NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[31 Pa.B. 4349] Section 5(d) and (g) of the Regulatory Review Act (71 P. S. § 745.5(d) and (g)) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committees' comment period. The Commission's Comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).
The Commission issued comments on the following proposed regulations. The agencies must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the dates indicated.
Final-form Submission
Reg. No. Agency/Title Issued Deadline 7-362 Environmental Quality Board 07/19/01 06/19/03 Stream Redesigna tions, Little Bush Kill, et al. (31 Pa.B. 2375 (May 5, 2001)) 15-416 Department of Revenue 07/19/01 06/18/03 Master Settlement Agreement (31 Pa.B. 2582 (May 19, 2001))
Environmental Quality Board Regulation No. 7-362
Stream Redesignations, Little Bush Kill, et al.
July 19, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by June 19, 2003, the regulation will be deemed withdrawn.
1. Criteria used to determine designations--Feasibility; Reasonableness.
The Department of Environmental Protection uses comparisons between creeks to evaluate them for redesignation. We question the value of percentage comparisons between creeks because a succession of percentage comparisons could lead to degenerative criteria. For example, if Creek B meets 92% of Creek A criteria, Creek C could qualify by meeting 92% of Creek B criteria, even though Creek C only meets 85% of Creek A criteria. The data used to support a redesignation should be compared to more uniform benchmarks. An explanation is needed for why it is appropriate and reasonable to rely on percentage comparisons between creeks to support redesignations.
2. Designation of a portion of Browns Run as Exceptional Value (EV)--Economic Impact; Reasonableness.
The proposed regulation would redesignate approximately 25 stream miles in Browns Run, Dutchman Run and Morrison Run as EV. We have two questions.
First, the EV designations are based on biological condition scores greater than 92% of the reference stations in a reference stream. On what basis was East Hickory Creek selected as the reference stream?
Second, what economic impact will this have on the area surrounding Browns Run basin? Commentators are concerned that the proposed EV designations will interfere with completion of a large sewer project in Mead Township and the Borough of Clarendon, and with future development that would be possible as a result of the sewer project. Commentators are further concerned that the EV designations will negatively affect the timber harvesting and oil and gas production industries through more rigorous National Pollutant Discharge Elimination System permit requirements which will result in delays and increased costs.
The Regulatory Review Act criteria require consideration of the economic impact of a regulation. The supporting documentation for the proposed EV designations does not address the impact of the rulemaking on existing businesses and proposed development in the Browns Run watershed. Prior to submitting a final-form regulation, the economic impact of the proposed EV designations should be evaluated.
3. Redesignation of the upper and lower segments of Little Bush Kill to EV-- Reasonableness.
The proposed regulation would redesignate approximately 27 stream miles in the upper and lower segments of Little Bush Kill as EV. The middle portion of the stream would retain the current High Quality--Cold Water Fishes designation (HQ-CWF). The result would be HQ-CWF waters flowing into EV waters. The criteria for EV are more stringent than the criteria for HQ-CWF. Consequently, it does not appear logical to have HQ-CWF waters flow into EV waters. An explanation is needed for why this proposed redesignation is reasonable.
4. Reference stream used for the Smithtown Creek water quality analysis--Reasonableness.
In its comments, the Tinicum Township Board of Supervisors opposes the use of Pine Creek and South Branch French Creek as reference streams. It asserts that Beaver Creek and Tinicum Creek would be more appropriate. On what basis were Pine Creek and South Branch French Creek selected as reference streams?
5. Bundling stream redesignations--Reasonableness.
The EQB typically includes several stream redesignations in a single regulatory package. We recognize the administrative economy of this approach. However, including controversial stream redesignations with noncontroversial redesignations at the final-form rulemaking stage can delay approval of the noncontroversial redesignations.
To avoid delaying approval of noncontroversial redesignations, we urge the EQB to unbundle any redesignations which are identified as controversial at the proposed rulemaking stage. These redesignations could then be submitted as separate final-form rulemakings. The EQB could identify in the Preamble to the final-form rulemakings any redesignations which have been separated due to their controversial nature.
Department of Revenue Regulation No. 15-416
Master Settlement Agreement
July 19, 2001 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Revenue (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by June 18, 2003, the regulation will be deemed withdrawn.
1. Section 71.31. Definitions.--Clarity.
The definitions in the regulation of Affiliate, Cigarette, Qualified escrow fund, Tobacco product manufacturer and Units sold repeat or modify the definitions in the Tobacco Settlement Agreement Act (Act) (35 P. S. § 5673). These definitions should be referenced rather than repeated in regulation.
Also, the term ''person'' is used in the regulation, but is not defined. For clarity, this term should be added to the definitions with a reference to the Act.
2. Section 71.32. Additional cigarette stamping agent responsibilities.--Economic impact; Need; Clarity.
There are two concerns.
First, subsection 71.32(a) requires reporting in addition to the information already reported under an existing provision at section 71.9(a). Section 71.9 is titled ''Cigarette stamping agent report requirements.'' Since section 71.32(a) is adding new informational requirements to section 71.9, the Department should amend section 71.9 by adding a cross-reference to section 71.32(a).
Second, section 71.32(a)(2) requires a listing of ''suppliers, other than nonparticipating tobacco product manufacturers. . . .'' Read in conjunction with the proposed definition of ''nonparticipating tobacco product manufacturers,'' the stamping agent would be required to report on both participating and nonparticipating tobacco product manufacturers. It is our understanding that the intent of this provision is to require reporting of merchants or suppliers who obtained tobacco products from nonparticipating tobacco product manufacturers. Subsection (a)(2) should be revised to clearly state who must be included in a report.
3. Section 71.33. Tobacco product manufacturer responsibilities.--Statutory authority; Need; Duplication of statute; Clarity.
The Department's statutory authority to promulgate regulations is contained within the definition of ''units sold'' at 35 P. S. § 5673. The relevant language in this definition limits the Department's authority to promulgate regulations ''as are necessary to ascertain the amount of State tax paid on the cigarettes of such tobacco product manufacturer for each year.''
This section repeats the statutory provisions in 35 P. S. § 5674 (relating to requirements), which outline the functions of the Attorney General. Nothing in this provision relates to the Department's authority to ascertain the amount of state tax paid on tobacco products. Therefore, we question the Department's statutory authority for this section.
In addition to our concern about the Department's statutory authority, we question the necessity for this provision. It merely duplicates self-executing statutory provisions. If this section is retained, the Department should explain how it is authorized, why it is needed, and how it will be enforced.
If section 71.33 is retained, it should be amended. As of the date of these comments, the deadline in subsection (a)(2)(i), of April 15, 2001, has passed. Similarly, subsection (a)(2)(ii)(A) covers the period June 22, 2000, through December 31, 2000, which has expired. The Department should delete references to these dates or explain why they are needed.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 01-1431. Filed for public inspection August 3, 2001, 9:00 a.m.]
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