NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[35 Pa.B. 3479] Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
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final-form regulations must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comment Comments Reg. No. Agency/Title Period Issued 106-8 Environmental Hearing Board
Practice and Procedure
35 Pa.B. 2107 (April 9, 2005)
5/9/05 6/8/05 54-61 Pennsylvania Liquor Control Board
Revisions to Codify Practices and Procedures
Resulting from Legislative Amendments
35 Pa.B. 2112 (April 9, 2005)
5/9/05 6/8/05 2-147 Department of Agriculture
Nutrient Management Certification
35 Pa.B. 2101 (April 9, 2005)
5/9/05 6/8/05
Environmental Hearing Board Regulation #106-8 (IRRC #2472)
Practice and Procedure
June 8, 2005 We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Environmental Hearing Board (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on May 9, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 1021.2. Definitions.--Clarity.
The definition of ''Department'' references ''other boards, commissions or agencies whose decisions are appealable to the Board.'' Clarity would be improved by specifically listing the applicable ''boards, commissions or agencies.''
2. Section 1021.53. Amendments to appeal or complaint.--Reasonableness; Need; Clarity.
Under Subsection (b) an appeal may be amended if the amendment satisfies one of the following three conditions:
1. It is based upon specific facts, identified in the motion, that were discovered during discovery of hostile witnesses or Departmental employees.
2. It is based upon facts, identified in the motion, that were discovered during preparation of appellant's case, that the appellant, exercising due diligence, could not have previously discovered.
3. It includes alternate or supplemental legal issues, identified in the motion, the addition of which will cause no prejudice to any other party or intervenor.
The Board is amending Subsection (b) to delete these standards and allow amendments to appeals or complaints after the initial 20-day period merely upon a showing that ''no undue prejudice will result to the opposing parties.'' In a comment included in the proposal, the Board acknowledges that the new standard is ''contrary to the apparent holding in Pennsylvania Game Commission. v. Department of Environmental Resources, 509 A.2d 877 (Pa. Cmwlth. 1986), affirmed, 555 A.2d 812 (1989).'' In that case, Commonwealth Court ruled that an amendment to an appeal may only be allowed upon a showing of good cause. In view of this precedent, we believe it is unreasonable to replace the current standards with a more liberal standard.
In addition, since only the responding party can prove undue prejudice, the proposed amendments will unfairly shift the burden of proving undue prejudice to the responding party. Therefore, the Board should retain the existing standards for allowing amendment, or explain why the undue prejudice standard is reasonable and necessary.
Finally, we agree with the Department of Transportation that the new standard will hinder the speedy resolution of litigation. This is especially important when construction deadlines hang in the balance.
3. Comments included within the regulation.--Need; Reasonableness.
The Board has inserted several ''comments'' throughout the proposed regulation. Some of these comments contain substantive provisions. However, these provisions are not enforceable because ''comments'' are not regulatory mandates. Therefore, we recommend the following revisions:
1. Section 1021.51. Delete the comment and include a cross-reference to Sections 1021.21 and 1021.22 in Subsection (i). (Subsection (k) already cross-references these sections.)
2. Section 1021.54. Delete the comment and add a Subsection (c) which indicates that the prepayment of penalties will be placed in an escrow account.
3. Section 1021.94a. Delete the comment and include these provisions as subsections under Section 1021.94a. Replace ''should'' with ''shall,'' and replace ''should not'' with ''may not.''
Pennsylvania Liquor Control Board Regulation #54-61 (IRRC #2468)
Revisions to Codify Practices and Procedures Resulting from Legislative Amendments
June 8, 2005 We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania Liquor Control Board (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on May 9, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.
CHAPTER 11. PURCHASES AND SALES 1. Section 11.176. Renewal.--Economic impact; Reasonableness; Need
Subsection (b)
Under 47 P. S. § 4-406(a)(3), a Sunday sales permit is permissible if '' . . . sales of food and nonalcoholic beverages are equal to thirty per centum or more of the combined gross sales of both food and alcoholic beverages . . . .'' In existing regulation (40 Pa. Code § 11.172(a)(4)), the Board established that this 30% limit must be met for '' . . . at least 90 consecutive days during the 12 months immediately preceding the date of application . . . .'' Proposed Subsection (b) establishes the procedure for a licensee to apply for a new Sunday sales permit if the licensee cannot meet the 30% limit and therefore does not qualify for renewal of the existing permit.
We agree that the regulation should address how a licensee can reapply for a Sunday sales permit. However, this proposed subsection adds a 120-day waiting period for licensees to reapply after the expiration of the previous permit. As demonstrated by the example, a licensee whose application does not meet the 30% ratio would lose its Sunday sales permit from March 1 until the reapplication is approved, presumably sometime in July.
We have the following concerns with the 120-day waiting period:
* A licensee could meet the statutory 30% ratio for 90 consecutive days during the several months between the date of application (November 30, 2003 in the example) and prior to expiration of the permit (February 28, 2004 in the example). Yet, the regulation would prohibit use of this data until the 120-day period expires (July 1, 2004 in the example).
* The 120-day waiting period would extend well into the summer tourist season.
* Since no Sunday sales of alcoholic beverages occur during the 120-day period, a licensee who remains open on Sundays would accumulate a higher overall ratio of nonalcoholic beverage and food sales.
* Renewal under this circumstance is considered differently than a new application.
We recommend that the regulation allow a licensee to reapply as soon as it can demonstrate 90 consecutive days of compliance with the 30% ratio in the most recent 12 months. Alternatively, the Board should explain why the 120-day waiting period is reasonable.
Subsection (c)
This subsection states:
When the licensee delays its renewal application, sales during the prior Sunday sales permit may not be used to qualify the applicant for a new Sunday sales permit.
Once again, it is not clear why a renewal in this circumstance is considered differently from a new application. We recommend that the regulation allow a licensee to reapply as soon as it can demonstrate 90 consecutive days of compliance with the 30% ratio in the most recent 12 months. Alternatively, the Board should explain why sales during the prior Sunday sales permit need to be excluded and why this is reasonable.
If the Board believes this provision is needed and reasonable, the language should be revised. The point where a licensee is considered to have delayed its renewal application is pivotal, but is not clear in the regulation. In the example immediately following this subsection, the licensee would apply on November 30, 2003 to renew a permit that expires February 28, 2004. Would a renewal application be considered delayed if it was filed after November 30, 2003 or after February 28, 2004? This will determine whether the ''prior sales permit'' would be the permit that expired in 2003 or 2004. This provision should clearly explain when a renewal application is ''delayed'' and thus what sales may not be included.
CHAPTER 13. PROMOTIONS 2. Section 13.27. Board participation in wine events.--Statutory Authority; Reasonableness.
We have two concerns with this section. First, we question the statutory authority for the reference to Board approval in Subsections (c) and (d). Section 2-215(e) of the Liquor Code (47 P. S. § 2-215(e) provides that the Board is authorized to participate in or sponsor wine events, not ''approve'' them. What does the Board contemplate by approval?
Second, concerning Subsection (d), we question the Board's statutory authority to prohibit appeal of its decision to disapprove. Section 702 of the Administrative Agency Law (2 Pa.C.S. § 702) provides that ''any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal . . . .'' The Board should remove this prohibition or explain why this provision is exempt from the appeal process.
3. Miscellaneous Clarity.
* Section 5.121(a) cross references ''Section 494(14) of the Liquor Code (47 P. S. § 4-494(14)).'' This reference should be corrected to Section 4-493(14).
* Section 11.13 references all of Section 305 of the Liquor Code (47 P. S. § 3-305). It appears that only Subsection (h) of the Code applies to gift cards. If so, the reference in the regulation should be more specific by referencing 47 P. S. § 3-305(h).
* Section 11.172(a)(4) is being amended to state '' . . . at least 30%. . . .'' To be consistent with 47 P. S. § 4-406(a)(3) and Section 11.171(b) of existing regulation, this provision should be amended to state ''equal to 30% or more.''
* The example in Section 11.176 does not specify which subsection it demonstrates. It is placed after Subsection (c), but it appears to demonstrate Subsection (b). The regulation should clearly state which provision is being demonstrated.
* The terms ''wine event'' and ''event'' are used interchangeably in Section 13.27. The term ''wine event'' should be defined and used consistently.
* The amendments to Section 13.51(a) replace specific references to exceptions with general language. The Board should retain the specific reference to exceptions.
* Section 17.15(a) states when petitions to intervene may be filed. It should also include where they must be filed.
Department of Agriculture Regulation #2-147 (IRRC #2473)
Nutrient Management Certification
June 8, 2005 We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Agriculture (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on May 9, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 130b.2. Definitions.--Consistency with the statute; Clarity.
This section defines the terms, ''BMP--Best management practice,'' ''Nutrient,'' and ''Nutrient management plan'' differently than they are defined in the Nutrient Management Act (Act).
We question the need for the regulatory definitions of the above terms which differ from the definitions contained in the Act. If the Department does not reference the statutory definitions in the final regulation, it should justify the changes.
2. Section 130b.3. Fees.--Fiscal impact; Consistency with the statute; Reasonableness.
Both Subsections (a) and (b) establish a process for the Department to set certification and examination fees by publishing notice of the fees or fee changes in the Pennsylvania Bulletin. This is contrary to Section 7(a) of the Act (3 P. S. § 1707(a)), which provides: ''The Department of Agriculture shall by regulation establish such fees and terms and conditions of certification as it deems appropriate . . . '' (emphasis added). We have three concerns.
First, establishing fees or fee changes merely by publication in the Pennsylvania Bulletin is not consistent with the clear statutory directive that fees be established by regulation. Therefore, the proposed regulation should follow the same approach as the existing regulation and include the fees.
Second, it is unnecessary to include the cost of ''enforcing this chapter'' as a basis for both the certification and examination fees. Therefore, the phrase ''and enforcing this chapter'' should be deleted from Section 130b.3(b).
Third, if the final-form regulation does not contain the specific fees, then there is no certainty concerning the fee levels for different types of certification. In the existing regulation, the fees vary depending on the type of certification (commercial, public or individual). Will the Department continue to apply different fee levels? Does the practice of charging different fee levels also coincide with the policy of basing fees on the costs of administering and enforcing the chapter? If specific fees are not set forth in the final-form regulation, then the formula or process used to apportion the fees for different types of certification should be included in the final-form regulation.
3. Section 130b.11. Determination of competence.--Implementation procedure; Clarity.
Subsection (a) Commercial nutrient management specialist.
Subsection (b) Public nutrient management specialist.
These subsections include the phrase: ''It may also include other course work related to requirements set forth in the nutrient management regulations which are determined by the Department to be necessary and appropriate.'' These subsections also contain descriptions of requirements that are very similar to the requirements for each position in Subsection (g) (relating to final certification requirements). We have three concerns.
First, the final-form regulation should include examples of the types of ''other course work'' that would be necessary in response to changes in the science or technology of nutrient management. In addition, what process will be used to determine what is ''necessary and appropriate''?
Second, to improve clarity, the word ''It'' should be replaced with the phrase: ''The precertification requirements.''
Third, it is unnecessary for these two subsections to include requirements similar to those set forth in Subsection (g). These requirements involve the development or review of nutrient management plans by certificate holders and determinations by the Department or its designee that these plans are adequate. It is our understanding that the successful development or review of these plans is a requirement for final certification, not for precertification. To improve clarity and avoid repetition, the descriptions of these final certification requirements should be deleted from Subsections (a) and (b).
Subsection (d) Examination.
The following phrase has been added to the areas of the examination administered by the Department:
(9) Other areas related to requirements in the nutrient management regulations, as determined appropriate by the Department.The concerns with this subsection are similar to those identified above in Subsections (a) and (b) regarding examples of ''other areas'' and determining what is ''appropriate.'' In addition, the final-form regulation should specify that new ''areas'' added to the examination will also be included in the required course work in Subsections (a) and (b).
Subsection (h) Public nutrient management specialist to commercial nutrient management specialist.
The first sentence of this subsection should read, ''The Commission with the consent of the Department . . . .''
4. Section 130b.12. Final certification.--Clarity.
Subsection (a) requires that, ''[T]he appropriate fee shall accompany the application for final certification.'' It is our understanding that an ''appropriate fee'' is a ''certification fee.'' Certification fees are described in Section 130b.3(a) as ''nonrefundable'' and as established by the Department for each level of certification via publication in the Pennsylvania Bulletin. The final-form regulation should include the word ''certification'' between ''appropriate'' and ''fee'' and a reference to Section 130b.3(a) in this subsection. If the final-form regulation includes a schedule of fees similar to the existing regulation as recommended in Issue #2, then this subsection should reference the provisions that set forth the appropriate certification fees.
5. Section 130b.41. General.--Clarity.
Subsection (c) stipulates the requirements a commercial nutrient management specialist must meet to have reciprocity in this Commonwealth. Is there a time frame in which an applicant must submit the required plans to the Department or its designee for approval? If so, the time frame should be included in this subsection.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 05-1194. Filed for public inspection June 17, 2005, 9:00 a.m.]
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