INDEPENDENT REGULATORY REVIEW COMMISSION Action Taken by the Commission [40 Pa.B. 6367]
[Saturday, October 30, 2010]The Independent Regulatory Review Commission met publicly at 10 a.m., Thursday, October 7, 2010, and announced the following:
Action Taken—Regulations Disapproved:
Department of Agriculture #2-160: Milk Sanitation (rescinds 7 Pa. Code Chapter 59 and replaces it with a new Chapter 59a)
State Registration Board for Professional Engineers, Land Surveyors and Geologists #16A-4710: Continuing Education (amends 49 Pa. Code Chapter 37)
Department of State, Bureau of Professional and Occupational Affairs #16-43: Schedule of Civil Penalties—Engineers, Land Surveyors and Geologists (amends 49 Pa. Code Chapter 43b)
State Board of Chiropractic #16A-4318: Continuing Education Violations (amends 49 Pa. Code § 5.77)
Department of State, Bureau of Professional and Occupational Affairs #16-44: Schedule of Civil Penalties—Chiropractors (amends 49 Pa. Code § 43b.22)
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Disapproval Order Public Meeting held
October 7, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq., by Phone, Dissenting; Silvan B. Lutkewitte, III, Dissenting; John F. Mizner, Esq., by Phone
Department of Agriculture—
Milk Sanitation;
Regulation No. 2-160 (#2777)On July 21, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking rescinds 7 Pa. Code Chapter 59 and replaces it with a new Chapter 59a. The proposed regulation was published in the August 1, 2009 Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on September 3, 2010.
This final-form rulemaking reflects developments in the dairy industry, brings Pennsylvania's sanitation standards into alignment with federal standards and requirements, and consolidates and updates provisions addressing the production of raw milk for human consumption. After review of the rulemaking, we find that Subchapter F of Chapter 59a, pertaining to raw milk for human consumption, is not in the public interest for the following reasons.
First, we believe that Subchapter F will have a negative fiscal impact on raw milk producers. (71 P. S. § 745.5b(b)(1)). In our comments on the proposed rulemaking, we asked the Department to quantify the costs the rulemaking will have on raw milk producers. The Department quantified the costs related to testing requirements for raw milk. However, the regulated community, through written comments and statements made at the October 7, 2010 public meeting of this Commission, believes Subchapter F will impose a much greater cost than what was estimated by the Department. Of particular concern are the provisions related to mechanical capping of bottles and the need for separate rooms to perform certain tasks associated with the production of raw milk.
Second, the Department has failed to explain the need for the provisions contained in § 59a.410, relating to raw milk packaging. In addition, we find that section of the regulation to be unclear. (71 P. S. § 745b(b)(3)(ii) and (iii)). Of particular concern is why separate rooms are needed to perform certain tasks associated with production of raw milk, when separate rooms would be needed and why some customer-owned containers must be mechanically capped and others do not.
We have determined that this regulation is consistent with the statutory authority of the Department (31 P. S. § 660(c) and 31 P. S. § 20.13) and the intention of the General Assembly. However, after considering all of the other criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation #2-160 (IRRC #2777) from the Department of Agricultural: Milk Sanitation was disapproved on October 7, 2010.
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Disapproval Order Public Meeting held
October 7, 2010Commissioners Voting: George D. Bedwick, Acting Chairperson; S. David Fineman, Esq., by Phone; Silvan B. Lutkewitte, III; John F. Mizner, Esq., by Phone
State Registration Board for Professional
Engineers, Land Surveyors and Geologists—
Continuing Education;
Regulation No. 16A-4710 (#2762)On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board). This rulemaking amends 49 Pa. Code Chapter 37. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 3, 2010.
This regulation establishes continuing education requirements for licensees of the Board as set forth by Engineer, Land Surveyor and Geologist Registration Law (Law), as amended by Act 25 of 2010. The rulemaking provides licensees of the Board that have not met the continuing education requirements of the law six months to correct that deficiency while continuing to practice. We find that the Board does not have the statutory authority to provide licensees with an additional six months to meet continuing education requirements. As explained below, this regulation does not meet the Regulatory Review Act criteria of statutory authority to promulgate the regulation and protection of the public health safety and welfare. 71 P. S. § 745.5b(a) and (b)(2).
Continuing professional competency requirements are addressed in the Law at 63 P. S. § 151.5. Subsections (a), (b) and (c) of that section, in relevant part, read as follows:
a) In order to help safeguard life, health and property and to promote the public welfare, the practice of professional engineering, professional land surveying and professional geology in this Commonwealth requires continuing professional competency.
b) Each licensee shall be required to meet the continuing professional competency requirements of this section as a condition for licensure renewal.
c) Each licensee shall be required to obtain twenty-four PDH units during the biennial renewal period.
Based on the statutory language above, it is clear that the General Assembly found that professional competency of professional engineers, land surveyors and geologists, is needed to help safeguard life, health and property and to promote the public welfare. It is equally clear that the General Assembly's intended method for ensuring competency is by requiring licensees to obtain twenty-four Professional Development Hours (PDH) units during the biennial period.
Sections 37.111(c) and (d) of the regulation contain provisions that allow licensees to continue to practice if they did not obtain the required PDH units during the biennial period by providing an additional six months to obtain the units. These provisions are not consistent with the intent of § 151.5(a) and the statutory requirements of § 151.5(b) and (c). Therefore, they violate the Regulatory Review Act criteria cited above.
In addition, other sections of the rulemaking violate the Regulatory Review Act criteria of clarity. See 71 P. S. 745.5b(b)(3). First, § 37.18(1) includes a reference to 63 P. S. § 151.5(c) of the Law. Act 25 of 2010 amended the Law and the correct reference is 63 P. S. § 151.5(g).
Second, § 37.111(a) includes the new term ''continuing education activity.'' This term is unclear and should be defined.
Third, § 37.111(g) is a new subsection that requires licensees to maintain ''records'' verifying completion of continuing education for five years. Act 25 of 2010 amendments to the Law allow PDH units to be earned for activities such as ''completion of correspondence, televised, videotaped and other short courses or tutorials relevant to professional practice.'' See 63 P. S. § 151.5(c)(3). Given the various methods for earning PDH units, we believe the regulated community would benefit if a definition of ''records'' was added to the rulemaking.
We have determined this regulation is not consistent with the statutory authority of the Board (63 P. S. §§ 151.5 (a), (b) and (c)) and the intention of the General Assembly. Additionally after considering all of the other criteria of the Regulatory Review Act discussed above, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
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Disapproval Order Public Meeting held
October 7, 2010Commissioners Voting: George D. Bedwick, Acting Chairperson; S. David Fineman, Esq., by Phone; Silvan B. Lutkewitte, III
Department of State—
Bureau of Professional and Occupational Affairs—
Schedule of Civil Penalties—Engineers,
Land Surveyors and Geologists;
Regulation No. 16-43 (#2764)On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of State (Department). This rulemaking amends 49 Pa. Code Chapter 43b. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 3, 2010.
This final regulation would establish a civil penalty schedule for violations of the continuing education requirements of the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board). This regulation is the companion piece to Regulation #16A-4710 (IRRC #2762) from the Board entitled: ''Continuing Education.''
Thomas A. Blackburn, Regulatory Unit Counsel for the Department of State, appeared at the public meeting on October 7, 2010. Attorney Blackburn represented that he was authorized to request, on behalf of the Department, that the Commission disapprove this final-form regulation, given that the companion Regulation #16A-4710 (IRRC #2762) had been disapproved at the same public meeting. Without support from the promulgating Department, this regulation does not meet the reasonableness criterion set forth in the Regulatory Review Act and is not in the public interest. 71 P. S. § 745.5b(b)(3).
By Order of the Commission:
This regulation is disapproved.
____ Disapproval Order Public Meeting held
October 7, 2010Commissioners Voting: George D. Bedwick, Acting Chairperson; S. David Fineman, Esq., by Phone; Silvan B. Lutkewitte, III
State Board of Chiropractic—
Continuing Education Violations;
Regulation No. 16A-4318 (#2792)On September 11, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Chiropractic (Board). This rulemaking amends 49 Pa. Code § 5.77. The proposed regulation was published in the September 26, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 3, 2010.
This rulemaking is intended to clarify the consequences of failing to comply with the continuing education provisions in the Chiropractic Practice Act (63 P. S. § 625.507(a)) and the Board's regulation (49 Pa. Code § 5.77). Both require a licensee to complete 24 hours of continuing education credits each biennium in order to qualify for license renewal. Under the amendments in this rulemaking, a licensee who has not completed the required amount of continuing education credits may renew, subject to being issued a citation, paying a fine and making up the continuing education credits within six months.
We find no statutory authority allowing the Board to renew a license for an applicant who has not completed the statutorily mandated 24 hours of continuing education during the prior two-year license period. Accordingly, this regulation does not meet the Regulatory Review Act criterion of statutory authority to promulgate the regulation. 71 P. S. § 745.5b.
In our comments issued November 25, 2009, on the proposed regulation, we stated we would review the Board's responses to the issues raised by the House Professional Licensure Committee in our consideration of whether the final-form regulation is in the public interest. The Board responded with an explanation that it would amend its renewal form to provide for the alternative that the licensee did not complete the continuing education, but will make it up in six months. The Board also amended the regulation to provide an exception to the continuing education requirement (not found in the statute) which permits a license to be renewed subject to making up a continuing education deficiency within six months.
The Board's responses indicate that the intent of the amended regulatory language at 49 Pa. Code §§ 5.77(a) and (d), is to allow a renewal of a license when a licensee failed to attend the required 24 hours of mandatory continuing education during the license period. This intent is also expressed in the Board's response to Question 8 of the Regulatory Analysis Form.
Continuing education relating to license renewal is addressed in the Chiropractic Practice Act (Act), which states at 63 P. S. § 625.507(a):
Requirement for license renewal.—As a condition for the biennial renewal of a license to practice chiropractic, a licensee shall submit to the Board evidence that he has completed at least 24 hours of continuing chiropractic education within the immediately preceding two-year period . . . . (Emphasis added.)
The only exception to the continuing education mandate in the statute is ''in emergency or hardship cases.'' See 63 P. S. § 625.507(h). When a licensee does not meet this condition, the applicant, ''as a condition for the biennial renewal of a license to practice chiropractic,'' is required to have attended ''at least 24 hours of continuing chiropractic education in the immediately preceding two-year period . . . .'' 63 P. S. § 625.507(a).
The Commission concludes that this regulation is not consistent with the statutory authority of the Board (63 P. S. § 625.507(a)) and the intention of the General Assembly. Therefore, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
This regulation is disapproved.
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Disapproval Order Public Meeting held
October 7, 2010Commissioners Voting: George D. Bedwick, Acting Chairperson; S. David Fineman, Esq., by Phone; Silvan B. Lutkewitte, III
Department of State—
Bureau of Professional and Occupational Affairs—
Schedule of Civil Penalties—Chiropractors;
Regulation No. 16-44 (#2791)On September 11, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of State (Department). This rulemaking amends 49 Pa. Code § 43b.22. The proposed regulation was published in the September 26, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 3, 2010.
This final regulation would establish a civil penalty schedule for violations of the continuing education requirements of the State Board of Chiropractic (Board). This regulation is the companion piece to Regulation #16A-4318 (IRRC #2792) from the Board entitled: ''Continuing Education Violations.''
Thomas A. Blackburn, Regulatory Unit Counsel for the Department, appeared at the public meeting on October 7, 2010. Attorney Blackburn represented that he was authorized to request, on behalf of the Department, that the Commission disapprove this final-form regulation, given that the companion Regulation #16A-4318 (IRRC #2792) had been disapproved at the same public meeting. Without support from the promulgating Department, this regulation does not meet the reasonableness criterion set forth in the Regulatory Review Act and is not in the public interest. 71 P. S. § 745.5b(b)(3).
By Order of the Commission:
This regulation is disapproved.
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 10-2078. Filed for public inspection October 29, 2010, 9:00 a.m.]
