NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[36 Pa.B. 5836]
[Saturday, September 16, 2006]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory 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 regulation. The final-form regulation must be submitted within two years of the close of the public comment period or it will be deemed withdrawn.
Reg No. Agency/Title Close of the Public Comment Period IRRC
Comments Issued7-399 Environmental Quality Board
Nonattainment New Source Review7/31/06 8/30/06 36 Pa.B. 1991 (April 29, 2006)
11-225 Insurance Department
Property and Casualty Actuarial Opinion7/31/06 8/30/06 36 Pa.B. 3276 (July 1, 2006)
6-302 State Board of Education
Foreign Corporation Standards7/31/06 8/30/06 36 Pa.B. 3280 (July 1, 2006)
14-505 Department of Public Welfare
Child Care7/31/06 8/30/06 36 Pa.B. 3262 (July 1, 2006) 6-300 Department of Education
Keystone Educational Accountability
Best Management Practices Standards7/31/06 8/30/06 36 Pa.B. 3253 (July 1, 2006)
14-504 Department of Public Welfare
Licensure/Approval Appeal Procedure8/7/06 9/6/06 36 Pa.B. 3539 (July 8, 2006)
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Environmental Quality Board
Regulation #7-399
(IRRC #2535)
Nonattainment New Source Review
August 30, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the April 29, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.
1. Comments of the U. S. Environmental Protection Agency--Protection of public health; Effect on natural resources; Consistency with other regulations; Reasonableness; Implementation procedure; Need; Clarity.
On July 25, 2006, Judith A. Katz, Director, Air Protection Division, U.S. Environmental Protection Agency Region III (EPA Region III), submitted written comments on this proposed regulation to the EQB. The EPA Region III comments raised several issues directly related to our criteria. One impetus for this proposed regulation was major revisions to the federal regulations for Nonattainment New Source Review (for example, see 67 FR 80186, Federal Register, December 31, 2002). EPA Region III conveyed serious concerns in its comments and warned that it may be prohibited from approving portions of this proposed regulation as revisions to the State Implementation Plan (SIP). We share the same comments, questions and concerns expressed by the EPA Region III and incorporate them into the Commission's comments on this proposed regulation.
2. Differences between federal and state programs--Protection of public health; Effect on natural resources; Consistency with other regulations and statutes; Reasonableness; Implementation procedure; Need; Clarity.
In the preamble, the EQB identified several areas of the proposed regulation that are more stringent than the federal regulations. Several commentators, including the Pennsylvania Chamber of Business and Industry (PCBI), Pennsylvania Chemical Industry Council (PCIC) and Electric Power Generation Association (EPGA), expressed significant concerns with these provisions. The following paragraphs summarize examples of these concerns.
''Look back'' provision for calculating baseline emissions
This provision allows permittees to ''look back'' in calculating baseline emissions. Federal regulations allow entities to select any two consecutive years in the preceding ten years as their baseline. In the case of utilities, they can use any two consecutive years in the preceding five years as their baseline. The proposed regulation would apply the five-year look back period to all entities, not just utilities.
Both PCIC and PCBI contend that the EQB is not being realistic. The ''ten-year'' look back is designed to incorporate economic variations in different markets and their impact on plant operations and emissions into the baseline calculation. It allows for the development of a more representative sample of past emissions and provides a better baseline for new sources, modifications and plantwide applicability limits (PALs).
Best available technology and PALs
Another difference is in Section 127.218 relating to PALs. Under federal provisions, a plant operator is not required to install emission controls on new emission units under an existing PAL if the facility is able to continue to meet its PAL emissions cap. Concerning the proposed regulation, the preamble states:
Under the Commonwealth's proposed approach in § 127.218, the owners and operators of new emission units added under an existing PAL will need to reduce or control emissions by using the best available technology as required under section 6.6(c) of the APCA [Air Pollution Control Act] (35 P. S. § 4006.6(c)).This characterization of Section 6.6(c) of the APCA is not completely accurate. This subsection of APCA reads:
The department is authorized to require that new sources demonstrate in the plan approval application that the source will reduce or control emissions of air pollutants, including hazardous air pollutants, by using the best available technology. [Emphasis added.]Hence, the EQB and Department of Environmental Protection (DEP) are authorized to require use of the best available technology (BAT). However, the EQB also has the discretion not to require BAT within a PAL and its regulation could mirror the federal approach.
Again, the commentators urge that the EQB adopt the federal approach. The PAL emissions cap provides environmental protection and makes BAT unnecessary as long as the cap is maintained. By adding BAT, the EQB removes a primary incentive for using PALs.
Five-county southeastern region
The proposed regulation retains the severe ozone nonattainment standard for facilities that emit or have the potential to emit at least 25 tons per year (tpy) of volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the southeast five-county region (Bucks, Chester, Delaware, Montgomery and Philadelphia). The federal regulations have re-classified this area as ''moderate'' nonattainment for ozone. Commentators are concerned that the proposed regulation will restrict economic growth in the region. They claim that businesses and industries in the region have already worked very hard to reduce emissions. Further reductions will not be obtainable except at significant expense which will be a disincentive to development and investment in the five-county area.
Conclusion
These are three examples of areas where the proposed regulation is more stringent than the federal rules. We have two concerns concerning these three examples and all the areas where the proposed regulation exceeds federal regulations adopted under the Clean Air Act.
First, the statutory directive to not exceed the standards of the Clean Air Act is repeated throughout Sections 4.2(a), (b) and (c) of the APCA. They read:
(a) In implementing the requirements of section 109 of the Clean Air Act, the board may adopt, by regulation, only those control measures or other requirements which are reasonably required, in accordance with the Clean Air Act deadlines, to achieve and maintain the ambient air quality standards or to satisfy related Clean Air Act requirements, unless otherwise specifically authorized or required by this act or specifically required by the Clean Air Act.(b) Control measures or other requirements adopted under subsection (a) of this section shall be no more stringent than those required by the Clean Air Act unless authorized or required by this act or specifically required by the Clean Air Act. This requirement shall not apply if the board determines that it is reasonably necessary for a control measure or other requirement to exceed minimum Clean Air Act requirements in order for the Commonwealth:(1) To achieve or maintain ambient air quality standards;(2) To satisfy related Clean Air Act requirements as they specifically relate to the Commonwealth;(3) To prevent an assessment or imposition of Clean Air Act sanctions; or(4) To comply with a final decree of a Federal court.(c) The board may not by regulation adopt an ambient air quality standard for a specific pollutant which is more stringent than the air quality standard which the EPA has adopted for the specific pollutant pursuant to section 109 of the Clean Air Act [42 U.S.C.A. § 74090]. [Emphasis added.]The statutory directive appears to be clear. The air quality standards, rules and procedures of the Commonwealth should be consistent with the federal standards and regulations.
Second, the discretion afforded to the EQB to exceed federal requirements is limited. Given the precision and primacy of the statutory directive, there is an obligation to explain how and why exceeding the federal regulations was determined to be ''reasonably necessary.'' Therefore, the EQB must justify each exception to the statutory directive. The preamble does not contain sufficient information. For each point in the proposed regulation where a state provision is more stringent than its federal counterpart, the EQB must fully explain and document the evidence and findings for each determination that exceeding federal rules is reasonable and necessary. This information needs to accompany the final-form regulation for each exception that is retained.
3. General--Consistency with other regulations; Reasonableness; Implementation procedures; Clarity.
Several commentators noted errors in the proposed regulation, or expressed concerns with format, and language that is confusing, repetitive or unclear in various sections.
For example, EPA Region III noted several differences between definitions of terms in the federal regulations and their counterparts in the proposed regulation.
The Allegheny County Health Department expressed several concerns regarding the structure and language in Sections 127.203a and 127.218.
A specific example of an error is Subsection 127.218(c)(2) which refers to the public participation requirements in Subsection 127.218 (d). The public participation requirement is actually discussed in Subsection 127.218(e).
Another problem is lengthy provisions such as Section 127.218(l)(1)(ii). This is an example of several items in one paragraph that could be re-formatted into a list. This section and other lengthy provisions could be clarified by being reformatted into a ''list format'' as described in the Pennsylvania Code and Bulletin Style Manual (See Section #2.5 (relating to section length) in Chapter 2 and Chapter 7 (relating to enumeration)).
Admittedly, federal regulations are not always clear or precise. However, re-writing and re-interpreting federal rules at the state level is a difficult and laborious task, and should only be done when it genuinely improves the clarity and effectiveness of public policy. Rather than attempt to ''reinvent the wheel'' or to re-define terms and re-write language from the federal regulations, the EQB should reference the appropriate federal rules wherever possible.
4. Sections 121.1 and 127.201a. Definitions.--Reasonableness; Need; Clarity.
General
Several commentators questioned the benefit of moving definitions to a new section in a different chapter. It is our understanding that DEP and EQB are reviewing this decision, and the definitions may return to Section 121.1 in the final-form regulation. We support retaining definitions in Section 121.1.
Applicability determination
This term is in Section 121.1 as an existing definition. If it and the new Section 127.203a are retained in the final-form regulation, then the existing definition should be amended to reference the new Section 127.203a.
Begin actual construction
This term does not appear to be used in the proposed regulation. The similar phrase ''beginning actual construction'' appears only one time in the proposed regulation. The EQB should either justify the need for this definition or delete it.
Major facility
The existing definition for this term in Section 121.1 reads: ''A facility which has the potential to emit a pollutant equal to or greater than an applicable annual emissions rate in § 127.203.'' The proposed definition contains over 15 subparagraphs or clauses containing substantive rules related to the definition. Substantive provisions in a definition are not enforceable. In the final-form regulation, the substantive provisions should be deleted from this definition and moved to another section that describes conditions applicable to a ''major facility.'' Another alternative would be to reference the corresponding item in the federal regulations.
5. Section 127.201b. Measurements.--Need; Clarity.
The need for or purpose of this section is unclear. It provides information for acronyms but does not define any terms. Terms, such as BAT, BACT, ERC, LAER and MACT, are listed but there is no indication of where they are defined. Definitions for these terms can be found in Section 121.1 and elsewhere. Section 127.201b should reference the definitions in Section 121.1 or from other sources as applicable.
Some terms, such as ''continuous parametric monitoring system'' and ''continuous emissions rate monitoring system,'' are already defined in Section 127.201a. Similar terms also appear in the federal regulations. It is not necessary to repeat them in this section.
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Insurance Department
Regulation #11-225
(IRRC #2545)
Property and Casualty Actuarial Opinion
August 30, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the July 1, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Insurance Department (Department) to respond to all comments received from us or any other source.
1. Section 118a.4.--General requirements.--Reasonableness; Clarity.
Subsection (a)(2)(iii) includes the statement: ''Other information that the Commissioner in the Commissioner's discretion may require to determine the individual's qualifications.'' The final-form regulation should state that the Commissioner or Department will give insurers written notice describing the types of ''other information'' required by the Commissioner and why they are required.
2. Section 118a.5.--Confidentiality.--Statutory authority; Reasonableness; Clarity.
Two commentators, the Insurance Federation of Pennsylvania (IFP) and Property Casualty Insurers Association of America (PCI), raised separate confidentiality concerns. IFP questions whether the Department has the statutory authority to provide the confidentiality protections set forth in the proposed regulation while PCI is concerned that the regulation does not provide enough protection.
Subsection (a) states that the ''statement of actuarial opinion . . . shall be treated as a public document.'' Meanwhile, Section 118a.5(b) reads:
Documents, materials or other information in the possession or control of the Department that are considered an actuarial report, workpapers or actuarial opinion summary provided in support of the statement of actuarial opinion, and any other material provided by the insurer to the Commissioner in connection with the actuarial report, workpapers or actuarial opinion summary, shall be confidential by law and privileged, . . . .The statement in Subsection (a) allows for public inspection of the ''statement of actuarial opinion'' while the documents in Subsection (b) are not open to the public and will remain protected as confidential. Department staff refer to Section 320(d) of the Insurance Company Law (Law) (40 P. S. § 443(d)) for the authority to maintain the confidentiality of documents listed in Subsection (b). However, Section 320(d) of the Law refers to documents submitted by the National Association of Insurance Commissioners (NAIC) Regulatory Information System and to ''work products developed by the Insurance Department staff'' as confidential. It is unclear how ''material provided by the insurer'' as described in Subsection (b) could be ''work products developed'' by the Department staff.
Similarly, Section 202-A(a) of the Insurance Department Act (40 P. S. § 65.2-A(a)) provides that the Commissioner shall maintain the confidentiality of documents received from the NAIC or from regulatory or law enforcement officials. There is no provision for the confidentiality of documents received from insurers.
The Department needs to explain the statutory and legal foundations for the confidentiality provided by this proposed regulation. This explanation should accompany the final-form regulation. The Department should also review the language of this section and clarify the provisions describing the extent and limits of the confidentiality afforded by the regulation.
3. Section 118a.6. Effective date and exemption.--Implementation procedure; Clarity
Subsection (c) discusses when a foreign insurer could be exempt. The Department has the authority to require that foreign insurers comply with this proposed regulation. However, it is unclear how and when the exemption would apply to a foreign insurer. In the final-form regulation, the Department should clarify the requirements for foreign insurers and identify how it would notify a foreign insurer that it is or is not exempt.
4. General--Reasonableness; Clarity.
The proposed regulation refers to a form and instructions issued by the NAIC. For example, Section 118a.4(a)(2)(i) requires an insurer to file ''a properly completed biographical affidavit in the form adopted by the NAIC'' with its request for approval of a qualified actuary. The final-form regulation should include information, such as an NAIC website, indicating where and how one can obtain the required NAIC document or form.
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State Board of Education
Regulation #6-302
(IRRC #2548)
Foreign Corporation Standards
August 30, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the July 1, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.
1. General.--Reasonableness; Clarity.
The Disabilities Law Project asserts that Chapter 36 should provide students with disabilities the same level of protection as Chapter 31. The Board should explain how students with disabilities will be protected under this Chapter.
Also, there are numerous places in the proposed regulation that use the term ''Commonwealth enterprise'' or ''Commonwealth endeavor.'' These terms are not defined. The Board has indicated that these terms are different than the defined term ''Education enterprise.'' The Board should explain the difference between a ''Commonwealth enterprise'' and a ''Commonwealth endeavor'' and define these terms. If there is no difference in meaning, the Board should choose either ''Commonwealth enterprise'' or ''Commonwealth endeavor,'' define it and use it consistently throughout this regulation.
2. Section 36.2. Corporate Commitment.--Clarity.
This section requires that the operations of a foreign corporation in the Commonwealth ''provide adequate support to ensure compliance with the requirements of an accrediting body recognized by the United States Department of Education and acceptable to the Pennsylvania Department of Education . . . .'' The phrase ''provide adequate support to'' is vague and should be deleted.
Also, the Board has indicated that the criteria for determining if an accrediting body is acceptable to the Department is found in Chapter 31. The final-form regulation should include a cross-reference to these criteria. Also, does the Department maintain a list of acceptable accrediting bodies on its website?
3. Section 36.4. Curricula.--Clarity.
Subsection (d)
This subsection requires evaluations to be conducted ''periodically, and at least once every 5 years.'' The term ''periodically'' is not needed and should be deleted.
Also, this subsection includes the phrase ''for compliance with Commonwealth approvals and regulations.'' The Board has stated that the Department is responsible for approving educational entities and that the criteria for these approvals are found in Chapters 31, 36 and 42. The final-form regulation should include a cross-reference to the appropriate criteria for ''Commonwealth approvals.''
4. Section 36.8. Evaluation and approval.--Reasonableness; Clarity.
Subsection (g) sets forth the time period in which the decision of the Secretary will be rendered ''if no protest or objection has been timely made to the application.''
First, in what time period must an objection be received for it to be considered ''timely''?
Second, this subsection addresses only what occurs if no objections are raised. However, no procedures are established for instances where objections are raised to an institution's application to operate in Pennsylvania. The Board should also include these procedures in the final-form regulation.
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Department of Public Welfare
Regulation #14-505
(IRRC #2549)
Child Care
August 30, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the July 1, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Public Welfare (Department) to respond to all comments received from us or any other source.
1. Section 168.2. Definitions.--Reasonableness; Consistency with other regulations; Clarity.
AMR--Agreement of Mutual Responsibility
This term is defined in detail in existing regulations at 55 Pa. Code § 165.2. This definition should be amended in the final-form regulation to include a reference to Section 165.2.
Co-payment
At the end of this definition, the phrase ''child care that is subsidized'' should be replaced with ''subsidized child care.''
Employment Development Plan (EDP)
Commentators suggested adding the term ''EDP'' to this section. If it is added in the final-form regulation, it should refer to the definition of EDP in Chapter 165.
Household
The citation to a federal regulation, ''7 CFR 273.1(a)(2),'' in this definition is too specific. The Department has indicated that it is planning to broaden the reference to include additional paragraphs in 7 CFR 273.1(a), relating to household concept, in the final-form regulation. We agree.
Parent
The proposed regulation adds a new definition of the word ''parent'' to this section. There are two concerns. Community Legal Services, Inc. (CLS), and Pennsylvania Child Care Campaign (PCCC) suggest including the word ''caretaker'' and those responsible for ''care and control'' in the definition. The word ''caretaker'' is appropriate since the person responsible for the child may not be a biological or adoptive parent. In addition, the word ''caretaker'' is also used in Chapter 165 (relating to ''Road to economic Self-Sufficiency through Employment and Training (RESET) Program''). The phrase ''care and control'' is used in the existing provisions in Chapter 3041 relating to subsidized child care eligibility. We agree with the use of the words ''caretaker'' and ''care and control'' and recommend they be included in the definition in the final-form regulation.
Second, this definition uses the term ''TANF [Temporary Assistance for Needy Families] specified relative'' in its reference to Section 151.42. The word ''TANF'' does not appear in Section 151.42 but the term ''specified relative'' does appear. Department staff indicate that this definition will be amended to state ''a specified relative as defined for the TANF program in 55 Pa. Code § 151.42.'' We concur with this change in the final-form regulation.
Pre-expenditure approval
This definition and its explanation in the preamble are unclear. It is our understanding that the Department intends to delete this definition and related substantive provisions in the final-form regulation. If it is retained, its wording and intent will need to be reviewed and clarified.
Provider Agreement
What are the contents of the agreement? If it contains requirements that will be binding on child care providers, then the contents or basic requirements need to be set forth in the substantive provisions of the final-form regulation.
2. Section 168.11. General requirements.--Statutory authority; Fiscal impact; Reasonableness; Clarity.
This section identifies the type of child care providers that a parent may select when using subsidized child care. There are four concerns.
First, a group of commentators are concerned that the requirements in Subsection (a) may exclude them from the list of eligible providers that parents may select when receiving subsidized care. This group includes the Pennsylvania Catholic Conference, Keystone Christian Education Association, Pennsylvania Family Institute and Reach Alliance. They note a recent ruling by the Commonwealth Court in St. Elizabeth's Child Care Center v. Department of Public Welfare, that the Department does not have the statutory authority to license or certify nonprofit, religious child care facilities pursuant to the provisions in 55 Pa. Code Chapters 3270, 3280 or 3290.
We understand that the Commonwealth Court's order has been stayed, as the Department has filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. However, we are required to consider pertinent opinions of Pennsylvania's courts in determining the statutory authority of an agency to promulgate a regulation (see 71 P. S. § 745.5b(1)). In this case, the regulation may also limit parental choice and the availability of care. The Department needs to explain its plans for addressing eligibility for nonprofit providers who are not certified or registered under the existing child care facilities regulations.
Second, Subsections (a)(4) and (5) include the phrase ''specifically exempt.'' The word ''specifically'' is unnecessary and should be deleted since it is already used in the definitions of the terms in these subsections.
Third, CLS and PCCC expressed concern with the deletion of the phrase ''shall have the right'' in Subsection (b). The proposed regulation would simply state that a parent ''may'' choose any type of child care provider who meets the requirement of Chapter 168 rather than stating that a parent ''shall have the right'' to choose any provider. We agree with the suggestion to replace ''may'' with ''shall have the right'' and recommend this change be included in the final-form regulation.
Fourth, Subsection (b) requires that a provider meet the requirements of this chapter and ''meet the Department's standards for provider participation.'' However, the ''requirements'' and ''standards'' are not identified. According to the Department, requirements for providers are set forth in Sections 168.19 and 168.41(3) and standards for provider participation are also set forth in the provider agreement. Specific references to these sections and any other applicable requirements in other regulations should be added to Subsection (b) in the final-form regulation. In addition, if providers will be expected to meet other requirements in a written agreement and these requirements are not set forth in regulations in Chapter 168 or elsewhere, then these requirements should be set forth in the final-form regulation.
3. Section 168.17. Eligible children.--Clarity.
In Paragraph (2), the reference to 7 CFR 273.1(b) is incomplete. According to the Department, it should be ''7 C.F.R. § 273.1(b)(1)(iii).'' The Department should make this correction in the final-form regulation.
Paragraph (4)(iii) is not a component of Paragraph (4) and should be a separate paragraph. The Department should make it into a new and separate Paragraph (5) in the final-form regulation.
4. Section 168.18. Need for child care.--Reasonableness; Clarity.
The proposed regulation simplified Subsection (c) to state that child care will be considered as needed for entry into or during breaks in approved work activities for ''up to 30 days.'' The Department needs to clarify when the 30 days could begin and end.
CLS, PCCC and other commentators expressed concern with the requirement for a ''face-to-face'' interview in Subsection (f). Even though Subsection (f) provides for flexibility, CLS and PCCC make recommendations for additional flexibility. For example, the subsection includes this statement: ''The Department may substitute a telephone contact for a face-to-face interview if a face-to-face interview cannot be scheduled without the parent having to take time off from work.'' We have two concerns.
First, this subsection does not identify who will conduct the interview with the parent. This is in contrast to an existing provision at 55 Pa. Code § 3041.126(b) that states a face-to-face interview is with the ''eligibility agency.'' It is our understanding that the Child Care Information Services Agency (CCIS) will conduct the interview with the parent. The final-form regulation should be amended to indicate that the interview is with the CCIS.
Second, what happens if the parent cannot get transportation to the interview or experiences other legitimate problems in completing the interview that are beyond her or his control? What steps could be taken to avoid disruption in child care services?
5. Section 168.43. Verification of a child's disability.--Clarity.
The title of this section refers to a child's disability even though the definition of ''disability'' in Section 168.2 is limited to parents' impairments. It is our understanding that the Department will replace the word ''disability'' with ''injury or impairment'' in the title of this section in the final-form regulation. We agree with this change.
6. Section 168.43 and 168.44. Verification of a child's or parent's disability.--Clarity.
Both sections contain long sentences which end with the phrase ''is required.'' It is unclear who needs to obtain the written statement from the physician or psychologist and to what office the statement should be submitted. It is our understanding that the Department will amend these sections to clarify that a parent is required to provide the written statement mentioned in these two sections to the ''Department or its designated agent'' in the final-form regulation. We agree that this revision will clarify these sections.
7. Section 168.61. Reporting requirements.--Clarity.
In this section, a parent is required to report changes in child care arrangements. However, it is unclear who should receive the parent's report. Department staff indicated that, as noted above, they plan to amend this provision in the final-form regulation to require parents to report ''to the Department or its designated agent.'' We support this change.
9. Section 168.72. Determining monthly child care costs.--Protection of public welfare; Reasonableness; Clarity.
In Subsection (2), the Department is limiting payments to cover a charge for up to ten consecutive days when the child was not in attendance due to illness. The revision was helpful since it deleted existing language ''vacation, and the like'' which was vague. However, many child care providers require payments during a child's absence to maintain a space for when the child returns. There may be other legitimate reasons besides illness for a child's inability to be present at the child care facility. These reasons may include travel time to attend a funeral in the family or hospitalization for an injury. Maintaining a child's place in a facility is crucial to maintaining access and continuity in child care. We recommend that the Department review whether this provision should include other limited and specific reasons for absences beyond illness.
10. Section 168.82. Time frames for authorization of payment.--Clarity; Reasonableness.
Some of the CCIS agencies expressed concerns with the time frames in this new section. Based upon a recent review of this proposed section, the Department indicates that the provisions in this new section are not appropriate for Chapter 168 and it will delete this new section in its entirety from the final-form regulation. If the Department does not make this change, it needs to explain how the time frames in this section were determined and why they are reasonable.
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Department of Education
Regulation #6-300
(IRRC #2550)
Keystone Educational Accountability Best Management Practices Standards
August 30, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the July 1, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Education (Department) to respond to all comments received from us or any other source.
1. Regulations as a binding norm.--Legislative Intent; Reasonableness.
Act 80 of 2003 (Act) requires the Department, in consultation with stakeholders, to develop a system for reviewing the financial management practices of school districts based on a series of best financial management practices standards adopted for specific areas of district programs and operations. The Act also requires the Secretary of the Department to promulgate the standards as regulations. Regulations establish binding, enforceable norms, but the provisions of this regulation do not. Therefore, the regulation is inconsistent with the intent of the General Assembly.
More specifically we offer the following comments on § 405.1, relating to purpose:
Subsection (a)
The last three sentences of this subsection state the following:
Districts conduct a self-assessment and then are subsequently evaluated by external reviewers every 6 years. Based upon that external review, a district that is deemed to be in compliance with the standards in this chapter will be certified as Keystone Districts by the Secretary. The reviews shall occur under Article XXV-A of the Public School Code of 1949.We have two concerns. First, these sentences do not relate to the purpose of the regulations, but rather are substantive and should be placed in the main body of this chapter.
Second, this regulation fails to establish the processes for both the self-assessment and the external review. The Department has indicated that requirements for conducting the self-assessment and review will be developed at a later date, but these requirements will not be promulgated as a regulation. Instead, the Department stated that it will disseminate the details through non-regulatory documents such as guidance documents. This is problematic because non-regulatory documents cannot be used to enforce standards contained in regulation. Therefore, the detail of how self-assessments and reviews will occur should be placed in the regulation.
Specific actions that school districts, the Department and any entity involved with performing reviews are expected to take should also be included.
In addition, the regulation should include specific time frames in which those actions must be taken. This would allow all parties involved with the review and assessment process to know exactly what must be accomplished and when it must be accomplished.
Subsection (b)
This subsection states the following:
The indicators set forth in each best practices management standard in this chapter are to help assess whether a district is meeting each standard. The indicators represent the kinds of activities a district would be undertaking if the district were using a particular best practice. The indicators listed in this chapter are not exclusive, and literal compliance with each is not required to qualify for Keystone certification.As stated above, regulations establish binding, enforceable norms. The provisions included in this subsection are merely recommendations and, therefore, should be deleted.
If the Department decides to retain these provisions, they must be amended to indicate what the minimum requirements are for achieving Keystone certification. This would allow the Department to meet the legislative intent of the Act, which requires the establishment of standards as regulations.
2. Lack of a definitions section.--Reasonableness; Clarity.
This chapter lacks a definitions section. Key terms or phrases that are used throughout this chapter should be defined. For instance, the following should be defined:
* Administrative and instructional
* Technology
* Board
* Coordinated Review Effort (CRE)
* Cost control systems
* District
* Educational service delivery
* Fund/grant/project accounting
* Generally accepted contracting procedures
* Green building designs
* Human resource services
* Keystone certification
* Keystone Districts
* Performance accountability
* Personnel systems and benefits
* Professional development
* School Meal Initiative for Healthy Children (SMI) review
* Stakeholders
* Subsidy-related data systems
* Total Cost of Ownership (TCO) analysis
3. Section 405.2. Management structures standards.--Need; Clarity.
Paragraph (2)
The phrase ''(either in-house or on contract)'' under Subparagraph (i) is not needed and should be deleted.
Paragraph (3)
Under Paragraph (3)(iv), the board, superintendent and staff are to be held accountable for adhering to established policies and procedures and for achieving Federal, State, district and school goals. How does the Department intend for these people to be ''held accountable''?
4. Section 405.3. Performance accountability standards.--Reasonableness.
Paragraph (2)(iii) requires districts to make available evaluation results to the board and stakeholders. Paragraph (2)(iv) requires districts to receive comments from stakeholders. We recommend that the public also be included in these paragraphs.
5. Section 405.4. Cost control systems standards.--Clarity.
Paragraph (1) requires the district to review its financial operations. The final-form regulation should indicate how often the review must be done.
6. Section 405.6. Personnel systems and benefits standards.--Reasonableness; Clarity.
Commentators are concerned that provisions under this section conflict with subjects that are part of existing collective bargaining agreements. Would the requirement for districts to meet the standards of this section violate existing collective bargaining agreements or restrict any future good faith negotiations with employee bargaining units?
Also, what is meant by ''applicable comparisons or benchmarks'' under Paragraph (5)(ii)?
7. Section 405.9. Transportation standards.--Clarity.
Paragraph (2)
Timely submission of required data to multiple agencies of the Commonwealth is listed as an indicator of compliance under Paragraph (2)(i). We have two questions. First, what is the required data? Second, to what agencies must the data be submitted?
Paragraph (4)
Both students and drivers are to be ''held accountable'' for failure to comply with standards, policies and procedures. How does the Department intend for them to be held accountable by the district?
8. Reference to other requirements.--Clarity.
There are numerous places throughout the regulation that reference Federal, State or local requirements but do not provide citations to those requirements. The Department should add these requirements to the text of the regulation or provide citations to the appropriate provisions. These sections include: 405.2(3)(iv), 405.5(1)(i), 405.6(2)(i), (3)(i) and (iv) and (5)(iv), 405.9(3)(vi), 405.10(4) and 405.11(2) and (2)(ii).
9. Miscellaneous clarity.
The following terms and phrases appear throughout the regulation:
* actively
* appropriate
* as needed/necessary
* clearly
* consistently
* effectively (or variations of)
* efficiently (or variations of)
* fully
* generally
* including, but not limited to
* ongoing
* periodically
* readily
* regularly
* reasonable
* routinely
* timely
* useful
These terms and phrases are vague and should be replaced with definite terms that establish binding norms.
____
Department of Public Welfare
Regulation #14-504
(IRRC #2552)
Licensure/Approval Appeal Procedure
September 6, 2006 We submit for your consideration the following comments on the proposed rulemaking published in the July 8, 2006 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Public Welfare (Department) to respond to all comments received from us or any other source.
1. General--Reasonableness; Need; Feasibility.
DPW is replacing the uncodified Chapter 9003 administrative procedure regulations, relating to licensure and approval appeals filed by Department-certified facilities and agencies, with the General Rules of Administrative Practice and Procedure (GRAPP), 1 Pa. Code, Part II. We have several questions and recommendations. First, has the Department considered codifying Chapter 9003 with revisions determined to be appropriate? These procedures have been in place since 1977 and commentators and other interested parties appear to be very comfortable with them.
Second, several facilities commented that the ten-day appeal period allotted under the GRAPP is simply too short a timeframe for weighing the ramifications of an action taken by the Department and determining whether to appeal. We recommend that the Department consider preserving the 30-day appeal period currently allowed under Chapter 9003.
Third, we agree with the Pennsylvania Association of Resources for People with Mental Retardation (PAR), that there are many provisions in the GRAPP that may not be applicable to appeals filed by human resource programs. The Department should consider adopting only those provisions of the GRAPP that are directly pertinent to these appeals.
Finally, we also agree with PAR that Section 25.20 of the GRAPP appears to bypass the Bureau of Hearings and Appeals, as it provides that appeals of staff action be taken directly to the agency head. Is it the Department's intent that licensure and approval appeals be taken directly to the Secretary?
ALVIN C. BUSH,
Chairperson
[Pa.B. Doc. No. 06-1824. Filed for public inspection September 15, 2006, 9:00 a.m.]
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