INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [43 Pa.B. 3439]
[Saturday, June 22, 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Comments Reg. No. Agency/Title Comment Period Issued 54-73 Pennsylvania Liquor Control Board
Sale by Licensed Limited Distilleries and
Distilleries
43 Pa.B. 2040 (April 13, 2013)
5/13/13 6/12/13 16A-4822 State Board of Funeral Directors
Fees
43 Pa.B. 2044 (April 13, 2013)5/13/13 6/12/13 16A-6806 State Board of Examiners in Speech-Language
and Hearing
Termination of Grandfather Provisions
43 Pa.B. 2042 (April 13, 2013)5/13/13 6/12/13 16A-7102 State Board of Crane Operators
Fees
43 Pa.B. 2041 (April 13, 2013)5/13/13 6/12/13 Pennsylvania Liquor Control Board Regulation #54-73 (IRRC #2999)
June 12, 2013Sale by Licensed Limited Distilleries and Distilleries We submit for your consideration the following comments on the proposed rulemaking published in the April 13, 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 Liquor Control Board (Board) to respond to all comments received from us or any other source.
1. Whether the regulation is consistent with the intent of the General Assembly; Implementation procedures; Need; Clarity.
Act 113 of 2011 (Act 113) made numerous amendments to the Liquor Code. 47 P. S. §§ 1-101, et. seq. Included in the amendments were changes to Section 505.4 (47 P. S. § 5-505.4), related to distilleries. The Board states that although Section 505.4 of the Liquor Code does not explicitly address the issues addressed by the rulemaking, legislative staff members have confirmed the intent of Act 113 was to enable distilleries to have the same privileges enjoyed by limited wineries. The intent of this rulemaking is to permit licensed limited distilleries and distilleries (distilleries) to deliver their products directly to consumers, retail licensees or the Board, similar to limited wineries. We have reviewed the sections of the Liquor Code and the Board's regulations that address limited wineries (47 P. S. § 5-505.2 and 40 Pa. Code § 11.111) and raise the following concerns.
One of the purposes of a regulation is to expand upon the statutory framework provided by the General Assembly in their enactment of a piece of legislation. This proposal provides little guidance beyond what already exists in statute and the Board's other regulations. As written, we question the need for this rulemaking. We note that the Board's limited wineries regulations include more detailed information that provides meaningful direction to the regulated community. If the intent of Act 113 is to enable distilleries to have the same privileges enjoyed by limited wineries, we suggest that this proposal more closely follow the regulatory framework found under the limited wineries regulations at § 11.111. In order to make the rulemaking consistent with intent of the General Assembly, we ask the Board to consider adding provisions related to the sale of food, liquor by the glass, tasting samples and the hours in which these activities can occur. We believe a more detailed regulation will assist with the implementation of the rulemaking and improve its overall clarity.
2. Determining whether the regulation is in the public interest.
Section 5.2 of the Regulatory Review Act directs this Commission to determine whether a regulation is in the public interest. 71 P. S. § 745.5b. When making this determination, the Commission considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the proposed rulemaking and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under Section 5 of the Regulatory Review Act in the Regulatory Analysis Form (RAF). 71 P. S. § 745.5(a).
The Board's response to Section 12 of the RAF is not sufficient to allow this Commission to determine if the regulation is in the public interest. In the RAF submitted with the final-form rulemaking, the Board should provide information comparing this regulation to the regulation of licensed limited distilleries and distilleries in other states.
3. Section 11.221. Sale by licensed limited distilleries and distilleries.—Protection of the public health, safety and welfare; Implementation procedures; Clarity.
Subsection (d) states the following:
Mail, Internet and telephone orders may be accepted. Delivery of products must be accomplished through the use of vehicles properly registered by the licensed limited distillery or distillery or through properly licensed transporters. It is the responsibility of the licensed limited distillery or distillery licensee to ensure that liquor is not delivered to minors and that proper invoices and records are maintained.
We raise the following concerns. First, Section 505.4 of the Liquor Code limits the sale of liquor to the hours of 9 a.m. to 11 p.m. Will the acceptance of mail, Internet and telephone orders be limited to the hours specified in the Liquor Code? We ask the Board to explain how it will administer this provision. Second, we question how the Board will monitor the sale of liquor sold by mail, Internet or phone to minors. What procedures are in place to ensure that liquor is not received by those that are not of legal age? Third, what are the standards for properly registered vehicles and transporters? Where can the standards be found? We suggest that the standards, or a reference to where the standards can be found, be added to the rulemaking. Fourth, the limited wineries regulation includes a citation to the Board's record-keeping requirements found at § 5.103. To clarify the requirements that distilleries maintain ''proper invoices and records,'' we suggest that this proposal reference § 5.104.
4. Miscellaneous clarity.
Act 113 expanded the scope of distilleries allowed to operate in the Commonwealth by adding licensed limited distilleries to the Liquor Code. The Board's existing regulations only reference licensed distilleries of historical significance. We ask the Board to review its entire body of regulations to ensure consistency with the Act 113 amendments and make the necessary changes relating to the new type of license added by Act 113.
State Board of Funeral Directors
Regulation #16A-4822 (IRRC #3000)Fees June 12, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the April 13, 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 Funeral Directors (Board) to respond to all comments received from us or any other source.
Comments of the House Professional Licensure Committee
In a letter dated May 24, 2013, Representative Julie Harhart, Majority Chair of the House Professional Licensure Committee (Committee) and Representative Harry Readshaw, Minority Chair of the Committee, submitted a comment on behalf of the Committee requesting information pertaining to the major cost centers of the Board and any significant increases in the Board's expenditures. We will review the Board's response as part of our determination of whether the final regulation is in the public interest.
State Board of Examiners in Speech-
Language and HearingRegulation #16A-6806 (IRRC #3001) Termination of Grandfather Provisions June 12, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the April 13, 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 45.21. Waivers.—Statutory authority; Legislative intent; Comments of the House Professional Licensure Committee; Reasonableness; Economic impact.
Statutory authority
The Board cites the Speech-Language and Hearing Law at 63 P. S. § 1705(2) as its statutory authority for this regulation. That provision states, in part, that the Board shall have the power and its duties shall be:
(2) To adopt and revise rules and regulations consistent with the law as may be necessary to implement the provisions of this act. . . .
The Speech-Language and Hearing Law also states, in part:
(c) Requirements for current practitioners.—The board shall waive the examination and educational requirements for any applicant who, on the effective date of this act:
(1) has at least a bachelor's degree with a major in speech-language pathology, audiology or teaching the hearing impaired from an accredited college or university, and who has been employed as a speech-language pathologist, audiologist or teacher of the hearing impaired for at least nine consecutive months within three years prior to the effective date of this act; and
(2) files an application with the board providing bona fide proof of the degree and employment together with the application fee prescribed in section 8.
63 P. S. § 1707(c)
This regulation would delete existing Paragraph (a)(4), which implements 63 P. S. § 1707(c), and would also add Subsection (b) which states:
The Board will not grant a license under section 7(c) of the act (63 P. S. § 1707(c)) to an applicant who applies after _____ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).
The amended regulation would essentially state the Board will no longer follow 63 P. S. § 1707(c) of the Speech-Language and Hearing Law. If the Board wants to eliminate this course for licensure, the Board should seek an amendment to the Speech-Language and Hearing Law. Absent such an amendment, the Board should provide an explanation of its authority for this regulation under the existing Speech-Language and Hearing Law, particularly in regard to 63 P. S. §§ 1705(2) and 1707(c).
Legislative intent
In the Preamble, the Board explains that
. . . the General Assembly must have intended that existing practitioners apply within a reasonable time after enactment of the act. It has now been 27 years since the act was enacted. Clearly, 27 years is much longer than a reasonable period of time in which to apply for licensure under the more relaxed standards for ''existing practitioners.'' Accordingly, the Board proposes to eliminate the process by which those individuals that qualified as ''existing practitioners'' in 1985 apply for licensure under the waiver provision. . . .
How did the Board determine the General Assembly's intent? The Board should explain why it believes the General Assembly intended for existing practitioners to apply within a reasonable time, but did not express that intent in the language of 63 P. S. § 1707(c)(2) or elsewhere in the Speech-Language and Hearing Law.
Comments of the House Professional Licensure Committee (Committee)
In a letter dated May 24, 2013, Representative Julie Harhart, Majority Chair, and Representative Harry Readshaw, Minority Chair of the Committee, submitted a comment on behalf of the Committee requesting ''information pertaining to the recent history of applications, pursuant to this waiver.'' We will review the Board's response as part of our determination of whether the final regulation is in the public interest.
Reasonableness and economic impact
Regulatory Analysis Form Question 16 asks the Board to ''[L]ist the persons, groups or entities, including small businesses, that will be required to comply with the regulation. Approximate the number that will be required to comply.'' The Board's response is as follows:
All individuals who qualify for the waiver available to ''existing practitioners'' in 1985 would be required to comply with the rulemaking. Because section 6(b)(2) of the act (63 P. S. § 1706(b)(2)) exempts from the licensure requirement persons credentialed by the Department of Education in speech or hearing and employed by a primary or secondary school, the vast majority of applicants who may qualify for this waiver are certified by the Department of Education and have been working in the schools (without a license issued by the Board) under the exemption. Should they leave employment in the schools, they would need to obtain a license in order to continue to provide speech-language services and may not qualify for a license under the current education, experience and examination standards. The Board has no way of knowing how many of these individuals may still be working in the schools. (Emphasis added.)
The impact of this regulation needs to be explored and explained further before we can make a determination of whether the regulation is in the public interest, particularly in regard to the number of individuals working in the schools. The Board should provide an explanation of why it is in the public interest to foreclose this avenue of licensure for persons who could otherwise lawfully qualify for licensure, and therefore seek employment, in this profession under the Speech-Language and Hearing Law.
State Board of Crane Operators Regulation #16A-7102 (IRRC #3002) Fees June 12, 2013 We submit for your consideration the following comments on the proposed rulemaking published in the April 13, 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 State Board of Crane Operators (Board) to respond to all comments received from us or any other source.
Comments of the House Professional Licensure Committee
In a letter dated May 24, 2013, Representative Julie Harhart, Majority Chair of the House Professional Licensure Committee (Committee) and Representative Harry Readshaw, Minority Chair of the Committee, submitted a comment on behalf of the Committee requesting information pertaining to the major cost centers of the Board and any significant increases in the Board's expenditures. We will review the Board's response as part of our determination of whether the final regulation is in the public interest.
SILVAN B. LUTKEWITTE, III,
Chairperson[Pa.B. Doc. No. 13-1141. Filed for public inspection June 21, 2013, 9:00 a.m.]
