NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[48 Pa.B. 2030]
[Saturday, April 7, 2018]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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
Comment PeriodIRRC Comments Issued 7-534 Environmental Quality Board
Triennial Review of Water Quality Standards
47 Pa.B. 6609 (October 21, 2017)2/16/18 3/19/18 7B-9 Department of Conservation and Natural Resources
Snowmobile and All-Terrain Vehicle Grants
48 Pa.B. 515 (January 20, 2018)2/20/18 3/22/18 11-256 Insurance Department
Medicare Supplement Insurance Minimum Standards
48 Pa.B. 517 (January 20, 2018)2/20/18 3/22/18
Environmental Quality Board Regulation # 7-534 (IRRC # 3182)
Triennial Review of Water Quality Standards
March 19, 2018 We submit for your consideration the following comments on the proposed rulemaking published in the October 21, 2017 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 Environmental Quality Board (EQB) to respond to all comments received from us or any other sources.
1. Determining whether the regulation is in the public interest.
Section 5.2 of the RRA directs the Independent Regulatory Review Commission (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 need. 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 § 745.5(a) in the Regulatory Analysis Form (RAF).
Comparison to other states
RAF Question # 12 asks how this regulation compares to other states and how it will affect Pennsylvania's ability to compete with other states. This proposal includes updates to Table 5 of § 93.8(c), relating to human health and aquatic life criteria for toxic substances. The updates are based on Environmental Protection Agency (EPA) recommendations issued in 2015 for 94 pollutants. Several commentators have noted that EQB is not obligated to incorporate the 2015 EPA recommendations and that EPA regulations found at 40 C.F.R. § 131.11(b) provide a state with flexibility on how it chooses to meet EPA requirements. Commentators point out that other states have developed a regulatory framework more reflective of their own environment. In the Preamble, EQB explains that for the 94 individual recommended criteria updates contained in EPA's 2015 guidance, it is adopting 73 recommendations, adding 11 new compounds and retaining 10 that are the same as EPA's. We ask EQB to provide a comparison of its approach to adopting the 2015 EPA guidance on human health water quality criteria to other states surrounding Pennsylvania. Have those states adopted the EPA guidance or taken another approach allowed by 40 C.F.R. § 131.11(b)?
Cost of compliance
RAF Question # 19 states that the costs and savings to the regulated community cannot be determined because each activity that will result in pollution to waters in the Commonwealth must be reviewed based on site-specific considerations. The Preamble indicates the proposed rulemaking may impose additional costs on the regulated community. Commentators have expressed concern with the lack of financial data related to costs imposed by this rulemaking. A particular concern raised relates to the revised criteria for ammonia found in Table 3 of § 93.7(a), relating to specific water quality criteria. We ask EQB to consult with members of the regulated community to gain a better understanding of the fiscal impact this rulemaking will have and to include a more complete fiscal analysis with the final-form rulemaking.
2. Section 93.7. Specific water quality criteria.—Reasonableness; Implementation procedures; Fiscal impact.
Ammonia
EQB is proposing to replace the current statewide aquatic life use criteria for ammonia found in Table 3 with the new federally recommended criteria. A commentator has stated the new criteria are designed to protect a sensitive mussel population that is only present in 15 of Pennsylvania's 67 counties. They believe that implementing the criteria on a statewide basis would be costly to the regulated community and provide no benefit to the environment. We ask EQB to explain the need to impose the more stringent Federal standard on a statewide basis. Has EQB considered a more site-specific approach to regulating ammonia?
Bacteria
EQB is proposing to amend its existing bacteria criteria by replacing the current fecal coliform based criteria for water contact sports during the swimming season (May 1 to September 30) with 2012 EPA Recreational Water Quality Criteria recommendations. We note that the existing regulations currently recognize a swimming season and a non-swimming season, and there are different standards for both. Some commentators have suggested that having different standards for each season could be confusing to the regulated community. We ask EQB to explain how it currently implements this standard and if it has had any problems with implementation of it. Will the new criteria require a different implementation strategy? If so, what will be required?
Other commentators are concerned that natural sources of bacteria could make it difficult for dischargers to meet the more stringent standard being proposed. Suggestions by these commentators include: an additional feasibility study conducted by the Department of Environmental Protection; review of scientific material submitted by a commentator; and adding a provision to the rulemaking to allow a discharger to provide scientific data to show they are not the cause of elevated levels of bacteria. We ask EQB to work with these commentators to gain a better understanding of their concerns and, if appropriate, amend the rulemaking accordingly.
3. Section 93.8c. Human health and aquatic life criteria for toxic substances.—Implementation procedures; Clarity.
Subsection (a)
A commentator has concerns with the following language that is being added to this subsection, ''. . . instream measurements or best estimates, representative of the median concentrations or conditions of the receiving stream for the applicable time period and design conditions.'' They question how it will be implemented. We agree that the new language, as written, would be difficult to implement. In the final-form regulation, we ask EQB to amend the regulation to clarify implementation of this requirement.
Table 5 Water Quality Criteria for Toxic Substances
As noted above, EQB is adopting updated criteria for 73 compounds, adding 11 new human health compounds and retaining 10 criteria that are the same as EPA's recommended criteria. EQB states in the Preamble that it reviewed the EPA recommendations and determined the criteria are scientifically sound and applicable to the protection of Pennsylvania waters. Commentators argue that EPA used conservative default values when making its determinations and that national standards are not necessarily applicable to Pennsylvania waters. In the Preamble to the final-form regulation, we ask EQB to explain why it believes the standards developed by EPA are appropriate for the protection of Pennsylvania waters instead of more site-specific standards or other scientifically defensible criteria.
4. Section 93.8d. Development of site-specific water quality criteria.—Implementation procedures; Clarity.
The following language is being added to Subsection (c): ''The Department may require the use of the Biotic Ligand Model (BLM) for the development of new or updated site-specific criteria for copper in freshwater systems.'' A commentator has asked when the BLM will be required and whether other scientifically defensible methods will be allowed. We agree that EQB should identify in the final-form regulation the circumstances when the use of the BLM will be required. We also ask if other scientifically defensible methods were considered and why EQB believes the BLM is appropriate.
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Department of Conservation and Natural Resources Regulation # 7B-9 (IRRC # 3188)
Snowmobile and All-Terrain Vehicle Grants
March 22, 2018 We submit for your consideration the following comments on the proposed rulemaking published in the January 20, 2018 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 Department of Conservation and Natural Resources (Department) to respond to all comments received from us or any other source.
Section 53.4. Grant selection process and criteria.—Clarity, feasibility and reasonableness of the regulation.
In part, Act 97 of 2016 created the ATV (All-Terrain Vehicle) Management Restricted Account into which all monies generated from ATV activities are deposited, and then from which monies are dispersed as grants that may only be used for ATV projects. Under this proposed regulation, the grant program funds projects for the planning, acquisition, rehabilitation or development of ATV trails.
A commenter raises concerns that ATV registration monies are being channeled toward non-trail-providing motocross facilities. The commenter suggests that the grant selection process and criteria be revised to include further qualifying criteria that prioritize projects providing ATV riding areas and trail mileage. We ask the Department to clarify how the grant selection process and criteria in the final-form regulation ensure that all funds from the ATV Management Restricted Account will be used for ATV projects. The Department should also explain the reasonableness of providing monies from the ATV Management Restricted Account to non-trail-providing motocross facilities if such facilities are eligible for grants under the final-form regulation.
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Insurance Department Regulation # 11-256
(IRRC # 3189)
Medicare Supplement Insurance Minimum Standards
March 22, 2018 We submit for your consideration the following comments on the proposed rulemaking published in the January 20, 2018 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 89.777b. Standard Medicare supplement benefit plans for 2010 Standardized Medicare supplement benefit plan policies or certificates issued or delivered on or after June 1, 2010.—Clarity; Implementation procedures.
Relating to Paragraph (f)(7), Highmark requested a clarification of the Department's intent on the enrollment for a person eligible for Medicare Part B in 2019 and whether that person can enroll in the high deductible Plan G in 2019 or must wait until January 1, 2020. We ask the Department to explain in the final-form submittal the enrollment process envisioned and, to the extent necessary, to clarify the language of the regulation.
2. Section 89.781. Filing and approval of policies and certificates and premium rates.—Consistency with statute; Need; Reasonableness.
The Preamble states, in part:
Proposed § 89.781(g) (relating to filing and approval of policies and certificates and premium rates) prohibits the practice referred to as ''ladle rating,'' when, for each year of age attained by an enrollee, the rate decreases until the insured reaches an age at which rates begin to increase significantly each year as age increases.The response to Regulatory Analysis Form (RAF) question 15 states the Department is not currently aware of any company that practices ''ladle rating.''
Subsection (g) does not directly use the term ''ladle rating.'' The language added as Subsection (g) addresses ''attained age rating'' by not allowing ''grouping of attained ages greater than 1 year.''
The Insurance Federation of Pennsylvania (IFP) agrees that ladle rating is not currently used. However, the wording of Subsection (g) would prohibit not just ladle rating, but also ''attained age rating greater than one year,'' which is used. IFP believes the prohibitions imposed by Subsection (g) are not supported by evidence and would affect rate filings. IFP further questions the Department's citation to its statutory authority to add Subsection (g).
We recommend that the Department meet with affected insurers to discuss whether Subsection (g) is needed and, if so, how to best amend this subsection. In addition, we ask the Department to explain in the final-form regulation submittal its statutory authority to enforce this provision.
GEORGE D. BEDWICK,
Chairperson
[Pa.B. Doc. No. 18-547. Filed for public inspection April 6, 2018, 9:00 a.m.]
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