NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[26 Pa.B. 5181] The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, October 3, 1996, and took the following actions:
Regulations Approved:
Environmental Quality Board # 7-288: Stream Redesignations; Kettle Creek, et al (amends 25 Pa. Code Chapter 93)
State Board of Certified Real Estate Appraisers # 16A-705: Examination Fees (amends 49 Pa. Code § 36.6 Fees)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5103 (October 26, 1996).)
State Board of Physical Therapy # 16A-654: Examination Fees (amends 49 Pa. Code § 40.5)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5110 (October 26, 1996).)
State Architects Licensure Board # 16A-412: Examination Fees (amends 49 Pa. Code §§ 9.3, 9.44, 9.82, 9.85, 9.86, 9.111--.114, 9.117, and 9.118)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5101 (October 26, 1996).)
State Board of Certified Real Estate Appraisers # 16A-702: Definitions (amends 49 Pa. Code Chapter 36)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5105 (October 26, 1996).)
State Board of Medicine/State Board of Osteopathic Medicine # 16A-532: Respiratory Care Practitioners (amends Chapters 18 and 25 of 49 Pa. Code)
State Registration Board for Professional Engineers, Land Surveyors and Geologists # 16A-473: General Revisions (amends 49 Pa. Code §§ 37.1, 37.18, 37.58, 37.59 and 37.81--37.83 and adds sections 37.36 and 37.37)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5106 (October 26, 1996).)
Pennsylvania Public Utility Commission # 57-144: Limousine Service Supplemental (amends 52 Pa. Code Chapter 29 by amending sections 29.333(b) and 29.333(c))
Pennsylvania Public Utility Commission # 57-153: Taxicab Medallion Program (amends 52 Pa. Code Chapter 30)
Pennsylvania Public Utility Commission # 57-173: Termination of Utility Service to Health Care Facilities (adds sections 55.101--55.115 to 52 Pa. Code Chapter 55)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5111 (October 26, 1996).)
Orders Have Not Been Issued for the Following Approved Regulations:
State Board of Psychology # 16A-630: Child Abuse Reporting Requirements
State Board of Osteopathic Medicine # 16A-535: Child Abuse Reporting Requirements
State Board of Podiatry # 16A-442: Child Abuse Reporting Requirements
State Board of Medicine # 16A-492: Child Abuse Reporting Requirements
State Board of Nursing # 16A-515: Child Abuse Reporting Requirements
State Board of Chiropractic # 16A-436: Child Abuse Reporting Requirements
State Board of Dentistry # 16A-462: Child Abuse Reporting Requirements
State Board of Funeral Directors # 16A-484: Child Abuse Reporting Requirements
State Board of Optometry # 16A-523: Child Abuse Reporting Requirements
State Board of Physical Therapy # 16A-653: Child Abuse Reporting Requirements
State Board of Occupational Therapy Education and Licensure # 16A-671: Child Abuse Reporting Requirements
State Board of Examiners in Speech-Language and Hearing # 16A-682: Child Abuse Reporting Requirements
State Board of Social Work Examiners # 16A-691: Child Abuse Reporting Requirements
Regulation Disapproved:
Pennsylvania Public Utility Commission # 57-149: Small Water and Sewer Company Rate Methodologies (amends 52 Pa. Code Chapter 53)
Pennsylvania Public Utility Commission # 57-150: Gas Transportation Tariffs (amends 52 Pa. Code Chapter 60)
Regulation Deemed Approved under § 5(b.3) of the Regulatory Review Act--Effective September 24, 1996
Environmental Quality Board # 7-295: General Conformity (amends 25 Pa. Code Chapter 127, Subchapter J)
Regulation Deemed Approved under § 5(b.3) of the Regulatory Review Act--Effective October 4, 1996
State Board of Certified Real Estate Appraisers # 16A-703: Fees; Application Process (amends section 36.203 of 49 Pa. Code by adding new subsections (c) and (d) and deleting the reapplication fee under section 36.6)
(Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 5104 (October 26, 1996).)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Environmental Quality Board--Stream Redesignations; Kettle Creek, et al.; Doc. No. 7-288
Order On August 29, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend certain stream designations in the Department of Environmental Protection's (DEP) regulations in 25 Pa. Code Chapter 93. Chapter 93 sets forth part of Pennsylvania's water quality standards which implement The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402). Section 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-20) grants the EQB the authority to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law. The proposed regulation was published in the September 9, 1995 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 3, 1996.
The purpose of the Special Protection Waters Program is to maintain existing water quality in streams, to preserve exceptionally good quality waters, and waters that represent outstanding environmental resources. In determining whether streams and waterbodies are to be included in the Special Protection Waters Program, and meet the definition of ''High Quality Waters'' (HQ) or ''Exceptional Value Waters'' (EV) in 25 Pa. Code § 93.3, the DEP utilizes ''Special Protection Waters Selection Criteria'' found in its ''Special Protection Waters Implementation Handbook.''
The proposed changes are intended to provide the appropriate level of water quality protection for the streams proposed for redesignation, including those streams which possess environmental features meriting additional protection.
The stream redesignations affect streams in the following seven counties: Clinton, Potter, Tioga, Blair, Centre, Dauphin and McKean. As part of its ongoing review of water quality standards, the DEP recommended that the majority of the streams in this proposed rulemaking be upgraded to either HQ or EV. The streams include Kettle Creek and Cross Fork, Laurel Run, Wallace Run, Lick Run, Rattling Creek, Big Fill Run and the east branch of Tunungwant Creek. The EQB also recommended that some streams retain the existing water quality designation as the sample evidence indicated that they were already appropriately designated.
We did not file any comments on the proposed regulation, nor did we receive any negative recommendations on the proposed or final-form regulation from either the House or Senate Environmental Resources and Energy Committees. The final-form regulation contains one amendment which clarifies the location of the unnamed tributary to Wallace Run as being located at Gum Stump in Centre County. The reference is being included in the EV waters designation for the upper reach of the Wallace Run basin in Centre County.
The Pennsylvania Independent Petroleum Producers Association (Association) commented on the proposed changes relative to the east branch Tunungwant Creek in McKean County. The Association noted that generally streams in oil and gas producing regions have remained of high quality and that the proposed changes may adversely affect new and expanding discharges. The Association expressed its strong objection to the ''continued upgrading of our streams.''
The DEP responded to this comment by noting that it is not proposing any new regulatory restrictions on the existing oil and gas production operations within the affected basins because of the HQ or EV Waters designations. The existing operations are currently required to obtain and maintain applicable DEP permits, use best management practices, and must comply with applicable laws and regulations including The Clean Streams Law, the Oil and Gas Act, the Oil and Gas Conservation Act and these regulations. However, new or expanding oil and gas operations will be required to demonstrate that the proposed expansion or new operation will not have an adverse impact on the basin's water quality.
The DEP acknowledges that it is unable to predict all the future costs or impacts that will be incurred by an oil and gas operator as the result of an HQ or EV Waters redesignation. However, DEP notes that it encourages creative planning and discharge alternatives, and will work with the operators in order to develop options that will help them comply with the regulatory requirements.
We have reviewed this regulation and find it to be in the public interest. The proposed stream redesignations are consistent with the applicable water quality criteria. Overall, the quality of Pennsylvania's waters should benefit through more appropriate protection for the particular streams, which are an important part of the Commonwealth's natural resources.
Therefore, It Is Ordered That:
1. Regulation No. 7-288 from the Environmental Quality Board, as submitted to the Commission on September 3, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Certified Real Estate Appraisers--Examination Fees; Doc. No. 16A-705
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Certified Real Estate Appraisers (Board). This rulemaking would amend 49 Pa. Code § 36.6 Fees to increase the fee for applicants taking the certified real estate appraiser examination from $50 to $100. The authority for this regulation is found in sections 812.1(b) and (e) of The Administrative Code of 1929 (71 P. S. § 279.3a) and sections 5(6) and 9 of the Real Estate Appraisers Certification Act (63 P. S. §§ 457.5(6) and 457.9). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The fee increase is effective January 1, 1997. The Board found that public comment is not needed because section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a, Administration of Examinations) requires that candidate fees cover the cost of the examination. The fee, established by the regulation, represents the contract cost negotiated by the Commonwealth for examination services.
Candidates taking the examination on and after January 1, 1997, will be charged the new fee of $100. The fee covers only the cost of the testing service and is paid directly to the contractor, not the Board. The Board expects that approximately 300 candidates will take the examination each year based upon the number who took the examination in 1995.
The Senate Consumer Protection and Professional Licensure Committee approved this final-omitted rulemaking on September 25, 1996. The House Professional Licensure Committee also approved this final-omitted rulemaking on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. The contract for administration of the examination was awarded through a competitive bidding process and the resulting fee covers the cost of the examination consistent with section 812.1 of The Administrative Code of 1929.
Therefore, It Is Ordered That:
1. Regulation No. 16A-705 from the State Board of Certified Real Estate Appraisers, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Physical Therapy--Examination Fees; Doc. No. 16A-654
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Physical Therapy (Board). This rulemaking would amend 49 Pa. Code § 40.5. The authority for this regulation is found in section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a) and section 8 of the Physical Therapy Act (63 P. S. § 1308). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This rulemaking increases the testing fees for candidates taking the physical therapist examination effective as of March 1997. Section 812.1 of The Administrative Code of 1929 requires that examinations for professional licensure be prepared and administered by a professional testing organization under contract to the appropriate professional board. The Board has entered into a new testing contract with Professional Examination Services (PES) which will implement computer-based testing. Computer-based examinations are developed and administered on, graded by computer. The new contract will result in higher costs for examination services beginning in March 1997. Consequently, the Board promulgated this final-omitted regulation to increase the fee in the existing regulation to reflect the fee in the new contract.
Section 40.5 of the existing regulation lists the fee for the physical therapy examination as $245. The proposed change to this section of the regulation increases the fee for the examination to $260, an increase of $15. The fee increase reflects the increased administration costs for the examination under the Board's contract with PES.
The Senate Consumer Protection and Professional Licensure Committee voted to approve the regulation on September 25, 1996. The House Professional Licensure Committee voted to approve the regulation on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. This amendment will conform the Board's regulation on examination fees to the fee change mandated by the new contract between the Commonwealth and PES.
Therefore, It Is Ordered That:
1. Regulation No. 16A-654 from the State board of Physical Therapy, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Architects Licensure Board--Examination Fees; Doc. No. 16A-412
Order On September 13, 1996, the Independent Regulatory Review Commission (Commission) received this regulation from the State Architects Licensure Board (Board). This rulemaking would amend 49 Pa. Code §§ 9.3, 9.44, 9.82, 9.85, 9.86, 9.111--.114, 9.117 and 9.118. The authority for this regulation is section 6(c) of the Architects Licensure Act (63 P. S. § 34.6(c)) and section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This regulation will delete existing provisions relating to the written Architect Registration Examination (ARE), add language relating to a new computerized ARE format, change the categories that comprise the ARE, and increase examination fees. The Board found that public comment is not needed because section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a. Administration of Examinations) requires candidate fees to cover the cost of the examination.
The Board uses the examination of the National Council of Architectural Registration Boards (NCARB). NCARB consists of the licensing boards of all 50 states, the District of Columbia, and United States territories and possessions. Each state has two voting members on NCARB.
The four-day written ARE was given for the last time in June of 1996. Beginning in February of 1997, NCARB will offer the ARE in a computerized format. The computerized examination will be offered year-round at a network of test centers provided by the contractor, Chauncey Group International, under contract with NCARB. Candidates will be able to pay for the examination by credit card, voucher or cash at the time the examination is taken. Computer-based examinations can be taken at any available location where the ARE is administered. The Chauncey Group will use eight testing centers in Pennsylvania located Statewide.
The amendments to § 9.3 alter examination categories and establish new examination fees. The current two categories of the examination for site design are proposed to be combined and renamed ''Site Planning.'' The current single category for building design is proposed to be split into two categories: ''Building Planning'' and ''Building Technology.'' The cost of taking any portion of the examination and the total examination will increase substantially. The cost for taking the entire ARE will increase from the current $485 to the proposed $980. The fees will be the actual charges of NCARB to schedule a candidate to take the examination. The current categories and fees in section 9.3. Fees, and proposed amendments are shown below.
Current Category Current Proposed Category Proposed Fee Amount Fee Amount Pre-Design $ 45 Pre-Design $ 92 Site Design-Graphic 70 Site Planning 129 Site Design-Written 45 Building Design 100 Building Planning 155 Building Technology 145 Structural-General/Long
Span45 General Structures 108 Structural-Lateral Forces 45 Lateral Forces 79 Mechanical, Plumbing,
Electrical and Life Safety
Systems45 Mechanical and Electrical 83 Materials and Methods 45 Materials and Methods 90 Construction Documents
and Services45 Construction Documents and
Services99 Registered Architect Exam
Review (Optional)75 Entire Examination 485 Entire Examination 980 Section 9.118 is proposed to be amended to provide a transition for candidates who already passed some categories of the current written examination and will need to successfully complete new computerized categories for registration. The remaining proposed amendments reflect changes in the available dates and locations of the examinations, procedures to schedule and take the examinations, and deletions of provisions that apply to the written examination.
On September 25, 1996, the Senate Consumer Protection & Professional Licensure Committee voted to approve this regulation. On October 1, 1996, the House Professional Licensure Committee also voted to approve this regulation.
In 1995, approximately 281 candidates took the examination in Pennsylvania. The costs of the examination will increase substantially. As stated above, the cost for taking the entire examination will increase from $485 to $980. NCARB's charge per candidate is the same in all of the states. The benefits of the proposed amendments are an increase in the frequency and availability of the examination and the maintenance of a uniform National examination. Candidates will also be able to pay for the examination by credit card, voucher or cash at the time the examination is taken.
We have reviewed this regulation and find it to be in the public interest. While we believe the fee increase is substantial, the fees established by the regulation represent the contract costs with NCARB for examination services provided by a professional testing service. The Board is required by statute to establish fees to cover the cost of the examinations. Furthermore, Pennsylvania has two voting members in NCARB, so Pennsylvania had some say in the collective decision to use computer-based examinations.
Therefore, It Is Ordered That:
1. Regulation No. 16A-412 from the State Architects Licensure Board, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Certified Real Estate Appraisers--Definitions; Doc. No. 16A-702
Order On November 28, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Certified Real Estate Appraisers (Board). This rulemaking would amend 49 Pa. Code Chapter 36. The authority for this regulation is section 3 of the Assessors Certification Act (63 P. S. § 458.3). The proposed regulation was published in the December 9, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The proposal adds two definitions and a new section titled ''Scope of Practice'' to the existing regulations for Certified Pennsylvania Evaluators (CPE). CPEs were established by Act 28 of 1992 (act). The act requires all assessors, persons responsible for the valuation of real property for ad valorem taxation purposes, to be certified as CPEs. To become a CPE, individuals must complete a minimum of 90 hours of basic courses of study of the appraisal assessing profession and successfully complete a comprehensive examination covering all phases of the appraisal process and the assessment function established by assessment statutes.
The Board proposed this rulemaking to clarify that assessors and revaluation company personnel who receive certification are certified to establish the value of real property for tax assessment or governmental purposes only. The Board added definitions for the terms ''Ad valorem taxation purposes'' and ''real estate tax assessment'' because it is aware of instances where CPEs have conducted nonassessment related appraisals. These types of appraisals can only be conducted by certified real estate appraisers and real estate brokers, both of which have separate licensing requirements.
The Senate Consumer Protection and Professional Licensure Committee approved the final-form rulemaking on September 25, 1996. The House Professional Licensure Committee approved the regulation on October 1, 1996.
We have reviewed this regulation and find it to be in the public interest. Our Comments questioned whether the Board's reason for adding the definitions was apparent. We suggested the Board add a ''Scope'' section to Chapter 36 to clearly state the limitations of appraisal authority of those certified as CPEs. The Board agreed with our recommendation by adding a ''Scope of Practice'' section which states:
Assessors and revaluation company personnel who receive certification as a Pennsylvania evaluator may perform appraisals of real property only in limited circumstances, that is, for tax assessment/governmental purposes.The Board made editorial changes to the definitions of ''ad valorem taxation purposes'' and ''real estate tax assessment.'' It also adopted our second recommendation to include valuations placed on real property by revaluation company personnel in its definition of ''real estate tax assessment.'' In the final-form rulemaking, the definition is expanded to include revaluation company personnel on contract with a government.
Therefore, It Is Ordered That:
1. Regulation No. 16A-702 from the State Board of Certified Real Estate Appraisers, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Medicine and State Board of Osteopathic Medicine--Respiratory Care Practitioners; Doc. No. 16A-532
Order On February 9, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Medicine and State Board of Osteopathic Medicine (Boards). The Boards have joined together to amend Chapters 18 and 25 of 49 Pa. Code by adding provisions for the certification and practice of respiratory care practitioners to each chapter. Under section 422.13(c) of the Medical Practice Act of 1985 (MPA) (63 P. S. § 422.13(c)) and section 271.10(c) of the Osteopathic Medical Practice Act (OMPA) (63 P. S. § 217.10(c)), the Boards are authorized to promulgate regulations to establish procedures for application, credentials, examination, certification and fees. The proposed regulation was published in the February 24, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
The Boards elected to jointly promulgate identical provisions for respiratory care practitioners within this regulation, as the amendments to both Boards' practice acts regarding respiratory care certification are identical. The MPA and the OMPA provide that respiratory care practitioners may obtain certification from either Board.
Both Boards have adopted identical fee schedules for respiratory care practitioners. The regulations establish five fees as follows:
* Temporary permit $ 15
* Initial certification $ 15
* Certification examination $ 90
(effective July, 1996) $100
* Reexamination $ 60
* Biennial renewal $ 25As authorized by the MPA and the OMPA, the regulations establish that only those persons holding a temporary permit or certificate from either Board may use the title ''respiratory care practitioner'' or use the designation of ''R.C.P.'' Further, a respiratory care practitioner may only provide services under the supervision of a licensed physician.
The regulations restate the list of 12 services and activities included in the scope of practice of respiratory care, as defined in the MPA and OMPA. The regulations recognize the National Board for Respiratory Care (NBRC) as the agency which credentials respiratory care practitioners and the Joint Review Committee on Respiratory Therapy Education (JRCRTE) as the educational program accrediting agency.
As set forth under the MPA and the OMPA, the regulations establish who is qualified to be issued temporary permits, which allow qualified individuals to practice respiratory care while awaiting the results of the certification examination. The regulations provide that a temporary permit expires upon notification of failure of the examination or 12 months from the date of issuance, whichever occurs first.
The regulations also establish the requirements under which the Boards will approve applicants for certification as respiratory care practitioners. In addition, the regulations provide that certificate holders may place their certifications on inactive status. Individuals applying to return to active status must submit a sworn statement and resume which covers the period of time when the certificate holder was not engaged in practice in the Commonwealth, and submit a letter of good standing from the licensing board of the other state or jurisdiction where the certificate holder is currently licensed.
The Boards have established fees for the issuance of temporary permits, certifications and biennial renewal for respiratory care practitioners. Revenue generated from these fees will be used to cover the costs of administration of the certification programs. In 1994, it was estimated that there would be approximately 2,000 candidates for certification as respiratory care practitioners and the certification fees were based upon this number. Because this is such a new certification category, neither the Medicine nor Osteopathic Board could give a better estimate.
The Boards indicate that the regulations may impose additional costs upon the private sector. In particular, health care facilities and home health care entities who provide respiratory care services may incur additional costs in bringing their facilities into compliance by employing or utilizing certified practitioners.
Additionally, persons wishing to obtain certification from the Boards will incur costs associated with the administration of the respiratory care practitioner certification program, as well as costs associated with the qualifying examination.
The Senate Consumer Protection and Professional Licensure Committee voted to approve the final-form regulation on September 25, 1996. The House Professional Licensure Committee approved the final rulemaking on October 1, 1996.
We made a number of recommendations in our Comments to the Boards regarding the proposed wording of several sections of the regulations. The issues in these regulations were essentially those of clarity and consistency with the authorizing statutes. In response to each of our concerns, the Boards appropriately amended the final-form regulations.
We have reviewed this regulation and find it to be in the public interest. Those individuals requiring respiratory care services will benefit from these proposed regulations by being assured that services will be performed by persons who have demonstrated compliance with education requirements and who have passed a minimum competency examination.
Therefore, It Is Ordered That:
1. Regulation No. 16A-532 from the State Board of Medicine and State Board of Osteopathic Medicine, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996Pennsylvania Public Utility Commission--Limousine Service Supplemental; Doc. No. 57-144
Order On August 3, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). It would amend 52 Pa. Code Chapter 29 by amending sections 29.333(b) and 29.333(c), relating to vehicle and equipment requirements, and adding a new section 29.335, relating to trip sheet requirements. The PUC states its authority to promulgate this regulation is found at section 501 of the Public Utility Code (66 Pa.C.S. § 501) and the Commonwealth Documents Law (45 P. S. § 1201 et seq.). The proposed version of this regulation was published in the August 13, 1994, edition of the Pennsylvania Bulletin, with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 13, 1996.
These rulemaking amendments are intended to clarify and supplement those regulations which differentiate limousine service from taxicab ''call and demand'' service. The additional objective is to achieve more consistent interpretation and application of limousine regulations by the PUC and the limousine industry.
According to the PUC, there were 17 commentators on the proposed rulemaking version. Posten Taxi Inc. (Wilkes-Barre) and The Brotherhood of Unified Taxi Drivers/Owners (Philadelphia) submitted comments in favor of the proposed version of the rulemaking. The remainder of the commentators expressed varying degrees of opposition, with most recommending deletion of the proposed new tariff requirements for limousines.
In the proposed version of this rulemaking, the PUC sought comment on proposed amendments to three sections of its limousine service regulations. Under section 29.333(a), the seating capacity of a ''luxury type vehicle'' classified as a ''limousine'' would have been changed from ten to nine passengers, minus the driver. The intent was to better conform the PUC's definition with the definition of ''limousine'' under the Motor Vehicle Code. The latter defines a limousine as a motor vehicle, commercially available for hire, which carries up to nine persons (ex- cluding the driver). Given the array of differently configured ''limousines'' or luxury-type vehicles available today, however, we and a majority of commentators saw no rea- son to change the definition and recommended that the proposed change not be made. The PUC agreed and delet- ed this proposed change from the final-form regulation.
The PUC also proposed to clarify and expand the definition of a ''luxury type vehicle'' under section 29.333(b). To qualify, such vehicles must be manufactured or modified to have physical configurations and accessory features not found or commonplace in lower priced vehicles. Luxury-type vehicles must also provide patrons with a higher level of service and comfort than ordinarily available in call or demand, paratransit, and airport transfer services. Section 29.333(b) also describes a list of the minimum features and other amenities that a luxury-type vehicle should have. These provisions have been retained with some modifications in the final-form regulation. The PUC also added some clarifying language we suggested for the basic definition.
The proposed version of section 29.333(b) also provided that classic and antique vehicles, as defined in the Motor Vehicle Code, may be included. It also stated that vans which meet the definition be included, but it specifically excluded station wagons and all-purpose vehicles. Responding to commentators' concerns opposing the blanket exclusion of station wagons and all-purpose vehicles, the PUC amended the final-form regulation to delete all references to specific types of vehicles in section 29.333(b).
The PUC proposed a new section 29.333(c), which sets forth categories of required information a company would have to provide to the PUC about vehicles the company intended to acquire and use in its business. After review-ing commentators' comments, the PUC decided to delete this new subsection because its requirements may unduly delay applicants' ability to put additional luxury-type vehicles into service. We note that even without these requirements there is some additional delay in the process of getting a new license plate issued for a vehicle. The Department of Transportation (DOT) does not issue license plates for such PUC-registered vehicles until it has confirmed that the applicant is in good, current standing with the PUC.
The PUC originally proposed to amend section 29.333(d) to provide that all vehicles licensed as limousines are required to bear a limousine license plate. The final-form regulation deletes that requirement because of the PUC's decision not to conform its definition of a ''limousine'' to the definition of the same term under the Motor Vehicle Code.
If a luxury-type vehicle used in commerce for hire has the capacity to carry no more than nine passengers, DOT will issue a ''limousine'' license plate (except in Allegheny County, where a passenger car license plate will be issued--provided the owner/operator certifies to DOT that the vehicle will remain within the boundaries of Allegheny County). A commercial luxury vehicle which carries 10 or more passengers will be issued a ''bus'' license plate. A limousine or luxury-type vehicle used privately (for example, not available for hire) will be issued a passenger car license plate, regardless of the number of passengers it can carry.
The most controversial part of this rulemaking in the proposed stage involved the proposed new provisions in section 29.334, relating to tariff requirements. This section currently provides that limousine rates may be based on mileage or time, or both, and must be set forth in a tariff filed, posted and published under statute and this chapter.
The proposed amendments provided (in Subsection (a)) that the primary rate structure for limousine service shall be based on time, with supplemental charges based on mileage assessable where round trip mileage exceeds 100 miles. Subsection (b) proposed to establish a minimum charge of not less than the charge for 1 hour at the rate provided in the respective primary rate structure. Subsection (c) provided that rate levels, as fully detailed in the carrier's tariff, would be based on the nature of the luxury vehicle provided. Subsection (d) provided that charges for nontransportation services were not to be included in the carrier's tariff. Lastly, proposed Subsection (e) provided for the filing, posting and publishing of limousine tariffs, to be accompanied by financial justification and other supporting documentation.
These proposed changes in tariff requirements were intended to more clearly differentiate limousine services from taxicab services. Commentators raised a variety of objections. Some asserted that these proposed new tariff provisions were an unacknowledged attempt to resolve competitive antagonisms which apparently have developed in Philadelphia between the taxicab industry and those limousine services providers which function as limousine/taxi hybrids, known as ''executive sedan'' services.
Other commentators with no financial interest or stake in the limousine and executive sedan sector (CoreStates Bank, N. A. and the Philadelphia Convention and Visitors Bureau) stated that the changes would unnecessarily increase their costs and adversely affect their businesses. Kathrynann W. Durham, Republican Chairperson of the House Consumer Affairs Committee, stated in her comment letter that she could not understand the need for the PUC to further differentiate between call and demand service and limousine service, to the possible detriment of one industry and those members of the public who wish to use limousine service.
We agreed with these commentators and noted in our Comments that the PUC's basic mandate is to serve the public interest. Our basic concern was that the PUC had not explained or justified the proposed revisions to section 29.334 in terms of what is in the best interest of the riding public. We recommended that the principal litmus test the PUC should apply to all proposed changes in this regulation is whether a currently available beneficial service to the riding public would be improved, or reduced or adversely affected as a consequence of these amendments.
The PUC deleted all of the proposed new tariff requirements from the final-form regulation. It did so based on its determination in the matter of Pa. PUC v. Metro Transportation Co., PUC Docket No. I-00940030, Order entered July 21, 1995. In that case, the PUC ordered an investigation into the competition between limousine services and taxicab services. The PUC stated that it recognized, in that case, there is some allowable overlap among the various types of passenger transportation. The PUC also concluded that the taxicab industry is withstanding competition fairly well. As a consequence, the PUC stated:
. . . we find that changing the tariff structure as proposed would not be in the public interests of the riding public. We will not penalize the public in order to referee a dispute between taxicabs and limousines. Obviously, the limousines are providing a service for a price that the public wants. . . . We will not frustrate the workings of the market place by establishing a limousine tariff structure that would only serve to increase costs of limousine services to the public.Section 29.335 is a new provision which would require drivers of for-hire luxury-type vehicles to fill in a trip sheet with seven different categories of information in the vehicle to evidence its use in service. Such records will assist the PUC in ensuring that operators comply with this regulation. In response to our Comment on the subject, the PUC changed the records retention requirement for trip sheets from 2 years to 1 year.
The Senate Consumer Protection and Professional Licensure Committee met and voted to approve the final-form regulation on September 25, 1996.
The final-form regulation will eliminate or at least substantially reduce any industry confusion about what constitutes a luxury-type vehicle, which will benefit the industry, the public and the PUC. The regulation will affect primarily owners and operators of limousine and luxury-type vehicles licensed by the PUC throughout the Commonwealth. However, those impacts will be much less than under the proposed version of the regulation by virtue of the PUC eliminating certain unpopular and restrictive provisions such as the controversial new tariff provisions and the requirement to submit information and photos of a vehicle for PUC approval before the vehicle can be put into service.
We have reviewed this regulation and find it to be in the public interest. The marketplace has clearly demon-strated in recent years the public's desire to hire limousine service vehicles unfettered by basic restrictions on mileage charges, method of payment (cash or credit), and with no minimum time advance calling requirements. This final-form regulation reflects the PUC's acknowledgment of that reality by providing less regulation rather than more regulation.
Therefore, It Is Ordered That:
1. Regulation No. 57-144 from the Pennsylvania Public Utility Commission, as submitted to the Commission on September 13, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
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