INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[43 Pa.B. 7362]
[Saturday, December 14, 2013]
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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
16A-7020 State Board of Certified Real Estate Appraisers
Biennial License Fee for Licensed Appraiser Trainees
43 Pa.B. 5827 (October 5, 2013)
11/4/13 12/4/13 54-74 Pennsylvania Liquor Control Board
Conversion of Suspension to Fine
43 Pa.B. 5825 (October 5, 2013)
11/4/13 12/4/13 16A-6807 State Board of Examiners in Speech-Language
43 Pa.B. 5828 (October 5, 2013)
State Board of Certified Real Estate Appraisers
Regulation #16A-7020 (IRRC #3025)
Biennial License Fee for Licensed Appraiser Trainees
December 4, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 5, 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 State Board of Certified Real Estate Appraisers (Board) to respond to all comments received from us or any other source.
1. Communication with the regulated community.—Reasonableness.
Governor's Executive Order 1996-1
Regulatory Analysis Form (RAF) 14 asks the Board to describe the communications with the regulated community and list the specific groups involved. The Board responded:Because the reconciliation of the Board's revenues and expenses is an administrative matter, the Board did not solicit input from the public, any advisory group or organization representing small businesses in the development of this proposal. Rather the Board consulted with the Bureau of Finance and Operations to determine the fee. However, the matter was discussed by the Board during public meetings on December 13, 2012, and January 10, 2013, which are routinely attended by representatives of the regulated community and their professional associations.
Governor's Executive Order 1996-1 requires that ''regulations shall be drafted and promulgated with early and meaningful input from the regulated community.'' In addition, this order states in Section 3 (Pre-Drafting and Drafting Guidelines) that ''agencies, where practical, shall undertake extensive public outreach to those who are likely to be affected by the regulation.'' See Governor's Executive Order 1996-1, Sections 1.h. and 3.a.
We strongly disagree that raising fees by regulation is an administrative function that does not require communications with the regulated community. We ask the Board to explain how the process it used to develop the proposed regulation complies with the directives in Governor's Executive Order 1996-1.
2. Consistency with statute; Reasonableness; Need for the regulation; Whether the regulation is supported by acceptable data.
We agree with the Board's objective that all license classifications should share proportionately in the costs of operating the Board. However, the addition of this fee raises concerns because the supporting information does not establish how this new fee relates to the overall revenues and expenditures of the Board. We ask the Board for further information so that we can determine whether this regulation is in the public interest.
Board revenues compared to its expenditures
The Board cites 63 P. S. §§ 457.5(6) and 457.9 of the Real Estate Appraisers Certification Act (Act) as authority for this regulation. The Board clearly has authority to charge fees to those entities it regulates. Section 457.9(a) of the Act also provides the following directive:Imposition and increases.—. . . If the revenues raised by fees, fines and civil penalties imposed pursuant to this act are not sufficient to meet expenditures over a two-year period, the board shall increase those fees by regulation so that the projected revenues will meet or exceed projected expenditures.
We note that the response to RAF Question 23a shows that expenditures have decreased from $674,000 in fiscal year 2009-2010 to $594,000 in fiscal year 2012-2013. However, concerning revenues, the RAF provides information on the impact of the individual fee of $150, but does not provide overall revenue information to establish that ''revenues raised by fees, fines and civil penalties imposed pursuant to this act are not sufficient to meet expenditures over a two-year period.'' We ask the Board to establish in the final-form regulation submittal that the revenues raised by fees, fines and civil penalties currently are not sufficient to meet expenditures over a two-year period.
Consideration of appraisal management company fees
The Board provides the following statement in response to RAF Question 18:The Board had been considering a general fee increase, however the addition of the appraisal management company license with its related increase in revenue from applications and renewals is expected to negate the need for a fee increase. However, the Board believes that all license classifications should share proportionately in the costs of operating the Board, including trainees.
We have two concerns relating to this response.
First, we note that 63 P. S. § 457.26(a) states that ''The fee to file an application for registration or renewal of a registration under this act shall be $1,000 or such other amounts as are set by the rules and regulations of the board.'' [Emphasis added.] Does this $1,000 fee reflect the costs to the Board of processing these registrations and renewals, or should it be adjusted? Does this fee, imposed on appraisal management companies, cross-subsidize the Board's other classifications of certifications and licenses? Is the Board considering another rulemaking to examine the appraisal management company fee?
Second, how much has the Board's revenue increased since the implementation of the $1,000 fee established by 63 P. S. § 457.26(a)? Is the estimated $45,000 of additional revenue that would be provided by the fee for biennial renewal of licensed appraiser trainee licenses needed for the Board to meet its expenditures?
Licensed appraiser trainee fee in relation to other fees
We have two concerns relating to the supporting documentation for the new $150 fee.
First, what is the basis for the amount of the $150 fee for renewal of licensed appraiser trainee licenses? Why is the biennial renewal fee for licensed appraiser trainees $150, when all of the other biennial renewal fees in existing 49 Pa. Code § 36.6 were set at $225?
Second, the Board has experienced several changes through legislation that created licensed appraiser trainees and appraisal management company licenses. Also, based on our research, several fees in 49 Pa. Code 36.6 appear to have been last increased by Regulation #16A-7013, which became effective in 2003. Has the Board determined whether all of the fees it charges to its regulated community accurately reflect the current costs the Board incurs to perform the tasks associated with the fee, or is a general review of the fees in 49 Pa. Code § 36.6 needed?
Pennsylvania Liquor Control Board
Regulation #54-74 (IRRC #3026)
Conversion of Suspension to Fine
December 4, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 5, 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 Pennsylvania Liquor Control Board (Board) to respond to all comments received from us or any other source.
1. Economic or fiscal impacts; Need for the regulation; Reasonableness of requirements.
In response to Question #10 of the Regulatory Analysis Form (RAF) regarding why the regulation is needed, the Board gives two reasons, one of which is that fines received in lieu of suspensions may not cover the cost, in work hours, of processing the conversion. If the fines are needed to cover the cost of processing the conversion, the Board has not provided information related to this need. In fact, in response to Questions #23 and 23a related to fiscal costs and past three-year expenditure history, the Board responded ''minimal'' and ''N/A,'' respectively. If the cost of processing the conversion is a reason for needing this regulation, the Board should provide additional information. For example, what are the fiscal costs associated with implementation and compliance for state government? Specifically, what is the cost to process a conversion? What is the expenditure history for the program? In the Preamble and RAF submitted with the final-form regulation, we ask the Board to provide more detailed information that supports the need for the regulation on this cost basis and to demonstrate that the fiscal impact is reasonable as relates to the cost.
2. § 7.10. Conversion of suspension to fine.—Conforms to intent of General Assembly in enactment of the statute; Clarity; Reasonableness of requirements.
Currently, Subsection (d) contains a formula for converting a suspension to a fine. The formula is used to calculate the dollar amount of the fine per day of suspension, with two exceptions. The first exception in Paragraph (d)(1) addresses the possibility that the calculated amount could be less than $100, in which case the fine is set at $100. The second exception in Paragraph (d)(2) states that if the suspension was issued for a citation that required a minimum fine amount of $1,000 per day, a minimum fine of $1,000 per day will be set. We note that the minimum fine amount for citations is provided for in Section 4-471(b) (relating to revocation and suspension of licenses; fines) of the Pennsylvania Liquor Code (Liquor Code). 47 P. S. § 4-471(b).
The Board proposes to delete the formula from Subsection (d) and create two tiers of fines based upon the possible minimum fine amount that could have been imposed in lieu of a suspension. The first proposed tier states that if the suspension was issued for a citation for which the minimum fine, if a fine had been imposed, is $100, then a minimum fine of $1,000 per day will be set. However, Section 4-471(b) of the Liquor Code states that if an administrative law judge imposes a fine for a citation, the minimum fine amount shall be either $50 or $1,000 depending upon the violation. Because the statute does not reference a $100 minimum fine amount, the regulation is not clear as to which suspensions for citations this would apply. The Board needs to explain the derivation and relevance of the $100 fine reference. Furthermore, the final-form regulation should clarify to which suspensions the $100 minimum fine amount would apply and how the fines are consistent with the Liquor Code and intent of the Legislature.
Additionally, by deleting the formula and providing for only a minimum fine, the Board has essentially removed the standard for how fines will be set. With no upper limit in place, the Board could find itself setting fines in an arbitrary and capricious manner which could lead to an unfair result for licensees. For example, one licensee could be fined $1,000 per day while another licensee with a similar violation could be charged $1,000,000. The Board should reconsider the manner in which it makes its calculations and explain how it intends to avoid an unfair and potentially unconstitutional imposition of its fines.
Finally, since the Board is removing the formula from Subsection (d), the words ''calculated'' and ''formula'' are no longer applicable and should not be used.
3. Compliance with the RRA.
The information contained in response to Question #15 of the RAF submitted with this rulemaking is not sufficient to allow this Commission to determine if the regulation is in the public interest. Specifically, the Board has not included 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. Without this information, we cannot determine if this proposed regulation is in the public interest. In the RAF submitted with the final-form regulation, the Board should provide the federal citation, as well as the number of persons, business, small business (as defined in Section 3 of the RRA, Act 76 of 2012) and organizations which will be affected by the regulation.
State Board of Examiners in Speech-Language and Hearing
Regulation #16A-6807 (IRRC #3028)
December 4, 2013
We submit for your consideration the following comments on the proposed rulemaking published in the October 5, 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 State Board of Examiners in Speech-Language and Hearing (Board) to respond to all comments received from us or any other source.
Section 45.502. Exemption and waiver.—Whether the regulation is consistent with the intent of the General Assembly.
The Board is adding the following sentence to Subsection (b): ''A waiver request seeking an extension of time to complete required continuing education shall include the licensee's plan to complete the required continuing education.'' Section 5(7) of the Speech Language and Hearing Licensure Act (Act) (63 P. S. § 1705(7)) establishes continuing education requirements for licensees of the Board. This section allows the Board to waive all or part of continuing education requirements due to illness, emergency or hardship. However, the Act is silent on whether an extension of time to complete required continuing education is appropriate. We ask the Board to explain why it believes that the inclusion of this new language in the proposed regulation is consistent with Section 5(7) of the Act and the intent of the General Assembly.
SILVAN B. LUTKEWITTE, III,
[Pa.B. Doc. No. 13-2338. Filed for public inspection December 13, 2013, 9:00 a.m.]
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