NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[43 Pa.B. 2789]
[Saturday, May 18, 2013]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comments Reg. No. Agency/Title Comment Period Issued 7-478 Environmental Quality Board
Air Quality Title V Fee Amendment
43 Pa.B. 677 (February 2, 2013)4/8/13 5/8/13 16A-649 State Board of Auctioneer Examiners
Schedule of Fees
43 Pa.B. 1279 (March 9, 2013)4/8/13 5/8/13 16A-6920 State Board of Social Workers, Marriage
and Family Therapists and Professional Counselors
Biennial Renewal Fees
43 Pa.B. 1281 (March 9, 2013)4/8/13 5/8/13 57-290 Pennsylvania Public Utility Commission
Rules of Practice and Procedure
43 Pa.B. 1273 (March 9, 2013)4/8/13 5/8/13 11-251 Insurance Department
Surplus Insurance Lines
43 Pa.B. 1269 (March 9, 2013)4/8/13 5/8/13
Environmental Quality Board
Regulation #7-478 (IRRC #2980)
Air Quality Title V Fee Amendment
May 8, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the February 2, 2013 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. Legislative and public comments on the proposed regulation.—Economic impact; Protection of the Public Health, safety and welfare; Implementation procedures; Reasonableness.
We have reviewed a broad range of comment on this proposed regulation. A comment was submitted in full support of the increase. Another was submitted questioning whether the increase was large enough. Comments were also submitted by two parties, who are subject to the fees, stating the fee increase is unjustified. Even though their respective viewpoints on the fee increase differ, we believe all of the commentators have raised valid points that need to be further reviewed by the EQB. The following is a summary of the comments.
Comments of Democratic Chair Greg Vitali, House Environmental Resources and Energy Committee
Among several points raised in his comment letter dated April 8, 2013, Democratic Chair Vitali is concerned that the proposed increase will result in the air quality program operating at a loss again in just two fiscal years. He suggests that there are options for increasing revenue to avoid the negative consequences of an underfunded program.
Public comment in full support
A public commentator believes this increase will provide an adequate fee to cover the costs of administering the air permit program. This commentator states that adequate staffing will be needed to meet challenges posed by emissions in the Marcellus Shale region and to purchase testing equipment.
Public comments opposing the fee increase
Two commentators oppose the 48 percent fee increase describing it as unjustified and unreasonable. Their comments state that the EQB should offset all or a portion of the proposed increase through cost reductions. They are concerned that this large increase imposes a significant financial impact for their businesses and suggest delaying the increase or phasing it in would have a lesser impact. They also believe that the capping of fees skews the fee structure and different methods of capping should be used.
Conclusion
We recognize and appreciate that ultimately a balance needs to be achieved between sufficient protection of the environment and adequate revenues to support that goal. Specifically, the criteria in the Regulatory Review Act require consideration of both the economic impact of the regulation and protection of the public health, safety and welfare. (71 P. S. §§ 745.5b(1) and (2)) The public comments submitted on the proposed regulation raise valid concerns related to both criteria. In regard to all of the comments, we believe consideration and further explanation by the EQB of how it has achieved a proper balance of these competing interests is necessary. Specifically, the EQB should explain the following:
• Whether the EQB's proposed increase is only a temporary solution. Will this regulation result in the air quality program operating at a loss again in just two fiscal years? Should the 4,000 ton cap be maintained in its current form?
• Why hasn't the reduction in air emissions resulted in a commensurate reduction in the cost of enforcement? Did the EQB explore offsetting all or a portion of the proposed increase through cost reductions? If the reduction of air emissions does not result in a reduction of enforcement costs, how is the fee method put in place in 1994 viable today and into the future?
• How did the EQB consider the financial impact for businesses? Could the fee increases be a disincentive to build or expand within Pennsylvania? How will the fee increases affect employment? Could these factors result in a net loss of revenues if a business closes in Pennsylvania?
• Did the EQB consider a delay or phase-in of the increase to allow businesses to accommodate the full impact? Why is it reasonable to impose the fee increase on emissions that already occurred in 2013?
• Ultimately, the EQB should explain how the costs imposed by the fee increase are justifiable compared to the benefits the fees produce.
State Board of Auctioneer Examiners
Regulation #16A-649 (IRRC #2982)
Schedule of Fees
May 8, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 9, 2013 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 Auctioneer Examiners (Board) to respond to all comments received from us or any other source.
1. Comments of the House Professional Licensure Committee—Statutory authority; Economic impact.
The House Professional Licensure Committee (Committee) raised the following two issues:
• The Committee requests information pertaining to the major cost centers of the Board and any significant increases in its expenditures.
• The Committee requests further explanation on the Board's statutory authority for establishing a renewal fee for Trading Assistants. Act 89 of 2008 [Act 89] established a registration requirement, specified that registration is required on a biennial basis, established that the registration fee shall be $100 and specified that the Board shall not promulgate regulations pertaining to the registration requirement established in Section 10.1. The Committee questions the Board's statutory authority to treat this biennial registration requirement as a renewal.
We agree with the Committee comments. We will review the Board's responses as part of our determination of whether the final regulation is in the public interest.
The proposed regulation adds two fees for trading assistants. There is a $100 fee for registration and a $130 fee for biennial renewal. Noting the statutory authority questions raised by the Committee, we further question how the Board interpreted its authority to propose adding these fees to its regulation. On the one hand, 63 P. S. § 734.6(a) states:
Setting of fees.—The license and examination fees and all other fees imposed under the provisions of this act shall be fixed by the board by regulation and subject to review in accordance with . . . the Regulatory Review Act. (Emphasis added.)However, subsequent to the establishment of the above statutory provision, Act 89 added 63 P. S. § 734.10.1, which established requirements for registration of trading assistants, including biennial registration of trading assistants application provisions and a registration fee of $100. In addition, Section 7 of Act 89 states:
The board shall not promulgate regulations pertaining to Section 10.1 of the act . . .Relating to the Committee's question on the Board's statutory authority to treat this biennial registration requirement as a renewal, we further ask the Board to explain its statutory authority to include in its regulation any provisions for fees relating to 63 P. S. § 734.10.1 and its provisions for trading assistants.
2. Fee calculations and updated information.—Eco-nomic impact; reasonableness
In response to Regulatory Analysis Form (RAF) question 19, the Board provides a breakdown of the calculated increase of $155,220 into five fee categories. Noting the concerns with including an increase for trading assistant renewals, we question whether this information will remain accurate for the final-form regulation.
Additionally, we question the basis for the proposed 30 percent increase to the fees. How do the proposed increases correlate with the actual expenditures the Board incurs for each activity for which it is increasing a fee? Without this information, it is not clear how the proposed fee increases are reasonable.
State Board of Social Workers, Marriage and Family Therapists and Professional Counselors
Regulation #16A-6920 (IRRC #2983)
Biennial Renewal Fees
May 8, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 9, 2013 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 Social Workers, Marriage and Family Therapists and Professional Counselors (Board) to respond to all comments received from us or any other source.
Fiscal impact; Direct and indirect costs to the Commonwealth, political subdivisions and private sector.
This proposed rulemaking would increase the biennial renewal fee for licensed social workers, clinical social workers, marriage and family therapists and professional counselors from $75 to $115. This fee was increased by $30 in 2008. At that time, it was anticipated that the increase would be sufficient to cover the Board's expenses for at least nine years.
Commentators, including the National Association of Social Workers and the Pennsylvania Society of Clinical Social Workers, have submitted comments opposing the fee increase. They contend that the increase will have an adverse fiscal impact on licensees of the Board. The House Professional Licensure Committee (Committee) submitted comments requesting ''information pertaining to the major cost centers of the Board and any significant increases in expenditure.''
We share the concerns raised by the commentators and the Committee and seek further explanation of why this increase is needed. If the need relates to increased expenses, what is the nature of the expenses? Instead of increasing the biennial renewal fee, has the Board considered lowering expenses?
Pennsylvania Public Utility Commission
Regulation #57-290 (IRRC #2984)
Rules of Practice and Procedure
May 8, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 9, 2013 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 Public Utility Commission (PUC) to respond to all comments received from us or any other source.
Subsection 5.365(b) General rule for nonadversarial proceedings.—Clarity; Adverse effects on competition.
The last sentence of this subsection states, ''The Commission will not disclose material that is the subject of a protective order under this provision during the pendency of a request.'' While we recognize this is existing language under Subsection 5.423(b), we question whether this specific language provides broad enough protection of information filed prior to the issuance of the PUC's protective order. Therefore, we suggest that the PUC consider adding the phrase ''petition for'' so that Subsection 5.365(b) would state ''. . . will not disclose material that is the subject of a petition for protective order . . .'' (New language in italics.) This would also make the second sentence more consistent with the language in the first sentence which references ''. . . a petition for protective order. . . .''
Insurance Department
Regulation #11-251 (IRRC #2985)
Surplus Insurance Lines
May 8, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the March 9, 2013 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b). Section 5.1(a) of the RRA (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 124.10. Eligible surplus lines insurer filing requirements.—Clarity.
Subsections (a)(4) and (b)(3)
Subsection (a)(4) states that the insurer shall submit ''additional information as may be required by the Commissioner.'' Subsection (b)(3) states that the insurer shall submit ''additional items as may be required by the Commissioner.'' This language is non-binding and unclear. The Department should clarify the type of information it seeks in these subsections.
SILVAN B. LUTKEWITTE, III,
Chairperson
[Pa.B. Doc. No. 13-930. Filed for public inspection May 17, 2013, 9:00 a.m.]
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