JOHN R. MCGINLEY, Jr.
Chairperson
[Pa.B. Doc. No. 99-1066. Filed for public inspection July 2, 1999, 9:00 a.m.]
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