NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[31 Pa.B. 1647] The Independent Regulatory Review Commission met publicly at 10:30 a.m., Thursday, March 8, 2001, and took the following actions:
Regulation Deemed Approved under Section 5(g) of the Regulatory Review Act--Effective February 28, 2001:
State Architects Licensure Board #16A-415: Biennial Renewal Fees (amends 49 Pa. Code Chapter 9).
Regulation Deemed Approved under Section 5(g) of the Regulatory Review Act--Effective February 27, 2001:
Environmental Quality Board #7-351: Radon Certification; Continuing Education (amends 25 Pa. Code Chapter 240).
Department of Health #10-163: Schedule of Controlled Substances (amends 28 Pa. Code § 25.72).
Regulation Approved:
Pennsylvania Public Utility Commission #57-215: Customer Information Disclosure Requirements for Natural Gas Distribution Companies and Natural Gas Suppliers (amends 52 Pa. Code Chapter 62).
Environmental Quality Board #7-353: Oil and Gas Wells (amends 25 Pa. Code Chapter 78).
Department of Agriculture #2-115: Sustainable Agriculture Programs (adds a new Chapter 130c to 7 Pa. Code).
Department of Agriculture #2-132: Dog Shelters (amends 7 Pa. Code § 21.24).
Department of Agriculture #2-133: Preferential Assessment of Farmland and Forest Land Under the Clean and Green Act (adds Chapter 137b to 7 Pa. Code).
Department of Education #6-269: Charter School Services and Programs for Children With Disabilities (adds Chapter 711 to 22 Pa. Code).
Regulation Disapproved:
State Board of Education #6-270: Special Education Services and Programs (amends Chapter 14 and deletes Chapter 342 of 22 Pa. Code).
____Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Pennsylvania Public Utility Commission; Customer Information Disclosure Requirements for Natural Gas Distribution Companies and Natural Gas Suppliers; Regulation No. 57-215
On May 11, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking amends 52 Pa. Code Chapter 62. The proposed regulation was published in the May 27, 2000, Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on January 31, 2001.
This regulation establishes the information each natural gas distribution company and natural gas supplier must supply to customers relating to marketing materials, pricing, billing, and service contracts and establishes standards restricting release of private customer information to third parties. The regulation is mandated by the Natural Gas Choice and Competition Act of 1999.
We have determined this regulation is consistent with the statutory authority of the PUC (66 Pa.C.S. §§ 501, 2201--2212) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____ Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Environmental Quality Board; Oil and Gas Wells; Regulation No. 7-353
On May 31, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking amends Chapter 78 of 25 Pa. Code. The proposed regulation was published in the June 17, 2000, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 6, 2001.
This rulemaking updates and clarifies existing regulations. It amends brine spill reporting requirements, notification requirements, permit requirements, disposal options and drilling through gas storage reservoirs. In addition, it includes language that brings existing regulations into consistency with the statute concerning the elimination of the bonding requirements for oil and gas wells drilled prior to April 18, 1985.
We have determined this regulation is consistent with the statutory authority of the Environmental Quality Board (58 P. S. § 604) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Department of Agriculture; Sustainable Agriculture Programs; Regulation No. 2-115
On March 5, 1999, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking adds a Chapter 130c to 7 Pa. Code. The proposed regulation was published in the March 20, 1999, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 31, 2001.
This regulation implements the Sustainable Agriculture Act, the act of December 12, 1994 (P. L. 891, No. 129). The regulation contains eligibility criteria and review procedures for loans or grants applications for sustainable agriculture projects. The purpose of these projects is to promote agricultural practices that are ecologically beneficial and will over the long term satisfy human needs and protect the environment. This is a voluntary program. The Department indicates that it will have little to no fiscal impact on the Commonwealth, local governments or private sector.
We have determined this regulation is consistent with the statutory authority of the Department (3 P. S. §§ 2104, 2108, 2112 and 2115) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____ Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Department of Agriculture; Dog Shelters; Regulation No. 2-132
On July 10, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking amends 7 Pa. Code § 21.24. The proposed regulation was published in the July 22, 2000, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 31, 2001.
This rulemaking updates and clarifies standards for dog enclosures with wire flooring. It amends existing requirements to make use of rest boards optional. The proposal requires that these shelters use metal strand flooring that is rigid and coated with a ''vinyl type coating.'' The regulation should reduce costs in the long run, and decrease the cost and time associated with sanitizing rest boards and the enclosures.
We have determined this regulation is consistent with the statutory authority of the Department (3 P. S. §§ 459-207(b) and 902) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____ Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Department of Agriculture; Preferential Assessment of Farmland and Forestland Under the Clean and Green Act; Regulation No. 2-133
On August 21, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking adds Chapter 137b to 7 Pa. Code. The proposed regulation was published in the September 2, 2000, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 24, 2001. On February 8, 2001, the Department withdrew the final-form regulation. On February 15, 2001, the Department resubmitted the final-form regulation to the Commission.
This final-form rulemaking establishes a new chapter that replaces existing Chapters 137 and 137a. This regulation is designed to implement Act 156 of 1998, which amended the Pennsylvania Farmland and Forest Land Assessment Act of 1974, also known as the ''Clean and Green Act.''
We have determined this regulation is consistent with the statutory authority of the Department (72 P. S. § 5490.11) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By order of the Commission:
This regulation is approved.
____Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner
Public Meeting held
March 8, 2001Department of Education; Charter School Programs for Children With Disabilities; Regulation No. 6-269
On June 27, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Education (Department). This rulemaking adds Chapter 711 to 22 Pa. Code. The proposed regulation was published in the July 8, 2000, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 6, 2001.
This rulemaking establishes procedures for special education in charter schools; adopts relevant federal regulations relating to children with disabilities; defines terms related to special education for charter schools; and outlines the Department's authority to ensure charter schools' compliance with Federal laws, regulations and court decrees.
We have determined this regulation is consistent with the statutory authority of the Department (24 P. S. §§ 17-1701-A--17-1732-A) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____ Commissioners Voting: John R. McGinley, Jr., Chairperson; Alvin C. Bush, Vice Chairperson, by phone; Arthur Coccodrilli; Robert J. Harbison, III; John F. Mizner, dissenting
Public Meeting held
March 8, 2001Department of Education; Special Education Services and Programs; Regulation No. 6-270
On August 23, 2000, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Education (Board). This rulemaking amends Chapter 14 and deletes Chapter 342 of 22 Pa. Code. The proposed regulation was published in the September 2, 2000, Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 5, 2001.
The regulation establishes procedures to identify students in need of special education services and describes requirements and procedures for delivery of such services. The regulation also incorporates Federal regulations at 34 CFR Part 300 by reference. Promulgation of this rulemaking is necessary for the Commonwealth to continue receiving funds under the Federal Individuals with Disabilities Education Act.
The Board failed to respond to a number of the Commission's comments and provided an inadequate response to others. The comment response requirement in the Regulatory Review Act (71 P. S. § 745.2) was designed to enable the Commission to meet its mandate to determine whether a regulation is in the public interest. To determine what economic impact a regulation will have, whether there will be a negative effect on the public, and whether the requirements imposed by a regulation are clear, feasible and reasonable, this Commission needs to be able to gauge the reaction to the Board's response to the issues raised. Although the Board did provide a more detailed response and rationale subsequent to this Commission's inquiries, responses outside the regulatory review process do not provide the necessary public exposure to generate reaction, nor is it within the timelines outlined in that process.
An agency's final-form regulation should be accompanied by a response to comments of the Commission, and those of other commentators, that fully explains changes to the final-form regulation as well as its rationale for not making recommended changes. Further, questions asked in the Commission's comments should be answered, to help us further understand your proposal.
Several issues, which we raised in our comments, remain concerns. With respect to these issues, the Commission could have benefited from the public's reaction to the Board's subsequent responses. First, the statutory and regulatory definitions of ''early intervention services'' and ''mutually agreed upon written arrangement'' should be consistent. The definitions of these terms in § 14.101 are not identical to the corresponding statutory definitions. Clarity would be improved by either referencing or exactly repeating the statutory definitions.
Second, the final-form regulation should address the role of foster parents in obtaining special education or early intervention services. The Federal regulations at 34 CFR 300.20 define the term ''parent'' in two subsections. Subsection (a) generally defines ''parent'' and subsection (b) defines the term relating to ''foster parent.'' The Federal definition provides ''unless State law prohibits a foster parent from acting as a parent, a State may allow a foster parent to act as a parent.'' Therefore, the responsibility remains with the Board to clarify the role of foster parents.
Finally, the definitions of ''itinerant,'' ''part-time'' and ''resource'' should be clarified. These definitions are confusing. In our comments on the proposed rulemaking, we asked the Board to clarify these definitions. The Board responded that these terms are well understood by practitioners in the field. However, these regulations will be used by a wider range of individuals than practitioners in the field.
Additionally, we have several remaining concerns relating to the reasonableness of the caseload requirements and the deletion of class size requirements (71 P. S. § 745.5a(i)(3)(iv)); clarity of the incorporation by reference of Federal regulations (71 P. S. § 745.5a(i)(3)(ii)); and the reasonableness of the 2-year reevaluation period for children in early intervention programs (71 P. S. § 745.5a(i)(3)(iv)).
First, we question the reasonableness of eliminating the class size restrictions. Section 14.142(a) of the final-form regulation contains a chart of the maximum caseload allowed on a single teacher's roll for each school district. In our comments on the proposed rulemaking, we noted that the existing caseload chart (22 Pa. Code § 342.42) established ''the maximum number of exceptional students in the room with the teacher at any one time.'' The revised caseload chart does not contain such a limit.
In the Preamble, the Board explains that it chose to eliminate class size restrictions because: (1) there is no Federal requirement for establishing class sizes; (2) staffing of classes for students with disabilities cannot be determined effectively as a uniform Statewide standard; (3) caseload requirements provide general protections; and (4) procedural safeguards prevent class size from impeding students from achieving their goals established in their Individualized Education Programs (IEPs).
We are not persuaded by the Board's rationale. Although Federal requirements do not mandate class size restrictions, they do not preclude the Board from establishing such limits. As previously noted, the existing caseload chart imposed limits on the maximum number of exceptional students in a classroom. The Preamble does not indicate that the limits in the existing caseload chart were unreasonable. Restoring these limits would ensure that exceptional students receive the staff attention necessary to achieve the goals of their IEPs. Furthermore, the basis for the maximum caseloads contained in the chart is unexplained. The Board should specify how the caseload range was determined.
Second, we question the reasonableness of requiring parents and other interested parties to piece together the appropriate Federal regulations from an extensive list along with the pertinent Chapter 14 requirements. We continue to believe that inserting the references to the federal regulations in the corresponding sections would improve the clarity of the final-form regulation.
The final-form regulation includes an extensive list of Federal regulations which are incorporated by reference. This approach is confusing. In our comments, we noted that clarity would be improved if each reference to Federal regulations were inserted in the corresponding section of the Board's regulation.
The Board declined to make this change, stating that the Department of Education has and will continue to develop publications to help parents, teachers and administrators understand their rights under both state and federal statutes and regulations.
Third, we question the reasonableness of requiring reevaluations only every 2 years. Section 14.153(4)(iii) of the final-form regulation requires reevaluations to occur at least every 2 years for children in early intervention programs. The existing regulations require reevaluations every year. The Board has not adequately explained why it expanded the time frame for reevaluations to every 2 years.
We have determined this regulation is consistent with the statutory authority of the Board (24 P. S. §§ 1-101--26-2606-B) and the intention of the General Assembly. However, after considering the other criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 01-523. Filed for public inspection March 23, 2001, 9:00 a.m.]
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