NOTICES
Notice of Comments Issued
[44 Pa.B. 2967]
[Saturday, May 17, 2014]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 agencies 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comments Reg. No. Agency/Title Comment Period Issued #126-8 Philadelphia Parking Authority
Taxicab Safety Cameras
44 Pa.B. 1323 (March 8, 2014)04/07/14 05/07/14 #74-1 Department of Drug and Alcohol Programs
Standards for Licensure of Freestanding
Treatment Facilities
44 Pa.B. 1317 (March 8, 2014)04/07/14 05/07/14
Philadelphia Parking Authority
Regulation #126-8 (IRRC #3048)
Taxicab Safety Cameras
May 7, 2014 We submit for your consideration the following comments on the proposed rulemaking published in the March 8, 2014 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 Philadelphia Parking Authority (PPA) to respond to all comments received from us or any other source.
1. Section 1017.74. Safety Camera Requirements.—Protection of the public health, safety and welfare; Reasonableness; Clarity; Need; Economic impact.
Safety camera images
We have three concerns. First, a commentator raises concerns that there may be a potential infringement of individuals' Constitutional privacy rights under the Fourth Amendment regarding the images captured on the interior and exterior of the taxicab. The commentator asks that these issues be addressed before the regulations are adopted. PPA should explain how the proposed rulemaking is lawful and how it does not intrude on the constitutional right to privacy.
Second, Paragraph (f)(1) requires ''. . . a number of cameras sufficient to record: (1) The entire interior of the taxicab, including the faces of all occupants.'' In the Preamble, PPA states it wants to avoid dictating a specific number of cameras because improving technology might allow the use of fewer cameras. We question the broad language that requires sufficient cameras to record the ''entire'' interior of the taxicab. The use of the word ''entire'' might require extra cameras to record extraneous images, such as images of the ceiling and floor of the taxicab. We recommend rewriting this paragraph to require specific images that are of value to identify people and criminal acts.
Third, protective shields between the front seat and the back seat of a taxicab are currently a ''Standard taxicab vehicle requirement'' under existing 52 Pa. Code § 1017.5(b)(12). A commentator believes it will be difficult, if not impossible, to create a 360 degree view of the interior of the cab with the protective shield in place (and the commentator supports the use of protective shields). PPA should explain how a taxicab can comply with both the existing requirements for protective shields required by 52 Pa. Code § 1017.5(b)(12) and the requirements for safety cameras proposed in Subsection (f).
Distress button
A commentator supports safety cameras, but expressed a concern that taxicab drivers want the distress button linked to the police. Subsections (g) and (h) state where transmission of the video must go. In addition, cross-referenced Paragraph 1017.24(d)(8) requires a meter to have ''A distress button that can be easily activated by a driver to silently communicate to the dispatcher the need for emergency assistance.'' While these provisions address notice of an emergency and video documentation of a crime, the regulation is not clear regarding when the police will be notified of the emergency so that they can respond to the driver's need for emergency assistance. When a taxicab driver communicates the need for emergency assistance, does that communication also go directly to the police with the information needed to respond to the location of the driver in distress? If not, how does the regulation sufficiently protect the driver in distress?
Safety camera system to work in conjunction with the meter system
Subsection (b) requires the safety camera system to work in conjunction with the approved meter system. A commentator states there is no need for safety cameras to work with the meter system. We ask PPA to explain why Subsection (b) is needed.
2. Economic impact.
In response to Regulatory Analysis Form Question 15, PPA estimates that owners will incur a cost of approximately $1,510 to acquire and install a camera system and $240 in annual operation and maintenance costs. Commentators expressed the following in regard to cost:
• A commentator supporting the regulation estimates the cost of safety cameras at no more than $400 to $500.
• PPA did not provide enough explanation of the cost of a safety camera system.
• Requiring the safety camera system to work in conjunction with the meters will force drivers to buy cameras from only a handful of individuals.
We ask PPA to provide costs for more than one camera system to establish a range of costs for camera systems that will provide reliable performance to meet the goals of this regulation. These costs should delineate the cost to link the camera system to the distress button in the taxicab. We also ask PPA to explain how the number of safety camera systems that meet the requirements of the regulation will be enough to encourage price competition. Finally, we ask PPA to explain the cost to dispatchers to comply with Paragraph 1019.8(17).
Department of Drug and Alcohol Programs
Regulation #74-1 (IRRC #3049)
Standards for Licensure of Freestanding
Treatment Facilities
May 7, 2014 We submit for your consideration the following comments on the proposed rulemaking published in the March 8, 2014 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b). Section 5.1(a) of the RRA (71 P. S. § 745.5a(a)) directs the Department of Drug and Alcohol Programs (DDAP) to respond to all comments received from us or any other source.
1. Conforms to the intention of the General Assembly; Determining whether the regulation is in the public interest; Clarity and lack of ambiguity; Implementation procedures.
Act 50 of 2010 (Act 50) created DDAP, and Section 13 of Act 50 transferred all regulations related to drug or alcohol abuse from the Department of Health to DDAP. This proposed regulation is DDAP's first modification of the regulations formerly under the Department of Health.
In the first sentence of the Preamble, DDAP identifies itself as the ''Department.'' A reader is likely to assume that any reference to Department in the proposed regulation is a reference to DDAP. In reviewing existing Chapter 701, we find that Department is defined as ''The Department of Health of the Commonwealth.'' The proposed regulation does not include definitions. Terms such as program and project which are used in the proposed regulation are already defined in Chapter 701 (relating to general provisions).
Given this most basic issue regarding which department is being referred to in the proposed regulation, we have grave concerns regarding the clarity of the regulation as proposed, and whether the regulation as proposed conforms to the intention of the General Assembly. Given that the General Assembly carved out drug and alcohol abuse programs from the Department of Health and transferred authority to DDAP, DDAP should follow through on the powers and duties authorized under Act 50. We strongly recommend that DDAP take appropriate action to modify, repeal or supersede existing regulations as necessary to ensure clarity within this proposed regulation and any future proposed regulations.
In furtherance of the intention of the General Assembly and as an additional point of clarity, we recommend that DDAP seek to change the title of Part V to ''Department of Drug and Alcohol Programs'' to avoid confusion and to more clearly distinguish DDAP's regulations from those of Department of Health.
2. Determining whether the regulation is in the public interest; Economic or fiscal impacts; Compliance with the Regulatory Review Act.
Section 5.2 of the RRA 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. To make that determination, the Commission must analyze the text of the Preamble and proposed regulation, as well as the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under Section 5 of the RRA in the Regulatory Analysis Form (RAF) (71. P. S. § 745.5(a)).
The explanation of the regulation in the Preamble and RAF is not sufficient to allow this Commission to determine if the regulation is in the public interest. DDAP did not provide the rationale for the proposed amendments. For example, DDAP did not explain why:
• Requirements related to project goals and objectives are being removed from Section 709.23;
• Requirements for written agreements for 24-hour emergency psychiatric and medical coverage are being removed from Section 709.24; or
• Nearly all references to personnel policies, procedures, records and rights are being removed from Section 709.26.
In the Preamble and RAF submitted with the final-form regulation, DDAP should provide a description of the amendments proposed for each section of the regulation and explain in detail why the amendments are needed.
Similarly, the information contained in the RAF is not sufficient to allow the Commission to determine if the regulation is in the public interest. For example:
• Why is the regulation needed? (#10) DDAP's statement that the amended regulation ''is needed to streamline DDAP's review of drug and alcohol facilities'' is insufficient given the volume of proposed deletions and additions to the regulation.
• What type of and how many small businesses will be affected? (#15) DDAP should include a citation to the relevant provisions of the federal definition of small business that were reviewed in the development of the rulemaking and an analysis of their applicability/inapplicability to the regulation.
• Who are the persons, groups or entities, including small businesses, that will be required to comply with the regulation? (#16) DDAP should include an approximate number that will be required to comply.
• Why does DDAP believe that the information requested under #23 and #23a is not applicable to this regulation? We ask for complete responses to these questions.
We ask DDAP to provide more detailed information in the RAF and Preamble submitted with the final-form regulation as required under Section 745.5(a) of the RRA.
3. Section 709.26. Personnel management.—Clarity and lack of ambiguity; Implementation procedures.
DDAP proposes to amend Subsection (a) to require that personnel policies and procedures are in compliance with State and Federal employment laws. DDAP's amended language states: ''These laws include, but are not limited to: (1) Utilization of volunteers. (2) Rules of conduct. (3) Supervision of staff. (4) Orientation of new employees.'' Is it DDAP's intent to state that the laws include these four items? We ask DDAP to revise and clarify the intent of this subsection.
4. Section 709.31. Data Collection System.—Clarity and lack of ambiguity; Implementation procedures.
DDAP proposes to amend Subsection (b) to state, ''Verbal orders for medication can be given only by a physician or other medical professional authorized by State and Federal law to prescribe medication and verbal orders may be received only by another physician, pharmacist or nurse, or medical professional authorized by State and Federal law to receive verbal orders.'' The Pennsylvania Society of Physician Assistants (PSPA) states that in its experience, regulations that do not specifically list physician assistants are frequently misinterpreted and challenged for a physician assistant's ability to perform a particular task or procedure. PSPA requests that physician assistants specifically be named in the regulation. We agree that the proposed language relating to giving and receiving verbal orders to prescribe medication is vague and recommend that DDAP revise this language to specify which medical professionals are permitted to give and receive verbal orders for medication.
5. Miscellaneous clarity.
The Pennsylvania Code & Bulletin Style Manual (Fifth Edition) requires in Section 6.16 that agencies avoid the phrase ''includes, but is not limited to'' and use ''includes'' instead. The phrase ''includes, but is not limited to'' or a variation thereof appears frequently throughout the proposed regulation. DDAP should revise the final-form regulation in accordance with the style requirements of the Pennsylvania Code & Bulletin Style Manual.
JOHN F. MIZNER, Esq.,
Chairperson
[Pa.B. Doc. No. 14-1064. Filed for public inspection May 16, 2014, 9:00 a.m.]
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