INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[44 Pa.B. 295]
[Saturday, January 11, 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 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
58-24 Pennsylvania Higher Education Assistance Agency
Student Financial Aid
43 Pa.B. 6368 (October 26, 2013)
11/25/13 12/24/13 2-177 Department of Agriculture
Pennsylvania Preferred Trademark Licensure Program
43 Pa.B. 6366 (October 26, 2013)
11/25/13 12/24/13 126-5 Philadelphia Parking Authority
Wheelchair Accessible Vehicle Taxicabs
43 Pa.B. 6373 (October 26, 2013)
Pennsylvania Higher Education Assistance Agency
Regulation #58-24 (IRRC #3020)
Student Financial Aid
December 24, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 26, 2013 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 Higher Education Assistance Agency (Agency) to respond to all comments received from us or any other source.
1. Section 121.21. Requirement for higher education grant applicants.—Clarity.
Existing language of Subsection (b) concludes with the phrase ''. . . standards of instruction of the public high schools located in this Commonwealth.'' To be consistent with other amendments, should this state ''public secondary schools,'' rather than ''public high schools''?
2. Section 121.32. Approved institution in higher education grant program.—Clarity
Regarding Paragraphs (b)(1) and (3), the public commentator suggests the removal of the phrase ''or the Council for Higher Education Accreditation'' because it is outdated. The Agency should explain why this accreditation is still valid or delete it.
3. Section 121.44. Required family financial data.—Clarity.
As amended the exception in Paragraph (b)(2) would state:If the applicant is in compliance with other criteria established by the Agency for the processing of applicants without regard to parental financial data which generally are the United States Department of Education criteria for financial independence for Title IV Federal student aid programs.
We find this provision to be vague because it does not provide a definitive standard for the exception. First, the phrase ''other criteria'' should be clearer so that the applicant can understand what criteria he or she must meet to qualify for the exception. Second, the phrase ''. . . which generally are the United States Department of Education criteria . . . .'' implies that the Agency may use other criteria. We recommend amending Paragraph (b)(2) so that it provides a clear standard for an applicant to qualify for an exception.
4. Section 121.47. State Higher Education Grant Program Manual.—Clarity.
Paragraph (a)(5) begins with the phrase ''When applicable, a list of programs of study . . . .'' Should this state ''. . . a list of approved programs . . . '' to be consistent with the other paragraphs in this section?
Department of Agriculture
Regulation #2-177 (IRRC #3035)
Pennsylvania Preferred Trademark Licensure Program
December 24, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 26, 2013 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 Agriculture (Department) to respond to all comments received from us or any other source.
1. Section 107.3. Licensure of the Pennsylvania Preferred trademark with respect to fluid milk.—Determining whether the regulation is in the public interest; Clarity and lack of ambiguity; Implementation procedures.
Paragraph (d)(1) provides that a person who is licensed to use the Pennsylvania Preferred trademark may commingle Pennsylvania-produced fluid milk with other fluid milk on an incidental, emergency or short-term basis. We find the use of the terms ''incidental,'' ''emergency'' and ''short-term'' to be ambiguous and unclear. What qualifies as incidental or emergency? How long is short-term? In the final-form regulation, the Department should clearly define ''incidental,'' ''emergency'' and ''short-term.'' We ask the Department to explain in the Regulatory Analysis Form (RAF) and Preamble of the final-form regulation the circumstances under which a licensee would be permitted to commingle Pennsylvania-produced fluid milk with other fluid milk under Paragraph (d)(1), and why commingling in these circumstances is reasonable and in the public interest.
We have additional concerns regarding commingling. As the Department states in the Preamble, the Pennsylvania Preferred trademark is an identifier of Pennsylvania origin, and a consumer who purchases milk identified as Pennsylvania Preferred should reasonably expect the milk to be entirely produced in Pennsylvania. Under the exception in Paragraph (d)(1), what quantity of other fluid milk is a licensee permitted to commingle with Pennsylvania-produced milk and still bear the Pennsylvania Preferred trademark? We have similar concerns regarding the basis on which the Department determines whether the commingling is acceptable in Paragraphs (d)(2) and (3). The Department should clearly identify acceptable limits for commingling in the final-form regulation, and explain in the RAF and Preamble why the limits are reasonable and in the public interest.
Also under Paragraph (d)(1), we note that the licensee is required to maintain a record of the commingling, but is not required to obtain approval from the Department in advance of the commingling, nor is the licensee required to notify the Department of the commingling at any time. We ask the Department to explain why it is in the public interest not to require either approval or notification regarding commingling under Paragraph (d)(1).
Finally, Paragraph (d)(3) provides that a licensee who seeks to commingle Pennsylvania-produced fluid milk with other fluid milk ''may, before the commingling occurs, contact the Department as described in paragraph (1) for confirmation as to whether the proposed commingling is acceptable to the Department.'' The term ''may'' is non-regulatory language which indicates that this provision is optional. It is inappropriate to include optional language in regulations. If the Department retains Paragraph (d)(3) in the final-form regulation, the Department should amend the provision to state what is required of licensees in advance of purposeful commingling. The provision should be further amended for clarity since Paragraph (d)(1) does not describe how a licensee would contact the Department. Alternatively, if the Department amends the regulation to include definitions and limits regarding acceptable commingling as previously recommended in this comment, the Department could delete this provision altogether.
We note that if the intent of Paragraph (d)(3) as proposed is to offer guidance to the regulated community, the Department should consider including the information in a policy statement.
2. Compliance with the RRA.
We ask the Department to revise its response to Question #15 of the RAF in order to ensure that the new criteria required by Act 76 of 2012 related to small businesses are met. The Department should provide 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 or inapplicability to the regulation.
Philadelphia Parking Authority
Regulation #126-5 (IRRC #3036)
Wheelchair Accessible Vehicle Taxicabs
December 24, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 26, 2013 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 (Authority) to respond to all comments received from us or any other source.
1. Section 1017.8. WAV taxicab specifications.—Whether the regulation is consistent with the intent of the General Assembly; Reasonableness; Need; Fiscal impact; Implementation procedures. Clarity.
A commentator has suggested that the specifications for wheelchair-accessible vehicles (WAVs) should not exceed those set forth in the Americans with Disabilities Act regulations codified at 49 C.F.R. §§ 38.23, 38.28 and 38.31. We ask the Authority to explain the need for proposing standards that are more stringent than federal standards and why this approach is reasonable.
In addition, we note that the statutory definition of ''wheelchair-accessible taxicab'' includes a provision that states that WAVs must meet ''. . . requirements established pursuant to the Americans with Disabilities Act of 1990 . . . or requirements that are a functional equivalent and approved by the authority or both.'' 53 Pa.C.S.A. § 5701. Would any deviations permitted by this section of the regulation meet the ''functional equivalent'' standard?
Subsection (b) Standard specifications for WAV taxicabs.
Subsection (b)(3) states that the Authority ''may publish a list of approved vehicle modification entities on its website.'' We believe such a list would be useful to the regulated community and assist with compliance with the rulemaking. We suggest that this provision be amended to state the Authority ''will'' publish such a list.
Subsections (b)(7) and (8) include references to definitions of the Society of Automotive Engineers. We believe the regulation would be clearer if a specific citation to the definitions or where the definitions can be found were included in the final-form rulemaking.
Under Subsection (b)(10), what is the ''1,000 hour salt spray rating?'' This should be clarified in the final-form rulemaking.
Subsection (b)(13) includes a reference to a system known as ''Qstraint, QRT standard.'' The final-form regulation should clarify what this system is or include a citation to where further explanation of it is available.
We question how the Authority will implement Subsection (b)(16), which requires modifications to WAV taxicabs' rear air conditioning to be approved by the vehicle's manufacturer. How does one seek approval from a manufacturer to modify rear air conditioning? Will this modification and approval have to be documented? How long does it take for a manufacturer to grant such an approval?
Subsection (b)(20) requires WAV taxicabs powered by a ''hybrid-electric power plant'' to be equipped with a device to enable persons who are blind to hear the vehicle approach. We have three concerns. First, we question if the term ''hybrid-electric power plant'' is correct. Second, does this requirement apply to only WAV taxicabs? Third, we question the need for such a requirement. Would a verbal signal from the driver be sufficient to alert the passenger of the arrival of the taxicab?
Subsection (c) Age and mileage limitation.
This subsection requires potential WAV taxicabs to be one of the manufacturer's two latest vehicle models and to have an odometer reading of less than 500 miles to qualify for inspection. It also limits the age of a WAV taxicab to five years. A commentator has questioned the economic viability of these requirements. The commentator notes that, as written, only new vehicles could be used as WAV taxicabs. We ask the Authority to explain the reasonableness of these standards and why the age and mileage standards for non-WAV taxicabs of the earlier of eight years or 250,000 miles are not sufficient. See § 1017.4.
Subsection (d) WAV taxicab dispatching and Subsection (e) WAV taxicab drivers.
The subject matter of § 1017.8 is WAV taxicab specifications. Subsections (d) and (e) do not address WAV taxicab specifications. We suggest that these provisions be moved to more appropriate sections of the rulemaking, such as Sections 1019.8, relating to dispatcher requirements and Section 1021.5a, relating to special WAV taxicab driver's certificate and requirements.
2. Section 1017.24. Meter activation and display.—Reasonableness; Need; Implementation procedures.
Subsection (d) addresses requirements for meters in taxicabs. The Authority is proposing to add the following language as new Subsections (9) and (10):(9) The capability of identifying the passenger as a person seated in a wheelchair through the push of one button on the meter by the driver.(10) An integrated camera system capable of recording and transmitting a photograph of the passenger at the time the meter is engaged and at the time the meter is disengaged at the termination of the taxicab trip.
We raise the following questions and concerns. Regarding Paragraph (9), given the record-keeping requirements imposed on dispatchers under § 1019.8(b), what is the need for this additional requirement? Are existing meters capable of meeting this requirement without any modifications? What would the cost of modifications needed to meet this requirement be?
Regarding Paragraph (10), what costs would be associated with this requirement? Will any privacy rights of the passenger be adversely affected? We also note that a commentator has suggested that the requirements of this paragraph are ''burdensome, intrusive and unnecessary.'' The commentator suggests that the taking of a photo of disabled patrons using wheelchairs should not be a regulatory requirement unless this requirement is lawfully imposed on all passengers. We agree and question the overall need for, and especially the reasonableness, of this requirement.
3. Section 1019.8. Dispatcher requirements.—Reasonableness; Need; Implementation procedures; Clarity.
Subsection (b) WAV taxicab dispatcher authorization and renewal.
The subject matter covered by this subsection includes more than WAV taxicab dispatcher authorization and renewal. It also includes provisions related to the minimum number of WAV taxicabs that must be associated with a WAV dispatcher and record-keeping requirements. To improve clarity and the regulated community's ability to comply with the regulation, we suggest that the Authority reorganize this section by separating the provisions not related to authorization and renewal.
Subsection (b)(4) states that WAV taxicab dispatchers must have ''no less than 10% of WAV taxicabs authorized by the Authority to provide city-wide call or demand services in its association at all times.'' It is our understanding that taxicabs are associated with only one dispatcher at a time and that the authorization to dispatch WAV taxicabs is nontransferable. Since the Authority has not issued any WAV taxicab medallions or certified any WAV taxicab drivers and because the rulemaking does not clarify Section 5711(c) of the Parking Authorities Act (53 Pa.C.S.A § 5711(c)), we question how this provision will be implemented. We ask the Authority to provide its interpretation of Section 5711(c) and to answer the following questions:
• Will there be enough WAV medallions and taxicab WAV taxicab drivers to allow dispatchers to meet this requirement?
• What happens if a dispatcher meets the ten percent requirement but then that percentage drops as more WAVS are authorized?
• Would the dispatcher have to stop dispatching the WAVS they currently have until they can meet the ten percent requirement?
Subsection (c) WAV taxicab dispatcher requirements.
Under Subsection (c)(3), employees and agents of WAV taxicab dispatchers who are engaged in dispatching WAV taxicabs are required to have the same training as WAV taxicab drivers. A commentator has noted that the duties of dispatchers and drivers are distinct with no overlapping duties. They believe this requirement is not needed. We ask the Authority if more specific training for WAV taxicab dispatchers related to the duties of a WAV dispatchers would be appropriate compared to the training required for WAV taxicab drivers.
A commentator has suggested that the 45-minute wait time for a WAV taxicab referenced in Subsection (c)(5) is unreasonable because no customer would wait that long for a taxicab. How long is the average wait time for a taxicab? How did the Authority determine that a 45-minute waiting period is reasonable?
4. Section 1021.5a. Special WAV taxicab driver's certificate and requirements.—Protection of the public health, safety and welfare; Reasonableness; Need; Implementation procedures; Clarity.
A commentator has noted that the certification requirements for WAV taxicab drivers could be relaxed because people with disabilities are capable of directing what they need and the requirements, as written, might prevent taxicab drivers from seeking certification as a WAV taxicab driver. In the Preamble to the final-form rulemaking, we ask the Authority to explain why it believes the provisions of this section strike the appropriate balance between protecting the public and encouraging taxicab drivers to seek the additional certification needed to drive a WAV taxicab.
Subsection (b) WAV taxicab drivers.
Subsection (b)(7) requires applicants for a WAV taxicab driver's certificate to exhibit ''a high degree of experience.'' This requirement is vague. We note that the subsequent paragraphs of this subsection explain what type of experience applicants should have. These paragraphs make the phrase ''a high degree of experience'' unnecessary. We recommend that it be deleted.
Commentators are concerned with the ''2 years of Philadelphia taxicab driver experience'' requirement found in Subsection (b)(7)(i). They believe two years of experience is not necessary and question why experience driving WAV taxicabs in other jurisdictions is not accepted. We ask the Authority to provide further explanation of why it believes this provision is needed and reasonable?
Subsection (c) WAV taxicab driver cap.
Subsection (c)(1) establishes the maximum number of WAV taxicab drivers as the product of the number of WAV taxicabs multiplied by four. We question if imposing such a cap is in the public interest. It is our understanding that some taxicab drivers take extended leaves of absence during the summer months. If this cap is imposed, will there be a sufficient number of WAV taxicab drivers to serve the regulated community at all times of the year? We ask the Authority to explain how it determined that this formula is appropriate.
Under Subsection (c)(2), the Authority may alter the cap for a period not to exceed one year to address circumstances of increased need. We question how this provision will be implemented. What criteria will the Authority use to determine an increased need? If the authority increases the cap, how will the number of WAV taxicab drivers be decreased to the original cap after the one year time period expires? How will the regulated community become aware of the fact that additional WAV taxicab certificates are available? We ask the Authority to address these concerns in the final-form rulemaking.
Subsection (d) WAV taxicab renewal.
This subsection requires WAV taxicab drivers to spend a minimum amount of time driving WAV taxicabs and provide service to a minimum number of persons in wheelchairs in order to maintain their WAV driver certifications. We have several concerns with this subsection.
First, Subsection (d)(2) states that the Authority ''may'' deny renewal if a WAV taxicab driver fails to provide taxicab service for 250 days or more and for not less than 8 hours each on those days in the immediately preceding consecutive 12-month period. We note that Subsection (d)(3) states that the Authority ''will not'' renew a certificate if the driver fails to provide taxicab service in a WAV taxicab for 150 days or more and for not less than eight hours on each of those days in the immediately preceding consecutive 12-month period. What other factors will the Authority consider when deciding if a WAV taxicab driver's certificate should be renewed? Since the purpose of a regulation is to create a binding norm, we recommend that Subsection (d)(2) be deleted in its entirety or that the Authority specifically list other criteria it will use to determine if a certificate should be renewed under that subsection.
Second, we ask the Authority to explain why it is imposing both a day and hour requirement under Subsections (d)(2) and (d)(3). Has the Authority considered imposing annual hourly requirements of 2000 (250 multiplied by 8) and 1200 (150 multiplied by 8) instead? This may provide WAV taxicab drivers more flexibility in meeting these requirements.
Finally, we note that Subsection (d)(4) also includes language that would allow the Authority to not renew a WAV taxicab driver's certificate if a certain condition is not met. The condition is that if the number of taxicab trips provided by a driver to persons seated in wheelchairs remains below the average provided by WAV taxicab drivers in the immediately preceding consecutive 12-month period. We have two concerns with this provision. First, we have the same concerns related to the discretionary and non-binding nature of this language as was raised on Subsection (d)(2). Second, we question the reasonableness of it. Under this provision, at least half of WAV certified taxicab drivers could have their certificate not renewed if they failed to meet this provision. We believe this could lead to a shortage of WAV certified taxicab drivers and question if this is in the public interest.
5. Section 1021.8. Certain training subjects.—Implementation procedures; Clarity.
Subsection (c) addresses initial training and continuing training for WAV taxicab drivers. We have two concerns. First, Subsections (c)(1) and (2) address the initial training for WAV taxicab drivers, but fail to provide a specific number of training hours that are required. We note that § 1021.8(b) requires a minimum of 18 hours of in-class instruction for non-WAV taxicab drivers. We recommend that the Authority specify the number of hours of training WAV taxicab drivers must complete.
Second, Subsection (c)(3) addresses continuing training for WAV taxicab drivers. The second sentence of this subsection states the following: ''The Authority may order additional training as it determines necessary to meet the requirements of the act and this part.'' This language is non-regulatory and does not create a binding norm. If the Authority determines that the required continued training of four hours every two years is not adequate, it must amend that provision as it would any other regulation. We recommend that the second sentence of Subsection (c)(3) be deleted.
6. § 1021.11. Driver requirements.—Reasonableness; Implementation procedures; Clarity.
Subsection (j) addresses how a taxicab driver is to respond to a hail by a person in a wheelchair. It requires drivers to respond to the hail and immediately inform their dispatchers of a request for a taxicab service by a person in a wheelchair if that taxicab driver is unable to provide WAV taxicab service. We have two concerns with this new provision. First, what is meant by ''respond?'' Does the driver have to stop the taxicab and verbally communicate with the potential passenger? We believe this provision should clarify what is meant by ''respond.''
Second a commentator has expressed concern with how this new provision will be implemented. For example, the commentator asks how a driver is to respond if there is already a passenger in the taxicab. Is the driver expected to pull over with an existing passenger? We agree that this provision, as written, could be difficult to implement and may place unreasonable demands on taxicab drivers. We ask the Authority to amend this provision to relieve the taxicab driver of the burdens it may cause while still ensuring that potential passengers in wheelchairs are adequately served.
7. Miscellaneous clarity.
• § 1011.2—We suggest that the definition of ''WAV taxicab driver'' include a reference to § 1021.5a, relating to special WAV taxicab driver's certificate and requirements.
• § 1019.8(c)(5)—We suggest that the word ''each'' be changed to ''every.''
SILVAN B. LUTKEWITTE, III,
[Pa.B. Doc. No. 14-99. Filed for public inspection January 10, 2014, 9:00 a.m.]
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