NOTICES

Notice of Comments Issued

[36 Pa.B. 1099]

   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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Period	IRRC Comments Issued
18-404	Department of Transportation Flashing or Revolving Lights    on Emergency and Authorized Vehicles 35 Pa.B. 6769 (December 17, 2005)	1/17/06	2/16/06
15-430	Department of Revenue Revision of Construction Contractors;    Sales Tax Requirements 35 Pa.B. 6767 (December 17, 2005)	1/17/06	2/16/06
4-82	Department of Community and    Economic Development Manufactured Housing Improvement Program 35 Pa.B. 6902 (December 24, 2005)	1/23/06	2/22/06
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Department of Transportation Regulation #18-404 (IRRC #2510)

Flashing or Revolving Lights on Emergency and Authorized Vehicles

February 16, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the December 17, 2005 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 Department of Transportation (Department) to respond to all comments received from us or any other source.

1.  Section 173.2. Definitions.--Reasonableness; Clarity.

Intersection light

   This definition is amended to allow greater flexibility by deleting the existing requirement that intersection lights be mounted on both front fenders. The Pennsylvania Emergency Health Services Council (PEHSC) questioned the need for and practicality of this amendment. According to the proposed regulation, an ''intersection light'' could be a flashing red, blue, white or clear light placed anywhere on a vehicle. Similar characteristics for lights are already included in the definitions of ''flashing light,'' ''light-bar assembly,'' ''revolving light'' and ''single light.'' Given that any of these lights would enhance the visibility of a vehicle, what is the need for a separate category for intersection lights? The amended definition is so broad that it loses its uniqueness and utility. The term is used only twice in Chapter 173, once in describing the mounting of a light on a fender and once as an exception. The Department should explain the need for this separate category or delete the term and its definition from the chapter.

2.  Section 173.3. Display requirements.--Public safety; Reasonableness; Implementation procedure; Clarity.

Subsection (a)(3) Blue lights.

   This subsection refers to Section 4572(a) of the Vehicle Code to identify which vehicles may display blue lights. To be eligible to display blue lights on their vehicles, the statute requires that ''the names of the ambulance personnel, volunteer firefighters and certified volunteer search and rescue scuba divers shall be submitted to the nearest station of the Pennsylvania State Police on a list signed by the chief of the ambulance or fire department or company . . . .'' (75 Pa.C.S.A § 4572(a)(1)). We have several questions.

   First, are ambulance personnel of private or ''for-profit'' ambulance companies eligible to use blue lights on their vehicles? Does the word ''company'' in Section 4572(a)(1) include private or for-profit companies? The Department should clarify the types of organizations that may allow their personnel to use blue lights on their own vehicles. In addition, who is the chief of a private company?

   Second, may quick responder services (QRS) personnel use blue lights on their personal vehicles? Some claim that QRS vehicles are covered by the statutory definition of ''ambulance'' in Section 102 of the Vehicle Code. The Department needs to clarify whether QRS personnel are eligible to use blue lights on their vehicles under Section 4572(a) of the Vehicle Code.

Subsection (a)(5) Yellow or amber lights.

   In Subparagraph (iii), new language is being added which states: ''Yellow or amber lights shall be mounted on the rear of the vehicle or shall face rearward.'' The intent of this language is that the lights be directed or shine rearward from the vehicle. To improve clarity, the new language should be simplified to state that yellow or amber lights shall be mounted to only flash or shine rearward.

Subsection (a)(6) White or clear lights.

   Three commentators have expressed concern and confusion with this subsection. This subsection begins with one long sentence that appears to address two or more different combinations of white or clear lights. The provision begins with limiting emergency vehicles to one white or clear light in combination with lights of different colors. However, it also contains an exception for three white or clear lights on a light-bar assembly. We have four concerns and recommendations.

   First, we recommend that the first sentence of this subsection be re-formatted as a list that outlines the two options: 1) single white or clear light; or 2) three white or clear lights on a light-bar assembly. We agree with the Director of the Philadelphia Regional Emergency Medical Services that clarification is needed as to whether a vehicle could have a total of four white or clear lights by combining a single light with a light-bar assembly.

   Second, the Department should clarify the need for and intent of this subsection and whether a light created via reflection by mirrors will be counted as a separate and unique light. Explanation and clarification are necessary given the questions raised by two commentators. PEHSC questioned the need to increase the number of white or clear lights from two to three. Michael K. DalPezzo submitted comments contending that mirrors in light-bar assemblies may intensify the effect of lights and are not counted as separate lights for the purposes of enforcement.

   Third, the new Subparagraphs (i) and (ii) may conflict with existing systems and procedures. The two new provisions read as follows:

   (i)  When the light-bar assembly contains three flashing, revolving or oscillating white or clear lights, the center light must be mounted to flash white or clear light only to the front.

   (ii)  When the vehicle is stationary, the light-bar assembly may not display white or clear light to the rear.

   According to DalPezzo, Subparagraph (i) is the opposite of most existing systems. DalPezzo also claims that Subparagraph (ii) is inconsistent with the standards of the National Fire Protection Association and federal standards for ambulances. The PEHSC is concerned that Subparagraph (ii) would be unsafe because it may force drivers to turn off all lights.

   It is our understanding that the intent of the Department is for the two outside lights on the light-bar assembly to oscillate in 90° arcs. However, this requirement is not discussed in the proposed regulation. The Department needs to clarify its intent for the light-bar assembly and insure that the regulation is consistent with current standards for different types of emergency vehicles.

   Fourth, the phrase ''preemptive traffic control devices'' is not defined. In addition, this specific phrase is not used in similar provisions in existing regulations or statutes. The Vehicle Code at 75 Pa.S.C.A § 3105(g) uses the phrase ''emergency vehicle preemption devices.'' Existing regulations refer to ''traffic control signal preemption equipment controlled from emergency or authorized vehicles'' at 67 Pa. Code § 211.11(b)(16) and ''preemption and priority control equipment'' at 67 Pa. Code § 212(b)(viii) (published as a final regulation in the Pennsylvania Bulletin on February 4, 2006 [36 Pa.B. 537]). The Department should use the phrase found in the statute consistently and should include a reference to the statute in this proposed regulation.

Subsection (a)(8) Utility lights.

   The first sentence of this subparagraph states that utility lights may not be used for ''emergency warning purposes.'' It describes utility lights as ''take down, alley, spotlight.'' However, the second sentence reads:

These lights may be used while the vehicle is in motion or stationary for the purpose of an emergency, for the safety of the public or in the enforcement of the law. (Emphasis added.)

   The use of the phrases ''emergency warning purposes'' and ''for the purpose of an emergency'' is confusing. What is the difference between these two phrases? The phrase ''in motion or stationary'' adds to the confusion. Additionally, DalPezzo notes that there are ''take down'' and ''alley'' lights that flash in light-bar assemblies. The explanation of this new subparagraph in the Preamble only mentions the blade of a snow plow.

   It is our understanding that the intent of this subsection is to prohibit the use of a steady burning light to alert others and warn traffic of an emergency. The subsection should clearly state this prohibition. Standard headlights and flashing or revolving lights are all that may be used to alert other drivers and pedestrians. The regulation should also state that a steady burning light may be used to illuminate work areas and equipment, scenes involving fires, accidents, other emergencies or crime, or for search and rescue operations.

Subsection (b) 360° visibility.

   The first sentence of this subsection begins with the phrase: ''Except for unmarked police vehicles . . . '' which seems to indicate that all of Subsection (b) does not apply to unmarked police vehicles. However, Subparagraph (4) is being amended to set forth a specific requirement for an ''unmarked police vehicle.'' This is confusing. Subparagraph (4), which is different from the ''360° visibility'' rule, should be formatted as a separate subsection.

Subsection (d)(1) Emergency vehicles except police vehicles.

   Subsection (d)(1)(v)(A) reads:

This subsection does not include private vehicles used for answering emergency calls as defined by 75 Pa.C.S. § 102.

   None of the terms in this provision, such as ''private vehicles'' or ''emergency calls,'' are defined as separate terms in Section 102 of the Vehicle Code. This provision should be rewritten using the words ''privately owned vehicle'' and a specific reference to the definition of ''emergency vehicle'' in 75 Pa.C.S. § 102.

Subsection (d)(4) Traffic control emergency directional light assemblies.

   This subsection is new and sets requirements for the use of directional light assemblies. However, the intent of the limitations in Subparagraphs (i)--(vi) is unclear. For example, Subparagraphs (v) and (vi) are limited respectively to vehicles owned by a fire company and ''an authorized vehicle which is used in the construction, repair or maintenance of a bridge or highway.'' The subsection already states that the directional assemblies may not interfere with permanently installed lights. If the directional lights do not interfere with installed lights, then what is the need for Subparagraphs (i)--(vi)? The Department should justify these limitations or delete them.

3.  Miscellaneous Clarity.

Section 173.2. Definitions.--Flashing light and Oscillation

   The definition of ''flashing light'' includes the word ''oscillation'' as a part of its definition. The terms ''oscillation'' and ''revolving light'' are also defined in Section 173.2. In certain provisions in Chapter 173, the proposed regulation adds the word ''oscillating'' to depict ''flashing [or], revolving or oscillating'' lights. If ''oscillation'' is a part of the definition of a flashing light, why is it necessary to include the word ''oscillating'' next to ''flashing'' in the regulation?

   Additionally, what does it mean in certain provisions when only the words ''flashing or revolving are used to describe lights? Given the inclusive definition of ''flashing light,'' what is the intent of this distinction? Will these flashing lights also be allowed to oscillate?

Subsection 173.3(d)(3) Authorized vehicles.

   Under Subsection 173.3(d)(3)(i)(E), the reference to Subparagraphs (i)--(iv) is incorrect and needs to be changed to be consistent with the re-lettering and reformatting of the Pennsylvania Code and Bulletin. It should be changed to capital letters (A)--(D).

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Department of Revenue Regulation #15-430
(IRRC #2508)

Revision of Construction Contractors; Sales Tax Requirements

February 16, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the December 17, 2005 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 Department of Revenue (Department) to respond to all comments received from us or any other source.

1.  Economic or Fiscal Impact.

   The Department has described this proposed rulemaking as an ''administrative 'clean up''' that will eliminate duplicative sales tax regulations that govern construction contractors. They have noted that ''No parties should be adversely affected by this administrative regulation.''

   Members of Pennsylvania's banking community disagree with the Department's description and assessment of this rulemaking. They believe that the deletion of certain language pertaining to financial institution security equipment will result in the taxation of certain equipment used for its ''protection and convenience.'' As a result, this rulemaking will have a negative fiscal impact on this industry.

   We agree with the banking community that this rulemaking is more than just an ''administrative 'clean-up''' and it could have a negative fiscal impact on that community. However, we do not agree that it will impose sales tax on certain equipment that banks currently purchase. It is our understanding that banks pay sales tax when this equipment is purchased. Relief is provided to banks in the form of a partial sales tax refund, granted as part the appeals process by the Attorney General, not the Department of Revenue.

   We believe that the Department has the statutory authority to amend its own administrative regulations. However, the lack of information contained in this regulatory package pertaining to the Department's true intent and potential fiscal impact make it difficult for this Commission to determine if this rulemaking is in the public interest. As suggested by Senator Earll, Chairwoman of the Senate Finance Committee, we ask the Department to ''more thoroughly explain the purpose and potential impact of its proposed administrative clean-ups.''

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Department of Community and Economic Development Regulation #4-82 (IRRC #2507)

Manufactured Housing Improvement Program

February 22, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the December 24, 2005 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 Department of Community and Economic Development (Department) to respond to all comments received from us or any other source.

1.  Section 149.1. Definitions.--Clarity.

   We have two concerns with this section.

   First, statutory citations to the definitions in the Act are found in some definitions in this proposed regulation, while missing in others. The Department should add the appropriate statutory citations to the definitions of ''Installation,'' ''Installer,'' ''Manufactured Home Construction and Safety Standards,'' ''Manufactured housing or manufactured home,'' and ''Manufacturer's approved design.''

   Second, the information in Subsection (ii) in the definition of ''Manufacturer's approved design'' is substantive in nature. Substantive provisions in a definition cannot be enforced. This information should be removed from the definition and placed in an appropriate section later in the regulation, such as Section 149.3(b) (relating to Installation standard).

2.  Section 149.3. Installation standard.--Clarity.

   Subsection (d) contains the phrase, '' . . . the building code official should contact the Department . . . '' (Emphasis added). ''Should'' is not a regulatory term. Therefore, it should be replaced with ''may.''

3.  Section 149.4. Installer training and certification.--Clarity.

Subsection (a)(2)

   The Department indicated that the ''other information'' mentioned in this subsection is information that might be requested as it reviews an application. The language in this subsection should be amended to clearly state that the Department may request additional information.

Subsection (a)(3)

   Why must the training provider consult with the Department before scheduling courses or setting its tuition? Unless the Department is planning to review and approve these things, this provision should be deleted.

   Also, the Department should cross-reference the appropriate fee in Section 149.7.

Subsection (b)(1)

   Will the application forms for certification be provided by the Department?

   Also, the Department should cross-reference the appropriate fee in Section 149.7.

4.  Section 149.5. Building code official training.--Reasonableness; Clarity.

   We understand that the training for building code officials under this section is intended to be separate and distinct from the training for installers under the previous section. However, this section is missing the specific details concerning the application and approval process that the previous section contains. The Department should clearly set forth the requirements for building code official training in the final-form regulation.

5.  Section 149.6. Certificate of Compliance.--Consistency with statute; Clarity.

Subsection (a)

   The phrase ''An installer is not required to complete a certificate of compliance for installation of items such as . . . '' is vague. The Department indicated that this is meant to include anything that falls under the Uniform Construction Code as opposed to anything that is covered by the Manufactured Home Construction and Safety Standards. The Department should amend this subsection to clearly state its intent.

Subsection (c)

   This subsection does not state who is required to submit the completed copy of the Certificate of Compliance to the building code official. The Department indicated that this responsibility falls on whoever initially applies for the building permit.

   However, the Manufactured Housing Improvement Act (Act) at 35 P. S. § 1658.6(e) states, ''The installer shall certify to the department and the building code official that the new manufactured home has been installed in accordance with . . . '' (Emphasis added). To be consistent with the Act, the Department should amend this section to state that it is the installer's duty to submit a copy of the Certificate of Compliance to the building code official.

6.  Section 149.7. Fees.--Clarity.

   The Department is required by the Act to establish fees for ''educational programs, testing and certification of those persons certified to install and inspect . . . . '' However, the Act does not specifically require these fees to be established via regulation.

   The only way to change a promulgated regulation is through a subsequent regulation. If the Department chooses to establish these fees through regulation, Subsection (c) should be deleted. If the Department wishes to be able to change the fees through a publication of notice in the Pennsylvania Bulletin, all of the fees in this proposed regulation should be deleted.

7.  Section 149.8. Penalties.--Clarity.

Subsection (a)(1)

   This subsection deals with suspension or revocation of certification for those who violate the Act or this chapter. However, the Act at 35 P. S. § 1685.5(b)(3) also mentions the issuance of warnings. The Department indicated that it currently has a warning system in place. The procedures of this system should be set forth in the final-form regulation.

Subsections (a)(1)(i) and (ii)

   These subsections refer to complaints. What format does the Department deem to be an acceptable method of receiving complaints? Do they need to be in writing? Will a telephone call or an email be sufficient? The final-form regulation should clearly set forth the appropriate procedure for filing a complaint with the Department.

Subsection (b)

   This subsection states in part, '' . . . the Department may impose a civil penalty of up to $1,000 on any person. . . . '' The final-form regulation should clarify if the cumulative maximum that one can be fined is $1,000 or if this penalty can be assessed per offense.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 06-370. Filed for public inspection March 3, 2006, 9:00 a.m.]

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