NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[49 Pa.B. 359]
[Saturday, January 19, 2019]Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public
Comment PeriodIRRC
Comments
Issued7-532 Environmental Quality Board
Federal Office of Surface Mining
Reclamation and Enforcement Program
Consistency
48 Pa.B. 6844 (October 27, 2018)
11/26/18 12/24/18 57-323 Pennsylvania Public Utility Commission
Assumption of Commission Jurisdiction
Over Pole Attachments from the Federal
Communications Commission
48 Pa.B. 6273 (September 29, 2018)
11/28/18 12/24/18 16A-60 Bureau of Professional and Occupational
Affairs
Expungement; Fees
48 Pa.B. 7120 (November 10, 2018)
12/10/18 01/09/19
Environmental Quality Board Regulation # 7-532 (IRRC # 3217)
Federal Office of Surface Mining Reclamation and Enforcement Program Consistency Rule
December 24, 2018 We submit for your consideration the following comments on the proposed rulemaking published in the October 27, 2018 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 Environmental Quality Board (Board) to respond to all comments received from us or any other source.
1. Section 86.31. Public notices of filing of permit applications.—Protection of the public health, safety and welfare; Reasonableness of the regulation.
In the Preamble, the Board states that Paragraph (c)(1) ''requires notification by registered mail to the municipality where mining is proposed.'' In the Annex, we note that the Board is deleting the phrase ''by registered mail, the city, borough, incorporated town or township'' [Emphasis added.] and replacing that with ''the municipality.'' The Board states in the Preamble that it is making this change because notification by registered mail is not required by the federal rules and the amended regulation will be consistent with federal regulations. The Board also states that this proposal will allow for electronic notice ''in cases where it is appropriate.'' We have several concerns. First, existing Section 86.1 (relating to definitions) defines ''municipality'' as ''a county, city, borough, town, township, school district, institution or an authority created by any one or more of the foregoing.'' Is it the Board's intent to expand the notification requirement to all of these entities? Second, the Pennsylvania State Association of Township Supervisors comments that this notification is too important not to be sent by registered mail. We note that Pennsylvania is permitted to be more stringent than the federal rules, and ask the Board to explain the reasonableness of not requiring notification by registered mail for proposed mining activities. Finally, in what circumstances is electronic notice appropriate? If electronic notification is kept in the final regulation, we ask the Board to set standards for when its use is appropriate. Also, we ask the Board to explain how the notification requirements in the final regulation adequately protect public health, safety and welfare.
2. Regulatory Analysis Form (RAF)
In response to RAF Question # 10 the Board states: ''Tables in sections 87.103, 88.93, 88.188, 88.293, 89.53, and 90.103 currently use outdated climatological data from the early 1980s. The proposed regulation replaces these tables with a general reference to data available from the National Oceanic and Atmospheric Administration (NOAA). NOAA's data is currently available online through its precipitation and storm event tool, which provides a more accurate account of storm events and, generally, lower precipitation levels.'' However, in response to RAF Question # 28, the Board states that data is not the basis for the proposed regulatory amendments. In the Preamble and RAF to the final regulation, the Board should amend its response to Question # 28 to note that data is the basis for the change to climatological data in the sections listed in response to RAF Question # 10. The Board should also restate the reason for the change and include a link to the information on the NOAA website.
Further, with reference to the sections listed in response to RAF Question # 10, the actual language of the change in each of those sections states ''. . . shall be determined by reference to data provided by the National Oceanic Atmospheric Administration or equivalent resources.'' What are ''equivalent resources?''
Pennsylvania Public Utility Commission Regulation # 57-323 (IRRC # 3214)
Assumption of Commission Jurisdiction Over
Pole Attachments from the Federal Communications Commission
December 24, 2018 We submit for your consideration the following comments on the proposed rulemaking published in the September 29, 2018 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 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. Whether the regulation is in the public interest; Fiscal impact; Need.
This proposal adopts Federal Communications Commission (FCC) regulations regarding pole attachments as those regulations have been promulgated and as may be amended. The exercise of this reverse-preemption is permitted under Section 224(c) of the Telecommunications Act of 1996. 47 U.S.C. § 224(c). The PUC explains that the regulation of pole attachments at the state level instead of the federal level ''will assist policymakers in efforts to expand access to both wireline and wireless broadband services'' and will ''dovetail with executive and legislative branch efforts to enhance high-speed internet access.''
In addition to seeking comment on the new language proposed as Chapter 77, relating to pole attachments, the PUC is seeking comment from the regulated community on numerous, specific issues affecting pole attachments. As noted in the PUC's Executive Summary of this proposal, the issues include:
. . . the coordination of the FCC's development of its regulations with [PUC] enforcement, the character and potential number of pole attachment adjudications before the [PUC], the development of streamlined dispute resolution procedures, and the creation of a pole attachment registry with the [PUC].Given the number of issues identified by the PUC and the diverse responses provided by the regulated community, we question the need for the rulemaking at this time. Commentators have provided valuable input on the pros and cons of incorporating the FCC regulations by reference as they currently stand and as they may be amended. A particular concern noted by commentators is the fact that the FCC has significantly amended its regulations twice since the PUC began this proceeding on June 14, 2018. If the PUC decides that major amendments to this rulemaking are needed to effectively expand broadband in the Commonwealth, we believe it would be in the public interest to start with a new proposed rulemaking. This would allow the regulated community an opportunity to provide input on their experiences working under the revised FCC regulations and the major amendments being considered by the PUC.
If the PUC decides to move forward with this proposal, we suggest that an Advance Notice of Final Rulemaking be issued before it delivers a final-form rulemaking. We also ask that it review and consider the recent changes to the FCC pole attachment regulations and provide a detailed explanation of why it believes the recent changes are appropriate for the Commonwealth and in the public interest.
2. Section 77.1. Statement of purpose and preemption.—Possible conflict with or duplication of statutes or existing regulations; Clarity.
This section includes a reference to 47 CFR 1.1401—1.1425. Since the publication of this proposal, it is our understanding the reference has changed to 47 CFR 1.1401—1.1415. We ask the PUC to ensure that the final-form rulemaking includes the correct reference to FCC regulations. We note that § 77.2, relating to applicability, § 77.4, relating to adoption of FCC regulations, and § 77.5, relating to resolution of disputes, also include that reference.
3. Section 77.4. Adoption of Federal Communications Commission regulations.—Statutory authority; Implementation procedures; Reasonableness.
This section adopts the federal regulations noted above and includes the phrase ''. . . inclusive of future changes as those regulations may be amended.'' This provision has generated significant interest from the regulated community. Most commentators agree with the PUC that adoption of the federal rules would be beneficial to the Commonwealth, but disagree on how that adoption should take place. Some believe that automatic adoption of future amendments, as proposed, is appropriate. They cite to examples of other Commonwealth agency and PUC regulations that use a similar approach to incorporating federal regulations. Others believe that the automatic adoption is not consistent with the Pennsylvania statutes that govern the rulemaking process. Finally, some believe that automatic adoption of unknown amendments would not be in the public interest of the Commonwealth. These commentators believe Pennsylvania businesses and individuals affected by future amendments should have the opportunity to participate in the rulemaking process for regulations that directly and uniquely affect them. They would be in favor of the PUC initiating its own rulemaking proceeding to adopt future FCC amendments of its pole attachment regulations.
We have two concerns. First, while the PUC may impose requirements already mandated by the federal government, the automatic adoption of all future, and consequently unknown, requirements may be an improper delegation of the agency's statutory authority. Further, new obligations may be imposed without members of the regulated community and other parties having the opportunity for public comment as provided in the Commonwealth Documents Law (45 P.S. §§ 1102—1208) and the RRA.
Second, the Preamble to this rulemaking explains the rationale for its ''turn-key'' approach to adopting existing FCC pole attachment regulations, but does not explain the rationale associated with automatically adopting future amendments to FCC pole attachment regulations. In the Preamble to the final-form rulemaking, we ask the PUC to explain its rationale for including language that automatically adopts future changes to FCC pole attachment regulations without being vetted through the regulatory review process of the Commonwealth.
4. Section 77.5. Resolution of disputes.—Implementation procedures; Need; Clarity.
This section provides direction on how mediation and formal complaints will be adjudicated under Chapter 77. We have two concerns. First, Subsection (a) permits parties subject to this Chapter to utilize PUC complaint and adjudicative procedures found in its existing regulations to resolve disputes or terminate controversies. Subsection (b) states that parties before the PUC shall employ the procedural requirements of the FCC pole attachment regulations ''except where silent or in cases of conflict'' where the PUC regulations will control. A commentator has stated that it will be difficult for parties to determine the sections that are silent or do not control. We ask the PUC to explain how it will implement Subsection (b) in the Preamble to the final-form regulation.
Second, Subsection (c) reads as follows:
When exercising authority under this Chapter the [PUC] will consider Federal Communications Commission orders promulgating and interpreting Federal pole attachment rules and Federal court decisions reviewing those rules and interpretations as persuasive authority in construing the provisions of 47 U.S.C. § 224 and 47 CFR 1.1401—1.1425.We do not have a particular concern with this subsection, but ask for clarification of the intent of it compared to the following sentence from the PUC's response to Question # 10 of the RAF. The sentence reads as follows: ''If adopted, Chapter 77 will provide stakeholders with the opportunity to access the [PUC's] adjudicatory resources and to develop precedent relevant to the challenges of broadband development in Pennsylvania.'' (Emphasis added.) If the rulemaking is adopted and implemented, will the adjudicatory functions and processes of the PUC look to Federal decisions and precedent to resolve disputes as required by Subsection (c), or will the PUC look to precedent it develops over the years as it adjudicates these matters? We ask the PUC to explain its intent in the Preamble to the final-form regulation.
5. Compliance with the provisions of the Regulatory Review Act or the regulations of the Commission in promulgating the regulation; Fiscal impact.
When this Commission is reviewing a rulemaking to determine if it is in the public interest, we look at the proposed language in the Annex, the promulgating agency's description of the rulemaking in the Preamble, and the information provided by the promulgating agency in the RAF. The information requested in the RAF is required by the RRA and this Commission's regulations. We acknowledge that the PUC is seeking input on the potential number of pole attachment adjudications and potential workload increase for PUC staff. However, a quantification of the potential fiscal impact of a proposed rulemaking is required to be provided in RAF Questions # 19, 20, 21 and 23. If and when the PUC returns this rulemaking in final-form, we ask that the RAF identify the number of pole attachment adjudications it expects, the costs associated with adjudicating a dispute for both parties of a dispute, and the costs to adjudicate a dispute for the PUC.
In addition, we ask the PUC to provide additional information related to how this rulemaking compares to other states as required by Question # 12 of the RAF. What other states have exercised ''reverse-preemption'' under the Telecommunication Act of 1996? For states that have exercised this power, have they taken a ''turn-key'' approach or have they modified the federal rules in some manner? For the states that adopted the federal rules, how many of them automatically adopt future FCC rule changes automatically?
Finally, we ask the PUC to identify the type and number of small businesses that will be affected by the regulation as required by Question # 15 of the RAF.
Bureau of Professional and Occupational Affairs Regulation # 16A-60
(IRRC # 3220)
Expungement; Fees
January 9, 2019 We submit for your consideration the following comments on the proposed rulemaking published in the November 10, 2018 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 Bureau of Professional and Occupational Affairs (Bureau) to respond to all comments received from us or any other source.
1. Section 43b.101. Definitions.—Statutory authority and whether the regulation conforms to the intention of the General Assembly and Clarity.
''Expunge or expungement''
The Bureau defines ''expunge or expungement'' as the ''Removal of a disciplinary record from a licensee's record accomplished by (1) permanently sealing the affected record from public access; (2) deeming the proceedings to which the affected record refers as not having occurred; and (3) except with respect to any subsequent application for expungement, affording the affected party the right to represent that no disciplinary record exists regarding the matter.'' (Emphasis added)
Act 6 defines ''expunge or expungement'' as the ''Removal of a disciplinary record, accomplished by:
(1) Permanently sealing the affected record from public access;
(2) Deeming the proceedings to which the affected record refers as not having occurred; and
(3) Except with respect to any subsequent application for expungement, affording the affected party the right to represent that no record exists regarding the subject matter of the affected record.'' (Emphasis added)
The Bureau proposes to exclude the phrase ''of the affected record'' from the definition of ''expunge or expungement.'' The Bureau should explain in the Preamble to the final-form regulation how the definition is consistent with the statute and why the phrase regarding the affected record is unnecessary.
2. Section 43b.103. Application for expungement.—Statutory authority and whether the regulation conforms to the intention of the General Assembly.
Under this section, a licensee may apply for expungement in accordance with the subchapter ''in the manner prescribed by the Commissioner.'' (Emphasis added) In the Preamble to the proposed rulemaking, the Bureau explains that it anticipates that licensees will apply for expungement through the Bureau's online PA Licensing System (PALS) which contains all records associated with a license, registration, certificate or permit, including all disciplinary records.
Act 6 of 2018 states that:
''The Commissioner of the Professional and Occupational Affairs shall expunge the disciplinary record of a licensee, registrant, certificate holder or permit holder if the imposition of discipline was for a violation involving failure to complete continuing education requirements or practicing for six months or less on a lapsed license, registration, certificate or permit, subject to the following:(i) The licensee, registrant, certificate holder or permit holder must make written application to the commissioner for expungement not earlier than four years from the final disposition of the disciplinary record . . . .'' [Emphasis added]The Bureau should explain how permitting licensees to apply through the Bureau's online licensing system and allowing the Commissioner to prescribe the manner in which a licensee may apply for expungement is consistent with the statute that explicitly requires a licensee, registrant or permit holder to make written application to the commissioner for expungement of certain disciplinary records.
GEORGE D. BEDWICK,
Chairperson
[Pa.B. Doc. No. 19-95. Filed for public inspection January 18, 2019, 9:00 a.m.]
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