NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[39 Pa.B. 4182]
[Saturday, July 18, 2009]

   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 act (71 P. S. § 645.5b).

   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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
12-85	Department of Labor and Industry Workers' Compensation; Individual Self-Insurance 39 Pa.B. 2293 (May 2, 2009)	6/1/09	7/1/09
16A-5512	State Board of Accountancy Biennial Renewal Fees 39 Pa.B. 2208 (May 2, 2009)	6/1/09	7/1/09
16A-4818	State Board of Funeral Directors Continuing Education Enforcement 39 Pa.B. 2210 (May 2, 2009)	6/1/09	7/1/09
16-47	Department of State Schedule of Civil Penalties -- Funeral Directors    and Funeral Establishments 39 Pa.B. 2205 (May 2, 2009)	6/1/09	7/1/09
16A-4710	State Registration Board for Professional Engineers,    Land Surveyors and Geologists Continuing Education 39 Pa.B. 2218 (May 2, 2009)	6/1/09	7/1/09
16A-6315	State Board of Psychology Qualifications 39 Pa.B. 2211 (May 2, 2009)	6/1/09	7/1/09
16-43	Department of State Schedule of Civil Penalties -- Engineers, Land    Surveyors and Geologists 39 Pa.B. 2206 (May 2, 2009)	6/1/09	7/1/09
57-266	Pennsylvania Public Utility Commission Licensing Requirements for Natural Gas Suppliers 39 Pa.B. 1657 (April 4, 2009)	6/3/09	7/6/09
7-428	Environmental Quality Board Adhesives, Sealants, Primers and Solvents 39 Pa.B. 1636 (April 4, 2009)	6/8/09	7/8/09

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Department of Labor and Industry

Regulation #12-85 (IRRC #2758)

Workers' Compensation; Individual Self-Insurance

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 Labor and Industry (Department) to respond to all comments received from us or any other source.

1.  Section 125.2. Definitions.--Reasonableness; Clarity.

Catastrophic loss estimation

   There is no explanation for this definition in the Preamble. The Department should provide a description of the basis for and development of this definition with the final-form regulation. The word ''usually'' used in Paragraph (i) is vague and provides no clear standard for the regulated community. We recommend that the Department delete this term or include language that clarifies how ''usually'' is to be determined.

Default multiplier

   We have two concerns with this definition. First, the definition states the default multiplier will be published annually in the Pennsylvania Bulletin but does not specify when during the year it will be published. The final-form regulation should specify when the publication will occur. Second, the definition includes the phrases ''based upon the Bureau's analysis'' and ''as derived from the experience of the Self-Insurance Guaranty Fund and of sureties and others paying the claims of defaulted self-insurers.'' These phrases appear to retain broad discretion for the Department. Please explain the process that the Department will use in its analysis.

Special retention amount

   The second sentence of this definition includes the word ''may.'' The Department needs to explain when it will use the discretion provided by this word and under what circumstances.

Standard retention amount

   We have two concerns. First, the definition uses two non-regulatory terms: ''generally'' and ''commonly.'' Both are imprecise and should be deleted from or clarified in the final-form regulation. Second, similar to our first concern on the definition of ''default multiplier,'' the definition fails to specify when information will be published in the Pennsylvania Bulletin.

2.  Section 125.3. Application.--Fiscal impact; Reasonableness; Implementation procedure; Clarity.

Subsection (b)

   The second sentence in this subsection moves the renewal application deadline from two months to three months before the expiration of the current permit. Two commentators express concern and question the need for this change. They are both public employers and claim that this new requirement will impose a burden on them. The Department should explain the justification for this change or retain the existing language in the final-form regulation.

Subsection (c)

   Subsections (c)(2) and (3) require an applicant to file Securities and Exchange Commission (SEC) Form 10-K or 10-Q with the Department. A commentator notes that some foreign corporations file Form 20-F or different forms with the SEC or the governing body of an internationally recognized public securities exchange. How will foreign corporations that do not file Form 10-K or 10-Q comply with this requirement?

   Financial statements required under Subsection (c)(4) would have to be in accordance with standards established by the American Institute of Certified Public Accountants. We have two concerns. First, how could foreign corporations that use the standards of the International Accounting Standards Board be able to comply with this provision? Second, financial statements referenced in Subsection (c)(3)(i) list accounting standards of three separate Boards. Why is there a difference in these subsections?

   The Department proposes the adoption of an electronic format for submitting information about claims in Subsection (c)(8). There are two concerns. First, Subsection (c)(8)(ii) requires an applicant to provide information on all claims that have been closed. A commentator has noted that this could be burdensome. What is the need for this requirement? We suggest that the requirement be amended to a finite time period. We have a similar concern with Section 125.16(b).

   Second, Subsection (c)(8)(iii) contains the phrase ''instructions prescribed by the Bureau.'' The final-form regulation should specify where and how applicants may access the instructions and electronic format.

Subsection (d)

   Subsection (d) contains the phrase ''within the time period prescribed in writing by the Bureau.'' What parameters will the Bureau use in setting this time period. Is there a minimum? The final-form regulation should establish a reasonable minimum period and the Bureau could allow additional time as necessary given the unique conditions of each employer.

3.  Section 125.4. Application for affiliates and subsidiaries.--Reasonableness; Clarity.

Subsection (a)

   Existing Subsection (a) discusses affiliates and subsidiaries without including the terms ''direct or indirect.'' Proposed Subsection (e) refers to a ''direct or indirect subsidiary.'' A commentator suggests that the terminology in these subsections should be consistent. The Department should address this inconsistency in terminology in this section and throughout the entire regulation.

Subsection (d)

   Subsection (d) includes new language with the phrase ''within a time period prescribed by the Bureau.'' Our concern with this phrase was explained above in our comments on Section 125.3(d). The applicant should be notified in writing of the length of the time period, and the Department should consider setting a standard minimum for the time period. This concern is also applicable to the use of a similar phrase in Section 125.7(c).

4.  Section 125.5. Preliminary requirements.--Reasonableness; Clarity.

   New language in Subsection (c) requires that ''each employer requesting self-insurance shall have an adequate accident and illness prevention program.'' The final-form regulation should specify what constitutes an ''adequate'' program.

5.  Section 125.6. Decision on application.--Need; Reasonableness; Implementation procedures; Clarity.

   Several of the subsections within this section require the applicant or the Bureau to take certain actions, but the timeframes for completing the actions are not provided. We recommend that the final-form regulation include specific timeframes for when the actions must be complete. The provisions include Subsections (c), (d), (f), (g) and (g)(5).

Subsection (a)

   Under Subsection (a)(2)(ii)(B), how will the Bureau make the referenced estimate? The criteria to be used in making this estimation should be included in the regulation.

Subsection (c)

   A commentator has stated that the reduction of time from 60 days to 45 days under Subsection (c)(1) and (c)(1)(i) is not sufficient. What is the reason for reducing the time for conditional approvals?

Subsection (e)

   Subsection (e)(1) states that the Bureau will ''establish a deadline, not to exceed 30 days from the Bureau's date of receipt of the notification, for the submission of the additional materials.'' We have two questions. First, why isn't a specific deadline included in the regulation? Second, how will the applicant be notified of the deadline for submission of the additional material? We recommend that that final-form regulation be amended to include a more precise time period for submitting the additional material that would apply to all applicants. If a specific timeframe is included in the regulation, our second question would be addressed.

Subsection (g)

   Subsection (g) contains provisions for the appeal process. Subsection (g)(4) includes new language which ends with the following sentence: ''The applicant has the burden to prove that the Bureau abused its discretion or acted arbitrarily in the reconsideration decision.'' The basis for this placement of the burden of proof is unclear. This new language was not discussed in the Preamble. The Department needs to explain the foundation or it should consider deleting this sentence.

6.  Section 125.9. Security requirements.--Reasonableness; Implementation procedures; Clarity.

Subsection (e)

   Subsection (e) states that the Bureau ''may'' consider reports submitted by the self-insurer and that the Bureau ''is not required to accept or use'' the reports when making decisions. This language does not establish a binding norm that could be equally applied to all self-insurers. What criteria will the Bureau use when deciding to accept or use a report? Will the self-insurer be notified of the Bureau's decision to use or not use the information provided? We recommend that this provision either be deleted or written in a manner that specifies the criteria the Department will apply in determining whether to accept or use a report.

Subsections (f) and (g)

   Similar to our concern with Subsection (e), we believe that Subsections (f) and (g) provide a great deal of discretion to the Bureau and not enough certainty to the regulated community. While we understand the need for some flexibility, regulations establish binding norms. Non-regulatory documents, such as Statements of Policy, would be a more appropriate vehicle for the type of flexibility found in Subsections (f) and (g). We recommend that both subsections be amended to provide a greater degree of certainty to the regulated community.

Subsection (j)

   Under Subsection (j), a commentator has suggested keeping the timeframe for phasing in additional security at three years rather than two years until the impact of the new rules are analyzed. We believe this a sound suggestion and recommend that the Department maintain the three-year period, or explain why two years is necessary.

Subsection (k)

   The language being deleted addresses reduction and release of security on run-off accounts, but the new language only addresses release. Is it the Department's intention to no longer grant requests for a reduction of security by a runoff self-insurer?

Subsection (m)

   This subsection states that the ''Bureau may revise the table in subsection (l) through publication of a notice in the Pennsylvania Bulletin, to assign security discount rates for revisions to the long-term credit or debt ratings of the outlined NRSROs or for the long-term credit or debt ratings of other NRSROs.'' However, this would constitute amending an existing regulation while bypassing the normal rulemaking process. The Department needs to provide justification for making future amendments to the regulation without going through the formal rulemaking process. (Section 125.2. of the proposed regulation defines ''NRSRO'' as ''a designated Nationally-recognized statistical rating organization of the United States Securities and Exchange Commission or its successor.'')

7.  Section 125.10. Funding by public employers.--Fiscal impact; Implementation procedures; Clarity.

Fiscal impact

   A public employer has commented that replacing the trust fund concept with a ''dedicated asset account'' will be a financial burden to both the employer and taxpayers and that it will not improve the security of future payments to injured workers. What, if any, fiscal impact will this change have on public employers?

Subsection (a)

   The phrase ''dedicated asset account'' is used throughout this section, but it is not defined. We suggest that the final-form regulation include a definition for this term, under Section 125.2, pertaining to definitions.

Subsection (d)

   Subsection (d)(3) states, ''For good cause shown'' an active self-insurer may be allowed to phase in compliance with the required funding amount ''within a time period prescribed by the Bureau.'' Similar to our concern with Section 125.9 (e), (f) and (g), this subsection does not establish a binding norm. We suggest that it be amended to provide more specific detail on what is considered ''good cause'' and how long the phase-in period for compliance will be.

   The phrase ''or at a later date agreed to by the Bureau'' found under Subsection (d)(4) is vague. Under what circumstances would a self-insurer and the Bureau agree to this exception to the 120-day requirement found in this subsection? The final-form regulation should include more detail on how the process of requesting additional time will work and how the Bureau will make its decision on the request.

8.  Section 125.11. Excess insurance.--Implementation procedures; Clarity.

   Regarding Subsection (a), a commentator has stated that it is unable to fully assess the potential impact of the proposed excess insurance amendments on premium expenses because the language of this subsection is unclear. The language in question states, ''. . . a liability limit acceptable to the Bureau to provide an adequate level of protection to cover the losses from a catastrophic event.'' We agree that the language is unclear and fails to provide the necessary detail for compliance. The final-form regulation should include more specific language that could be applied uniformly to all members of the regulated community.

9.  Section 125.12. Payment, handling and adjusting of claims.--Implementation procedures; Clarity.

   Under Subsection (c), how much time will a self-insurer have to notify the Bureau when it makes the changes referenced in this subsection? How will the Bureau notify the self-insurer of what the timeframe for submitting requested information is? We recommend that the final-form regulation include language to answer both of these questions.

10.  Section 125.13. Special funds assessments.--Fiscal impact; Need; Reasonableness;

   Concerning Subsection (a)(5), one commentator objected to an additional assessment being placed on self-insurers for the ''Uninsured Employers Guaranty Fund.'' This fund was established by Act 147 of 2006. However, its application to self-insured employers and their employees is unclear. The Department should explain its rationale for this amendment.

11.  Section 125.16. Reporting by runoff self-insurer.--Implementation procedures; Clarity.

   As with a previous provision in Section 125.3(c)(8)(iii), Subsection (b) will require self-insurers to use a new electronic format to file a report. It includes references to ''the Bureau's instructions.'' The final-form regulation should specify where and how self-insurers can access the instructions and the electronic format.

12.  Section 125.17. Claims service companies.--Reasonableness; Implementation procedures.

   This section is being amended to set forth the continuing obligation of claims service companies to assist the self-insurer and the Bureau in providing data and information on the self-insurer's claim serviced by that company. We have two issues. First, if a claims service company is no longer working for or with a self-insurer, how will the Department enforce the provisions of this section? Second, the first sentence in Subsection (d) includes this phrase: ''A claims services company . . . shall provide reasonable assistance to the self-insurer and the Bureau. . . .'' The use of the word ''reasonable'' is this context is unclear. What criteria will the Department use to determine if the assistance is reasonable''?

13.  Section 125.19. Additional powers of Bureau and orders to show cause.--Implementation procedures; Clarity.

   Under Subsection (b), what does the phrase ''unreasonably failing to pay compensation'' mean? The final-form regulation should include more specific language on how it will determine if a self-insurer acted in an unreasonable manner as it pertains to payment of compensation.

14.  General.--Need; Clarity.

Evidence of the coverage

   The phrase ''evidence of the coverage'' or similar phraseology is used in the following subsections:

   *  125.6(c)(1)(iv).

   *  125.6(d).

   *  125.6(f)(1)(ii).

   *  125.6(f)(2).

   *  125.9(b)(1)(iii).

   *  125.9(b)(2)(iii)--evidence of the standby arrangement.

   *  125.9(b)(3)((iv)--evidence of the standby arrangement.

   *  125.9(k)(2)--evidence acceptable to the Bureau.

   *  125.19(a)(3).

   This phrase is unclear and lacks specificity. For each subsection noted above, the Department should specify the type of evidence that would be acceptable.

Forms

   Several sections refer to the ''prescribed form'' or ''form prescribed by the Bureau.'' Samples of these sections include: Sections 125.3(a), 125.3(c)(6), 125.3(c)(7), 125.4(a), 125.8(b)(1) and 125.16(a). The Department needs to provide direction in the final-form regulation for how applicants can access or obtain copies of these forms.

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State Board of Accountancy
Regulation #16A-5512 (IRRC #2759)

Biennial Renewal Fees

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 Accountancy (Board) to respond to all comments received from us or any other source.

Issues relating to the criteria of Fiscal impact; Need; and Reasonableness.

   The CPA Law states, in part,

. . . If the revenues generated by fees, fines and civil penalties imposed in accordance with the provisions of this act are not sufficient to match expenditures over a two-year period, the board shall increase those fees by regulation, subject to review in accordance with the ''Regulatory Review Act,'' such that the projected revenues will meet or exceed projected expenditures.''

   63 P. S. § 9.6(a) The Board is proposing fee increases that take effect with the January 1, 2010 biennial renewal. In the rulemaking submittal, the Board provided supporting documentation, including projections of revenues and expenditures.

House Professional Licensure Committee (Committee)

   On June 16, 2009, the Committee voted to comment on this regulation. The Committee raised the following concerns:

   *  The Board should explain the rationale for increasing the biennial renewal fee by 122% for certified public accountants and by 25% for continuing education sponsors when other fees are not being increased.

   *  The Board should explain how it will maintain the projected revenue since the number of public accountants renewing licenses declines.

   *  The Board should explain its major cost centers and any significant increases in expenditures.

   *  The Board should explain its failure to increase fees for 18 years.

Pennsylvania Institute of Certified Public Accountants (PICPA)

   PICPA commented, stating it is not clear in the documentation provided by the Board which programs and Board functions the fee increase addresses. PICPA believes that the Board's transition to electronic renewal and an electronic newsletter should save costs. PICPA asks the Board to more clearly articulate the need for the fee increases. We will review the Board's responses to the Committee's and PICPA's comments as part of our determination of whether the final regulation is in the public interest.

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State Board of Funeral Directors
Regulation #16A-4818 (IRRC #2760)

Continuing Education Enforcement

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 Funeral Directors (Board) to respond to all comments received from us or any other source.

1.  Consistency between Sections 13.321 and 13.401.--Clarity.

House Professional Licensure Committee

   On June 16, 2009, the House Professional Licensure Committee (Committee) voted to submit comments on this regulation. The Committee suggested clarifying the language in Sections 13.231 relating to license renewal and Subsection 13.401(d) relating to a 6 month period to make up a deficiency in continuing education credits. These provisions appear to be inconsistent as one section states that the Board will not grant a licensee's application for renewal unless the continuing education requirements are complete, while the other section allows the licensee to make up a deficiency within 6 months of the end of the expired biennial renewal period. The Committee also requests information on how the Board will monitor the 6 month grace period. We agree that the language of these sections needs to be clarified to reflect the Board's intent. We will review the Board's responses to the Committee's comments as part of our determination of whether the final regulation is in the public interest.

Status of license and penalties during the 6 month make up period

   Related to the Committee's concern, the Board should explain the status of a license between the end of a biennial period when a license would expire and the point in time a licensee provides satisfactory proof of attendance at continuing education courses.

   Additionally, the Board should explain how it will implement the penalties described in Subsection 13.401(d) during the 6 month make up period. Will the Board immediately impose the discipline and civil penalties on the licensee or will the Board delay imposing them pending completion of credit hours during the 6 month make up period?

2.  Section 13.401. Credit hour requirements.--Clarity.

Six month period to make up a deficiency

   The third sentence of Subsection (d) states:

Within 6 months after the end of the renewal period during which the required amount of continuing education was not completed, the licensee shall make up the deficiency and shall provide proof of attendance at continuing education courses during the previous biennial registration period as required under § 13.402 (relating to reporting completion of continuing education). (Emphasis added.)

   As written, this sentence lacks clarity. It makes sense for a licensee to make up a deficiency and provide proof of attendance. However, the phrase ''during the previous biennial registration'' misplaces the time period of when the licensee makes up the deficiency. The Board should review and amend this sentence as appropriate.

''Or this chapter''

   The first sentence of Subsection (d) states ''Unless otherwise excused as authorized under the act or this chapter. . . .'' We did not find a provision that specifically authorized excuse from continuing education in Chapter 13 of the Board's regulations (that is, ''this chapter''). The Board should review this sentence and either add a cross-reference to the specific provision in Chapter 13 or delete the phrase ''or this chapter.''

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Department of State
Regulation #16-47 (IRRC #2761)

Schedule of Civil Penalties--Funeral Directors and Funeral Establishments

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 State (Department) to respond to all comments received from us or any other source.

1.  Section 43b.6. Schedule of civil penalties--funeral directors and funeral establishments.--Reasonableness.

   This regulation establishes civil penalties for funeral directors' failure to attain the requisite continuing education credits.

   The regulation states that the penalty for the first offense will be: ''$175 per hour of deficiency. . . .'' The House Professional Licensure Committee asked the Department for an explanation for the amount of the first offense fine. How did the Department determine that $175 was a reasonable amount?

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State Registration Board for Professional Engineers,
Land Surveyors and Geologists
Regulation #16A-4710 (IRRC #2762)

Continuing Education

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 Registration Board for Professional Engineers, Land Surveyors and Geologists (Board) to respond to all comments received from us or any other source.

1.  Fiscal impact; paperwork requirements.

   The Preamble states that the rulemaking should not have an adverse fiscal impact and will not impose additional paperwork requirements on the Commonwealth or the private sector. This statement appears to conflict with the Board's own analysis provided in responses to questions 17 and 27 of the Regulatory Analysis Form. In response to question 17, concerning costs to the regulated community, the Board estimates that each of the approximately 37,200 licensees affected by the proposed regulation will have to spend up to $1,000 to pay the tuition costs associated with completing the biennial continuing education requirements for a total of $18,600,000 per year. In its response to question 27 pertaining to additional reporting, recordkeeping or other paperwork, the Board notes that licensees will have to keep proof of completion of continuing education requirements for 5 years and the Board will audit a percentage of licensees for compliance. The Preamble to the final-form regulation should include a detailed description of the fiscal impact of and recordkeeping requirements imposed by the regulation.

2.  Implementation procedures.

   The Board anticipates that licensees will be required to comply with this rulemaking beginning in September of 2009. If this rulemaking is not completed by September of 2009, will the Board modify the compliance date? If so, will the revised compliance date be the first full biennial renewal period after publication of the final-form regulation?

3.  Section 37.1. Definitions.--Reasonableness; Clarity.

   ''Hour of continuing education'' is defined as ''Sixty minutes of actual instruction in an approved course of continuing education.'' Commentators have stated that the more accepted standard is 50 minutes, not 60 minutes. We note that several of the business related boards that fall under the jurisdiction of the Department of State's Bureau of Professional and Occupational Affairs define continuing education hours as 50 minutes. Has the Board considered defining an hour of continuing education as 50 minutes instead of 60 minutes? If not, why?

4.  Section 37.19. Biennial renewal of licensure status.--Reasonableness; Clarity.

   Subsection (c)(4) requires licensees to disclose any ''criminal charges'' when they are renewing their licenses. Does the term ''criminal charges'' include misdemeanors and summary offenses? We suggest that the final-form regulation include more specific language on what must be disclosed to the Board.

5.  Section 37.111. Credit hour requirements.--Need; Reasonableness; Clarity.

Subsection (b)

   Under this subsection, what is the need for the phrase ''or as directed by the Board'' and how will the Board implement this provision? If the phrase is not needed, it should be deleted. If it is needed, the regulation should include more detail on how it will administer this provision. Further, the Board should justify its authority for this language.

Subsection (d)

   This subsection provides for a 6-month period for licensees to make up deficiencies in continuing education credits for the previous biennial renewal cycle. The Board should explain the status of a license between the end of a biennial period when a license would expire and the point in time a licensee provides satisfactory proof of attendance at continuing education courses.

   Additionally, the Board should explain how it will implement penalties during the 6-month make up period. Will the Board immediately impose the discipline and civil penalties on the licensee or will the Board delay imposing them pending completion of credit hours during the 6 month make up period?

Subsection (e)

   Licensees seeking a waiver under Section 4.5(c) of the Act may do so under this subsection. Section 4.5(c) of the Act pertains to waivers for serious illness, military service or other demonstrated hardship. We recommend that this subsection of the regulation be amended to alert the regulated community that waivers relate to serious illness, military service and demonstrated hardships.

6.  Section 37.112. Reporting completion of continuing education.--Clarity.

   What is meant by the phrase ''certified continuing education record''? Who certifies the record? We note that this phrase is also used in § 37.115(e)(6), pertaining to approval of continuing education courses upon application. This phrase should be defined in the final-form regulation.

7.  Section 37.114. Approval of continuing education courses.--Clarity.

   A commentator has suggested that the regulation specifically state that licensees can take advantage of on-line and distance learning to meet their continuing education requirements. Will these types of continuing education be allowed? If so, what number of credits could be earned via these two methods? The final-form regulation should clarify the Board's position with regard to on-line and distance learning.

8.  Section 37.115. Approval of continuing education courses upon application.--Clarity.

Subsection (a)

   This subsection references ''forms provided by the Board.'' The final-form regulation should specify where these forms are available, such as the Board's web site.

Subsection (f)

   This subsection requires the Board to maintain a list of approved courses ''in a form accessible to licensees and the public.'' We suggest that one method of accessing the information be the Board's website and recommend that this provision be amended to reflect that fact. Any other means of access to the list should also be included in the regulation.

Subsection (g)

   The process to be used by a licensee seeking approval of continuing education course is the addressed under this subsection. How will the Board administer the last sentence of this subsection, which states, ''The Board will not collect more than one fee from attendees for review of applications for approval of the same course''?

9.  Miscellaneous clarity.

   *  The statutory authority cited in the Preamble contains typographical errors. The Board should ensure that the statutory citations included in the final-form submittal are accurate.

   *  Under the definition of ''practice building'' under § 37.1, we recommend that Subsection (i) be amended to be gender-neutral.

   *  We recommend that § 37.111(c)(1) and (c)(2) be combined to improve clarity.

   *  Subsection 37.115(c) references § 37.115(f). The reference should be to § 37.115(e).

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State Board of Psychology
Regulation #16A-6315 (IRRC #2763)

Qualifications

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 Psychology (Board) to respond to all comments received from us or any other source.

1.  Section 41.1. Definitions.--Reasonableness; Need; Clarity.

Delegated supervisor

   The definition includes the term ''licensed health professional,'' which is undefined. What licensees are included in this term? The term ''health professional'' is unclear and could include a number of different professions. This term is used in different ways in existing provisions. For example, 49 Pa. Code § 40.53(f) refers to a ''physical therapist'' or ''another health professional.'' In a different set of existing regulations at 28 Pa. Code § 1001.2, the term ''health professional'' is defined as a ''physician'' or ''registered nurse.'' In addition, the phrase ''who possesses special expertise or skills'' is vague and may be unnecessary. How will the Board determine that a delegated supervisor meets the Board's definition and standards for this position? How will psychology residents know that their ''supervised experience'' meets the Board's standards and requirements? The Board should define ''licensed health professional'' or describe what type of professional can be a ''delegated supervisor.'' The Board should also clarify ''who possesses special expertise or skills'' or delete this phrase.

Psychology resident

   The language at the end of this definition refers to Section 41.31(b)(4). The proposed regulation changes the numbering of this section to Section 41.31(4). The Board should review this language to ensure that it has the correct reference in the final-form regulation.

2.  Section 41.30. Qualifications and documentation necessary for licensure.--Reasonableness; Implementation procedure; Consistency with other statutes and regulations; Clarity.

   Subsections (b)(2) and (3) require an applicant for licensure to submit a ''criminal background check'' and ''Child Abuse History Clearance'' respectively. We have questions or concerns in three areas.

   First, existing regulations and statutes in Pennsylvania refer to a ''criminal background check'' as a ''criminal history record information'' or CHRI report. See the Criminal History Record Information Act (18 Pa.C.S.A. §§ 9101--9183), 37 Pa. Code Chapter 195 and 22 Pa. Code Chapter 701. The final-form regulation should use a term which is consistent with the statute and other regulations.

   Second, the House Professional Licensure Committee (House Committee) submitted comments dated June 9, 2009, expressing concerns with background checks for out-of-state applicants. For these applicants, Subsection (b)(2) requires that ''the background check shall be completed by the applicable law enforcement agency in the jurisdiction where the applicant resides.''

   It is unclear if the term ''jurisdiction'' is intended to refer to a municipal, state or national government. Other existing regulations require out-of-state applicants to obtain criminal record checks from the Federal Bureau of Investigation (FBI). See 22 Pa. Code § 701.11 and 55 Pa. Code § 6000.22. Such a national check may provide a greater safeguard if an applicant moved frequently from state to state.

   A national background check may also be required by law for every applicant regardless of residency. The Office of Children, Youth and Families in the Department of Public Welfare (Department) published a bulletin (# 3490-08-03) on June 27, 2008, which includes the following statement:

Act 179 of 2006 amended § 6344.2 of the CPSL to state that prospective employees applying to engage in occupations with a significant likelihood of regular contact with children, in the form of care, guidance, supervision or training must obtain background checks as a condition of employment. These individuals, including but not limited to social service workers, psychiatrists, hospital personnel, counselors and therapists, librarians and doctors, will be required as of July 1, 2008 to obtain an FBI criminal history background check along with their PSP [State Police] criminal history background check and Pennsylvania child abuse background check as a condition of initial employment.

www.dpw.state.pa.us/ServicesPrograms/CashAsstEm- ployment/003673169.aspx?BulletinId=4362 (page 7)

   According to 23 Pa.C.S. § 6344.2(a), this new law applies to several types of occupations including ''mental health professionals.'' The Department's web site includes a link for initiating an application for an FBI criminal history background check at www.pa.cogentid.com/dpw. The Board should review this information and clarify the legal requirements that apply to applicants and licensees.

   Third, Subsection (b)(3) requires an applicant to submit ''Child Abuse History Clearance completed by the Pennsylvania Department of Public Welfare dated within 6 months of the application.'' Information about ''Pennsylvania Child Abuse History Clearance Forms'' is available at the web site for the Department at www.dpw.state.pa.us/servicesprograms/childwelfare/003671038.htm. This site also includes a link for a form to request CHRI report from the State Police. As noted in the Preamble, one may apply for a CHRI report on the Internet. In addition to these links and those listed in the Preamble, one may apply for a CHRI report by means of the web site of the Pennsylvania State Police (State Police) at www. psp.state.pa.us, and specifically at www.portal.state.pa.us/portal/server.pt?open=512&objID=4451&&PageID=458621&level=2&css=L2&mode=2. The second link allows a person to apply for a copy of her or his CHRI report online or by means of a paper form.

   Even though the Preamble includes links for online access with the Department and State Police, the regulation is silent on the availability of this information. The final-form regulation should also inform applicants that such information is available on the Internet.

3.  Section 41.31. Educational qualifications.--Clarity.

   The House Committee noted two errors in the text which occurred in the Board's reorganization of education and examination provisions into two separate sections. In the proposed regulation, Sections 41.31(4) and (5) retain existing language that refers to ''subsection (a)(1).'' However, the language in the existing Subsection (a)(1) has been moved to Section 41.41(c) by the proposed regulation. Hence, the referrals to Subsection (a)(1) in both Sections 41.31(4) and (5) need to be corrected to refer to Section 41.41(c) in the final-form regulation.

4.  Section 41.32. Experience qualifications.--Reasonableness; Need; Duplication; Implementation procedure; Clarity.

Statutory requirement for 2 years of experience

   The first sentence of this section states: ''To meet the experience requirements for licensure under section 6 of the act (63 P. S. § 1206), an applicant shall complete 1 year of acceptable postdoctoral supervised experience.'' However, along with the other requirements for licensure, Section 6(a)(2) of the Professional Psychologists Practice Act (63 P. S. § 1206(a)(2)) declares that an applicant must submit ''proof satisfactory to the board'' that the applicant has the required doctoral degree from an accredited institution and ''has not less than 2 years of supervised experience, at least one of which was obtained subsequent to the granting of the doctoral degree, provided that such experience is acceptable to the board pursuant to criteria established by board regulations.''

   In the Preamble, the Board states that it is eliminating the existing provisions for ''predoctoral experience'' because it is part of the internship governed by the doctoral degree program necessary for graduation. By means of an earlier rulemaking (# 16A-6313(# 2422)) published in the Pennsylvania Bulletin at 36 Pa.B. 2680 (June 3, 2006), the Board removed provisions that required it to review specific doctoral education programs or internships. It now considers only whether the program is accredited or designated.

   It is unclear how the applicant will satisfy the statutory requirement. Is the possession of a doctoral degree sufficient proof that the applicant already has at least one year of supervised experience? What is the assurance that each doctoral program requires an internship or supervised experience that is at least one year in length to earn the degree? Is proof of one year of postdoctoral supervised experience sufficient to meet the statutory requirement?

Experience requirements for licensure and supervisor qualifications

   This section includes experience provisions, some of which were originally in Section 41.31, and provisions for supervisors, which had been the primary focus of Section 41.32. Although separating experience requirements from the education provisions may have produced some additional clarity, combining the experience provisions with the extensive standards and requirements for supervisors is confusing. We suggest that the Board consider separating the experience requirements into a new section while maintaining the supervisor provisions in their own section.

Paragraph (1) Timing.

   Subparagraph (1)(iii) requires that 50 percent of the total hours for supervised experience must be obtained by means of actual practice or work in a treatment or clinical setting. It adds the following:

The remaining required hours may be obtained by teaching in association with an organized psychology program preparing practicing psychologists or a postdoctoral training program, psychological research or any of the above categories.

   The Pennsylvania Psychological Association (PPA) expressed concern with the clarity of this language in its comments dated May 28, 2009. It is unclear whether the supervised teaching experience includes work as an instructor in postdoctoral, graduate and undergraduate programs. The language could be read to limit the teaching experience hours to postdoctoral or continuing education programs. In addition, what ''categories'' are included in the phrase ''or any of the above categories''? The Board needs to clarify its intent in the final-form regulation.

   The requirement that 50% of the total hours be obtained in actual practice, treatment or clinical settings is the same as in the existing regulations. The Pennsylvania Osteopathic Medical Association (POMA) in its letter dated May 19, 2009, suggests that this requirement be increased to 75% to ensure the necessary skills for patient care. The Board should review this requirement and explain the basis and justification for its 50% requirement.

   Paragraph (1)(iv) states that the total postdoctoral experience ''must be obtained within 10 calendar years of the application for licensure'' and adds that at least half must occur within the most recent five years. POMA expressed concern with this provision since the stated intent of the proposed rulemaking is to allow applicants to take the licensing examination immediately upon graduation and before completing the required year of postdoctoral experience. POMA contends that ten years ''is a long time'' unless there is an annual continuing education to show that applicants are keeping current in their field. POMA avers that ''many changes can occur'' over ten years. The Board should explain the basis for the 10-year time period and review the possible need for a process to verify that psychology residents are staying current with new research and information in the field.

Paragraph (3) Supervision.

   The House Committee expressed concern with the limitation in Subparagraph (3)(ii) that the primary supervisor could only delegate one hour of supervision per week to a ''delegated supervisor.'' The Board should review this rule and either explain the need for the limitation, or provide for flexibility in the final-form regulation.

   Subparagraph (3)(iii)(D) states that primary and delegated supervisors must ''review issues of practice and ethics with the psychology resident.'' Subparagraph (3)(v)(L) repeats the same language in a list entitled ''additional responsibilities of primary supervisors.'' Is this duplication necessary?

   Subparagraph (3)(iv)(E) uses the term ''active discipline'' in referring to a situation when action is taken by a licensure board concerning a supervisor. This provision states that the supervisor should immediately notify the psychology resident and assist the resident in finding a new supervisor. The term ''active discipline'' is undefined, and the House Committee raised several questions regarding this term, as well as the repercussions for the psychology resident and any impact on the number of hours accrued by the resident under the supervisor in fulfilling the experience requirement. The Board should clarify both its intent and this provision in the final-form regulation.

   The PPA expressed opposition to the requirement in Subparagraph (3)(v)(A) that primary supervisors hold an active license for at least two years before becoming supervisors. PPA indicates that it knows of ''no public policy argument that justifies this additional requirement.'' Since such a requirement could reduce the number of supervisors available for residents or trainees, the Board should explain the need and rationale for this rule.

   Subparagraphs 3(v)(F) and (v)(G) require that the supervisor observe or review certain activities of the psychology resident ''on a regular basis,'' and evaluate and apprise the psychology resident ''in regularly scheduled supervisory meetings,'' respectively. Terms such ''regular'' or ''regularly'' are vague. In the final-form regulation, the Board should provide some examples of whether ''on a regular basis'' and ''regularly'' means daily, weekly, bi-weekly, monthly or quarterly.

5.  Section 41.41. Examinations.--Clarity.

   Subsection (c) discusses a situation when an applicant ''fails to report for both the first examination and the one subsequent to it.'' It is unclear whether this refers to examinations offered on different dates, or to the different portions of the licensure examination as described in Subsection (b): the National Examination for Professional Practice in Psychology, and the Pennsylvania Psychology Law Examination. The intent of Subsection (c) should be clearly set forth in the final-form regulation.

6.  General.--Clarity.

   In the Preamble, the Board states it is removing the prohibition on applicants ''taking the licensure examination until after completing their experience.'' However, Section 41.11 in the Board's existing regulations prescribes what an applicant needs to have in order to take the examination. It reads:

   To be considered for admission to the examination provided in the act, an applicant shall first file with the Board or its designee:

   (1)  A completed, notarized application form and the application fee.

   (2)  Official transcripts of graduate work from an accredited college or university.

   (3)  Supervisory rating forms validating the applicant's qualifying experience.

   (4)  Other forms or materials requested by the Board. (Emphasis added.)

   The applicants are required to submit forms validating their supervised experience, yet they are still being required to complete some experience before taking the examination. The Board should be sure that all of its existing regulations are consistent with the intended goal of this proposed regulation.

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Department of State
Regulation #16-43 (IRRC #2764)

Schedule of Civil Penalties--Engineers,
Land Surveyors and Geologists

July 1, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the May 2, 2009 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 State (Department) to respond to all comments received from us or any other source.

1.  Section 43b.13a. Schedule of civil penalties--engineers, land surveyors and geologists.--Reasonableness.

   This regulation establishes civil penalties for engineers', land surveyors' and geologists' failure to attain the requisite continuing education credits.

   The regulation states that the penalty for the first offense will be: ''$50 per hour of deficiency. . . .'' How did the Department determine that $50 was a reasonable amount?

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Pennsylvania Public Utility Commission
Regulation #57-266 (IRRC #2754)

Licensing Requirements for Natural Gas Suppliers

July 6, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the April 4, 2009 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 Public Utility Commission (PUC) to respond to all comments received from us or any other source.

1.  Reduction in Security Requirements.--Reasonableness.

   In its comments, the Retail Energy Supply Association (RESA) suggests that the regulation allow suppliers ''to request a decrease in security requirements under certain conditions where it is apparent that there is a reduction in the risk of a supplier default.'' RESA recommends specific criteria to be used in demonstrating the reduction of risk and a five-calendar day time limit within which the natural gas distribution company (NGDC) must make its decision. As proposed, the regulation does not address situations where the supplier's risk of default is reduced. In that situation, is there an existing process by which the supplier can seek decreased security requirements? If so, that process should be identified in the regulation. If not, the PUC should consider including such a process in the final-form regulation.

2.  Section 62.111. Bonds or other security.--Implementation procedures; Reasonableness; Clarity.

''Significant changes''

   Subsections (c)(1)(ii)(A) and (B) add the term ''changes.'' We note that Subsection (C) also includes this phrase, but also defines it in that subsection. The PUC should define this term for each subsection or clearly explain what types of changes would be considered ''significant.''

''Materially affects''

   Subsections (c)(1)(ii)(A), (B) and (E) add the phrase ''materially affects.'' The final-form regulation should define this term or include the criteria to be used in each instance to determine if there is a ''material'' effect.

Volume vs. Number of Customers

   Commentators representing NGDCs assert that Subsection (c)(1)(ii)(C) is flawed because the potential impact of a natural gas supplier (NGS) default is not necessarily related solely to the number of customers, but rather the volume of gas that the NGS is responsible for bringing to the system and the volume of gas used by the customers. They further state that this subsection should be changed to reflect the importance of volumetric concerns over a basic number of customers. We agree and recommend that the PUC add a criterion related to the volume of natural gas delivered or consumed. In making this addition, the PUC should specify the percentage change in volume that could trigger an adjustment to the amount of security required.

Accounts Receivables

   Commentators have also expressed concerns with Subsection (c)(2)(v), which allows accounts receivables pledged to the NGDC or sold by a supplier participating in a NGDC purchase of receivables program to be used as security. Some commentators assert that something sold by an NGS cannot subsequently be used as equity. Others comment that receivables cannot quickly be converted to cash and consequently should not be eligible for use as a security or should not be used alone as an acceptable form of security. In the preamble to the final-form regulation, the PUC needs to provide further justification for including accounts receivable as acceptable security.

Dispute Resolution

   Subsection (c)(6) addresses dispute resolution. Several commentators noted that the regulation does not address the NGS's responsibilities to customers during the dispute resolution process. In the final-form regulation, the PUC should clarify the responsibilities of all parties during the pendency of the dispute.

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Environmental Quality Board
Regulation #7-428 (IRRC #2755)

Adhesives, Sealants, Primers and Solvents

July 8, 2009

   We submit for your consideration the following comments on the proposed rulemaking published in the April 4, 2009 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 Environmental Quality Board (Board) to respond to all comments received from us or any other source.

1.  Implementation date.--Implementation procedures; Reasonableness.

   Numerous subsections within this proposed regulation include a compliance date of April 15, 2010. Because the Board does not know exactly when this regulation will officially be promulgated, it should consider replacing this date with a reference to a specific amount of time after the effective date of the regulation.

   Further, commentators are concerned that they will not have enough time to design, build, install, test and obtain permit approvals for add-on pollution control devices or new products that meet the requirements of this regulation. They further assert that 2 years is an appropriate amount of time to accomplish these things. We agree that the proposed compliance date could be difficult for the regulated community to meet. The Board should consider amending the final-form regulation to allow the industry to have 2 years from the effective date of the regulation to make the appropriate changes to their operations.

2.  Section 121.1. Definitions.--Reasonableness; Clarity.

Metal to urethane/rubber molding or casting adhesive

   Commentators assert that this definition is unclear for two reasons. First, they state that the term ''heater'' should actually be ''heated.'' Second, they contend that the qualifier at the end of the definition is confusing because the regulated community may assume that it only applies to printing supplies because it only mentions items related to printing. The Board should clarify this definition in the final-form regulation.

Fiberglass

   This proposed definition includes an editor's note that a definition of this term was also included in a previous proposed rulemaking. It states: ''the later of these two rulemakings to be published as a final rulemaking will include both definitions.'' Will there be two definitions for ''fiberglass''? If so, the Board should make it clear where each definition applies. If the Board's intent is to have only one definition, it should place the singular definition in one location or ensure that the two definitions are verbatim.

3.  Section 129.77. Control of emissions from the use or application of adhesives, sealants, primers and solvents.--Statutory authority; Clarity.

Subsection (i)

   This subsection states that a person cannot require the use of a material that would result in a violation of this regulation. It further states that this prohibition applies to ''all written or oral contracts'' under which any of these materials would be used. Does the Board intend to apply this provision retroactively to existing contracts? If so, it should clearly outline its authority to do so. If not, this provision should be clarified to state that it will be applied prospectively. A similar concern applies to Section 130.702(g).

Subsection (l)(4)

   Under this subsection, how would the owner/operator record and maintain records that would satisfy the requirements in the last sentence? A similar concern applies to Subsections (n) and (o) and 130.703(b)(4), (e) and (f). The final-form regulation needs to more explicitly set forth the recordkeeping requirements in these subsections.

Subsection (r)(1)

   Subsection (r)(1) states that all compliance records should be ''maintained'' for at least 5 years. Can these records be electronic or paper copies? The final-form regulation should indicate in what format these records must be maintained.

Subsection (r)(2)

   Subsection (r )(2) requires these records to be made available to the Department of Environmental Protection ''upon request.'' Will these requests be made orally or in writing? The final-form regulation should indicate in what format the requests will be made.

4.  Section 130.702. Emissions standards.--Clarity.

   A commentator suggests that the Board amend subsection (b) to include language that states that use and application of products manufactured after the effective date is prohibited, which would make it consistent with Subsection (a). To improve clarity, the Board should make the recommended change to the final-form regulation.

ARTHUR COCCODRILLI,   
Chairperson

[Pa.B. Doc. No. 09-1299. Filed for public inspection July 17, 2009, 9:00 a.m.]

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