NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Action Taken by the Commission
[39 Pa.B. 1770]
[Saturday, April 4, 2009]The Independent Regulatory Review Commission (Commission) met publicly at 10:30 a.m., Thursday, March 19, 2009, and announced the following:
Action Taken--Regulations Approved:
Environmental Quality Board #7-430: Marcellus Shale Well Permit Fees (amends 25 Pa. Code Chapter 78)
Environmental Quality Board #7-407: Safe Drinking Water; Public Notification Revisions (amends 25 Pa. Code §§ 109.407--109.413, 109.415, 109.701, 109.702 and 109.707)
State Board of Nursing #16A-5123: Nursing Education Programs Examination Pass Rates (amends 49 Pa. Code Chapter 21)
State Board of Veterinary Medicine #16A-5721: Professional Conduct (amends 49 Pa. Code §§ 31.1 and 31.21)
Action Taken--Regulations Disapproved:
Pennsylvania Gaming Control Board #125-92: Smoking in Licensed Facilities (amends 58 Pa. Code Chapters 441a and 467a)
Pennsylvania Gaming Control Board #125-86: Slot Machine Licensing (amends 58 Pa. Code § 441a.7)
Pennsylvania Gaming Control Board #125-93: Rules of Practice and Procedures (amends 58 Pa. Code Chapters 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a, 499a and 511a)
____
Approval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq., by Phone, Abstained; Karen A. Miller; John F. Mizner, Esq., by Phone
Environmental Quality Board--
Marcellus Shale Gas Well Fees Amendments;
Regulation No. 7-430 (#2741)On February 4, 2009, the Independent Regulatory Review Commission (Commission) received this regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapter 78. Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This final-omitted regulation adds permit fees relative to the development of Marcellus Shale gas wells in Pennsylvania. The fees will include a base permit fee of $900 with an additional $100 fee per 500 feet of well bore drilled past 1,500 feet.
We have determined this regulation is consistent with the statutory authority of the Board (58 P. S. §§ 601.201(d) and 601.604) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____
Approval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq., by Phone; Karen A. Miller; John F. Mizner, Esq., by Phone
Environmental Quality Board--
Safe Drinking Water; Public Notification
Revisions; Regulation No. 7-407 (#2637)On September 11, 2007, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code §§ 109.407--109.413, 109.415, 109.701, 109.702 and 109.707. The proposed regulation was published in the September 22, 2007 Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on February 10, 2009.
This regulation updates and enhances public notification procedures for public water systems for emergency situations that may adversely affect public health.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. § 721.4) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____
Approval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq., by Phone; Karen A. Miller; John F. Mizner, Esq., by Phone
State Board of Nursing--Nursing
Education Programs Examination Pass
Rates; Regulation No. 16A-5123 (#2664)On January 9, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Nursing (Board). This rulemaking amends 49 Pa. Code Chapter 21. The proposed regulation was published in the January 19, 2008 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 6, 2009.
This regulation increases the required examination pass rate for nursing education programs (programs) for both registered nurses and practical nurses. It requires programs to raise this minimum pass rate to 70 percent in the first full academic year after publication of this regulation, and to 80 percent in the next academic year.
We have determined this regulation is consistent with the statutory authority of the Board (63 P. S. §§ 212.1(k), 216.1, 659 and 667.6) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____
Approval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq., by Phone; Karen A. Miller; John F. Mizner, Esq., by Phone
State Board of Veterinary Medicine--
Professional Conduct;
Regulation No. 16A-5721 (#2594)On February 21, 2007, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Veterinary Medicine. This rulemaking amends 49 Pa. Code §§ 31.1 and 31.21. The proposed regulation was published in the March 3, 2007 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 6, 2009.
This regulation revises and updates standards of conduct including the reporting of unprofessional conduct and medical incompetence, and adds prohibitions for ''unprofessional conduct'' such as verbal abuse and harassment of clients and employees. Even though this regulation is an improvement over the existing regulations, there is one remaining concern. The Board continues to use the term ''should'' because it asserts that rules of conduct can be both ''aspirational goals and mandates.'' However, the implementation and enforceability of ''aspirational goals'' remains both unclear and problematic. A regulation is an agency's exercise of delegated authority to create a mandatory standard of conduct or behavior. Rules must establish binding legal requirements. See Chimenti v. Dept. of Corrections, 720 A2d 205 (Pa. Cmwlth. 1998), aff'd 740 A.2d 1139 (Pa. 1998). In contrast, the word ''should'' implies that compliance with a rule or standard may be optional. We urge the Board to revisit this issue in future rulemakings, eliminate the word ''should'' and promulgate binding and enforceable standards in its regulations.
We have determined this regulation is consistent with the statutory authority of the Board (63 P. S. §§ 485.5(1) and (2)) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
____
Disapproval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George Bedwick; Nancy Sabol Frantz, Esq.; Karen A. Miller
Pennsylvania Gaming Control Board--
Smoking in Licensed Facilities;
Regulation No. 125-92 (#2731)On October 28, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Gaming Control Board (Board). This rulemaking amends 58 Pa. Code Chapters 441a and 467a. The proposed regulation was published in the November 8, 2008 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 11, 2009.
This final-form regulation is the Board's attempt to implement the Clean Indoor Air Act of 2008, 35 P. S. § 637.1 et seq. (Act) as it relates to smoking in licensed facilities. The Board has cited Sections 3, 4 and 6 of the Act (35 P. S. §§ 637.3, 637.4 and 637.6) and § 1202(b)(30) of the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S § 1202(b)(30)) (Gaming Act) as its statutory authority for the regulation.
Section 5.2 of the Regulatory Review Act requires the following of this Commission:
''In determining whether a proposed, final-form, final-omitted or existing regulation is in the public interest, the commission shall, first and foremost, determine whether the agency has the statutory authority to promulgate the regulation and whether the regulation conforms to the intention of the General Assembly in the enactment of the statute upon which the regulation is based.'' (71 P. S. § 745.5(b)(a))We find that the Board does not have the statutory authority to promulgate this regulation and that the regulation is not consistent with the intention of the General Assembly for the following reasons.
First, Section 2 of the Act (35 P. S. § 637.2) defines ''Department'' as the ''The Department of Health of the Commonwealth'' and Section 10 (a) of the Act (35 P. S. § 637.10(a)) states the following: ''The department shall promulgate regulations to implement this act.'' We believe that this language is clear and the intent of the General Assembly was for the Department of Health (Department) to write the rules to implement the Act. We note that where the legislature intends to authorize the promulgation of regulations, it has done so explicitly. Main Line Health, Inc. v. CAT Fund, 738 A.2d 66 (Pa. Cmwlth. 1999), affirmed 77 A.2d 1048 (Pa. 2001).
In the Preamble to the final-form regulation, the Board contends that if the General Assembly had intended to make the Department the only agency that could promulgate regulations to implement the Act, it would have written Section 10(a) differently. The Board notes that nowhere in Section 10(a) does it state that the Department has ''sole'' or ''exclusive'' authority to promulgate regulations to implement the Act. We find this rational to be flawed. Under Section 1921(b) of Pennsylvania's Statutory Construction Act (SCA), ''[w]hen the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.'' (1 Pa.C.S.A. § 1921(b)) We believe a plain reading of Section 10(a) is perfectly clear. The intent of the General Assembly was for the Department to promulgate regulations to implement the Act. The fact that the Department has not promulgated regulations does not transfer that authority to another agency.
If a piece of legislation is not explicit, the SCA provides guidance on how the intent of the General Assembly could be ascertained. Section 1921(c) of the SCA states that the intention of the General Assembly could be ascertained by examining, among other things, contemporaneous legislative histories. As noted above, we do not believe Section 10(a) of the Act is ambiguous. However, a review of the legislative history surrounding the passage of the Act sheds light on what the intent of the General Assembly was, as it pertains to promulgating regulations, when the Act was debated. The following legislative journals from the 2007 Regular Session of the Pennsylvania General Assembly indicate that the members recognized that licensed facilities, taverns and various other facilities would be affected, but that the Department of Health would be charged with promulgating regulations to implement the Act:
* Senate Journal--June 26, 2007 (page 790)* House Journal--July 13, 2007 (pages 1910 and 1918)* House Journal--July 15, 2007 (page 1989)* House Journal--July 16, 2007 (pages 2060, 2075 and 2077).When the Commission was considering this regulation at its public meeting on March 19th, staff from the Board indicated that a letter submitted by the Department of Health supporting the rulemaking was further indication that the Board has the authority to promulgate the regulation. In that letter, the Department cited Prudential Property and Casualty Insurance Company v. Muir, 513 A.2d 1129 (Pa. Cmwlth. 1986), appeal denied, 522 A.2d 1106 (1987) as evidence that the Board has implied power to adopt regulations with respect to matters within its province. We note that this case was overturned by the Pennsylvania Supreme Court in Insurance Federation of Pennsylvania, Inc. v. Commonwealth, Department of Insurance, 585 Pa. 630, 889 A.2d 550 (Pa. 2005).
Second, as noted above, the Board has cited Sections 3, 4 and 6 of the Act as part of its statutory authority to promulgate this regulation. Section 3(b)(11) provides an exception to the smoking ban for licensed facilities. It requires the Board to verify data provided by the Department of Revenue to licensed facilities. Section 4 pertains to signage requirements related to the smoking ban. Section 6 pertains to violations of the Act. While we acknowledge that Sections 3 and 6 would require the Board to take certain actions, they do not provide the authority to promulgate regulations pertaining to the Act. Indeed, various state licensing agencies are required to perform certain duties under the Act. Allowing each of those agencies to promulgate regulations to implement the Act would create a confusing regulatory environment for the regulated community. In regard to Section 4, we find that the Board has failed to explain why this section provides the authority to promulgate regulations.
We are also concerned with §§ 441a.25(d) and (e) of the regulation. These subsections attempt to implement Section (b)(11) of the Act and require licensed entities to obtain approval of the Board's executive director before an expansion of the smoking area of a gaming floor can occur. Section (b)(11) only gives the Board the authority to verify certain data provided by the Department of Revenue to a licensed entity. It does not provide the Board the authority to require licensed entities to obtain any approval before an expansion of the smoking area can occur.
Finally, the Board has cited its general rulemaking authority in the Gaming Act as part of its statutory authority for this regulation. Again, we disagree. Section 1202(b)(30) of the Gaming Act provides the Board with the authority to ''promulgate rules and regulations necessary for the administration of this part.'' The ''part'' being referred to is Part II, pertaining to ''Gaming'' of Title 4 of Pennsylvania Consolidated Statutes, which refers to ''Amusements.'' The authority to promulgate regulations to administer gaming does not extend to the authority to promulgate regulations to implement the Act.
We have determined this regulation is not consistent with the statutory authority of the Pennsylvania Gaming Control Board and the intention of the General Assembly. Therefore, based upon the information presented to us and after considering the criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
____
Disapproval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq.; Karen A. Miller
Pennsylvania Gaming Control Board--
Slot Machine Licensing;
Regulation No. 125-86 (#2695)On May 1, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Gaming Control Board (Board). This rulemaking amends 58 Pa. Code § 441a.7. The proposed regulation was published in the May 17, 2008 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 11, 2009.
This final-form regulation expands the provisions related to licensing hearings for potential slot machine licensees. The Board may request, on the record at the licensing hearing, that a license applicant respond to questions that relate to confidential information. The applicant will have the option of waiving the right to confidentiality and answering the questions at the public hearing or requesting that the matter be heard in executive session.
In order to determine whether a regulation is in the public interest, the Regulatory Review Act requires this Commission to consider, among other things, the ''reasonableness of requirements, implementation procedures . . . '' 71 P. S. § 745.5b (b)(3)(iv). This regulation does not preserve a license applicant's right under the Pennsylvania Racehorse Development and Gaming Act (Act) to protect certain information as confidential. By allowing questions to be raised at the public hearing relating to confidential information, the information itself may be inadvertently disclosed. In addition, by allowing an applicant to simply ''request'' that confidential information be heard in executive session, the Board can potentially deny the request, therefore further running the risk that protected information is revealed. Finally, without understanding the content of the questions before the licensing hearing, an applicant may not have the ability to make an informed decision regarding the waiver of his/her right to confidentiality imposed by the Act.
For these reasons, we question the reasonableness of the rulemaking, as well as the clarity of implementation procedures relating to both the applicant's waiver of his/her right to confidentiality, as well as the process for requesting an executive session. Therefore, based upon the information presented to us and after considering the criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
____
Disapproval Order Public Meeting held
March 19, 2009Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick; Nancy Sabol Frantz, Esq.; Karen A. Miller
Pennsylvania Gaming Control Board--
Rules of Practice and Procedures;
Regulation No. 125-93 (#2723)On September 24, 2008, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Gaming Control Board (Board). This rulemaking amends 58 Pa. Code Chapters 401a, 403a, 405a, 491a, 493a, 494a, 495a, 497a, 499a and 511a. The proposed regulation was published in the October 4, 2008 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on February 11, 2009.
This final-form regulation amends existing regulations relating to practice and procedure before the Board. In the Regulatory Analysis Form accompanying the regulation, the Board explained it intended this rulemaking to improve clarity, conform to current practice and simplify some existing requirements. A primary change to existing regulations is the Board's proposal to shift the trigger date for responsive filings from the date of service to the date of filing.
The Regulatory Review Act requires this Commission to determine whether a final-form regulation is in the public interest. 71 P. S. § 745.5b(a). To make that determination, we must weigh, among other factors, ''[t]he clarity, feasibility and reasonableness of the regulation . . . by considering the following: (i) Possible conflict with or duplication of statutes or existing regulations. (ii) Clarity and lack of ambiguity. (iii) Need for the regulation.'' 71 P. S. § 745.5b(b)(3). We question the reasonableness of and need for this regulation for two reasons.
First, the regulation appears to serve the interests of the Board at the expense of the regulated community. Under existing Board regulations, timelines are calculated from the time of service. 58 Pa. Code §§ 493a.5 (Answers to complaints, petitions, motions and other filings requiring a response); 493a.10 (Motions for summary judgment and judgment on the pleadings); 493a.12 (Intervention); and 494a.6 (Reopening of record). When service is accomplished by post, service occurs at the time of mailing. 1 Pa. Code 33.34. According to the Board, calculating timelines from the time of filing will protect the most frequent responding party, the Board's own Office of Enforcement Counsel, from diminished response periods due to postal delays. However, the Board agrees that the regulation fails to protect responding parties other than the Office of Enforcement Counsel from the consequences of the similar delays. Therefore, we conclude this regulation unreasonably disadvantages the regulated community.
Second, we believe the regulation is likely to create confusion amongst the regulated community. Section 491a.1(c) states, ''[p]leadings or other documents that require a filing fee will not be deemed filed until the Board receives the required fee.'' A scheme that calculates timelines from the time of filing, which is not deemed to have occurred until the Board is paid, strips responding parties (other than the Board's Office of Enforcement Counsel) of the consistency and predictability of process necessary for fair and transparent administrative proceedings. Additionally, by the Board's own admission, no other court or administrative forum in this Commonwealth calculates timelines from the time of filing, rather than the time of service. Therefore, we conclude that portions of this regulation are both unnecessary and unduly confusing.
Therefore, based upon the information presented to us and after considering the criteria of the Regulatory Review Act discussed above, we find that promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 09-648. Filed for public inspection April 3, 2009, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
