NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[32 Pa.B. 2171]

   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 agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted by the date indicated.

Final-Form
Submission
Reg. No.	Agency/Title	Issued	Deadline
#2-138	Department of    Agriculture    Agricultural Area       Security Program;       Agricultural       Conservation       Easement       Purchase Program;       Agricultural       Security Area       Program	4/11/02	3/11/04
	(32 Pa.B. 775 (February 9, 2002))
#7-374	Environmental Quality    Board    Great Lakes       Initiative	4/11/02	3/12/04
	(32 Pa.B. 427 (January 26, 2002))
#57-225	Pennsylvania Public    Utility Commission    Street Railway       Transportation	4/11/02	3/11/04
	(32 Pa.B. 797 (February 9, 2002))

____

Department of Agriculture Regulation No. 2-138

Agricultural Area Security Program; Agricultural Conservation Easement Purchase Program; Agricultural Security Area Program

April 11, 2002

   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 Department of Agriculture (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 11, 2004, the regulation will be deemed withdrawn.

1.  Section 138e.16.  Minimum criteria for application.--Reasonableness; Clarity.

   Subsection (a)(2)(i) requires a farmland tract to be at least 50 acres in size. A similar requirement proposed in § 138e.255(b)(3)(i)(B) contains a lesser standard of at least 25 acres. The Department should either make both of these requirements 25 acres or explain why different standards are appropriate.

2.  Section 138e.73.  Survey requirements.--Fiscal impact; Reasonableness.

   In the Preamble, the Department states this rulemaking is not expected to impose appreciable costs on political subdivisions. However, commentators state that it will cost more to meet the new survey requirements and are concerned that these costs could be prohibitive. We have three questions.

   First, what is the cost of a typical land survey that meets the proposed requirements in the regulation? How does this cost compare to the cost of land surveys the Department has accepted for properties that are already in the Agricultural Conservation Easement Program?

   Second, what are the benefits of the proposed survey requirements?

   Finally, do the benefits of the requirements outweigh the costs?

Subsection (a)  General requirement.

   This subsection requires a survey to ''comply with the most current boundary survey measurement standards published by the Pennsylvania Society of Land Surveyors.'' There are three concerns.

   First, where are the Pennsylvania Society of Land Surveyors standards published?

   Second, how can a person determine whether the standards they have are the most current standards?

   Third, there may be a time delay between when a property survey was performed and the application for an easement. If the Pennsylvania Society of Land Surveyors changes their standards in that time period, would a survey still be acceptable if it met the Pennsylvania Society of Land Surveyors standards at the time the survey was conducted?

Subsection (c)  Monumentation.

   What qualifies as an ''unmovable monument''?

   Also, the last sentence of this subsection requires use of 5/8-inch ''rebar.'' To be consistent with the prior sentence, it should require use of 5/8-inch ''reinforcing bar.''

3.  Section 138e.91.  Recommendation for purchase.--Fiscal impact; Reasonableness; Clarity.

Subsection (1)

   Subsection (1) and paragraph (1)(x) require the filing of 25 copies of documents and specify the copies ''shall be individually collated and three-hole punched, but not stapled.'' This provision constitutes a significant paper burden, and in some instances may already be outdated. If the Department can accommodate electronic filing of documents, an alternative should be added to allow a county board to submit one copy of this document electronically.

Subsection (8)

   This subsection references a ''conservation plan agreement form as described in § 138e.222(a). . . .'' Section 138e.222(a) describes an agreement, but does not mention a form. These provisions should be consistent with each other.

   One commentator expressed concern that a fully-executed conservation plan agreement may not be available prior to State Board review. The Department should explain the need for a fully-executed conservation plan agreement at this point in the process.

4.  Section 138e.93.  Postsettlement recording and reporting procedures.--Reasonableness; Need; Clarity.

Subsection (b)  Prompt recording of the deed of agricultural conservation easement and other documents and Subsection (c) Prompt recording of agricultural security area; reporting to the State Board.

   The body of subsections (b) and (c) require actions ''promptly.'' These requirements are vague. The regulation should provide specific timeframes.

   Also, what happens if a local government unit fails to record these documents?

Subsection (d)  Reporting the agricultural conservation easement purchase to the State Board.

   Paragraph (1)(iii) requires the county board to file a copy of the settlement sheet. One commentator stated a settlement sheet is not used for all settlements. Unless the Department can establish a need for a settlement sheet in all settlements, paragraph (1)(iii) should only require a copy of the settlement sheet if one was used in the settlement.

   Paragraph (1)(iv) requires the county board to file ''a marked-up title insurance commitment document. . . .'' The county board is allowed 10 days after settlement to file this document. If a title insurance policy has been issued, the county board should be allowed to file this document in lieu of a marked-up title insurance commitment document.

5.  Section 138e.102.  Allocation of funds to counties.--Reasonableness; Fiscal impact.

   This provision requires ''the written certification of the county governing body that the specific amount of county matching funds . . . is available and intended for the purchase.'' One commentator believes it would be more appropriate for this certification to come from a County Executive or Chief Fiscal Officer. If certification from a county official is sufficient, the regulation should allow it.

6.  Section 138e.104.  Installment sales.--Clarity.

   It is not clear what provision paragraph (d)(5) describes. This provision should be reworded to clearly state the intent.

7.  Section 138e.202.  Inspections.--Reasonableness.

   Existing subsection (a) requires the county board to complete the first inspection within 1 year from the date of the easement sale. The proposed language requires an inspection to be completed ''within 1 year of the date of easement sale and in sufficient time to be included in the annual report.'' For sales that occur later in a year, such as in December, there would only be a few months to complete the first inspection to meet the annual report deadline of March 1. Is it practical for a county board to complete an inspection in sufficient time to include the land in the annual report rather than allowing a full year?

8.  Section 138l.1.  Definitions.--Consistency with statute; Clarity.

General

   This section defines three terms that are also defined in 3 P. S. § 903. The definitions of the following terms differ from the definitions contained in the statute: ''eligible counties,'' ''planning commission'' and ''Secretary.'' The Department should use the statutory definitions in the final-form regulation, or justify any changes.

Economic viability of farmland for agricultural production

   Clarity would be improved if the last phrase of this definition that references the criteria in § 138e.16(a) was moved to the beginning of the definition.

Interim review

   The phrase ''interim review'' is used in the definition of ''interim review.'' A term should not be used to define itself.

9.  Section 138l.18.  Public hearing by local government unit on ASA proposal.--Consistency with statute; Clarity.

   Subsection (b)(ii)(A) states that ''any person who proposed a modification to the ASA'' should be provided a written hearing notice. In 3 P. S. § 906(c) of the statute, the term ''landowner'' is used. The term ''person'' should be changed to ''landowner'' in the regulation.

10.  Section 138l.19.  Decision of local government unit.--Consistency with statute.

   Subsection (b) lists the factors that are to be considered for an ASA proposal or proposed modifications, as does 3 P. S. § 908(a) of the Act. Absent from subsection (b) of the regulation is a reference to existing utilities found in the Act. To be consistent with the statute, the regulation should include this provision regarding utilities.

Environmental Quality Board Regulation No. 7-374

Great Lakes Initiative

April 11, 2002

   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 must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 12, 2004, the regulation will be deemed withdrawn.

Section 93.8a.  Toxic substances.--Consistency with other regulations; Clarity.

   There are two incorrect citations.

   First, the definition of ''bioaccumulative chemicals of concern (BCCs)'' in subsection (j)(1) refers to a list of BCCs in Federal regulations at 40 CFR Part 132 Table 6, Subpart A. However, the Federal definition of BCCs at 40 CFR 132.2 uses the term ''section'' rather than ''subpart'' in referring to ''section A of Table 6'' in 40 CFR Part 132. The final-form regulation should not use the word ''subpart'' in referencing Table 6 in 40 CFR Part 132.

   A similar concern exists in subsection (j)(2). It refers to 40 CFR Part 132, Appendix F, Procedure 3, Subpart D. The subsection incorrectly uses the term ''subpart'' in referring to provisions of Appendix F, Procedure 3. The Federal regulations refer to the provisions of Procedure 3 in Appendix F as ''sections.'' To avoid confusion, the subsection in the final-form regulation should not use the word ''subpart'' in referencing 40 CFR Part 132, Appendix F, Procedure 3, Subpart D (relating to deriving TMDLs, WLAs, and LAs for Point and Nonpoint Sources: WLAs in the Absence of a TMDL; and Preliminary WLAs for Purposes of Determining the Need for WQBELs for OWGL).

Pennsylvania Public Utility Commission Regulation No. 57-225

Street Railway Transportation

April 11, 2002

   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 Pennsylvania Public Utility Commission (PUC) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 11, 2004, the regulation will be deemed withdrawn.

General.--Consistency with existing regulations.

   This proposed rulemaking from the PUC deletes existing Chapter 35, relating to street railway transportation. We have one concern with this proposed rulemaking.

   There are three other sections of Title 52 that contain references to, or terminology from, the deleted Chapter. These include: 1) § 5.11(b), relating to applications generally, which references § 35.1; 2) § 29.73, relating to posting notice prohibiting conversation, which uses the term ''street railway cars''; and 3) § 33.1, relating to definitions, which uses the term ''street railway'' in the definition of ''carrier.''

   These terms and reference to § 31.1 should be deleted in the final-form regulation, as they will become obsolete with the deletion of Chapter 35.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 02-764. Filed for public inspection April 26, 2002, 9:00 a.m.]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---