NOTICES

Notice of Comments Issued

[38 Pa.B. 1647]
[Saturday, April 5, 2008]

   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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
125-78	Pennsylvania Gaming Control Board Slot Machine Testing and Control 38 Pa.B. 343 (January 19, 2008)	2/19/08	3/20/08
16A-5417	State Board of Pharmacy Continuing Education 38 Pa.B. 350 (January 19, 2008)	2/19/08	3/20/08
16A-5420	State Board of Pharmacy Pharmacist Breaks 38 Pa.B. 351 (January 19, 2008)	2/19/08	3/20/08
16A-5123	State Board of Nursing Nursing Education Programs Examination Pass Rates 38 Pa.B. 344 (January 19, 2008)	2/19/08	3/20/08
16-40	Department of State Lobbying Disclosure Relations Committee Lobbying Disclosure 38 Pa.B. 435 (January 19, 2008)	2/19/08	3/20/08
54-60	Pennsylvania Liquor Control Board Responsible Alcohol Management Program 38 Pa.B. 499 (January 26, 2008)	2/25/08	3/26/08

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Pennsylvania Gaming Control Board
Regulation #125-78 (IRRC #2666)

Slot Machine Testing and Control

March 20, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 19, 2008 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 Gaming Control Board (Board) to respond to all comments received from us or any other source.

Section 461a.8. Gaming vouchers.--Fiscal impact; Reasonableness; Clarity.

Expiration dates for gaming vouchers

   The preamble states that the Board recently amended its technical standards to eliminate expiration dates for unredeemed gaming vouchers, and the corresponding amendment to Subsection (b) will maintain consistency between the technical standards and the regulation. However, the preamble does not explain why expiration dates are being eliminated.

   In addition, licensees will be required to maintain these unredeemed gaming vouchers as directed in Subsection (d)(10). This would require the licensees to retain them for a period of five years under Article XIII.I of the Fiscal Code (relating to the disposition of abandoned and unclaimed property) at 72 P. S. § 1301.6(3). Commentators are concerned that this will require licensees to store a large number of records and will cause an ''extreme administrative burden.''

   The Board should clearly state why it is necessary to eliminate expiration dates for gaming vouchers.

Subsection (d)(9)

   This subsection requires slot machine licensees to issue payment to the owners of unredeemed gaming vouchers if the owners can be identified. Commentators assert that the administrative costs that a licensee would incur to make the identification will exceed the value of the vouchers. They suggest that the Board establish a minimum value of vouchers for which owner identification would apply. In addition, it is unclear what methods the Board expects licensees to utilize to determine the owner of the unredeemed vouchers.

   The Board should explain why it is reasonable to require licensees to determine the owners of unredeemed gaming vouchers, and why the Board has not imposed a minimum value for vouchers that would trigger the owner identification procedures. The Board should also explain how it anticipates licensees will identify owners of unredeemed vouchers.

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State Board of Pharmacy
Regulation #16A-5417 (IRRC #2662)

Continuing Education

March 20, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 19, 2008 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 Pharmacy (Board) to respond to all comments received from us or any other source.

1.  Section 27.32. Continuing education.--Implementation procedures.

   This section concerns continuing education for pharmacists. We raise one issue.

   Subsection (b) states that: ''[a] pharmacist found to be in noncompliance with the continuing education requirements shall make up the delinquent contact hours within 6 months of the notice of deficiency from the Board.'' What are the consequences for failure to meet the 6-month deadline? Has the Board considered including penalties in the regulation?

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State Board of Pharmacy
Regulation #16A-5420 (IRRC #2663)

Pharmacist Breaks

March 20, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 19, 2008 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 Pharmacy to respond to all comments received from us or any other source.

Section 27.11. Pharmacy permit and pharmacist manager.--Clarity.

   New language is being added to Subsection (c) that allows a sole pharmacist on duty to take up to a 30-minute break while working in a pharmacy. The House Professional Licensure Committee questioned if a pharmacist is limited to one 30-minute break during his or her shift. We also question how many 30-minute breaks a pharmacist can take during his or her shift and if the 30 minutes must be continuous. Under this rulemaking, would a pharmacist be allowed to take two 15-minute breaks? We recommend that the final-form rulemaking clarify these concerns.

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State Board of Nursing
Regulation #16A-5123 (IRRC #2664)

Nursing Education Programs Examination Pass Rates

March 20, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 19, 2008 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 Nursing (Board) to respond to all comments received from us or any other source.

   This proposed regulation adds new language, which is practically identical to Subchapters A and B (relating to Registered Nurses and Practical Nurses respectively) in 49 Pa. Code Chapter 21. In the following paragraphs, our comments on identical language will be combined under the headings and section numbers from the two subchapters.

1.  Sections 21.31 and 21.162. Surveys; lists of approved schools; and Types of approval.--Reasonableness; Implementation procedure; Clarity.

   New language in both sections 21.31(d) and 21.162(c) reads:

For purposes of activities relating to the approval and status of nursing education programs, the term ''Board'' used in this subchapter may mean the Board's educational advisors appointed under section 2.1(j) of the act (63 P. S. § 212.1(j)). Only the Board may confer initial approval status on a proposed nursing education program and only the Board may remove a program from the approved list.

   Since the word ''approval'' is used in both sentences, the section could be interpreted as giving ''educational advisors'' the authority to approve nursing education programs (programs). Therefore, the intent is unclear. When does the term ''Board'' indicate ''educational advisors'' and when does it mean the full Board or a majority of the Board? In what situations will the advisors be acting for the Board? In those provisions where ''educational advisors'' may act for the Board, their role should be clearly stated. Finally, both sections 21.31(d) and 21.162(c) refer to section 2.1(j) (63 P. S. § 212.1(j)). This may be a typographical error. Should these subsections refer to section 2.1(i) (63 P. S. § 212.1(i))?

2.  Sections 21.33 and 21.162. Types of approval.--Fiscal impact; Reasonableness; Implementation procedure; Clarity.

   Subsection (b) requires that programs notify applicants for admission and current students whenever their approval status changes. There are two questions. First, upon receipt of a notice of status change from the Board, is a program expected to notify applicants and students within a certain time period? If so, this time period should be set forth in the regulation. Second, may a program use email or other means to contact applicants and students? In the final-form regulation, the Board should provide direction concerning the time period and the types of notice that are acceptable, such as the U.S. Postal Service, email, voice mail, or facsimile.

3.  Sections 21.33a and 21.162a. Failure to comply with standards.

Subsection (a) Approval status review

   This subsection begins with this sentence:

Whenever the Board receives information suggesting that a nursing education program has not maintained the standards of this subchapter, the Board may request information from the program or conduct a site visit and may informally resolve any deficiency. . . .

   Will the Board provide written notice to the program describing the reported deficiencies, standards that are not being met, and the information that the Board is requesting? The final-form regulation should be amended to indicate that the Board or its advisors will provide the program with a written notice of the deficiencies and the information requested.

Subsections (b), (c) and (g) Provisional approval status notification, plan of correction, and maximum time allowed for correction

   In Subsection (b), the Board states that it will notify a program in writing if it ''determines that a nursing education program should be placed on provisional approval status.'' Subsection (c) states the Board ''will notify the program, in writing, of the deficiencies and the amount of time that will be allowed for correction of the deficiencies that resulted in the program's placement on provisional approval status.'' Subsection (g) indicates that ''[T]wo years will be the maximum time allowed for the correction of deficiencies resulting in provisional approval status.'' There are three concerns.

   First, the need for and purpose of Subsection (b) is unclear. Will the written notice from the Board, which is discussed by both subsections, be one notice or two separate notices? If it is one notice, then these two subsections should be combined into one subsection in the final-form regulation.

   Second, what criteria or factors will the Board consider in making its determination to place a program on provisional approval status? On page 3 of its comments dated February 18, 2008, the Hospital and Healthsystem Association of Pennsylvania (HAP) listed several factors which it recommended that the Board consider in reviewing programs that may need to be placed on provisional approval status. Key elements or factors that the Board will use to makes its determination should be identified in the final-form regulation.

   Third, Subsections (c) and (g) appear to include conflicting provisions. Subsection (c) states that the Board will set the time period for a program to correct deficiencies, and adds that the Board ''may extend the time period for correction of deficiencies at its discretion if the program is making demonstrable progress.'' However, Subsection (g) allows for only two years as the maximum for the correction of deficiencies.

   Under Subsection (c), may the Board extend the time period for correction beyond two years? Is two years a sufficient time to observe and measure corrections in every case? How much time do similar agencies in other states give programs to correct deficiencies? The Board needs to carefully review these questions and clarify these subsections in the final-form regulation.

Subsection (d) Restrictions

   This subsection states that the Board may place restrictions on a program on ''provisional approval status as deemed necessary by the Board to bring the program into compliance with this subchapter.'' The House Professional Licensure Committee (House Committee) in its comments dated February 13, 2008, questioned what types of restrictions may be imposed and how they would improve the program. The final-form regulation should require the Board to give written notice to a program of each restriction with a detailed explanation of how the restriction will improve the program and obtain compliance with the subchapter.

Subsection (e) Additional reports

   This section indicates that the Board may require ''additional reports'' from programs on ''provisional'' status? Will the Board submit written requests to programs describing what is required in the ''additional reports.'' At a minimum, the final-form regulation should state that the Board will provide programs with written requests for additional reports that specify the information requested by the Board.

4.  Sections 21.33b and 21.162b. Minimum rate for graduates of nursing education programs to pass the National licensure examination.--Fiscal impact; Protection of public health, safety and welfare; Reasonableness; Implementation procedure; Clarity.

   This section gives programs two full academic years to achieve the new 80 percent minimum standard for the examination pass rate. Commentators expressed serious concerns with this requirement.

   What will be the impact of this requirement on programs' admissions and diversity policies, and on efforts to maintain sufficient numbers in the nursing profession? Is there any evidence that graduates of programs with pass rates below 80 percent, or those who pass on the second attempt, are a risk or problem? What threat do these licensees pose to public health, safety and welfare?

   In light of these concerns, does the Board have any information on how many programs across the state will be able to reach the 80 percent examination pass rate within two years? For programs with pass rates currently below 80 percent, what types of changes will they need to make to improve their standing?

   In its comments, HAP recommended two additional approaches to meeting the 80 percent standard. First, it recommended that the Board give programs more time to achieve the 80 percent standard by adding another year to the phase-in with another intermediate step where programs would be required to reach a pass rate of 75 percent. Second, HAP stated that the pass rate should be calculated by averaging it over a three-year period. This approach is used in other states and could prevent an anomalous year from being used to judge a program's effectiveness.

   Given the computer method for taking the national examination and other factors, commentators also suggested that the Board consider examining the success rate of second time test takers and their capability for success in the profession. We agree. If there is a presumption or concern that this is not an accurate measure of a program's effectiveness because graduates may obtain additional schooling before their second attempt, then the Board should require that applicants report and document additional course work.

   The Board should thoroughly investigate these concerns and document whether an adequate number of the state's programs can meet the 80 percent first-time pass rate within two years. If not, it should explain how it is going to assist programs in meeting this goal, or it should amend the final-form regulation to provide for flexibility in determining and measuring the standard, and to allow for more time for programs to reach the goal.

5.  Sections 21.34 and 21.166. Removal from approved list.

   In its comments on this proposed regulation, the House Committee asked whether a program that has been removed from the approved list may later re-apply for approval. In the past, were there programs or schools removed from the approved list that later contacted the Board to inquire about submitting an application for reinstatement on the list? How did the Board respond? Is there anything in the Professional Nursing Law (Law) (63 P. S. §§ 211--225.5) or existing regulations that would prevent the Board from considering such a re-application?

Subsection (b) reads:

If a nursing education program is removed from the approved list, the controlling institution shall provide for the completion of the program for students currently enrolled by placing the students in an approved program.

   The intent of this statement is unclear. For example, does it mean that the ''controlling institution'' is financially responsible to ''provide for the completion of the program''? Commentators also raised questions concerning the impact of this regulation if a comparable program is not available in the same area or region, or the tuition and costs of the closest available program are significantly higher than the student's previous program. The Board needs to clarify this subsection in the final-form regulation.

   Finally, section 6.2(a) of the Law (63 P. S. § 216.2(a)) includes the following statement:

. . . Any student who shall be enrolled in any school which shall be removed from the approved list shall be given credit toward the satisfaction of the Board's requirements for examination for such of the requirements of the Board which any said student shall satisfactorily complete prior to the removal of said school from the approved list, and said student shall upon the satisfactory completion of the remainder of said requirements in any approved school be eligible for examination for licensure. . . .

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Department of State
Regulation #16-40 (IRRC #2665)

Lobbying Disclosure

March 20, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 19, 2008 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 Lobbying Disclosure Regulations Committee (Committee) to respond to all comments received from us or any other source.

1.  General--Statutory authority, Need; Economic impact; Clarity.

   We find that portions of the regulation exceed the statutory authority of 65 Pa.C.S.A. Chapter 13A Lobbying Disclosure (Act) because they require registration and reporting for activities that are not directly included in the Act. If the Committee believes registration and reporting of these activities are needed, the Committee should seek changes to the Act.

   Central to the consideration of the scope of registration and reporting is the term ''lobbying'' as defined in Chapter 13A03 of the Act, the phrase ''engages in lobbying'' used throughout the Act, and the Committee's interpretation of the phrase ''effort to influence legislative action or administrative action'' included in the definitions of section 51.1 of the regulation. The following is an explanation of our interpretation of the Act and the activities included in the regulation that we find do not require registration and reporting under the Act.

   ''Lobbying''

   ''Lobbying'' is defined in section 13A03 of the Act as:

An effort to influence legislative action or administrative action in this Commonwealth. The term includes:

(1)  Direct or indirect communication;

(2)  Office expenses; and

(3)  Providing any gift, hospitality, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal.

   Although the term ''effort'' is not directly defined in the Act, it is described in other relevant definitions. The Act's definition of ''direct communication'' states:

An effort, whether written, oral or by any other medium, made by a lobbyist or principal, directed to a State official or employee, the purpose or foreseeable effect of which is to influence legislative action or administrative action. The term may include personnel expenses and office expenses. (Emphasis added.)

   Similarly, the Act's definition of ''indirect communication'' states, in part:

an effort, whether written, oral or by another medium, to encourage others, including the general public, to take action, the purpose or foreseeable effect of which is to directly influence legislative action or administrative action. (Emphasis added.)

   Under the Act, an ''effort'' is described as a tangible, proactive communication that is ''written, oral or by any other medium'' and that is made to influence legislative or administrative action.

''Engages in lobbying''

   The above concepts are important because they form the foundation of the phrase ''engages in lobbying.'' The Act's definitions of ''lobbyist,'' ''lobbying firm'' and ''principal'' all include the qualifying phrase ''engages in lobbying.'' Accordingly, a person or entity that does not make a tangible communication is not, by the Act's definition, a lobbyist, lobbying firm or principal and would not have to register or report.

''Effort to influence legislative action or administrative action''

   The Committee recognized the importance of the Act's definition of ''lobbying'' and in section 51.1 of the regulation includes that definition and defines several phrases in it. The regulation defines the phrase ''effort to influence legislative action or administrative action'' as:

Any attempt to initiate, support, promote, modify, oppose, delay or advance a legislative action or administrative action on behalf of a principal for economic consideration. The term includes any of the following:

(i)  Paying a lobbyist or lobbying firm a retainer or other compensation, even if that lobbyist or lobbying firm does not make direct or indirect communications or take any other action.

(ii)  Monitoring legislation, legislative action or administrative action.

   In the Preamble, the Committee explains the definition of this phrase as follows:

The Committee decided to define this term because it is used in section 13A03 of the act in the definition of lobbying. The Committee discussed this definition and the one for ''Engaging a lobbyist'' and reasoned that the two definitions should be consistent and should include lobbying on behalf of a principal for economic consideration. The Committee proposes that lobbying includes paying a lobbyist a retainer, even if that lobbyist does not make direct or indirect communications. A principal hiring a lobbyist not to make any direct or indirect communications is an effort to influence legislative action or administrative action because it is furthering the principal's intent to influence legislative or administrative action or the lack thereof. By hiring a lobbyist to not make any direct or indirect communications, a principal could prevent that lobbyist from working for another principal with opposing views. Also the committee proposes that this definition should include monitoring legislation, legislative action or administrative action. (Emphasis added.)

   It is appropriate to define in regulation the phrase ''effort to influence legislative action or administrative action'' so that the regulated community understands how the Act will be interpreted and how to comply with the regulation. However, Paragraphs (i) and (ii) appear to go beyond the scope of the Act. A lobbyist or lobbying firm that does not make a direct or indirect communication to influence legislative action or administrative action would not meet the definition of ''direct communication'' or ''indirect communication,'' and thus would not meet the Act's definition of ''lobbying.''

   All of the provisions in the statutory definition of ''lobbying'' are tied to ''an effort to influence.'' As explained previously, ''direct or indirect communication'' requires a tangible, proactive communication to influence legislative action or administrative action. ''Office expenses'' (i.e., ''expenditure for an office, equipment or supplies, utilized for lobbying'') must be ''utilized for lobbying.'' (Emphasis added.) The provision for providing ''gifts, hospitality, transportation or lodging,'' must be ''to a State official or employee for the purpose of advancing the interest of the lobbyist or principal.''

   Regarding Paragraph (i), we agree that a principal could prevent an individual lobbyist or lobbying firm from presenting opposing views by hiring or retaining the lobbyist or lobbying firm. However, the Committee needs to explain its statutory authority to require registration and reporting when the ''lobbyist or lobbying firm does not make direct or indirect communications or take any other action'' particularly in regard to the Act's definitions of ''lobbying,'' ''direct communication'' and ''indirect communication,'' which all require ''an effort . . . to influence legislative or administrative action.'' If the Committee believes it has this authority, the Committee also needs to explain the need for registration and reporting of this information, and its incremental cost above registration and reporting of only those who make direct or indirect communications.

   Regarding Paragraph (ii), we disagree that monitoring alone constitutes lobbying. The simple acts of ''monitoring legislation, legislative action or administrative action'' would encompass any lobbyist who reads information commonly available to the public, such as the General Assembly's web site, the Pennsylvania Bulletin, newspapers, and news services. It would also include any lobbyist who observes a legislative session, standing committee meeting or any public meeting of an agency. If no action was taken to influence legislative action or administrative action, we question the Committee's authority to require registration and reporting due to monitoring, and why this information would be useful. Reporting monitoring activities could also tremendously increase reporting, perhaps to the point where it would be difficult to distinguish those who seek to influence legislative or administrative action from those who do not. The Committee needs to explain how reporting monitoring activities in Paragraph (ii) is consistent with the statute and why this reporting is needed.

   In summary, we agree that the phrase ''effort to influence legislative action or administrative action'' should be defined in regulation. However, unless the Committee can explain how Paragraphs (i) and (ii) are consistent with the statute and are needed, we recommend deleting them.

Cost of compliance

   Several commentators believe the regulation will be so burdensome to their organizations that it will create an obstacle to participation in advocacy. These commentators have small budgets or are smaller non-profit organizations whose primary function is not lobbying. The Regulatory Analysis Form, Question 20 response states that ''there will be costs for the regulated community for administrative staff to prepare the reports however, the costs are too speculative to be quantified at this time.'' The Committee should identify costs to the regulated community and explain why reporting is not as burdensome as alleged by commentators. In addition, to the extent possible under the Act, the Committee should investigate alternative ways to comply with the Act and regulation to minimize costs.

2.  Section 51.1. Definitions.--Statutory authority; Need; Reasonableness; Clarity.

   Our concerns with the scope of the definition of ''lobbying'' as described in Part 1 of this comment extend to every other definition in which that term is used.

Statutory authority and need to alter statutory definitions

   We are concerned that the following definitions in the proposed regulation amend the same terms defined in section 13A03 of the Act.

Definition	Concern
Administrative action	The Act states the term includes ''any'' of the following.   Subsection (vi) substantially broadens the definition to include ''grants, the release of funds from the capital budget, loans and investment of funds.''
Direct communication	The first paragraph of this definition mirrors the Act's definition of the same term, except that it also includes ''lobbying firm.''   Paragraph (ii) does not appear in the Act's definition. It exempts ''gifts, hospitality, transportation and lodging.''
Gift	Paragraphs (ii)(C), (E), (F) and (G) significantly expand the scope of the Act's definition.
Hospitality	Paragraphs (ii)(B) and (C) significantly expand the scope of the Act's definition.
Indirect communication	Paragraph (v) does not appear in the Act's definition. It exempts ''gifts, hospitality, transportation and lodging.''   The regulation also changes the order of the paragraphs in the Act.
Legislation	Inclusion of the phrase ''including draft legislation'' in subsection (i), the term ''legislative'' in subsection (ii), and all of subsection (iii) depart from the Act's definition of the same term.
Legislative action	Subsection (v) substantially broadens the Act's definition to include ''grants, the release of funds from the capital budget, loans and investment of funds.''
Lobbying	The term ''lobbying firm'' appears in the regulation, but not in the Act's definition.
Lobbyist	The following sentence is not in the Act's definition: ''Membership in an association alone is not sufficient to make an association member a lobbyist.''
Personnel expense	''Lawyers'' was added to this definition, but does not appear in the Act's definition.
Principal	The following sentence is not in the Act's definition: ''Membership in an association alone is not sufficient to make an association member a principal.''

   For each concern identified in the previous table, the Committee should explain its authority to amend the Act's definition and the need for the amendment, or delete the amendments so that the regulation's definition is substantially the same as the Act's definition.

   Finally, the definition of ''entity'' is vague. As used in this definition, the term ''something'' offers the regulated community insufficient guidance. In the final-form regulation, the Committee should clarify this definition.

3.  Section 51.4. Delinquency.--Reasonableness; Economic impact; Clarity.

Department's designee

   We have two concerns with Paragraph (a)(1). It states:

Hard copy filings must be received by 5 p.m. in the office. From 5 p.m. until 12 a.m. midnight, a hard copy filing may be filed with the Department's designee, as noted in the Department's publications or on its web site.

   The Preamble states ''the Department of State (Department) has typically used the Capitol Police force as a designee after 5 p.m. on the date filings are due.''

   Our first concern is that we question the need and reliability of this provision. Given the regular business hours of the Department and the ability to file electronically, it is not clear why the ability to file for the hours from 5 p.m. to midnight is needed. We note that this service would be needed for all Commonwealth business days because of the requirement to register within ten days of lobbying. The Committee should explain the need for a designee from 5 p.m. to midnight, the reliability of the designee, the direct or indirect costs it imposes on the Commonwealth, and why these costs are justified.

   Our second concern is that the regulation is not clear regarding filing with a designee. The provision requires filing with a designee ''as noted in the Department's publications or on its web site.'' It is not clear whether the Department's publications or the web site should be consulted to determine who the current designee is. Further, these can be changed without notice. The regulation should provide a definite filing location to file documents with a designee.

4.  Section 51.7. Forms, records and Department publications.--Consistency with statute; Clarity.

Additional sheets

   Subsection (b) states:

Additional sheets of equal size on forms prescribed by the Department may be attached to any hard copy form filed under the act, if more space is required.

   This provision is not clear. Can a person attach any 8.5 inch by 11 inch paper, or must the attachment be on a form prescribed by the Department?

Available on a publicly accessible internet web site

   Under the section 13A08(c) of the Act, it states, in part, that ''The Department shall make all registrations and reports available on a publicly accessible internet web site.'' This provision was not included in Subsection (c) of the regulation. We recommend adding this provision from the Act to Subsection (c).

5.  Section 51.10. Electronic filing.--Clarity.

Upon acceptance by the filer

   Subsection (a) concludes with the sentence that ''The use of an electronic signature shall have the same force and effect as a manual signature upon acceptance by the filer.'' (Emphasis added.) It is not clear what the phrase ''upon acceptance by the filer'' means. We recommend either deleting this phrase or clarifying its intent.

6.  Section 51.11. Enforcement of Commission orders.--Need; Clarity.

   This section states: ''The Commission through its staff may take appropriate action to enforce its orders.'' This provision is vague and does not provide lobbyists, lobbying firms or principals with sufficient guidance. What constitutes an ''appropriate action''?

7.  Sections 53.2 Principal registration, 53.3. Lobbying firm registration and 53.4 Lobbyist registration.--Consistency with statute.

Accepting a retainer or other compensation for purposes including lobbying

   There are two concerns with this phrase.

   First, Paragraph (a)(1) of both sections 53.3 and 53.4 states,

Accepting an engagement to lobby or accepting a retainer or other compensation for purposes including lobbying constitutes acting in the capacity of a lobbying firm. (Emphasis added.)

   Consistent with our first comment on the scope of the statutory definition of the term ''lobbying,'' we do not believe Paragraphs (a)(1) should include accepting a retainer or other compensation, unless those are compensation for lobbying (i.e., an effort to influence legislative action or administrative action). We recommend removing retainers or other compensation from Paragraphs (a)(1).

   Second, consistent with our first comment on the scope of the statutory definition of the term ''lobbying,'' Paragraphs (a)(1) of sections 53.2, 53.3 and 53.4 use the phrase ''for purposes including lobbying.'' We believe this phrase expands the scope of activities that constitute lobbying and for which registration is required. A lobbyist could be engaged ''for purposes including lobbying,'' to perform many other unrelated tasks, but never actually lobby. We recommend rewriting these provisions to clearly require lobbying to be the action that requires registration.

8.  Section 55.1. Quarterly expense reports.--Consistency with statute; Reasonableness; Clarity.

Exemption from registration and reporting

   Several commentators are concerned that grassroots activities, like bus trips with box lunches, could be considered to require reporting of the individuals who accepted them. Section 13A06 of the Act lists 15 exemptions from registration and reporting. Among them, Paragraph (4) exempts:

An individual whose economic consideration for lobbying, from all principals represented, does not exceed $2,500 in the aggregate during any reporting period.

   Subsection 55.1(a) of the regulation partially reflects section 13A06 of the Act by including the $2,500 reporting threshold for lobbyists, lobbying firms, and principals. However, section 55.1(a) does not mention all of the exemptions, including section 13A06(4) of the Act. Therefore, we recommend including in section 55.1(a) a cross-reference to all of the exemptions in section 13A06 of the Act.

9.  Clarity Comments.

   *  Section 51.2 of the regulation specifies that filing dates will be extended to the next business day if a deadline falls on a weekend or holiday. This provision indicates that the statutory ten days to register and 30 days to report are interpreted to be calendar days. However, other provisions specify business days, such as section 51.4(c), which allows receipt of photographs and filing fees ''within five Commonwealth business days.'' Given the specification in section 51.2, we recommend using calendar days throughout the regulation to improve the clarity of deadlines.

   *  Section 51.12(a) references ''the eligibility standards of the Internal Revenue Service for filing a consolidated corporate tax return.'' It should include a cross-reference to these eligibility standards.

   *  Sections 53.2(b), 53.3(b), 53.4(b), 53.6(a), 55.1(m), 55.1(m)(1), 55.1(n)(2) and 55.2(a)(1) all require information ''on a form prescribed by the Department'' or standardized forms. For clarity, we recommend that all of the provisions cross-reference section 51.7(a) (relating to Forms, records and Department publications).

   *  The reporting limit of $10 in Paragraph 55.1(g)(6) needs to be clarified. The specified limits are ''a value not exceeding $10'' and ''$10 or more.'' These limits overlap at $10. The second limit should be ''more than $10.''

   *  Section 55.1(k)(2) ends with the phrase ''as required by law.'' This should include a cross reference to the law.

   *  Section 55.1(n)(6) requires the lobbyist to ''promptly'' provide a copy to the principal. The regulation should specify a specific time period.

   *  As printed in the Pennsylvania Bulletin, the cross-reference to the Act in section 63.3(b) needs to be corrected. It references '' . . . or section 13A0 of the act . . . .''

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Pennsylvania Liquor Control Board
Regulation #54-60 (IRRC #2660)

Responsible Alcohol Management Program

March 26, 2008

   We submit for your consideration the following comments on the proposed rulemaking published in the January 26, 2008 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P.S . § 745.5b) (RRA). Section 5.1(a) of the RRA (71 P. S. § 745.5a(a)) directs the Pennsylvania Liquor Control Board (Board) to respond to all comments received from us or any other source.

1.  Determining whether the regulation is in the public interest.

   Section 5.2 of the RRA (71 P. S. § 745.5b) directs this Commission to determine whether a regulation is in the public interest. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. The Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) of the RRA in the Regulatory Analysis Form (RAF).

   We raise three issues that relate to determining whether the regulation is in the public interest.

   First, the Preamble states that the proposed rulemaking implements section 471.1 of the Liquor Code (47 P. S. § 4-471.1). However, the explanation of the regulation in the Preamble is not sufficient to allow this Commission to determine if the program, as contemplated by this regulation, is in the public interest. The ''Summary'' of the regulation contained in the Preamble contains four bullet points that do not offer a complete explanation of the Responsible Alcohol Management Program (RAMP). In the Preamble submitted with the final-form rulemaking, the Board should provide more detailed information required under the RRA.

   Second, both the Liquor Code and the RAF indicate that participation in RAMP can be voluntary or compulsory, as a result of violations of the Liquor Code or as pursuant to the terms of a conditional licensing agreement. However, the regulation does not provide further details on program participation. The final-form regulation should specify the different categories of participants, as well as the consequences each one would face for failure to comply.

   Finally, the RAF indicates that the Liquor Code establishes incentives for licensees to receive responsible alcohol management training and train their servers. RAF #13 states that: ''[l]icensees will . . . benefit if they take advantage of the program by potentially receiving a mitigation of sanctions by an Administrative Law Judge in the case of an employee who serves a minor or a visibly intoxicated person. The benefit for licensees is that this training has the potential of reducing fines for such violations from a range of $1,000--$5,000 to $50--$1,000.'' The proposed regulation does not mention such incentives. In order to improve clarity, the final-form regulation should include a cross-reference to the appropriate section of the Liquor Code that offers this incentive.

2.  Section 5.202. Definitions.--Clarity.

   The first line of this section indicates that words and phrases, when used in the subchapter shall have the following meanings, ''unless the context clearly indicates otherwise.'' (Emphasis added.) This phrase is vague, as one person's interpretation of what ''clearly indicates otherwise'' may be different from that of another person, and it should be deleted from the final-form regulation.

Certify

   This definition discusses ''approval'' in writing. What is being approved? The final-form regulation should further define this term.

Instructor

   This definition discusses instructing ''students'' in responsible server practice. What kind of students? The final-form regulation should further define this term.

RAMP

   This definition refers to the ''program,'' but the regulation never defines what the ''program'' is. Furthermore, section 1.7 (e) of the PA Bulletin Style Manual states that the term being defined may not be included as part of the definition. We recommend that the final-form regulation cross-reference the statutory definition for RAMP.

3.  Section 5.211. Course of study for alcohol service personnel.--Clarity.

   Paragraph (6) requires that the course demonstrate ''proper incident documentation.'' The final-form regulation should describe the specific documents this paragraph refers to and how it is determined what documents are ''proper.''

4.  Section 5.221. Provider certification.--Implementation procedures; Clarity.

Subsection (b)

   Subsection (b) mentions the ''minimum requirements'' for provider certification. Based on the provisions in this subsection, it is unclear whether these ''minimum requirements'' refer to the list of information a provider must submit to the Board, as contained in Subsection (a)(1)--(5), or to some other listing contained in the regulation. The final-form regulation should clarify the location in the regulation of these minimum requirements.

Subsection (c)

   This subsection describes what is necessary for providers to renew their certification, and states that: ''[t]he same forms, provided by the Board, shall be used for renewals as for initial certification.'' To improve clarity, this phrase should be modified in the final-form regulation to state that: ''the same forms, provided by the Board, shall be used for renewal as for initial certification, and will identify any updated information required for renewal.''

5.  Section 5.231. Instructor certification.--Implementation procedures; Clarity.

   This section describes the requirements necessary for instructor certification. We raise five issues.

   First, the opening paragraph states that: ''[R]AMP will have a procedure to confirm a candidate's competency to begin and continue working as an instructor.'' Are the paragraphs following this sentence the ''procedure''? The final-form regulation should clarify this issue.

   Second, within the first sentence of the section, who is a ''candidate''? The term is used but is not defined. Paragraph (3) uses the term ''applicant.'' If these terms have the same meaning, one term should be consistently used throughout the regulation. However, if these terms have different meanings, they should be defined separately.

   Third, who will ''observe'' the instructor's training sessions mentioned in the second sentence?

   Fourth, paragraph (3) states: ''[i]f the applicant meets the minimum requirements for certification, it will issue . . . '' (Emphasis added.) The final-form regulation should clarify whether ''it'' refers to the Board or the Bureau of Alcohol Education.

   Finally, in paragraph (4), to improve clarity, instead of providing that: ''[t]he same fee will be submitted with the renewal application . . . ,'' the Board should simply state that: ''a $100 fee must accompany an application for renewal.''

6.  Section 5.232. Instructor responsibilities.--Implementation procedures; Clarity.

   This section describes the responsibilities of a RAMP instructor. We have four concerns.

   First, paragraph (1) states that instructors shall have the responsibility to: ''[p]rovide students with current and accurate information.'' The final-form regulation should identify the subject matter of the ''information'' that the Board requires instructors to provide.

   Second, paragraphs (3) and (4) both discuss minimums for sessions conducted and students trained, with sentences that end with ''unless the Board approves a lower . . . minimum.'' The final-form regulation should specify under what circumstances the Board would approve a lower minimum number of training sessions and students.

   Third, Paragraph (5) requires instructors to: ''[p]rovide accurate records of attendance and course completion to RAMP. . . .'' What is the deadline for when these records must be submitted? Section 5.233(c) covers timeframes for sending attendance records and pass/fail test scores to the Board. To improve clarity, the Board should cross-reference section 5.233(c).

   Finally, Paragraph (6) refers to instructor meetings. The final-form regulation should provide information on who offers these meetings, for example whether they will be offered by providers, or by the Board itself.

7.  Section 5.233. Minimum standards of training.--Implementation procedures.

   Subsection (e) discusses the test scores students must receive in order to complete the RAMP program training sessions. According to this subsection: ''[a] student who does not pass may, at the first opportunity, schedule training and take the test again.'' The Board should include a maximum amount of times a student can take the test before a failed score would impact a licensee, in particular if its participation in RAMP is compulsory.

8.  Section 5.241. Manager/owner training.--Implementation procedures; Clarity.

Subsection (b)

   Subsection (b) describes what aspects should be included in manager/owner training. Subsection (b)(1) requires instruction on how to ''monitor'' employees. The final-form regulation should clearly state the particular areas in which the manager/owner would be specifically monitoring the employees.

Subsection (c)

   Subsection (c) states that the Board will: ''[m]aintain records establishing the names of individuals who have successfully undergone manager/owner training.'' The final-form regulation should provide a timeframe for how long the Board will keep these records, and state whether these records are subject to the applicable state open records law.

9.  Section 5.242. New employee orientation.--Clarity.

   The term ''licensee'' is used in this section but it is not defined. It should be noted that the term is also used throughout this proposed regulation. The final-form rulemaking should define this term or, if it is defined elsewhere, include a cross-reference.

   Subsections (a)(2) and (3) mention ''acceptable forms of identification'' and ''practices for checking identification,'' and while it is understood, neither mention the actual purpose in reviewing identification. This should be clearly defined in the regulation. To improve clarity, the Board also should cross-reference section 495(a) of the Liquor Code (47 P. S. § 4-495 (a)), which provides the acceptable methods of identification.

   Finally, the regulation does not detail what type of ''criminal activity'' new employees would learn about, as mentioned in Subsection (a)(6). The final-form regulation should include this information.

10.  Section 5.251. Prohibited conduct.--Clarity.

   Subsection (a)(9) refers to an instructor or provider receiving, as a result of class observations conducted by RAMP, an ''unsatisfactory evaluation'' regarding the presentation of the course of study. The final-form regulation should include examples of circumstances that would warrant an ''unsatisfactory evaluation.''

   For purposes of clarity, can subsections (b) and (c) be combined into one subsection?

11.  Section 5.271. Premises certification.--Clarity.

   Subsection (a) indicates that a licensee may request that the Board certify that it complies with section 471.1 of the Liquor Code (47 P. S. § 4-471.1), and that: ''[t]his request may be made by personal contact, telephone or written communication to RAMP.'' The final-form regulation should explain what types of ''written communication'' are appropriate (i.e., US mail, e-mail, etc.).

ARTHUR COCCODRILLI,   
Chairperson

[Pa.B. Doc. No. 08-644. Filed for public inspection April 4, 2008, 9:00 a.m.]

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