NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[51 Pa.B. 5499]
[Saturday, August 28, 2021]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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
Issued57-332 Pennsylvania Public Utility Commission
Diversity Reporting for Major Jurisdictional Utilities; Notice of Proposed Rulemaking
51 Pa.B. 3134 (June 5, 2021)
7/19/21 8/18/21 16A-4211 State Board of Barber Examiners
Fees
51 Pa.B. 3342 (June 19, 2021)
7/19/21 8/18/21 60-3 Pennsylvania Turnpike Commission
Traffic Regulations
51 Pa.B. 3347 (June 19, 2021)
7/19/21 8/18/21
Pennsylvania Public Utility Commission Regulation # 57-332 (IRRC # 3304)
Diversity Reporting for Major Jurisdictional Utilities; Notice of Proposed Rulemaking
August 18, 2021 We submit for your consideration the following comments on the proposed rulemaking published in the June 5, 2021 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. Clarity.
This rulemaking adds §§ 51.11—51.15 to 52 Pa. Code Chapter 51. It will require major jurisdictional utilities to file an annual report with the PUC describing their diversity program activity. Section 51.12 defines terms applicable to employee and vendor diversity. Section 51.13 defines terms for reporting employee statistics. Section 51.14 defines terms for reporting vendor statistics. These three sections state the definitions are applicable to §§ 51.11 and 51.15 and the PUC's Diversity Policy Statement at 52 Pa. Code §§ 69.801—69.809. In the Preamble, the PUC explains that including definitions for the regulation and the Policy Statement in one place establishes uniform terms for adherence to the regulation and the Policy Statement and avoids the potential for disjunction between one set of definitions for the regulation and a separate set for the Policy Statement. We have several questions and concerns with this approach and the three sections for definitions.
First, the definitions in all three sections are applicable to this regulation and the entirety of the Policy Statement and none of the definitions in a particular section are repeated in another section. What is the need for three separate sections for definitions? To improve the clarity of the regulation, we suggest that §§ 51.12—51.14 be combined into one section for definitions.
Second, the PUC acknowledges that some of the terms defined in §§ 51.12—51.14 are not used in the substantive sections of the rulemaking. However, those definitions are used in the Policy Statement and also the Demographics of Utility Workforce form that must be filed with the PUC. A commentator has stated that including unused terms in the rulemaking creates a compliance obligation that does not exist. We point out that the inclusion of definitions in a regulation that are not used in that regulation conflicts with guidance provided in § 2.12 of the PA Code & Bulletin Style Manual. That section, relating to definitions, states the following: ''If a definition does not serve a purpose or is not used in the chapter, do not include it.'' We suggest that the PUC follow the guidance above and delete terms that are not specifically used in §§ 51.11 and 51.15 of the regulation or the annual report.
Third, the use of substantive provisions in definitions is inconsistent with § 2.11(e) of the PA Code & Bulletin Style Manual. The last sentence in each of the following definitions is substantive and should be moved to the body of the regulation or Policy Statement; LGBTQ, person with disabilities, and operate.
Fourth, the PUC states in the Preamble that Policy Statement § 69.809, related to fillings, will no longer be needed after this regulation becomes effective. If the Policy Statement is amended to delete § 69.809, the definition section or sections of the final regulation should be amended to reflect the correct citation to Policy Statement.
2. Implementation procedures.
Commentators have raised two issues related to implementation of the rulemaking that merit further consideration and explanation by the PUC. First, commentators have suggested that the documentation and reports that are required to be filed with the PUC be confidential. How will the documentation and reports be treated by the PUC? Will the public have access to the information? This should be explained in the Preamble to the final-form regulation.
Second, some commentators are not currently collecting the information that will be required to be reported. They state that they will need time to establish processes to collect the required data. These commentators have suggested the implementation of the regulation begin with the collection of data for the time period of January 1, 2022 through December 31, 2022 and that the reporting obligation begin with the filing of a utilities annual report in 2023. We ask the PUC to consider this suggestion and amend the implementation timeline as suggested by commentators or explain why it is not reasonable or appropriate to do so.
3. Section 51.12. Definitions applicable to employee and vendor diversity.—Implementation procedures; Clarity.
Diversity
A commentator states this definition includes concepts of equity and inclusion, but these concepts are not specifically named. They suggest that this definition be amended from ''diversity'' to ''diversity, equity and inclusion'' and that the amended definition be used throughout the regulation. If the PUC believes these amendments would increase workforce diversity and participation by diverse groups at major jurisdictional utilities, we suggest that the final-form regulation be amended accordingly.
Major jurisdictional utility
The last sentence of this definition states that the term, ''. . .includes major telecommunications utilities with 50,000 or more access lines.'' A commentator states that 66 Pa.C.S. §§ 3104(f) and 3105(e) limit the reports the PUC can require from local exchange telecommunications companies. We ask the PUC to explain how the reporting requirements of this rulemaking are consistent with the statutory provisions cited by the commentator in the Preamble to the final-form rulemaking.
LGBTQ and Person with disabilities
A commentator has suggested that language be added to these definitions that indicate self-identification ''shall be confidential and voluntary on the part of the employee.'' We ask the PUC to consider this suggestion. If the language is added to the regulation, it should be added to the body of the regulation because the use of substantive provisions in definitions is inconsistent with § 2.11(e) of the PA Code & Bulletin Style Manual.
4. Section 51.13. Definitions for reporting employee statistics.—Clarity.
Black or African-American
This term is defined as follows: ''A person having origins in any of the black racial groups of Africa.'' A commentator has noted that the other racial groups defined in this section include the phrase ''not Hispanic or Latino'' in parentheses after the named group. The commentator suggests that ''not Hispanic or Latino'' be added to this term or deleted from the definitions of the other racial groups. If the PUC believes the suggestions of the commentator improve the clarity of the regulation and the Demographics of Utility Workforce form that must be filled under § 51.15(a)(3), we encourage this change to be made to the final-form rulemaking.
5. Section 51.15. Diversity reporting requirements.—Statutory authority; Implementation procedures; Clarity.
Subsection (a)(3) specifies the type of information that must be reported on the Demographics of Utility Workforce form. A commentator suggests the subsection be amended to include the defined term ''LGBTQ'' because that term is used on the noted form. We agree with the commentator and ask the PUC to ensure that all categories of information required by the Demographics of Utility Workforce form be included in this subsection of the regulation.
Subsection (c) states the following: ''The Commission will use all available remedies to ensure compliance including fines.'' What is the PUC's statutory authority for requiring compliance with this regulation and the possible imposition of fines for non-compliance? That authority should be cited in the final-form regulation and the Preamble. Also we recommend that the type of possible corrective action or enforcement and the amount of potential fines be included in the final-form regulation.
State Board of Barber Examiners Regulation
# 16A-4211 (IRRC # 3306)
Fees
August 18, 2021 We submit for your consideration the following comments on the proposed rulemaking published in the June 19, 2021 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 Barber Examiners (Board) to respond to all comments received from us or any other source.
1. Economic or fiscal impacts; Reasonableness.
Under Section 14(b) the act of June 19, 1931 (P.L. 589, No. 202), known as the Barbers' License Law (act), the Board is required to support its operations from the revenue it generates from fees, fines and civil penalties. 63 P.S. § 564(b). Further, the act provides that the Board shall increase fees when revenue is not sufficient to meet expenditures over a two-year period. The revenue generated from increased fees is required to meet or exceed projected expenditures.
The Board states in the Preamble that it has been operating with a deficit balance since Fiscal Year (FY) 2016-2017. The Board explains that majority of its general operating expenses are borne by the licensee population through the biennial renewal of licenses while a small percentage comes from application fees. Therefore, this rulemaking proposes graduated increases beginning in 2022 with a second increase in 2024 for ten application and five biennial renewal fees for barbers, barber shop managers, barber teachers, barber shops and barber schools. The proposed fee schedule in Section 3.103 (relating to fees) will allow the Board to meet or exceed projected expenditures through at least FY 2024-2025.
We have two concerns.
First, the majority of fees in the first phase of the proposed fee schedule are increased 9% to 47% over the current fee schedule. However, the application fees for initial licensure of barbers, barber shop managers and barber teachers are increased 200% over the existing fees. We ask the Board to explain why the increase for these three initial licensure fees is reasonable.
Second, the Board does not explain how it calculated the graduated increases for biennial renewal fees which will take effect on May 1, 2022 and May 1, 2024, and the application fee increases which will take effect on July 1, 2024. We ask the Board to explain how these increases were determined, and why they are appropriate and reasonable.
We will review the responses to these concerns when evaluating the fiscal impact and reasonableness of the fee schedule when determining if the regulation is in the public interest.
2. Regulatory Analysis Form (RAF)—Economic or fiscal impacts.
In response to RAF Question # 21, the Board states that it will incur a minimal cost to implement this regulation. However, the Board does not estimate this cost in RAF Question # 23. We ask the Board to estimate its costs in the RAF submitted with the final-form regulation or explain why it is not possible to do so.
In response to RAF Question # 28, the Board submitted Fee Report Forms for initial licensure and miscellaneous application fees. However, Fee Report Forms were not submitted for processing biennial renewal applications for barbers, barber shop managers, barber teachers, barber shops and barber schools. We ask the Board to include Fee Report Forms for all fees in Section 3.103 when it submits the final-form regulation.
Pennsylvania Turnpike Commission Regulation
# 60-3 (IRRC # 3307)
Traffic Regulations
August 18, 2021 We submit for your consideration the following comments on the proposed rulemaking published in the June 19, 2021 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 Turnpike Commission (Commission) to respond to all comments received from us or any other source.
1. Compliance with the provisions of the RRA or the regulations of IRRC in promulgating the regulation; Possible conflict with statutes and regulations.
Section 5.2 of the RRA (71 P.S. § 745.5b) directs IRRC to determine whether a regulation is in the public interest. When making this determination, IRRC considers criteria such as economic or fiscal impact and reasonableness. To make that determination, IRRC must analyze the text of the proposed regulation and the reasons for the new or amended language. IRRC 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)).
The information contained in the RAF submitted by the Commission at the proposed stage of review is not sufficient to allow IRRC to determine if the regulation is in the public interest. RAF # 15 requires the promulgating agency to identify the types and number of persons, businesses, small businesses and organizations which will be affected by the regulation. The Commission's response does not address whether any of the approximately 800 registered vendors/businesses with ''Class 9'' accounts as reported for 2018-2019 would be considered small businesses, and if so, how many.
In the Preamble to the proposed regulation, the Commission states that it is funded primarily by tolls and bonds. It explains that a fiscal note was not submitted because there is no direct cost to the Commonwealth or local governments as a result of these proposed regulations. Under the Administrative Code of 1929 Section 612, the Office of the Budget must prepare a fiscal note for regulatory actions and administrative procedures of the administrative departments, boards, commissions, or authorities, receiving money from the State Treasury (71 P.S. § 232), and these entities must provide a fiscal note with every regulatory action and administrative procedure published in the Pennsylvania Bulletin (4 Pa. Code § 7.231).
4 Pa. Code § 7.234(a) (relating to Responsibilities) establishes the procedures for agencies that receive funds from the State Treasury and are, therefore, required to submit an RAF to IRRC under the RRA and those that are not required to submit an RAF to IRRC for a regulatory action or administrative procedure. Agencies that are required to submit an RAF, must provide one copy of the RAF and one copy of the regulatory action or administrative procedure, or changes thereto, to the Office of the Budget for review prior to it being deposited with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin (4 Pa. Code § 7.234(b) and (c)).
The Commission reports that it does not receive appropriations from the Commonwealth other than those that are statutorily provided (oil company franchise tax revenues and motor license registration fee revenues in the form of annual capital contributions, which are the revenue stream for its bonds). We ask the Commission to explain how its Fiscal Impact statement is consistent with Section 612 of the Administrative Code of 1929, its accompanying regulations at 4 Pa. Code §§ 7.231—7.234 and the RRA.
2. Section 601.13. Evasion of fare.—Clarity; and Possible conflict with or duplication of statutes or existing regulations.
The Commission proposes to amend this section by referencing the language and penalties set forth in § 6110.1 (relating to Fare evasion) of the Vehicle Code and removing language that refers to paper toll tickets to reflect the conversion to a cashless tolling system.
Subsection (a)
This subsection is being amended to read, in part, ''Fines for evasion of fare, attempted evasion of fare and affirmative action are imposed by 75 Pa.C.S. §§ 6110.1(a) and (b) (relating to penalty and affirmative action).'' (Emphasis added.)
Section 601.13(b) identifies the actions that constitute evasion of fare or attempted evasion of fare. An individual who violates a Commission regulation under this subsection commits a summary offense under 75 Pa.C.S.A. § 6110.1(a) of the Vehicles Code. We believe it would add clarity to the regulation if the actions that constitute ''affirmative action'' as listed in 75 Pa.C.S.A. § 6110.1(f) were included in the regulation.
In § 601.13(b)(2), the Commission proposes to delete the existing language and insert the following: ''Operating a vehicle on the Turnpike System without a valid Electronic toll collection device and/or obstructing or covering the vehicle's license plate.'' (Emphasis added.)
The Transportation Code (Title 74) defines ''Electronic toll collection'' as ''A system of collecting tolls or charges that is capable of charging an account holder for the prescribed toll by electronic transmission of information between a device on a vehicle and a device in a toll lane at a toll collection facility.'' 74 Pa.C.S.A. § 8102
The term ''Electronic toll collection device'' is not defined statutorily or in the proposed regulation. It is unclear what is meant by a ''valid'' Electronic toll collection device. We ask the Commission, in a revised Annex to the final-form rulemaking, to define the term ''Electronic toll collection device'' and explain what makes a device valid.
Also, § 601.13(b)(2) contains non-regulatory language. The Commission should delete ''and/or'' and make each prohibition a separate paragraph. See § 6.15(b) (relating to Words and phrases) Pennsylvania Code and Bulletin Style Manual.
The Commission proposes to amend Section 601.13(b)(3) by deleting the existing language and replacing it with ''Operating a vehicle on the Turnpike System without a license plate and valid vehicle registration.'' (Emphasis added) Is it the Commission's intent that both conditions must be present to be considered an attempted evasion of fare? We ask the Commission to clarify the intent of this proposed language.
3. Section 601.14. Over-dimensional/overweight vehicles.—Clarity.
In Subsection (a), the Commission proposes to delete the directory information for the Commission's Safety Department. Subsections (a), (d)—(f) refer to the policies and procedures of the Commission. The Commission's website provides additional information pertaining to Special Hauling Permit requirements such as when an escort vehicle is required, when the Engineering Department's approval is needed and when a Pennsylvania State Police escort is required. We ask the Commission to explain why these additional requirements are not part of the regulation. The Commission should include in a revised Annex a statement indicating that the policies and procedures necessary to request and obtain a Special Hauling Permit can be accessed via the Commission's web site.
4. Miscellaneous.
For consistency with the statutory definition of ''Electronic toll collection,'' should the term ''appropriate'' in proposed § 601.13(b)(4) be replaced with ''prescribed?''
GEORGE D. BEDWICK,
Chairperson
[Pa.B. Doc. No. 21-1398. Filed for public inspection August 27, 2021, 9:00 a.m.]
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