NOTICES
Notice of Comments Issued
[44 Pa.B. 752]
[Saturday, February 1, 2014]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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 #125-175 Pennsylvania Gaming Control Board
Licensing; Slot Software; Count Room
Characteristics; Credit; Table Game
Rules
43 Pa.B. 6764 (November 16, 2013)12/16/13 01/15/14 #57-297 Pennsylvania Public Utility Commission
Recovery of Fuel Costs by Gas Utilities
43 Pa.B. 6503 (November 2, 2013)12/17/13 01/16/14 #57-298 Pennsylvania Public Utility Commission
Household Goods in Use Carriers and
Property Carriers
43 Pa.B. 6894 (November 23, 2013)12/23/13 01/22/14
Pennsylvania Gaming Control Board
Regulation #125-175 (IRRC #3040)
Licensing; Slot Software; Count Room Characteristics; Credit; Table Game Rules
January 15, 2014 We submit for your consideration the following comments on the proposed rulemaking published in the November 16, 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 Pennsylvania Gaming Control Board (Board) to respond to all comments received from us or any other source.
1. Section 427a.5. Responsibilities of a manufacturer.—Clarity; Reasonableness.
Subsections (c) and (d) address the possibility that a slot machine licensee may service, repair or perform routine maintenance on slot machines. The Board proposes to delete Subsections (c) and (d) because they do not relate to the chapter or section heading. Relating to responsibilities of a supplier, the Board proposes to delete identical language from Section 431a.4(f) and (g). We agree with the Board that these subsections are not relevant to the respective chapters or sections. Is the language that the Board proposes to delete addressed elsewhere? We ask the Board to clarify in the Preamble of the final-form regulation where this information is found in the Board's regulations, or to explain why it is reasonable for Board regulations not to address slot machine service, repair or maintenance by slot machine licensees.
As noted, this comment applies to the Board's proposal to delete identical language from Section 431a.4(f) and (g).
2. Section 435a.5. Nongaming employee registration.—Clarity and lack of ambiguity; Reasonableness of requirements; Implementation procedures and timetables for compliance.
The Board proposes to create Subsection (f) which states that a registration issued under this section will be valid for four years from the date of Board approval. The subsection also provides that if a registrant is not employed for two years in a position that requires a nongaming registration, the registration will be deemed to have expired. The Board states that currently registrations do not have an expiration date, and therefore, a subsequent background check is not conducted beyond initial registration. The Board further explains that currently more than 5,500 nongaming employees remain registered with the Board but have not worked in a position that requires registration for two years or more. We agree that periodic background investigations are necessary to protect the integrity of gaming by ensuring that every nongaming employee remains eligible and suitable to hold a registration. However, neither the Preamble nor the proposed regulation addresses how the Board will implement these provisions. We ask the Board to provide detailed responses to the following questions in the Preamble of the final-form regulation.
• How will the Board notify the regulated community, including the 5,500 registrants referenced by the Board whose registrations will be deemed to have expired, of these changes?
• How will currently registered nongaming employees obtain registrations with expiration dates, and how will their expiration dates be determined?
• How will the two-year timeframe work? Will it begin on the effective date of the regulation, or will the 5,500 registrations referenced by the Board be deemed to have expired on the effective date of the regulation?
In responding to these questions, the Board should clarify how the regulated community will transition to compliance with these provisions, and explain how the implementation of these provisions, including the timeframe, is reasonable.
We have similar concerns and questions related to Section 437a.6(b) (relating to registration and certification term and renewal) which establishes an expiration date for a publicly traded gaming service provider's authorization. We ask the Board to clarify how the regulated community will transition to compliance with this provision, and explain how the implementation of this provision is reasonable.
Finally, the Board should ensure that the annex of the final-form regulation clearly reflects the Board's intent for implementation of the provisions in Section 435a.5 and Section 437a.6(b), and that the annex clearly states how the regulated community is to comply.
3. Section 441a.25. Approval of material debt transactions.—Clarity and lack of ambiguity; Implementation procedures.
Subsection (e) states that a debt transaction that does not otherwise qualify as a material debt transaction may require Board approval if Board staff determines that approval is necessary to protect the integrity of gaming. [Emphasis added.] This provision is not regulatory language and does not set a binding norm. A regulation has the full force and effect of law, and this provision does not establish a standard that could be predicted by the regulated community. The Board should either remove the subsection or clearly identify the standards for debt transactions that do not otherwise qualify as a material debt transaction that will require Board approval.
These comments likewise apply to Section 441a.26(e).
4. Section 609a.4. Approval of credit limits.—Clarity.
Subsection (c) provides for the steps that shall be undertaken prior to approving a credit increase. Paragraph (c)(2) currently requires the reverification of patron information required under Section 609a.3(2) and (3). The Board proposes to delete the reference to Paragraph (c)(3). We ask the Board to explain in the Preamble of the final-form regulation the reasonableness of deleting this requirement.
These comments likewise apply to Section 609a.5(c), where the Board proposes the same change.
5. Compliance with the RRA.
We ask the Board to revise its response to Question #15 of the Regulatory Analysis Form in order to ensure that the new criteria required by Act 76 of 2012 related to small businesses are met. The Board should provide a citation to the relevant provisions of the federal definition of small business that were reviewed in the development of the rulemaking and an analysis of their applicability or inapplicability to the regulation.
Pennsylvania Public Utility Commission
Regulation #57-297 (IRRC #3038)
Recovery of Fuel Costs by Gas Utilities
January 16, 2014 We submit for your consideration the following comments on the proposed rulemaking published in the November 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 Pennsylvania Public Utility Commission (PUC) to respond to all comments received from us or any other source.
1. Section 53.66. Filing requirements for small gas utilities.—Consistency with statute; Reasonableness; Economic impact.
Interest rate applied to over and under collections
Subsection (d) specifies that the interest rate should be ''as calculated in the manner specified in 66 Pa.C.S. § 1307(f)(5),'' which states, in part:
. . . Refunds to customers shall be made with interest, at the legal rate of interest plus two percent, during the period or periods for which the commission orders refunds, and recoveries from customers shall include interest at the legal rate of interest. . . .PUC Commissioner Cawley invited parties to comment on what they believe is the optimal interest rate, including five historical interest rate options. Valley Energy, Inc. responded that the proposed prime rate for commercial borrowing is the most optimal rate because it most accurately reflects the cost of service associated with net over and under collections. The PA Office of Consumer Advocate (OCA) commented that an asymmetric interest mechanism should be used, meaning a different rate should be used for over collections than under collections.
The PUC, as well as commentators, note that pending legislation (House Bill 1188) might modify the applicable interest rate for 1307(f) utilities; however, passage of this legislation is not guaranteed. The current statute, 66 Pa.C.S. § 1307(f)(5), specifies the rates to be applied to over and under collections. Regarding the interest rates included in the final regulation, the PUC should explain how those interest rates are consistent with the current statute, and are reasonable for both the utility and its customers.
2. Regulatory Analysis Form (RAF)—Regulations impacting small business.
We ask the PUC to revise its response to Question #15 of the RAF in order to ensure that the new criteria required by Act 76 of 2012 related to small businesses are met. The PUC should provide a citation to the relevant provisions of the federal definition of small business that were reviewed in the development of the rulemaking and an analysis of their applicability or inapplicability to the regulation.
Pennsylvania Public Utility Commission
Regulation #57-298 (IRRC #3041)
Household Goods in Use Carriers and Property Carriers
January 22, 2014 We submit for your consideration the following comments on the proposed rulemaking published in the November 23, 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.
1. Implementation procedures; Clarity; Reasonableness.
This proposal amends nine sections of the PUC's existing regulations and also a statement of policy related to evidentiary criteria used to decide motor common carrier applications found at § 41.14. As described by the PUC, the intent of these amendments is to better reflect the competitive marketplace in the household goods carrier industry. The amendment that has garnered the most opposition from the regulated community is the elimination of the requirement that an applicant for a certificate of public convenience to transport household goods need not establish that the proposed service to be provided is responsive to a public demand or need. This amendment is found under the cited statement of policy. The PUC notes that the authority to eliminate the public need requirement has been considered and affirmed by the Pennsylvania Supreme Court. Elite Industries, Inc. v. Pa. P.U.C., 832 A.2d 428 (Pa. 2003).
Regulations have the full force and effect of law and establish a binding norm between an agency and the regulated community. Statements of policy, unlike regulations, provide guidance by which agencies carry or will carry out their duties authorized by state law. A statement of policy does not expand upon the plain meaning of a statute and is not binding upon third parties. We note that the amendments to the statement of policy under this proposal include mandatory provisions that are regulatory in nature. We believe that the opening of the household goods carrier marketplace via amendments to regulations and a statement of policy that has binding provisions could create a confusing and unclear regulatory environment. We ask the PUC to explain why it believes this approach to opening the household goods carrier marketplace is the most appropriate way to implement these changes. While we do not question the policy of the PUC as it moves the household goods carrier industry to a more open and competitive market place, we do question the reasonableness of deregulating via amendments to a statement of policy. In order to create a more stable and less potentially litigious regulatory environment, we suggest that the statement of policy be promulgated as a regulation.
2. Determining whether the regulation is in the public interest; Economic or fiscal impacts; Direct and indirect costs to the Commonwealth and to the private sector; Adverse effects on prices of services or competition; Compliance with the Regulatory Review Act.
Section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under Section 5 of the RRA in the Regulatory Analysis Form (RAF) (71 P. S. § 745.5(a)).
Many of the questions on the RAF address the fiscal impact on the regulated community and small businesses. The PUC's responses to several of these questions are not sufficient to allow this Commission to determine if the regulation is in the public interest. Specifically, we seek answers to the following questions:
• What is the approximate number of prospective household goods carriers that will seek a certificate of public convenience under the new standards established by this rulemaking? (#10)
• What is the regulatory environment in other states, especially states that border on Pennsylvania? Why does the PUC believe this regulation will not affect Pennsylvania's ability to compete with other states? (#12)
• What type of and how many small businesses will be affected? Include a citation to the relevant provisions of the federal definition of small business that were reviewed in the development of the rulemaking and an analysis of their applicability/inapplicability to the regulation. (#15)
• What impact will the regulation have financially and economically on small businesses, especially small businesses that currently have a certificate of public convenience? (#17)
• What are the specific estimated costs and/or savings to the regulated community? How are these amounts derived? We note that some commentators contend that they have invested a significant amount of money in obtaining certificates of public convenience and this rulemaking will render those certificates valueless. We ask the PUC to quantify the average cost associated with obtaining a certificate under the existing rulemaking and address the contentions raised by commentators pertaining to their value under the new rulemaking. (#19)
• Why does the PUC believe that the information requested under #23 and #23a is not applicable to this rulemaking? We ask for complete responses to these questions.
• What is the probable effect on impacted small businesses, especially existing certificate holders? (#24)
• Given the concerns raised by commentators, why does the PUC believe the rulemaking will not have any adverse impacts on small businesses, especially existing certificate holders? (#27)
We ask the PUC to provide more detailed information in the RAF submitted with the final-form regulation in response to these questions.
3. Section 3.381. Applications for transportation of property, household goods in use and persons.—Protection of the public health, safety and welfare; Reasonableness; Implementation procedures; Clarity.
Subsection (c) allows parties to file objections to the approval of applications for passenger or household goods in use authority. New language is being added that limits challenges to household goods in use applications to the fitness of the applicant and whether the applicant ''lacks a propensity to operate safely and legally.'' This phrase lacks clarity. What criteria will the PUC use to determine if an applicant lacks the propensity to operate safely and legally? We recommend that the standards be included in the final-form regulation.
Subsection (e) establishes conditions for approval for passenger and household goods in use authority. Under Subsection (e)(1), applicants that have been approved by the PUC but do not possess a current satisfactory rating issued by the United States Department of Transportation or by a state with safety regulations comparable to the Commonwealth must complete a safety review conducted by PUC staff. The review must be conducted within 180 days of the day of approval of the application. Failure to achieve a satisfactory evaluation will result in the immediate suspension of the certificate of public convenience. We have two concerns with Subsection (e)(1). First, who will determine if the safety regulations of another state are comparable? Has the PUC already determined the adequacy of the safety regulations of every other state? We ask the PUC to explain how this provision will be implemented. Second, we question the reasonableness of this provision and ask how it adequately protects the health, safety and welfare of Pennsylvania citizens. What is the PUC's rationale for conducting safety reviews after a certificate of public convenience has been issued?
GEORGE D. BEDWICK,
Vice Chairperson
[Pa.B. Doc. No. 14-257. Filed for public inspection January 31, 2014, 9:00 a.m.]
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