NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[35 Pa.B. 460] Section 5(g) of the Regulatory Review Act (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's comments are based upon the criteria contained in section 5.2 of the Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 18-378 Department of Transportation
Access to and Occupancy of Highways by Driveways, Local Roads and Structures12/1/04 1/3/05 34 Pa.B. 5355 (October 2, 2004) 12-58 Department of Labor and Industry
Boiler and Unfired Pressure Vessel Regulations12/6/04 1/5/05 34 Pa.B. 6033 (November 6, 2004)
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Department of Transportation Regulation No. 18-378 (IRRC No. 2434)
Access to and Occupancy of Highways by Driveways, Local Roads and Structures
January 3, 2005 We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Transportation (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 1, 2004. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.
1. General.--Fiscal impact; Reasonableness; Implementation procedure; Clarity.
Actions or requests by the Department
Multiple provisions throughout the proposed regulation indicate that the Department will take or require applicants or permittees to take some type of action. For example, the traffic impact study must include a description of proposed remedies pursuant to Section 441.3a(c)(5)(iii). Clause (B) states the Department will determine if a proposed remedy is acceptable. It is unclear when this determination will be made, and how the Department will notify an applicant of its determination.
Similar provisions in the regulation direct the Department to make determinations, request additional information or changes, approve actions, issue opinions or take actions that become mandates with which a permittee, applicant or other regulated party must comply. Additional examples of these provisions include:
§ 441.3(g)(5)
§ 441.3(g)(5)(ii)
§ 441.3(i)
§ 441.3(s)(1)(iii)
§ 441.3a(a)(3)
§ 441.3a(c)(2)(i)(A)
§ 441.3a(c)(2)(i)(C)
§§ 441.3a(c)(2)(ii)--(vi)
§ 441.3b(a)(3)
§ 441.3b(b)(2)
§ 441.3b(b)(4)(iii)
§ 441.4(d)(2)
§§ 441.5(f)(1)--(3)
§ 441.6(1)(vii)(C)
§ 441.6(14)(ii)
§ 441.6(16)(i)
§ 441.7(e)(3)
§ 441.8(a)(2)
§ 441.10(b)(2)We recognize that discretion and flexibility are necessary because each access by a property to a state highway may be unique and raise different concerns with traffic flow and other conditions. However, discretion and flexibility to respond to unique conditions must also be balanced with a format that provides some direction concerning when and how objectives will be accomplished. We have two concerns.
First, there is no indication of when the Department will take specific actions. For example, when would the Department notify an applicant or permittee of the need for a ''curb or other approved structures to be constructed'' under Section 441.8(g)(3). The regulation should clearly indicate the time periods in which the Department may act under these various provisions.
Second, there is no indication of how the Department will notify applicants, permittees or other affected parties of its actions. At a minimum, the regulation should state that the Department will notify the affected parties in writing.
Section 441.3a(b) Scoping meeting
Section 441.3a(b)(4) states: ''The applicant will receive direction from the Department at the scoping meeting.'' From discussion with the Department, many of the items noted above are discussed with the applicant at the scoping meeting. However, these meetings are at the request of the applicant. In addition, Section 441.3a(b)(5) limits the subject matter at a scoping meeting to concerns involving the traffic impact study. The Department should consider expanding these meetings to cover other areas in the regulation where the Department needs to provide direction to an applicant.
Improving state highways and fair cost distribution
A commentator raises the concern that the traffic impact study requirements in Section 441.3(s) will impose unfair costs on permittees. The proposed regulation could compel permittees to pay for improvements of existing poor road conditions. If the road is in poor condition before the access project is initiated, the permittee is not the only one who will benefit from improvements in the highway. The Department should consider other methods to equitably distribute the costs of improving poor road conditions among property owners and others who will benefit.
2. Section 441.1. Definitions.--Reasonableness; Clarity.
AASHTO and TRB
The definitions of the ''American Association of State Highway and Transportation Officials (AASHTO)'' and ''Transportation Research Board, National Research Council (TRB)'' include the phrase ''currently located in Washington, D.C.'' This phrase is not helpful to the reader. The definitions should provide the full current address like what was done in the definition of the ''central permit office.''
Highway, local road, and roadway
The proposed regulation and existing language in Chapter 441 contain definitions of ''highway,'' ''local road'' or ''roadway.'' We have concerns with each definition and with their relationships to each other.
First, the term ''highway'' is defined in the existing portion of Chapter 441 as ''[A] highway or bridge on the system of State highways and bridges, including the entire width between right-of-way lines, over which the Department has assumed or has been legislatively given jurisdiction.'' This definition is circular since the term ''highway'' is used to define itself.
The definition of ''local road'' includes the statement ''[a] public highway other than a State highway . . . .'' The term ''public highway'' is not defined. In addition, the word ''highway'' is already defined as part of the ''State highways.'' Hence, the use of the term ''highway'' in this definition is confusing. A commentator has expressed an additional concern with new language in the definition of ''local road'' that includes ''an access for which the owner intends to transfer or dedicate ownership to a governmental body after completion of the permitted work.'' This language is problematic since it is local ordinances that would allow such a transfer under certain conditions. The owner's intent would not be sufficient to accomplish the transfer. The Department should explain this new language or delete it.
The definition of ''roadway'' is ''[t]hat portion of a highway or local road improved, designed or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.'' The Department has indicated that a ''roadway'' also includes auxiliary lanes. The definition should be amended to reflect this fact. In addition, does a ''highway'' or ''local road'' include a ''roadway''? If so and since ''roadway'' is defined with more detail than ''highway'' or ''local road,'' the term ''roadway'' could be used in part to define ''highway'' and ''local road.''
Plans
The definition of ''plans'' ends with the phrase ''and other details the Department deems appropriate.'' Instead of using this phrase, the ''other details'' should be included in the substantive provisions of the regulation with a cross-reference in the definition.
3. Section 441.3. Permit application procedure.--Consistency with the statute; Reasonableness; Clarity.
Subsection (b) Authorization of local governments to issue permits
This subsection allows the Department to enter into agreements with ''local governments'' to issue permits. The authorizing statute (36 P. S. § 670-420) uses the term ''municipality'' instead of ''local governments.'' For consistency with the statute, the final-form regulation should use the term ''municipality.''
Subsection (e) Submission of a completed application
Applicants are instructed by this subsection to submit applications to either the district or county office or the municipality. How can an applicant determine where to submit the application?
Subsection (m) Impact on other property owners
Under this subsection, two commentators expressed concerns related to Paragraph (3). One commentator believes local governments should be exempt from the additional security requirements. Another believes the provision relating to ''a form and amount acceptable to the Department'' is too vague. We have three questions. What is the reason for not exempting local governments from this requirement? How will the Department determine what is an acceptable form and amount of security? How will the applicant be notified?
Subsection (n) Impact on sensitive or unique property
The phrase ''State and Federal environmental requirements'' is used in this subsection. A cross-reference should be provided that specifies these requirements.
Subsection (o) Review by governmental bodies
This subsection relates to review by governmental bodies. The phrase ''governmental bodies'' should be defined in the final-form regulation. Also, the phrase ''municipalities and their political subdivisions'' is not clear because municipalities do not have political subdivisions.
Under Subsection (o)(5), a governmental body can request to review an application. The Department has indicated that the request to review should be made before the permit is issued and the work begins because it is the only time the governmental body can submit meaningful input. Therefore, final-form regulation should include a timeframe in which governmental bodies can request to review an application.
Subsection (p) Impact on archeological and historic property
This subsection requires the applicant to notify the Pennsylvania Historical and Museum Commission if the proposed work will require the construction or widening of a lane or right-of-way 60 days prior to submission of the application. A commentator questioned the need for a 60 day review period and noted the potential time delay this requirement could cause. What is the need for this review period that must occur before the submission of the application? Would a shorter or concurrent period suffice?
Subsection (s) Traffic impact study
Subsection (s)(1)(iii) states that a traffic impact study will be required, if ''[i]n the opinion of the Department, the development is expected to have significant impact on highway safety or traffic flow even though it does not meet subparagraph (i) or (ii).'' What is meant by a ''significant impact''?
4. Section 441.3a. Preparation of a traffic impact study.--Reasonableness; Clarity.
Traffic impact studies assist the Department in determining if the plans or proposals of the applicant are acceptable. The regulation does not specify when the Department must make these determinations. How long will the Department need to analyze a traffic impact study and how will the Department notify the applicant if it is acceptable? What are the criteria for acceptable plans and proposals?
Subsection (a) General rule
Subsection (a)(2) details who must conduct a study and includes the phrase ''other persons authorized by law.'' The Department should either list all the other professions that are allowed to conduct a study or delete this phrase from the final-form regulation. The same phrase appears in Section 441.3b(a)(2), relating to preparation of drainage impact study, and we recommend that this section likewise be amended.
Subsection (c) Traffic impact study contents and scope
Subsections (c)(3) and (c)(4) pertain to future traffic conditions with and without development. They require the applicant to describe the ability of the roadway network within the study area to accommodate traffic for the ensuing ten years beyond the opening of the development and other time periods as directed by the Department. What is the ''roadway network'' and how is the study area determined? Furthermore, why should the study be based on the ability of the roadway to accommodate traffic ten years into the future as opposed to when the development is completed?
Under Subsection (c)(3)(i), what are Metropolitan Planning Organizations or Local Development Districts? These terms should be defined in the final-form regulation.
Subsection(c)(5) references certain ''Levels of Service.'' The Department explained that levels of service range between A and F and rate how a roadway handles traffic. This phrase should be defined in the final-form regulation.
5. Section 441.3b. Preparation of drainage impact report.--Reasonableness; Clarity.
Subsections (b)(1) and (b)(6)(iii) contain the phrases ''other pertinent information'' and ''pertinent policy directives.'' This information should be listed in the final-form regulation.
Subsection (b)(6)(iv) states that hydraulic computations must be developed ''in accordance with procedures and criteria acceptable to the Commonwealth or governmental bodies.'' The final-form regulation should list the various state agencies or governmental bodies that would have oversight and list or cross-reference the procedures and criteria that would be acceptable.
Under Subsection (b)(7), the drainage impact report must include a description of proposed actions that will remedy identified deficiencies related to flow rate and flow velocity. It states that remedies ''may not include projects programmed by the Commonwealth or other governmental bodies.'' This differs from Section 441.3a(c)(5)(iii)(A), relating to traffic impact studies, which allows remedies to include ''projects programmed by the Commonwealth or governmental bodies.'' We recommend that this subsection be amended to provide for collaboration or integration with other projects that have completion dates that coincide with the applicant's access project.
6. Section 441.4. Permit fees and costs.--Reasonableness; Implementation procedure; Clarity.
In Subsection (d), the Department can assess additional fees if it anticipates that its costs will exceed by a ''significant amount'' the application or permit fees. How will the Department decide what is a ''significant amount''?
7. Section 441.5. Issuance of permits.--Reasonableness; Implementation procedure; Clarity.
Subsection (f) Permit requiring agreement/security
Subsection (f)(2) is one long sentence that contains 116 words. The sentence describes the contents of an agreement between the Department and an applicant. The contents should be set forth with shorter sentences and enumeration as recommended in Section 2.8 and Chapter 7 of the Pennsylvania Code and Bulletin Style Manual.
Subsection (j) Photo documentation
Subsection (j)(3) allows the Department to create its own photo documentation and charge the permittee for the costs. This occurs after the Department receives photos from the permittee that are not discernible or otherwise acceptable. As written, the paragraph allows the Department to return the photos to the permittee for resubmission or obtain its own photo documentation and charge the permittee for the cost. Rather than give the Department the option, the regulation should require that the Department notify the permittee of the need to submit better photo documentation before the Department obtains its own photos and charges the permittee for the expense.
8. Section 441.6. General conditions.--Reasonableness; Implementation procedure; Clarity; Statutory Authority.
Paragraph (1) Scope of permit
Under Paragraph (1)(v), the permittee and the property owner will be liable for failure to comply with the permit and this chapter. Section 441.5(b) states that permits will be issued only to the owners of the property. Since permits can only be issued to property owners, what is the need to list both ''permittee and the property owner'' in this paragraph? We note this phrase is used throughout this chapter and suggest that the Department be consistent with any changes it makes to this phrase.
Paragraph (1)(vii) allows the Department to require changes to an access, structure or associated highway work or improvements. Can these changes be mandated after the permitted work has been completed?
Clause (B) of Paragraph (1)(vii) states that the Department may require a new application. Will an additional application fee be charged?
Paragraph (4) Permittee responsibilities
Paragraph (4)(viii) describes actions the Department could take if a permittee or property owner does not pay an invoice for work performed by the Department. It states that an unpaid bill will ''constitute a first lien on the real and personal property of the permittee or owner of the property on which the access or structure is located.'' If a lending institution or other party already has a ''first lien'' on a property, what is the Department's statutory authority for replacing that lien with its own?
In addition, this paragraph states that the Department may also ''revoke and annul the permit.'' We have three questions. What is the difference between revoking and annulling a permit? Will the permittee or property owner have an opportunity for a hearing before their permit is revoked and/or annulled? Under what circumstances would a permit be annulled?
Paragraph (16) Future additional driveways
Paragraph (16)(iv) includes a sentence that states, in part, the following: ''If the applicant demonstrates that a release cannot be reasonably obtained from each affected property owner . . . .'' How will an applicant demonstrate that its attempt has been reasonable?
9. Section 441.8. Driveway design requirements.--Reasonableness; Implementation procedure; Fiscal impact; Clarity.
Subsection (a) General
Subsection (a)(1) states that the design of a driveway must take into consideration the amount and type of traffic it is expected to serve and the type and character of the road it accesses. This rulemaking adds the phrase ''and other nearby highways'' to the last provision. How will the applicant know what other highways to consider?
Subsection (h) Sight distance
Subsection (h)(1)(iv) includes the following sentence: ''The owner should locate a driveway at a point which provides optimal sight distance.'' The word ''should'' indicates that this provision is optional. Optional provisions should not be included in regulations. Therefore, the word should be changed to ''shall.''
Subsection (i) Grade of access
Subsection (i)(5)(i) states, in part, the following: ''Depressed curb is preferable to the alternative of extending curb around the driveway radii . . . .'' This language is not regulatory language and should be deleted from the regulation or replaced with a mandate.
Subsection (k) Access pavement
Subsection (k)(2) relates to low, medium and high volume driveways and local roads which provide access to paved highways. It requires these accesses to be paved ''from the pavement edge to at least 20 feet beyond the right-of-way and joints shall be sealed.'' A commentator noted that the current regulations do not require local roads to comply with this provision. Will these requirements apply to existing roads? If so, who is responsible for paying for these improvements?
Subsection (m) Medians
Subsection (m)(3) states the following: ''Requests for removal of a median divisor will not be granted without approval of the district executive or higher Departmental authority.'' When and why would approval of a higher Departmental authority be required? How will the permittee know to whom they should make the request?
Subsection (p) Required right-of-way
This subsection states that the Department may require the applicant to acquire additional right-of-way and ''may require the applicant to utilize property acquisition policies, practices and procedures of the Department.'' The final-form regulation should provide cross-references to the appropriate policies, practices and procedures.
10. Section 441.10. Penalties and enforcement.--Reasonableness; Implementation procedure; Clarity.
Subparagraph (a)(4)(ii) states that written notice will not have to be provided to a permittee or property owner if it is ''impracticable.'' Under what circumstances would it be impractical for the Department to notify a permittee or property owner of an action?
11. Miscellaneous Clarity.
The phrase ''in a form acceptable to the Department'' or ''techniques acceptable to the Department'' or variations of these phrases are used throughout the regulation. The regulation should provide guidance on what is considered an acceptable form. Examples of these phrases can be found in the following sections: 441.3 (m)(1)--(m)(3); 441.3a(c)(2)(i)--(vi); 441.6(16)(iv); and 441.8(j)(4), (m)(4) and (p).
The phrase ''applicant or Department'' is used throughout the regulation. How will the affected parties know when they have a duty to act? Examples of this phrase can be found in the following sections: 441.3 (m)(1), (n), (p); 441.3a(c)(2); 441.6(16)(iv); 441.7(d); and 441.8(j)(5).
In § 441.6(4)(iii)(C), what is ''flowable fill material''? The term ''crashworthy'' is used in § 441.6(10). What does this term mean?
Under § 441.8(d), the word ''must'' should be replaced with the word ''may.''
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Department of Labor and Industry Regulation No. 12-58 (IRRC No. 2443)
Boiler and Unfired Pressure Vessel Regulations
January 5, 2005 We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Labor and Industry (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on December 6, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 3a.1. Definitions.--Consistency with the statute and other regulations; Clarity.
ASME Code
A commentator suggested a correction to this definition to fully reference the pertinent code of the American Society of Mechanical Engineers (ASME). The words ''Rules for Construction of Power Boilers'' should be replaced with ''The Boiler and Pressure Vessel Code'' in the final-form regulation.
Certificate of competency
In this definition, the noun ''inspector'' should be replaced with the verb ''inspect.''
Process boiler
This definition in the regulation differs from the statutory definition. The final-form regulation should use the statutory definition in section 2 of the Boiler and Unfired Pressure Vessel Law (Act) (35 P. S. § 1331.2) or reference the statutory definition.
2. Section 3a.3. Scope.--Consistency with other regulations; Clarity.
Subsection (c) reads, '' . . . when the heat exchanger operates at 16 psi or greater, and has 5 cubic feet of volume . . . .'' To increase technical accuracy of subsection (c), the words ''or more'' should be placed after the words ''5 cubic feet'' in the final-form regulation.
In Subsection (d), there is more than one subparagraph labeled as (3). This enumeration error should be corrected in the final-form regulation.
Subsection (d)(10) begins with the following sentence:
Unfired pressure vessels designed to ASME Code section VIII, Division 1 which meet one of the following specifications: [Emphasis added.]
A commentator suggested that the word ''meet'' should be replaced with ''do not exceed'' in this subsection. We concur.
3. Section 3a.5. Examination for inspector commission.--Reasonableness; Implementation procedure; Clarity.
Subsection (a) states that the Department will conduct the National Board of Boiler and Pressure Vessel Inspectors (National Board) examinations. Subsection (b) indicates that the Department will also conduct a Pennsylvania certificate of competency examination. The role and purpose of these two examinations are unclear. It is our understanding that the Department administers the two different examinations and applicants are required to pass both. The final-form regulation should clearly state that applicants are required to pass these two examinations and how and when each examination will be administered.
Subsection (a)(1) requires that an applicant for examination as a boiler inspector must ''meet the National Board rules and regulations, and its education and experience requirements.'' The final-form regulation should contain specific references to the pertinent regulations and requirements of the National Board.
Subsection (b)(2) contains a specific list of education and experience prerequisites for those who apply to take the Pennsylvania certificate of competency examination. This list should be moved to the beginning of the section to alert potential applicants of the basic requirements they need to fulfill to qualify to apply for the examination.
4. Section 3a.6. Certificate of competency, commission, credential card and renewal application.--Clarity.
Subsection (a) states, ''[t]he Department will issue a certificate of competency, credential card and commission to an applicant who passes an examination for inspector.'' Since § 3a.5 includes two different examinations, this section should also clearly affirm that an applicant needs to pass both examinations.
5. Section 3a.8. Reciprocity.--Clarity.
A commentator noted an inconsistency between Subsections (a) and (b). As written, the first subsection would allow a person without a National Board commission to obtain a reciprocal commission in Pennsylvania. However, Subsection (b) requires an applicant for reciprocal commission to submit a copy of his National Board commission. This inconsistency should be corrected in the final-form regulation.
6. Section 3a.24. Boiler controls.--Implementation procedure; Clarity.
The effective date of this section is not stated. It is unclear whether this section applies to boilers installed before effective dates of the national standards or this regulation. The effective date for this section should be specified in the final-form regulation.
7. Section 3a.26. Valves and safety devices.--Clarity.
Subsection (a) refers to § 3a.152 (relating to safety appliances) which is located in a different Subchapter that sets forth rules for unfired pressure vessels installed before September 1, 1937. It is our understanding that the intent of the Department is to have the safety requirements in § 3a.152 apply to all boilers and vessels not just those installed in and before 1937. For this reason, we suggest that the substantive provisions of § 3a.152 be moved to Subchapter B relating to requirements for boilers and unfired pressure vessels. The appropriate cross-reference can be placed in § 3a.152 to insure that the substantive requirements are also applied to the older units.
8. Section 3a.37. Special design.--Clarity.
Subsection (a) reads:
(a) The owner or user of a new boiler or unfired pressure vessel having unusual features of special design intended for installation and operation in this Commonwealth may submit all of the following to the Department for approval:(1) Duplicate complete specifications. [Emphasis added.]There are two concerns. First, there appears to be a conflict between this section and its description in the preamble. According to the preamble, this section ''requires owners and operators to submit construction specifications and plans for Department approval prior to the installation . . . .'' However, the first paragraph of this section uses the word ''may'' rather than ''shall.'' The use of the word ''may'' implies that the provision is optional for owners or users of units with unusual features of special design. The proposed regulation needs to be clear in stating that owners or users must submit the required information to the Department.
Second, it is unclear what is meant by the phrase ''duplicate complete specifications.'' It is our understanding that one copy of the complete manufacturer's specifications is needed by the Department. These items should be clarified in the final-form regulation.
9. Section 3a.81. Major repairs and alterations.--Reasonableness; Clarity.
This section describes the procedures and requirements for repairs to a boiler or unfired pressure vessel. Subsection (b) states that a manufacturer or repair company may not perform certain repairs without holding an ''R'' stamp. However, subsection (c) includes the following sentences:
A manufacturer holding the appropriate ASME Code stamp may alter a boiler or vessel. A manufacturer holding an ASNI/NB 23 ''R'' stamp may perform alterations to other vessels.These two sentences appear to limit alterations or repairs to manufacturers who hold the appropriate ASME or ''R'' stamp. We acknowledge that anyone who makes repairs or alterations should hold the appropriate stamp. But, is it the Department's intent to limit alterations or repairs to manufacturers, or can a repair company or anyone with the appropriate stamp also make alterations? If anyone with the appropriate ASME or ''R'' stamp can make alterations and repairs, this should be clearly stated in the final-form regulation.
In addition, a typographical error is repeated in subsections (b) and (c). Both use the acronym ''ASNI/NB 23'' which should be ''ANSI/NB 23.'' The later term is defined in Section 3a.1 as the ''National Board Inspection Code, 2001 edition, issued by the National Board of Boiler and Pressure Vessel Inspectors.'' The term ''ANSI'' is defined in Section 3a.1 as the ''American National Standards Institute.'' The error should be corrected in the final-form regulation.
10. Section 3a.93. Insurance notification.--Reasonableness; Implementation procedure; Need; Clarity.
A commentator questioned the practicality of this requirement since many users of boilers are unaware of insurance changes that occur at the corporate level. We question the need for and effectiveness of this section. The Act is silent concerning this type of notice requirement. The Department should explain how it would use this information or delete the provision from the final-form regulation.
11. Section 3a.94. Accident notification.--Reasonableness; Consistency with statute; Clarity.
Subsection (a) refers to section 16 of the Act and mirrors the statutory directive that an owner or user must ''immediately notify'' the Department of an accident. We have three concerns.
First, Section 16 of the Act includes the word ''operator'' among those who must notify the Department. Rather than limit the contact to the owner or user, this subsection should fully reflect the Act by including the term ''operator.''
Second, if the Department interprets ''immediately notify'' as within 24 hours, this specific standard should be in the regulation.
Third, the final-form regulation should include a number or title for the ''Department prescribed form'' and indicate where and how owners, users or operators can obtain copies of the form. For example, will it be available on the Department's website?
12. Section 3a.96. Condemnation.--Clarity.
In Subsections (a) and (b), it is unclear whether the ''XX'' will cover over or be above the existing stamping from the Commonwealth or National Board. If the ''XX'' are to cover over the existing stamping, this needs to be expressly stated in the final-form regulation.
The second sentence of subsection (b) is missing the word ''be'' between the words ''will'' and ''at least.'' This correction should be made in the final-form regulation.
13. Section 3a.100. Notice of deficiency.--Reasonableness; Implementation procedure; Clarity.
Subsection (a)(2) includes this sentence: ''The Department may inspect the boiler or unfired pressure vessel to verify the corrective action or repair.'' Are there specific circumstances in which the Department will conduct an inspection? If so, the circumstances in which an inspection will occur for any provision in this section should be described in the final-form regulation.
14. Section 3a.111. Field inspections.--Reasonableness; Implementation procedure; Clarity.
This section gives the impression that the Department will be conducting all inspections. However, this is not the case. Field inspections may also be conducted by insurance inspectors. This section should be changed in the final-form regulation to reflect this fact.
Subsections (d) and (h) state, ''an inspector may require an internal inspection because of a vessel's age or condition.'' Department staff members indicate that the inspector will notify the operator, owner or user of the need for an internal inspection verbally during the external inspection or later in writing. This notification process should be described in the final-form regulation.
15. Subchapter H. Special Installations.--Implementation procedure; Clarity.
This subchapter includes 11 sections (§§ 3a.161--3a.171). These sections set forth the applicable national standards and other requirements for different types of equipment which include:
Modular boilers;
Portable boilers;
Fired coil water heaters and instantaneous water heaters;
Storage water heaters;
Steam/hot water coil storage water heater;
Miniature boilers and kitchen equipment;
Hot water/steam heat exchangers;
Autoclaves and quick opening vessels;
Fuel trains and piping systems;
Swimming pool heaters; and
Locomotive boilers.Only one of these sections (§ 3a.168 relating to autoclaves and quick opening vessels) specifically mentions inspectors. Subchapter D includes specific provisions on inspections but does not reference Subchapter H or the equipment types in Subchapter H. Hence, it is unclear what, if any, inspection requirements apply to Subchapter H beyond what is expressly mentioned in § 3a.168. The inspection requirements for this subchapter should be included in the final-form regulation.
[Pa.B. Doc. No. 05-107. Filed for public inspection January 14, 2005, 9:00 a.m.]
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