NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[42 Pa.B. 276]
[Saturday, January 14, 2012]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 agencies must consider these comments in preparing the final-form regulation. The final-form regulations must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 10-190 Department of Health 11/28/11 12/28/11 Emergency Medical Services System 41 Pa.B. 5865 (October 29, 2011) 125-159 Pennsylvania Gaming Control Board 12/05/11 01/04/12 Table Game Rules of Play for Spanish 21,
Poker, Mississippi Stud and Crazy 4 Poker41 Pa.B. 5963 (November 5, 2011) 7-463 Board of Coal Mine Safety 12/05/11 01/04/12 Requirements for Automated External
Defibrillators41 Pa.B. 5959 (November 5, 2011) 35-32 Constables' Education and Training Board 12/05/11 01/04/12 Constables' Education and Training Board
Amendments41 Pa.B. 5961 (November 5, 2011)
Department of Health
Regulation #10-190 (IRRC #2917)
Emergency Medical Services System
December 28, 2011 We submit for your consideration the following comments on the proposed rulemaking published in the October 29, 2011 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 Health (Department) to respond to all comments received from us or any other source.
1. Whether the regulation is consistent with the intent of the General Assembly.
This proposed rulemaking is intended to facilitate the implementation of the Emergency Medical Services System Act of 2009 (Act) (35 Pa.C.S. §§ 8101—8157). Both the Act and the proposed rulemaking are comprehensive documents. We appreciate the time and effort put forth by the Department in developing this regulatory package.
When reviewing a regulation, and as required by the Regulatory Review Act (71 P. S. §§ 745.1—745.14), this Commission must first and foremost determine whether the agency has the statutory authority to promulgate the regulation and whether the regulation conforms to the intention of the General Assembly. (71 P.S § 745.5b.) In the Regulatory Analysis Form (RAF) submitted with the rulemaking, the Department has identified sections of the Act that provide the Department with both general and specific statutory authority. However, the identified sections of the Act are not cross-referenced to specific sections of the regulation. In order to assist this Commission in determining if the regulation is consistent with the intent of the General Assembly, we request that the Department identify specific sections of the Act that correlate to specific sections of the regulation.
2. Publications in the Pennsylvania Bulletin.—Consistency with statute; Implementation procedures; Reasonableness; Clarity.
The Emergency Medical Services System Act provides for the Department to publish changes in the Pennsylvania Bulletin relating to Emergency Medical Services (EMS) patient reports (35 Pa.C.S.A. § 8106(f)), skills within the scope of practice of each type of EMS provider (35 Pa.C.S.A. § 8113(g)) and vehicle construction and equipment and supply requirements for EMS agencies (35 Pa.C.S.A. § 8129(j)). In several of the provisions, the regulation provides for changes to requirements through publication in the Pennsylvania Bulletin. Provisions in the regulation that provide for Department publications in the Pennsylvania Bulletin include:
• § 1021.24(b)
• § 1021.24(e)
• § 1021.25(10)
• § 1021.41(a)
• § 1021.41(c)
• § 1021.43(c)
• § 1023.24(d)(1)
• § 1023.24(d)(2)
• § 1023.24(d)(3)
• § 1023.25(d)(1)
• § 1023.25(d)(2)
• § 1023.25(d)(3)
• § 1023.26(d)(1)
• § 1023.26(d)(2)
• § 1023.26(d)(3)
• § 1023.27(d)(1)
• § 1023.27(d)(2)
• § 1023.27(d)(3)
• § 1023.31(a)
• § 1023.31(b)(1)
• § 1023.31(c)(1)
• § 1023.31(d)(1)
• § 1023.31(e)(1)
• § 1023.31(f)(1)
• § 1023.31(g)(1)
• § 1023.31(h)(1)
• § 1023.34(b)
• § 1027.1(b)(6)
• § 1027.3(c)
• § 1027.4(b)
• § 1027.6(c)
• § 1027.36(d)
• § 1027.37(f)
• § 1027.38(b)(1)
• § 1027.38(b)(2)(i)
• § 1029.21(b)The above provisions relate to scope of practice, continuing education, reporting, equipment, licensure, funding, medications and facilities.
We have three concerns relating to the use of publications in the Pennsylvania Bulletin. First, we ask the Department to explain how each of the regulation's use of publications in the Pennsylvania Bulletin is consistent with the Act.
Second, Governor's Executive Order 1996-1 at 1.f., states, ''Compliance shall be the goal of all regulations.'' As a practical matter, portions of this regulation will not present the information needed to comply. Instead, the reader will have to search the Pennsylvania Bulletin to see if the Department published any changes and if so, what the changes are. This would be further complicated in the future, if the Department has the need to publish more than one change to a provision. While these publications in the Pennsylvania Bulletin may provide flexibility for the Department, the Department should explain how the regulated community can reasonably comply because the regulated community will need to know whether the requirements in the regulation have been amended and how to find those specific publications in the Pennsylvania Bulletin.
Finally, related to the above concerns, the Department should explain how it will implement provisions that can be altered by publication in the Pennsylvania Bulletin. Has the Department considered, for example, placing on its website a compendium of changes published in the Pennsylvania Bulletin after the effective date of this regulation?
3. Economic impact of the regulation.
In the responses to questions 17 to 20 of the RAF, the Department describes several costs. For example, in Response 17, the Department recognizes additional costs for the regulated community to operate on a full-time basis and for a medical director. However, the Department concludes it is impossible to estimate the costs and shows zero dollars in the cost estimate in response to Question 20. In fact, the only cost shown in response to Question 20 is $84,000 to $95,000 in state government costs. We ask the Department to review its responses to questions 17 to 20 and, to the best of its ability, provide dollar estimates of the costs and/or savings associated with implementation of the regulation.
4. Section 1012.2. Definitions.—Whether the regulation is consistent with the intent of the General Assembly; Implementation procedures; Clarity.
Ambulance—The regulatory definition of this term differs from the statutory definition. It does not include a ''water vehicle.'' We ask the Department to explain the reason for this difference and how this deviation is consistent with the legislative intent of the General Assembly.
Medical command—This term is not defined in this section. However, it is used throughout the regulation. We believe a definition for this term would improve the clarity of the regulation and assist the regulated community with compliance.
PSAP—Public safety answering point—Paragraph (ii) of this definition states that ''A PSAP is operated 24 hours a day.'' This provision is substantive (i.e., regulatory). Substantive provisions are not appropriate for definitions. We recommend that the provision be moved to the body of the regulation. See § 1.7(c) of the Pennsylvania Code and Bulletin Style Manual.
Specialty receiving facility—This definition states that a ''special receiving facility'' will be ''identified'' by the Department. What process will the Department use to make this designation and is the process set forth in regulation? Would a facility have to request this designation from the Department? How would the regulated community know if a facility has been identified as a ''special receiving facility''?
5. Section 1021.24. Use of EMSOF funding by a regional EMS council.—Clarity.
Subsection (a)(1)(i) includes the term ''911 system'' and Subsection (a)(1)(ii) includes the term ''specialty services.'' We believe definitions for these terms would improve the clarity of the regulation and assist the regulated community with compliance.
6. Section 1021.62. Regional quality improvement programs.—Reasonableness; Clarity.
We have three concerns with this section. First, a commentator believes that the regulation should specifically list the parties that will be asked to provide input on regional EMS quality improvement programs. We believe it would be reasonable to include such a provision and ask the Department to consider it as it prepares the final-form regulation.
Second, under Paragraph (1), regional EMS councils are required to conduct quality improvement audits of regional EMS systems. The final-form regulation should specify how often quality improvement audits must be conducted.
Third, Paragraph (5) requires regional EMS councils to ''Submit to the Department reports as prescribed by the Department.'' This requirement is vague. It does not establish a binding norm and would be difficult to comply with. We recommend that it be deleted or enhanced to specify the type of information that would be required in the reports.
7. Section 1021.83. Complaints.—Economic impact; Need.
A commentator notes the potential for duplicative investigations by the Department and the Division of Acute and Ambulatory Care, which is also under the Department. The Department should explain how these investigations will be conducted and whether there is any duplication. If there is any duplication, the Department should explain why the duplication is needed and how the cost of the duplication is justifiable.
8. Section 1021.103. Governing body.—Economic impact; Reasonableness.
Subsection (d) requires the governing body to make the annual report available to the public. Would placing this annual report on the council's or governing body's website satisfy this requirement? If so, we suggest adding this to the regulation.
9. Chapter 1023. Personnel, Subchapter A. Administrative and Supervisory EMS Personnel.—Protection of the public health, safety and welfare.
This subchapter establishes the roles and responsibilities and the minimum qualifications for the EMS agency medical directors, medical command physicians, medical command facility medical directors, regional EMS medical directors and Commonwealth EMS Medical Directors. Some of these positions require the completion of an application for the position and triennial renewal, but other positions do not. What are the reasons for these differences? Is the public health, safety and welfare of the citizens of the Commonwealth adequately protected without the requirement for the submittal of applications and triennial renewal for all positions?
10. Section 1023.21. General rights and responsibilities.—Protection of the public health, safety and welfare.
Paragraph (b)(1) states, in part, that ''An applicant for an EMSVO [Emergency Medical Services Vehicle Operator] certification shall also report to the Department any other conviction of an offense involving reckless driving or driving under the influence of alcohol or drugs.'' We note that EMSVO is defined in Section 1021.1 of the regulation and the Act as ''an individual who is certified by the Department to operate a ground EMS vehicle.'' A commentator questions why the reporting requirements only apply to ambulances and therefore, paramedics and Emergency Medical Technicians. The commentator believes the requirements should also be applicable to Quick Response Service, rescue squad, fire truck, motorcycle and police vehicles.
Regarding emergency vehicle operators under the Department's jurisdiction, we ask the Department to review this provision of the regulation and explain whether the reporting requirements in Paragraph (b)(1) apply to all vehicle operators under its jurisdiction. If not, the Department should explain why this reporting is not necessary for all vehicle operators.
11. Section 1023.31. Continuing education requirements.—Clarity.
Subsection (a) pertains to continuing education requirements for EMS vehicle operators. The subsection requires continuing education, but fails to specify the subject areas that would be appropriate. This differs from continuing education requirements for other personnel listed under this section. For example, Subsection (b) requires EMR continuing education instruction in subjects related to an EMR's scope of practice. We recommend that Subsection (a) be amended to include the type of instruction that would be appropriate for EMS vehicle operator continuing education.
12. Section 1023.51. Certified EMS instructors.—Consistency with statute; Clarity.
Under Subsection (a), an individual seeking certification as an EMS instructor must meet seven qualifications. One of the qualifications is to successfully complete an EMS instructor course approved by the Department or possess, ''at a minimum, a bachelor's degree in education or a teacher's certification in education.'' A commentator has noted that this provision differs from the corresponding provision found in the Act, which includes a reference to a ''doctorate or master's degree.'' 35 Pa.C.S. § 8124. What is the reason for this deviation from the Act? Would an individual with a doctorate or a master's degree satisfy this requirement?
13. Section 1025.22. Responsibilities of continuing education sponsors.—Clarity.
Subsection (f) requires continuing education sponsors to retain records for ''at least 4 years from the presentation of the course.'' This requirement is vague and should be amended to include a specific time frame such as ''4 years from the presentation of the course.''
14. Section 1027.3. Licensure and general operating standards.—Statutory authority; Implementation procedures; Fiscal impact; Clarity.
Subsection (h) pertains to dispatching. We have two concerns. First, Subsection (h)(3) states that certain costs of PEMA and local governments associated with training and certification/recertification of an EMS agency dispatch center's calltakers and dispatchers is the responsibility of the EMS agency. What is the Department's statutory authority for this provision? How would it be implemented? What is the anticipated cost to the entire EMS agency community for this provision?
Second, Subsection (h)(5) states, ''References in 4 Pa. Code §§ 120d.104 and 120d.105 to the Pennsylvania Emergency Management Agency, 911 communications centers and remote dispatch points are replaced with the Department and EMS agency dispatch centers for the purpose of this regulation.'' We believe the clarity would be improved and the regulated community better served if the requirements of 4 Pa. Code §§ 120d.104 and 120d.105 were set forth in directly in this regulation.
15. Section 1029.21. Receiving facilities.—Consistency with statute; Economic impact; Reasonableness.
Subsection (b) would allow the Department to publish a list of special receiving facilities through notice in the Pennsylvania Bulletin and to update the list as appropriate. A commentator states that this is problematic because it would give the Department great authority to determine where EMS providers transport patients with certain conditions, but there is no criteria identifying how the Department's decisions would be made. The commentator recommends a public comment period.
We agree that changes to the list will have significant implications to receiving facilities. What is the Department's specific statutory authority to establish, maintain and update a list of special receiving facilities via publication in the Pennsylvania Bulletin? In addition, the Department should consider adding provisions to the regulation explaining the process that will be used to update the list and how the affected parties will have the opportunity to comment on any contemplated changes.
16. Chapter 1031. Complaints, disciplinary actions, adjudications and appeals.—Statutory authority; Consistency with intent of the General Assembly.
This chapter sets forth the grounds for discipline and the types of authorized discipline for the various professions and agencies that are subject to this regulation. The grounds for discipline and the types of authorized discipline for EMS providers, EMS vehicle operators and EMS agencies closely follow similar provisions in the Act. However, this chapter applies to other professions and agencies beyond those listed above. What is the statutory basis for imposing discipline on the other professions and agencies? In addition, what is the Department's statutory authority for Section 1031.6, relating to emergency suspension for EMS provider and EMS vehicle operator certifications, and Section 1031.9, relating to automatic suspension for incapacity?
17. Section 1031.1. Administrative and appellate procedure.—Implementation procedures; Clarity.
This section of the rulemaking adds a reference to 1 Pa. Code Part II (relating to general rules of administrative practice and procedure or GRAPP). Subsection (b) also adds rules supplementing GRAPP. In order to assist the regulated community with compliance, we recommend that a cross-reference be included to show which GRAPP provisions are being supplemented. For example, the Department should consider including a new subsection that reads, ''(6) Subsection (b) supplements 1 Pa. Code § ____ (relating to ______ ).''
18. Chapter 1033. Special event EMS.—Implementation procedures.
A ''special event'' is defined in Section 1021.2 as ''a planned and organized activity or contest, which places participants or attendees, or both, in a defined geographical area in which the potential need for EMS exceeds local EMS capabilities or where access by emergency vehicles might be delayed due to crowd or traffic congestion at or near the event.'' Section 1027.38, relating to special operations EMS service, includes Subsection (e), relating to mass-gathering EMS services. In the Preamble to the final-form regulation, we ask the Board to explain how Chapter 1033 will be administered in conjunction with Section 1027.38(e).
Pennsylvania Gaming Control Board
Regulation #125-159 (IRRC #2919)
Table Game Rules of Play for Spanish 21, Poker, Mississippi Stud and Crazy 4 Poker
January 4, 2012 We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2011 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.
1. Adverse effects on prices, productivity or competition.
Section 22 of the Regulatory Analysis Form asks how this regulation compares with those of other states and how it will affect Pennsylvania's ability to compete with other states. The Board's response to these questions is that the regulations are consistent with the standards throughout the gaming industry and should not affect Pennsylvania's ability to compete with other states.
While we have no reason to doubt the Board's response to these questions, we seek more information on the house advantage that these regulations establish for the table games of Spanish 21, Mississippi Stud and Crazy 4 Poker. We ask the Board to provide this information and to compare it to other gaming jurisdictions, including New Jersey. This information will assist this Commission in determining if the regulation is in the public interest.
In addition, we seek information on how other gaming jurisdictions regulate the rake for nonbanking Poker games and what the common practice is in those jurisdictions.
2. Clarity and lack of ambiguity.
Throughout this proposed rulemaking, licensed facilities that hold table game operation certificates (certificate holders) are required to obtain certain approvals from the Board, the Board's Bureau of Gaming Operations, the Bureau of Gaming Laboratory Operations, or the Bureau of Casino Compliance. For example, Section 635a.2(b) states, in part, the following: ''The layout for a Spanish 21 table shall be approved by the Bureau of Gaming Operations and contain, at a minimum: . . .'' We are concerned that the proposed rulemaking does not include the procedures for obtaining the necessary approvals. To assist the regulated community in understanding how to submit the requests for certain approvals, we suggest that the final-form regulation include the procedures or appropriate cross-references to where the procedures can be found. We have identified the following sections that contain references to approvals:
• § 635a.2(b)
• § 635a.2(b)(3)(iii)
• § 635a.2(b)(4)
• § 635a.2(c)
• § 635a.2(d)
• § 635a.5(h)
• § 635a.7(a)
• § 637a.2(a)• § 637a.2(b)
• § 637a.2(c)
• § 637a.2(d)
• § 637a.7(a)
• § 637a.7(e)(4)(ii)
• § 637a.9(a)(6)
• § 637a.15(i)
• § 655a.2(b)• § 655a.2(d)
• § 655a.5(g)
• § 655a.8(a)
• § 657a.2(b)
• § 657a.2(d)
• § 657a.5(g)
• § 657a.8(a)3. Adverse effects on prices, productivity and competition.
A commentator has noted that the state of New Jersey's Division of Gaming Enforcement has recently added more Poker games to their body of regulations. In order to remain competitive with New Jersey, the commentator recommends that the Board add additional types of Poker Games. We ask the Board to consider the request of the commentator. If the Board decides to add new types of Poker games, we recommend that those new Poker games be promulgated via a separate and distinct proposed rulemaking and not this regulatory package.
4. Section 637a.3. Cards; number of decks.—Fiscal impact; Protection of the public health, safety and welfare.
Subsection (c) requires decks of cards used in non-banking Poker games to be changed at least every six hours. A commentator notes a deck of cards used in non-banking Poker games costs $18.50 compared to $0.91 for banked table games. Assuming that the figures provided by the commentator are accurate, this could impose significant costs to certificate holders. Would the integrity of gaming be compromised if the requirement to change cards was amended from six hours to 24 hours? We ask the Board to quantify this cost and to explain why cards must be changed every six hours.
5. Section 637a.9. Permissible Poker games; announcement of available games and seats.—Reasonableness; Implementation procedures; Clarity.
Subsection (c) permits a certificate holder to announce, in the area where Poker tables are located, the types of Poker games that are available, the table minimum and maximum bets that are being offered and the availability of any vacant seats at particular Poker tables. We note that the Board's temporary regulations found at § 521.7, relating to minimum and maximum wagers and additional wagering requirements, and § 521.8, relating to rules of the games and notice, provide guidance to certificate holders on how patrons will be notified of what minimum and maximum bets are and how and when those limits can be changed by the certificate holder. Similar provisions are also included in §§ 601a.6 and 601a.7 of the Board's proposed regulations that were published in the April 2, 2011 Pennsylvania Bulletin. (41 Pa.B. 1773 (April 2, 2011))
Are there any rules or guidelines in place that address the availability of seating at Poker tables and how vacant seats are filled? For example, is it based on the concept of ''first come, first served'' or would a certificate holder have the ability to seat patrons based on other criteria? Is this type of information included in a certificate holder's Rules of Submission that are required by the Board's temporary and proposed regulations found at §§ 521.2 and 601a.2 respectively? We believe that patrons of Pennsylvania's casinos would benefit, and the integrity of gaming would be enhanced, if certificate holders were required to disclose how patrons are seated at Poker tables and ask the Board to consider adding signage provisions similar to the provisions found in the sections of temporary and proposed regulations noted above.
6. Section 637a.10. Seven-card Stud Poker; procedures for dealing the cards; completion of each round of play.—Clarity.
Subsection (k) allows a player to use the same five-card grouping to make a high hand and a low hand for the games of Seven-card Stud High-low Split Poker and Seven-card Stud High-low Split Eight or Better Poker. Paragraphs (1) and (2) of this subsection provide examples that would qualify as a straight or a flush. As written, it would appear that the examples are applicable to both games. We question if the example provided in Paragraph (1) is applicable to the game of Seven-card Stud High-low Split Eight or Better Poker. We ask the Board to review Paragraphs (1) and (2) to ensure both are accurate.
7. Section 637a.16. High Hand Jackpot payout; posting of rules; contributions; counting and displaying of payout amount; procedures for implementation.—Reasonableness; Need.
What is the need for the provision under Subsection (h) that requires High Hand Jackpot payouts to be paid from the main cage or a satellite cage? Would the integrity of gaming be compromised if the payouts were made in the Poker room?
8. Section 637a.17. Poker revenue.—Adverse effects on prices, productivity or competition; Reasonableness.
This section allows a certificate holder to use one or more of the following procedures to determine and extract the rake for nonbanking Poker games: a percentage rake; an incremental rake; or a rake based on time charges. Has the Board considered adding a provision that would cap the amount of rake for each of the procedures? While we understand that a higher rake equates to more tax revenue for the Commonwealth and local governments, a rake that is higher than other gaming jurisdictions could lead to less play of Poker and less tax revenue. As the Board prepares the final rulemaking, we ask that it consider the possibility of placing a maximum limit on the rake that could be collected that is consistent with other gaming jurisdictions.
9. Section 657a.11. Procedures for completion of each round of play.—Clarity.
Subsections (c)(3)(ii)(B) and (C) conclude with the sentence, ''The player's Super Bonus Wager will be returned if the player's winning hand is not a straight or better.'' We question if the same concluding sentence should be added to Subsection (c)(3)(ii)(A).
Board of Coal Mine Safety
Regulation #7-463 (IRRC #2920)
Requirements for Automated External Defibrillators
January 4, 2012 We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2011, 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 Board of Coal Mine Safety (Board) to respond to all comments received from us or any other source.
In the Preamble, the Board states it is ''responding to a letter from a citizen who requested that AEDs [Automated External Defibrillators] be placed in coal mines for coal miners' safety'' and that the Board ''agreed that placing AEDs at coal mines would be in the best interests of the miners' safety.'' We commend the Board for this proposed regulation to improve safety at mines. These comments are intended to promote clear standards in the regulation that will facilitate the common goal of protection of the public health, safety and welfare through compliance with the regulation.
Section 208.70. Automated external defibrillators.—Protection of the public health, safety and welfare; Economic impact; Implementation procedures; Clarity.
1. ''Consistent with the Equipment Approval Task Force Guidelines''
Subsection (a) designates that AEDs must be located ''consistent with the Equipment Approval Task Force guidelines.'' The Equipment Approval Task Force Guidelines (guidelines) provided by the Board state the following in regard to medical devices: ''Emergency medical apparatus may be used underground and may be stored in fresh air locations underground.''
We have two concerns relating to the incorporation of guidelines into the regulation. First, these guidelines can be amended outside of the procedures in the Regulatory Review Act, without notice and the opportunity for public comment, review by the legislature and this Commission. The guidelines could also be amended without consideration of the effect on this regulation and compliance by the regulated community. Therefore, the regulation lacks clarity because it relies on a guidance document which is subject to change.
Second, the guidelines do not provide clear direction regarding the location of AEDs, which is the title of Subsection (a). For both of these reasons, we recommend deleting the reference to guidelines from Subsection (a).
2. Effective location of AEDs
Paragraph (a)(1) requires an AED to be placed at ''a location on the surface of the mine.'' This requirement is vague because the term ''surface of the mine'' is not defined and could encompass many acres.
Paragraph (a)(2) requires an AED to be placed ''on or near each coal producing section.'' This requirement is also vague. The phrase ''on or near'' is subjective and could be interpreted in many ways.
It is important in the event of an emergency for rescue personnel to quickly locate and bring the AED to the victim. According to American Heart Association literature available on the internet, the effectiveness of an AED diminishes in relation to the amount of time it takes to attach the AED to the person in distress. An AED is most effective when used within three to five minutes, although the American Heart Association concedes this goal is difficult to meet. See http://www.heart.org/idc/groups/heart-public/@wcm/@private/@ecc/documents/downloadable/ucm_308905.pdf.
We are concerned that a mine could technically comply with the wording of the regulation, but not effectively accomplish the intent of improving safety. We recommend that the Board consult with emergency medical personnel including the ''emergency medical technicians'' and ''emergency medical technician paramedics'' required by 52 P. S. § 690-602 to determine the best placement of AEDs.
Given the variable number of employees, size of the mines, distances underground and underground layout of the mines, it may be impractical to prescribe uniform requirements in regulation for the effective placement of AEDs in a mine. As an alternative, the Board may want to consider a regulatory scheme which requires a minimum number of AEDs at a mine, perhaps based on the number of personnel, but allows the placement of the AEDs to be determined by the mine operator in consultation with the emergency medical personnel required by 52 P. S. § 690-602. If the Board uses this regulatory scheme, the Board should also designate in the regulation how the mine owner must document the consultation between the mine owner and medical personnel, how long the documentation must be retained by the mine operator and whether the documentation must be submitted to the Board. The final-form regulation should be written to provide for effective placement of AEDs for the safety of mine personnel.
3. ''Emergency medical personnel''
Paragraphs (b)(1) and (2) use the term ''emergency medical personnel.'' The requirements in Subsection (b) invoke training requirements for emergency medical personnel and non-emergency medical personnel. However, the regulation is not clear regarding who specifically are ''emergency medical personnel,'' and consequently who are non-emergency medical personnel. We note that the Act defines the terms ''emergency medical technician'' and ''emergency medical technician paramedic.'' See 52 P. S. § 690-601. The Board should replace the term ''emergency medical personnel'' with the statutory terms. Alternatively, the Board could define the term ''emergency medical personnel'' in Section 208.1 to include both of the statutory terms ''emergency medical technician'' and ''emergency medical technician paramedic.''
4. Training
Both paragraphs (b)(1) and (2) require training in the use of AEDs. In the event the victim is in full cardiac arrest, the AED would direct the administration of Cardio Pulmonary Resuscitation (CPR). Since AEDs cannot do CPR, the administration of CPR would have to be performed by the rescuer(s). For this reason, we recommend that the regulation specifically require CPR training in addition to AED training for mine personnel.
5. Maintenance and inspection
We have two concerns relating to Subsection (c). First, an AED is an electronic device intended to produce an electric shock to restore a stable heart rhythm and uses a speaker to communicate with the operator. These mechanisms may be susceptible to malfunction and deterioration when exposed to the dust and moisture found in a mine. We also recognize the safety concern of placing an electronic device in a mine where a spark could ignite an explosion of gasses present in a mine. Therefore, if the Board believes there is a need for the AEDs to meet specific safety requirements to be used in a mine or that AEDs need to be protected from the elements present in a mine, it would be appropriate to add specific requirements for AEDs to Subsection (c) or to add another subsection dedicated to these topics.
Second, the response to Regulatory Analysis Form (RAF) Question 27 states the regulation will not require any additional recordkeeping or paperwork. We question this statement in relation to Subsection (c), which requires maintenance and inspection in accordance with manufacturer's operational guidelines. It would appear that some recordkeeping would be needed to ensure proper maintenance and inspection of AEDs and to demonstrate compliance with Subsection (c). We ask the Board to review its response to RAF Question 27 and explain why it is accurate. The Board should also designate minimum recordkeeping requirements in the regulation.
Constables' Education and Training Board
Regulation #35-32 (IRRC #2921)
Constables' Education and Training Board Amendments
January 4, 2012 We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2011 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 Constables' Education and Training Board (Board) to respond to all comments received from us or any other source.
1. Fiscal impact.
This regulation proposes various amendments relating to certification and attendance policies for training and continuing education of constables and deputy constables. In the Regulatory Analysis Form (RAF #20), the Board provides an estimate of savings and costs associated with the regulation for the current year and five subsequent years. The Board projects an increase in the savings and costs of 8% per year for the five subsequent fiscal years. The Board should explain how it derived the 8% increase.
2. Clarity.
The first paragraph of the Preamble states that the Board is amending ''§§ 431.14, 431.15, 431.22, 431.32, and 431.42.'' However, this citation does not reflect all of the sections amended by this rulemaking, as the Annex also includes amendments to §§ 431.25, 431.35, 431.43, 431.47 and 431.48. In addition, the regulation does not amend § 431.32. The Board should correct this citation in the Preamble for the final-form regulation.
3. Section 431.25. Attendance policies.—Clarity.
''All or part''
This phrase is used inconsistently throughout the regulation with respect to a school's assessment for a failing grade in various types of courses. In Subsection (a), the Board deletes the phrase when referencing assessment of a failed basic training course. However, Section 431.35(a) is amended to permit schools to assess ''all or part'' of a failing grade for a continuing education course. In Section 431.47(a), this phrase remains as existing language which would result in an assessment of ''all or part'' of a failing grade for a firearms qualification course. We recommend that this phrase be used consistently in the final-form regulation.
''Deemed untimely''
Subsection (b) references a notice of a basic training course withdrawal that is ''deemed untimely.'' The final-form regulation should clarify how the Board establishes that notices are ''deemed untimely.'' Similar language is included for withdrawal notices for continuing education courses and firearms training courses in Sections 431.35 (b) and 431.47 (b).
Subsection (c)
Subsection (c) prohibits constables from attending another basic training course in the same training year of a successful completion of such a course. Section 431.47 (c)(1) also includes similar language with respect to firearms qualification courses. However, Section 431.35 (c) discusses a constable ''or deputy constable'' who successfully completes a continuing education course. Are only constables permitted to attend basic training and firearms qualification courses? The final-form regulation should clarify this issue.
4. Section 431.47. Attendance policies.—Clarity.
''Good cause''
Both sections 431.25 and 431.35 permit demonstration of ''good cause'' as a proper method of withdrawal from basic training and continuing education courses. However, Section 431.47(a) does not include ''good cause'' as a permissible manner of withdrawal. Nevertheless, Section 431.47(b) states that constables will bear the cost of additional firearms qualification courses if ''good cause'' is not shown. The Board should add a reference to ''good cause'' in Section 431.47(a) so that the attendance policies are consistent throughout the regulation.
In addition, Subsection (a) is titled ''Withdrawal'' and Subsection (b) is titled ''Financial responsibility.'' Sections 431.25 (a) and (b) and 431.35 (a) and (b) contain similar language but have no titles included. Why are the subsections in Section 431.47 titled? The Board should clarify this issue.
SILVAN B. LUTKEWITTE, III,
Chairperson
[Pa.B. Doc. No. 12-60. Filed for public inspection January 13, 2012, 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.
