NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[39 Pa.B. 2273]
[Saturday, May 2, 2009]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. § 645.5b).
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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Issued18-413 Department of Transportation
Interstate Motor Carrier Safety Requirements3/23/09 4/22/09 39 Pa.B. 997
(February 21, 2009)18-414 Department of Transportation
Intrastate Motor Carrier Safety Requirements3/23/09 4/22/09 39 Pa.B. 999
(February 21, 2009)16A-4317 State Board of Chiropractic
Needle Acupuncture3/23/09 4/22/09 39 Pa.B. 1004
(February 21, 2009)16A-6212 State Board of Examiners of Nursing Home Administrators
Continuing Education3/23/09 4/22/09 39 Pa.B. 1005
(February 21, 2009)125-97 Pennsylvania Gaming Control Board
Vendor Permission to Conduct Business Prior to Certification or Registration3/23/09 4/22/09 39 Pa.B. 1003
(February 21, 2009)
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Department of Transportation
Regulation #18-413 (IRRC #2744)
Interstate Motor Carrier Safety Requirements
April 22, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 21, 2009 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 Transportation (Department) to respond to all comments received from us or any other source.
Section 229.17. Adoption of interpretation of Federal Motor Carrier Safety Regulations.--Need; Reasonableness; Clarity.
The Department has used this section to adopt certain interpretations of the Federal Motor Carrier Safety Regulations as statements of policy. Because this is nonregulatory language, we question why the Department has chosen to include it in the proposed regulation. This section should be deleted from the final-form regulation.
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Department of Transportation
Regulation #18-414 (IRRC #2745)
Intrastate Motor Carrier Safety Requirements
April 22, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 21, 2009 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 Transportation (Department) to respond to all comments received from us or any other source.
General.--Reasonableness.
The Pennsylvania Division of the Federal Motor Carrier Safety Administration (FMCSA) submitted comments noting changes to this regulation that need to be made in order to be in full compliance with Federal rules. We share the same concerns and recommendations raised by FMCSA and incorporate them into the Commission's comments on this proposed rulemaking.
Also, the Pennsylvania Farm Bureau (PFB) submitted comments expressing concerns with the elimination of certain exemptions for farm vehicles, while acknowledg-ing the consequences for not removing the exemptions. The Department should address the concerns raised by PFB and explain its rationale for removing these exemptions for farm vehicles.
1. Section 231.10. Adoption of interpretation of Federal Motor Carrier Safety Regulations.--Need; Reasonableness; Clarity.
The Department has used this section to adopt certain interpretations of the Federal Motor Carrier Safety Regulations as statements of policy. Because this is nonregulatory language, we question why the Department has chosen to include it in the proposed regulation. This section should be deleted from the final-form regulation.
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State Board of Chiropractic
Regulation #16A-4317 (IRRC #2746)
Needle Acupuncture
April 22, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 21, 2009 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 Chiropractic (Board) to respond to all comments received from us or any other source.
1. Section 5.81.--Unprofessional and immoral conduct.--Clarity.
The proposed changes to Subsection 5.81(1)(xv) would permit a licensee of the Board to practice or advertise needle acupuncture, provided that certain qualifications have been met.
The proposed regulation states that the licensee must act in accordance with the Acupuncture Registration Act. (63 P. S. §§ 1801--1806.1) However, the House Professional Licensure Committee (Committee) noted that Act 91 of 2008 changed this law to re-designate registration to licensure. Therefore, the Committee suggested that any appropriate reference be made to the now titled Acupuncture Licensure Act (Act 91 of 2008) (Act) and that the regulation use appropriate language noting ''licensure'' and not ''registration,'' as now required by the Act. We agree with the Committee and recommend that these changes be made to the final-form regulation.
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State Board of Examiners of Nursing Home Administrators
Regulation #16A-6212 (IRRC #2747)
Continuing Education
April 22, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 21, 2009 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 Examiners of Nursing Home Administrators (Board) to respond to all comments received from us or any other source.
Section 39.61. Requirements.--Need; Reasonableness; Implementation procedures.
Subsection (f) is being amended to allow the Board to grant an extension of time for a licensee to complete continuing education requirements if the licensee has not met the ''illness, emergency or hardship'' requirement. We have four concerns. First, the Board has failed to explain why this subsection is being amended. What is the need for this provision?
Second, the Board should explain why is it reasonable to grant an extension of time to a licensee that has not met the ''illness, emergency or hardship'' requirement found in the existing regulation.
Third, how will the Board implement this provision if the regulation contains no standards for granting an extension of time? On what grounds will the Board base its decision?
Fourth, how and when will licensees be notified of the Board's decision to grant a waiver or extension of time? We note that although existing language of Subsection (f) allows the Board to waive continuing education requirements for reasons related to ''illness, emergency or hardship,'' it does not specify how and when the licensee will be notified of the Board's decision. We suggest that the Board add language to this subsection that specifies how and when a licensee will be notified of the Board's decision.
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Pennsylvania Gaming Control Board
Regulation #125-97 (IRRC #2748)
Vendor Permission to Conduct Business Prior to Certification or Registration
April 22, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 21, 2009 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 Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
Section 437a.9. Permission to conduct business prior to certification or registration.--Fiscal impact; Reasonableness; Implementation procedure; Feasibility; Clarity.
Due notice--form and delivery method
New language in both Subsections (b) and (c) refers to an Office or Bureau of the Board issuing a ''notice'' or ''notifying'' parties that they are to ''immediately cease conducting business.'' However, there is no explanation of how these notices will be delivered. One commentator contends that a telephone call or facsimile from the agency would not be sufficient notice. It suggests that the notice should be in the form of a letter. The final-form regulation should be amended to specify the delivery methods for the notices (such as electronic, hand-delivery or first class mail) and to state that the notices will be in writing.
Grace period
Commentators expressed concerns with the potential delays, disruptions, work stoppages and additional costs that this proposed regulation could cause. As alternatives or amendments to the proposed regulation, commentators suggested that vendors should be afforded an opportunity to respond to the issues that led to the ''Recommendation for Denial'' by the Office of Enforcement Counsel. One commentator suggested that the regulation include a ''30 day winding-up period'' before ordering a cessation of business between the vendor and a licensee.
It should be noted that under the Board's existing regulations, the approval, which allows vendor applicants to conduct business before registration or certification, exists only for 6 months. The Board may extend this arrangement for additional 6-month periods. Consequently, licensees should be cautious about committing to long-term projects with such vendors. Nevertheless, licensees and vendors may be engaged in contracts and business projects that could take several weeks or months to complete. Therefore, the Board needs to address concerns of these parties with the prospect of being forced to immediately terminate their business interactions. The addition of some form of grace period to the final-form regulation could reduce concerns over the fiscal impact of this regulation.
Due process
Under § 437a.9(c), a vendor applicant's privilege to do business with a licensee is suspended upon issuance of a Notice of Recommendation for Denial. Commentators are concerned that such a suspension could infringe on the due process rights of vendor applicants. The Preamble and proposed regulation do not explain whether or how the Board would act on such a recommendation, how the vendor applicant could protest the action of the Office of Enforcement Counsel or the Board, or whether this section requires Office of Enforcement Counsel to fill a prosecutorial role in violation of the decision in Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992).
The final-form regulation should clarify how and when the Board takes action in this circumstance, how the vendor applicant's due process rights will be affected, and the nature of the role of the Office of Enforcement Counsel.
Need for the rule; Reasonableness
Currently, § 437a.9 allows applicants for vendor registration or certification to do business with licensees before their applications are approved. The proposed regulation provides for the cessation of these pre-registration or certification transactions. We have two questions concerning this section. Why are vendor applicants allowed to engage in business with licensees before their applications are fully examined and approved? What is the need for this arrangement? The Board should explain the rationale and justification for both the existing section and the proposed regulation in the preamble to the final-form regulation.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 09-817. Filed for public inspection May 1, 2009, 9:00 a.m.]
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