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PA Bulletin, Doc. No. 19-989



Notice of Comments Issued

[49 Pa.B. 3440]
[Saturday, June 29, 2019]

 Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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 Period
IRRC Comments Issued
7-533 Environmental Quality Board
Water Quality Management and National  Pollution Discharge
Elimination System Permit
Application and Annual Fees
49 Pa.B. 1518 (March 30, 2019)
5/14/19 6/13/19
6-340 Professional Standards and Practices  Commission
Code of Professional Practice and Conduct for  Educators
49 Pa.B. 1905 (April 20, 2019)
5/20/19 6/19/19

Environmental Quality Board Regulation # 7-533 (IRRC # 3227)

Water Quality Management and National Pollution Discharge Elimination System Permit Application and Annual Fees

June 13, 2019

 We submit for your consideration the following comments on the proposed rulemaking published in the March 30, 2019 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 (RRA) (71 P.S. § 745.5a(a)) directs the Environmental Quality Board (EQB) to respond to all comments received from us or any other source.

1. Comments, objections or recommendations of a committee.

 This proposed rulemaking would increase fees for Water Quality Management (WQM) permit applications and National Pollutant Discharge Elimination System (NPDES) permit applications and annual fees. Provisions have been added that require the Department of Environmental Protection (DEP) to adjust fees according to the United States Bureau of Labor Statistics Employment Cost Index for State and Local Government Compensation every two years. EQB states that the purpose of the rulemaking is to raise approximately $8 million to increase program resources for the Bureau of Clean Water and the Clean Water Program (Program). The additional funding is needed so that DEP can accomplish its mission and meet its legal obligations to the public, regulated community, and federal authorities.

 The proposed rulemaking has generated opposition from the General Assembly and the regulated community. On May 14, 2019, the House Environmental Resources and Energy Committee (Committee) voted to send a letter asking this Commission to disapprove the rulemaking in its proposed form and urging EQB to withdraw it. Concerns raised by the Committee relate to a lack of statutory authority and consistency with the intent of the General Assembly, reasonableness, and the fiscal impact on small businesses and farmers. The Committee is particularly concerned with the automatic adjustment of fees provision of the proposal.

 Forty-three Republican members of the Pennsylvania House of Representatives submitted a joint letter expressing numerous concerns with the proposed rulemaking. These members believe the proposal is deviating from the legislative intent of the Clean Streams Law (CSL) (35 P.S. §§ 691.1—391.1001) and the regulatory authority granted to EQB to allow for reasonable fees for applications filed and permits issued. The members state it was never the intent of the legislature to fund a sizeable portion of the Program from these fees. Also, if the Legislature wanted to allow fees to be set based on an index, they would have stated that in statute. They also state the amount of the fee increases are not reasonable and would have an adverse effect on prices of goods services, productivity or competition. The fiscal impact of the rulemaking on local governments and the regulated community is another concern raised by the members.

 Fifteen Republican members of Pennsylvania's Senate, including all majority members of the Senate Environmental Resources and Energy Committee, also submitted a letter opposing the proposed rulemaking. The letter emphasizes the negative fiscal impact the proposal will have on the agriculture industry. It concludes by stating that further discussion and a public hearing are needed to examine economic impact of the rulemaking.

 In addition to the opposition expressed by the Legislature, various segments of the regulated community have expressed concerns with the proposed rulemaking, that are to a large degree, similar to those noted above. Segments of the regulated community that have submitted letters in opposition to the rulemaking include: business; water companies; local government; agriculture; and the automotive recycling/salvage industry.

 One criterion of the RRA that this Commission must consider when determining if a regulation is in the public interest is the comments, objections or recommendations of a committee. As noted above, the Committee has issued comments and expressed objections to the regulation. If EQB proceeds with this rulemaking, we note that the objections raised by the Committee could be the basis for a disapproval by this Commission. However, a goal of the RRA and the regulatory review process is the resolution of objections to a regulation and reaching of consensus among this Commission, the designated standing committees, interested parties and the promulgating agency. We ask EQB to work with all parties with an interest in this rulemaking, particularly the Committee and members of the Legislature, to create a regulatory environment that is consistent with the intent of the General Assembly, fair to the regulated community and protective of the Commonwealth's natural resources.

2. Whether the regulation represents a policy decision of such a substantial nature that it requires legislative review.

 A goal of this rulemaking is to increase funding for the Program. In the Preamble to the rulemaking, EQB states the following:

The administration of the Clean Water Program involves many activities including permit application reviews, inspections, enforcement, surface water assessments and related activities such as development and implementation of Federally required Total Maximum Daily Loads.

 Comments from the House Committee and the 43 Republican members indicate that it was not the intention of the General Assembly to fund the Program through application fees authorized by the Clean Streams Law. In light of these comments, we believe funding the Program, beyond what is required to review permit applications, may be a policy decision that should be made by the General Assembly. As suggested in the letter from the 43 Republican members, EQB should present any funding changes for the Program to the General Assembly for consideration.

3. Amount of the fee increases.—Statutory authority; Whether the regulation is consistent with the intent of the General Assembly; Direct and indirect costs to the Commonwealth, to its political subdivisions and to the private sector; Adverse effects on prices of goods and services, productivity or competition; Whether a less costly or less intrusive alternative method of achieving the goal of the regulation has been considered for regulations impacting small businesses.

 When this regulation is fully implemented in fiscal year 2022-2023, EQB estimates it will cost the regulated community approximately $8 million per year. In some instances, existing fees will increase by 500 percent. Commentators have raised two main concerns about the size and scope of the fee increases being proposed in §§ 91.22(a), 92a.26(b) and 92a.62(b). First, the commentators question if the proposed increases are consistent with the statutory directive that fees be reasonable. We note that Sections 5(b)(1) and 6 of the CSL (35 P.S. §§ 691.5(b)(1) and 691.6) have been cited by EQB as part of its statutory authority for this rulemaking. Section 5(b)(1) provides EQB with general rulemaking authority necessary to implement the CSL. Section 6 pertains to application and permit fees. It states the following:

The [EQB] is hereby authorized to charge and collect from persons and municipalities in accordance with its rules and regulations reasonable filing fees for applications filed and for permits issued.

 Given the dollar amount and percentage increase of the fee increases, we ask EQB to explain why it believes the proposed fee structure is consistent with the legislative directive that fees be reasonable.

 Second, the adverse effects the proposed increases would have on the price of goods and services, productivity or competition has been raised as an issue. For example, the National Federation of Independent Business states that EQB, ''must consider the impact of drastically higher permit fees on the business environment, measured by lost investment and innovation, less productivity, and a higher regulatory cost burden as factors when weighing the impact of the rulemaking.'' East Petersburg Borough submitted comments explaining how Safe Drinking Water fee increases by EQB in 2018 have impacted community water systems across the Commonwealth. They stress the importance of considering the fiscal impact of this rulemaking. Finally, representatives of the agriculture industry and individual farmers submitted comments highlighting the many challenges the industry is currently facing and how the proposed increases will negatively affect them.

 We understand that DEP has an obligation to protect the Commonwealth's natural resources and an obligation to meet federal mandates related to the Program. We appreciate the effort put forth by EQB to demonstrate and document the need and rationale for the proposed fee increases. If EQB moves forward with this proposal, we ask that DEP continue its efforts to reduce costs and find efficiencies that could possibly reduce the size and scope of the proposed increases. In addition, we ask EQB to work with small businesses and farmers to possibly find a less costly or less intrusive method of achieving the goal of the regulation.

4. Automatic adjustment of fees.—Statutory authority; Whether the regulation is consistent with the intent of the General Assembly; Implementation procedures; Reasonableness.

 EQB is adding new provisions that provide for an ongoing adjustment to its fees schedules. The new provisions are §§ 91.22(c), 92a.26(f) and 92a.62(c). The adjustments will be made every two years and will be based on the United States Bureau of Labor Statistics Employment Cost Index for State and Local Government Compensation or an equivalent index recognized by the United States Department of Labor and Industry. DEP will publish the final adjusted fee schedules and effective dates in the Pennsylvania Bulletin. The fees will not be adjusted if the application of the index would result in fees exceeding DEP's costs to administer the Program. We have three concerns. First, commentators, including members of the General Assembly, do not believe Section 6 of the CSL provides EQB with the statutory authority to change fees via this method. Why does EQB believe that Section 6 of the CSL provides for this type of automatic fee adjustment? Can EQB cite to any other statute that would allow for these specific fees to be increased in this manner? Second, we question the reasonableness of increasing fees without public or legislative scrutiny. In the Preamble to the final rulemaking, we ask EQB to explain why this method of increasing fees is in the public interest. Finally, if EQB can justify the legality and reasonableness of the automatic adjustment provisions, we are concerned with the implementation of them. As written, DEP would not be able to adjust the index if the amount of the increase would exceed the increased costs of administering the Program. We suggest that the language be amended to allow DEP to increase the fees to the lesser of the index or the actual costs to administer the Program.

5. Miscellaneous clarity.

 Subsection 91.22 (b) includes new language that states fees for a general permit ''shall'' be established in the general permit itself. Section 6.7 (c) of the Pennsylvania Code & Bulletin Style Manual indicates that the word ''will'' should be used when the Commonwealth pledges to act. Since DEP will be determining the amount of the fee, we suggest that the word ''shall'' be changed to ''will.'' Similar language is found in §§ 91.22 (c), 92a.26 (f) and 92a.62 (c).

Professional Standards and Practices Commission Regulation # 6-340 (IRRC # 3233)

Code of Professional Practice and Conduct for Educators

June 19, 2019

 We submit for your consideration the following comments on the proposed rulemaking published in the April 20, 2019 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 Professional Standards and Practices Commission (PSPC) to respond to all comments received from us or any other source.

1. Whether the agency has the statutory authority to promulgate the regulation; Need for the regulation.

 This proposed rulemaking amends Chapter 235 of PSPC's regulations. Chapter 235 is entitled ''Code of Professional Practice and Conduct of Educators'' (Code). It was promulgated in 1992 and has not been amended since that time. PSPC has cited Section 5(a)(10) of the Educator Discipline Act (Act) (24 P.S. § 2070.5(a)(10)) as its statutory authority for the rulemaking. Section 5 of the Act provides PSPC with certain powers and duties. Section 5(a)(10) provides PSPC with the following power:

To adopt and maintain a code for professional practice and conduct that shall be applicable to any educator as defined in this act, pursuant to the act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law.

 This language provides PSPC authority to adopt a code of conduct, but it does not provide the authority to promulgate that code as a regulation under the Regulatory Review Act. (71 P.S. §§ 745.1, et seq.) Section 1206 of the Commonwealth Documents Law (CDL) (45 P.S. § 1206) does provide PSPC authority to promulgate a code of conduct in a form and manner other than a regulation. Section 1206 of the CDL is entitled ''Format of regulations and other documents'' and includes the following language:

The agency text of all regulations and other documents, required or authorized to be deposited with the Legislative Reference Bureau by this act shall be prepared in such form and format as may be prescribed by regulations promulgated by the joint committee. (Emphasis added.)

 As explained below, we believe it is more appropriate to publish the Code as a Statement of Policy and not a regulation.

 PSPC explains in Regulatory Analysis Form Question # 10 that the Code identifies, ''the ethical responsibilities of educators and lists what educators shall do, should do and may do, as well as the consequences for violating the Code.'' (Emphasis added.) We acknowledge the value of the Code and the benefits associated with it. However, language found in the existing regulation and in proposed amendments is nonregulatory in nature. For example, § 235.3 relates to the purpose of the Code. A new subsection is being added that states the following: ''The purpose of this chapter is to set expectations for educators; guide educational practice and inspire professional excellence.'' Existing language found at § 235.4(a) and (b) states that educators are ''expected'' to abide by numerous provisions of the section.

 A regulation sets binding norms of general applicability and future effect. Regulations have the full force and effect of law and are enforceable mandates. A regulation is not the proper vehicle for setting expectations. A Statements of Policy (SOP) would be a more appropriate document for providing guidance or setting expectations. What is the need for codifying the Code as a regulation? As PSPC moves forward with amendments to the Code, we suggest it convert the Code from a regulation to a SOP.

 If PSPC decides to move forward with the amendments to the Code as a regulation, we offer the following comments.

2. Possible conflict with or duplication of statutes or existing regulations.

 The Pennsylvania Catholic Conference submitted a comment stating that the prohibitions found in proposed amendments to the Code, if applied to Catholic educators, would violate constitutionally-protected religious liberties and the Pennsylvania Religious Freedom Protection Act (PRFPA) (71 P.S. §§ 2401—2407). This assertion is based on their contention that some provisions may come into conflict with tenets of the Catholic faith. In the Preamble to the final-form regulation, we ask PSPC to explain why the amendments being proposed do not conflict with PRFPA.

3. Clarity and lack of ambiguity.

 As stated in our first comment, provisions of the existing regulation, and proposed amendments to it, are not written in a regulatory format. For example, PSPC is proposing to add the following language to § 235.4 relating to professional practices:

Educators shall promote the health, safety and well-being of students by establishing and maintaining appropriate verbal, physical, emotional and social boundaries. Educators shall interact with students with transparency, at appropriate times and in appropriate settings.

 This new language is a goal that every educator should strive to meet. However, it would be difficult to measure if this mandate is actually being met.

 Another example from § 235.4 is quoted below:

Educators should refrain from professional or personal activity, including activity online, which would reduce the educator's effectiveness within the school community.

 How would the effectiveness of an educator within the school community be measured? Both of these new provisions are ambiguous. They do not provide educators with a clear and precise standard for compliance. We recommend that the entire final-form regulation be amended to set standards that are clear, binding and enforceable.

4. Section 235.3a. Definitions.—Clarity.

 The term ''fiduciary relationship'' is being defined as follows: ''A fiduciary relationship is one in which a person justifiably places confidence in another whose aid, advice or protection is assumed.'' What is the need for including the word ''justifiably'' in this definition? As used in this definition, what does that word mean? In the Preamble to the final-form regulation, we ask PSPC to explain the rationale for including this word in the definition. If the word is not needed, we suggest that it be deleted from the definition.

5. Section 235.4. Professional practices.—Clarity.

 Subsection (b)(2) requires educators to be certified in the areas of assignment. It provides an exception for temporary, short-term, and emergency basis assignments. The term ''short-term'' is vague and does not establish a binding norm. To improve clarity, we suggest that PSPC define ''short-term'' in the final regulation.

6. Section 235.5a. Commitment to Students.—Clarity; Implementation procedures.

 This section describes an educator's obligation to serve students. Subsection (g) states that educators shall not be on school premises or at school-related activities while under the influence of ''unauthorized drugs.'' That term is also used in Subsection (h). Who determines if a drug is unauthorized? How is the regulated community notified of what is an unauthorized drug? We ask PSPC to define this term in the final-form regulation and also to explain how it will implement these subsections.

7. Miscellaneous clarity.

 • Under § 235.3a, relating to definitions, we identified the following issues:

 o The definitions of ''dual or multiple relationships,'' ''electronic communications,'' and ''fiduciary relationship'' include the terms that are being defined. Section 2.11(h) of the Pennsylvania Code & Bulletin Style Manual (Manual) states that the term being defined may not be included as part of the definition. We recommend that the definitions be amended to comply with the Manual.

 o The definitions of ''school entity'' and ''sexual misconduct'' under § 235.3a include an incorrect statutory citation to § 1.2 of the Act. The correct citation is § 1b of the Act.

 • The phrase, ''including, but not limited to'' is being added to §§ 235.4(b)(4) and 235.5a(j). Section 6.16 of the Manual suggests that the term ''includes'' be used instead of ''including, but not limited to.''

 • § 235.5a(d) is new language that prohibits educators from engaging in sexual misconduct, ''including sexual relationships, with students.'' The quoted language should be deleted because ''sexual relationship'' is included in the defined term ''sexual misconduct.''


[Pa.B. Doc. No. 19-989. Filed for public inspection June 28, 2019, 9:00 a.m.]

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