NOTICES

Notice of Comments Issued

[31 Pa.B. 6999]

   Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5(d)) 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 committees' comment period. The Commission's Comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).

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

			Final-Form
			Submission
Reg. No.	Agency/Title	Issued	Deadline
11-208	Insurance Department    Long-Term Care       Insurance Form and       Rate Filings	12/6/01	11/5/03
	(31 Pa.B. 5553 (October 6, 2001))
7-368	Environmental Quality    Board    Safe Drinking Water	12/7/01	11/7/03
	(31 Pa.B. 5083 (September 8, 2001))
7-365	Environmental Quality    Board    Heavy-Duty Diesel       Emissions Control       Program	12/10/01	11/9/03
	(31 Pa.B. 4958 (September 1, 2001))

Insurance Department Regulation No. 11-208
Long-Term Care Insurance Form and Rate Filings
December 6, 2001

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Insurance Department (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by November 5, 2003, the regulation will be deemed withdrawn.

1.  Section 89a.103.  Definitions.--Clarity.

Producer

   This term is defined as an ''agent'' or ''broker.'' However, the text of the regulation does not use the term ''producer'' consistently. Instead, the terms ''agent,'' ''broker'' and ''producer'' are all used in the body of the regulation. In the final-form regulation, the defined term should be used consistently throughout the regulation.

2.  Section 89a.104.  Policy definitions.--Need; Clarity.

Bathing

   The definition of this term begins with a reference to ''oneself,'' but concludes with the phrase ''or drawing the water for a sponge bath and getting the equipment to the person or the person to the equipment.'' This phrase is not included in the definition of ''bathing'' in the National Association of Insurance Commissioners (NAIC) Long-Term Care Insurance Model Regulation (Model). Furthermore, the references to transporting equipment or the person imply that a second person is involved in the bathing process.

   It is our understanding that the Department did not intend for the definition to encompass the services of a second person. The definition should be revised to clarify this point. The Department should also explain why it is necessary to deviate from the NAIC Model.

Medicare

   This definition is similar to the corresponding definition in the NAIC Model. However, the NAIC Model definition of ''Medicare'' references ''any later amendments or substitutes thereof.'' The Department should revise the definition to include the NAIC language. Otherwise, the definition will not encompass future amendments to the Medicare statutes.

Subsection (b)

   This subsection addresses the definitions of various service providers. The last sentence states, ''The definition may require that the provider be appropriately licensed or certified when the licensure or certification of the provider is required by the Commonwealth.''

   This sentence is confusing. The intent of this provision should be clarified in the final-form regulation.

3.  Section 89a.105.  Policy practices and provisions.--Clarity.

Subsection (b)  Limitations and exclusions

   Paragraph (1)(ii) references ''. . . Alzheimer's Disease or other related degenerative or dementing illnesses.'' The reference to ''other related degenerative or dementing illnesses'' is vague and is not included in the NAIC Model. The reference to ''other'' illnesses should be clarified in the final-form regulation, or the phrase should be deleted.

Subsection (g)  Electronic enrollment for group policies

   Subparagraph (1)(iii) requires that telephonic or electronic enrollment include safeguards that assure the confidentiality of ''individually identifiable information.'' This provision in the NAIC Model includes the terms ''individually identifiable information'' and ''privileged information.'' The NAIC Model also references a definition of ''privileged information.'' The Department should explain why the term ''privileged information'' is not in this provision in the proposed regulation.

4.  Section 89a.108.  Required disclosure of rating practices to consumers.--Clarity.

   In Subsection (b)(5), insurers are required to provide premium rate increase information for a policy form or similar forms for the past 10 years. Comparable policies, in many cases, did not exist 10 years ago. The Department should amend the regulation to provide for flexibility when 10 years of data is not available.

5.  Section 89a.109.  Initial filing requirements.--Clarity.

   In Subsection (b) of the NAIC Model, the insurer is given 30 days to provide the required information to the Commissioner. The proposed regulation does not mention a specific time period, but does reference 15 sections of the Accident and Health Filing Reform Act (Act). To be more specific, the regulation should reference the time periods set forth in Sections 3 and 4 of the Act (40 P. S. §§ 3803 and 3804).

6.  Section 89a.113.  Requirements for application forms and replacement coverage.--Fiscal impact; Need.

   This section includes sample application forms that are to be used by insurance companies. The Department has changed NAIC Model language from ''state'' to ''Commonwealth'' in the proposed regulation. Commentators have suggested that by substituting ''Commonwealth'' for ''state'' in various standardized forms, carriers would be required to print costly materials specific only to Pennsylvania. Is there a need for insurers to make application forms that are specific to Pennsylvania?

7.  Section 89a.129.  Permitted compensation arrangements.--Fiscal impact; Need.

   This section retains existing provisions, which place limits on compensation to an agent or broker for the sale of a long-term care insurance policy (31 Pa. Code § 89.921). For example, the rule limits a commission or other compensation to a maximum of 50% of the first year premium of a long-term care policy. However, the NAIC Model Rule uses a maximum of 200%. Commentators question the need for the 50% limitation. What is the Department's rationale for maintaining the 50% rule?

Environmental Quality Board Regulation No. 7-368
Safe Drinking Water
December 7, 2001

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by November 7, 2003, the regulation will be deemed withdrawn.

1.  Multilingual requirements for Public Notices and Consumer Confidence Reports.--Protection of the public health, safety and welfare; Economic impact; Feasibility; Reasonableness; and Clarity.

   The EQB has requested comments from the regulated community on Sections 109.411(c)(2) and 109.416(3)(ii) concerning multilingual requirements imposed by the Environmental Protection Agency (EPA). Specifically, the EQB solicited input on how a large proportion of non-English speaking consumers should be defined, what resources are available to water systems that wish to provide translated copies of these reports, and what resources are available to consumers seeking translation services or assistance in reading the notice. In regard to our criteria, the language of the proposed regulation raises five concerns.

   First, the threshold of a ''large proportion of non-English speaking consumers'' is vague. In addition, the make up of a population is subject to change and so is the fluency of English. What criteria will the EQB use to identify a large proportion of non-English speaking consumers? How would these trends within a population be evaluated and updated?

   Second, a Tier 1 notice is required as soon as possible, but no later than 24 hours after the water system learns of the violation or situation. The wording of a public notice is important in these situations. Where can a water system acquire the expertise to provide accurate notices in a language other than English?

   Third, Sections 109.411(c)(2)(ii) and 109.416(3)(ii) require water systems to immediately meet the multilingual requirement, ''Until the Department determines whether a system serves an area with a large proportion of non-English speaking consumers. . . .'' How can a water system implement these requirements? We further question when the Department of Environmental Protection (Department) will make its determination and what recourse a water system will have if it does not agree with the determination?

   Fourth, when a water system uses broadcast media such as radio or television to notify the public of a violation, what procedures must be followed to satisfy the multilingual requirement?

   Finally, while recognizing the importance of informing the public of unsafe drinking water, do all water systems, and in particular smaller water systems, have the resources to meet the multilingual requirements of the regulation? Does the EQB have an estimate of anticipated costs for small and large water systems?

2. Public Notices--form, manner and frequency of notices.--Protection of the public health, safety and welfare; Reasonableness; and Clarity.

   Sections 109.408, 109.409 and 109.410 address the form, manner and frequency of Tier 1, Tier 2, and Tier 3 public notices respectively. The requirements of these sections reflect the Federal regulations for safe drinking water established by the EPA. Commentators have raised several issues regarding these notices.

   First, the Tier 1 public notice procedure includes a consultation process between the Department and the water system. However, the regulation does not describe the details of the consultation process or how any disagreement would be resolved. Has the EQB considered language that explains how the consultation process works and what the minimum requirements for public notification would be?

   Second, numerous commentators believe the timing, form and manner of public notice does not adequately protect the public from potentially contaminated water. They recommend requiring water systems to notify multiple media sources within 24 hours for any violation. The commentators also suggest using multiple methods to notify people and notifying the public every 30 days when violations continue. The commentators' recommendations are more stringent than Federal standards. Considering the potential health risks involved with unsafe drinking water, should the EQB adopt regulations that are more stringent than EPA requirements?

3.  Section 109.1. Definitions.--Clarity.

   The definition of a Consumer Confidence Report (CCR) is, ''An annual water quality report that community water systems shall deliver to their customers.'' This is substantive because the word ''shall'' is used. Since substantive provisions in a definition are not enforceable, this requirement should be moved to the body of the regulation.

4.  Section 109.301. General monitoring requirements.--Clarity.

   Subsection (7)(ii)(C)(V) contains a vague requirement to, ''. . . meet other Tier 1 public notification requirements.'' The EQB should provide a specific reference to those requirements.

5.  Section 109.407. General public notification requirements.--Clarity.

   Subsection (a)(9) is vague. It is unclear what ''other violations and situations'' the Department will determine require a public notice. Is the intent to use this provision on a case-by-case basis? What criteria will the Department use to determine the necessity of a public notice?

   Subsection (b) includes the phrase ''unless other tier assignments are established by regulations or order of the Department.'' We have two concerns. First, the only way to change a regulation is by promulgating a new regulation. Therefore, the language regarding regulations is not needed. Second, is the intent to issue orders on a case-by-case basis? If so, under what circumstances would an order be issued?

6.  Section 109.411.  Content of a public notice and Section 109.416. CCR Requirements.--Clarity.

   Sections 109.411(c)(1)(ii) and 109.416(3)(iv) prohibit use of ''very small print'' and ''small font sizes.'' Commentators have noted that the requirements regarding acceptable font size are vague. Did the EQB consider specifying a minimum font size?

7.  Section 109.416.  CCR Requirements.--Protection of the public health; Fiscal impact; and Lesser standards.

   We have two questions. First, the regulation requires CCRs to be sent to customers of a public water system. In an apartment complex, the customer is often the owner of the apartment complex, not the individual renters. In this situation, is the health of an individual renter sufficiently protected?

   Second, Federal law at 42 USCA 300g-3(c)(4)(C) and (D) allows lesser standards for compliance for smaller water systems serving fewer than 10,000 persons and 500 persons respectively. The Federal law allows smaller systems to make the report available to the public upon request. Has the EQB considered adopting these lesser standards?

8.  Subchapter K.  Lead and Copper.--Protection of the public health.

   In its comments, the EPA asked for additional clarification regarding public access to information. Specifically, the EPA is looking for assurance the public will have access to monitoring results. Has the EQB considered requiring public water systems to make raw data available to the public and how this could be accomplished?

Environmental Quality Board Regulation No. 7-365
Heavy-Duty Diesel Emissions Control Program
December 10, 2001

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by November 9, 2003, the regulation will be deemed withdrawn.

Implementation.--Statutory Authority.

   Section 177 of the Clean Air Act states in part:

. . . any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new vehicle engines and take such other actions as are referred to in section 209(a) respecting such vehicles if--

   (1)  such standards are identical to the California standards for which a waiver has been granted for such model year, and

(2)  California and such State adopt such standards at least two years before commencement of such model year (as determined by regulations of the Administrator) . . .

   At this point, the California Air Resource Board (CARB) has not applied for or received a waiver from the Environmental Protection Agency (EPA) to implement these standards. In accordance with Section 177 of the Clean Air Act, the EQB should not go forward with the final-form version of this regulation until a waiver has been submitted by CARB and approved by EPA.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 01-2299. Filed for public inspection December 21, 2001, 9:00 a.m.]

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