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INDEPENDENT REGULATORY REVIEW COMMISSION

Actions Taken by the Commission

[26 Pa.B. 3222]

   The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, June 20, 1996, and took the following actions:

Regulations Approved:

   Department of Agriculture #  2-99: Enforcement of Marketing Programs; Potato Research Program (amends 7 Pa. Code Chapter 104.11)

   State Board of Private Licensed Schools # 6-253: Private Licensed Schools (amends 22 Pa. Code Chapter 73)

Regulations Deemed Approved under Section 5 (B.3) of the Regulatory Review Act:

Department of Agriculture # 2-101: Milk Sanitation (amends 7 Pa. Code Chapter 59) (Editor's Note: For the text of the regulations pertaining to this order, see 26 Pa.B. 3129.)
____

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; John F. Mizner; Irvin G. Zimmerman, dissenting

Public meeting held
June 20, 1996

Department of Agriculture--Enforcement of Marketing Programs; Potato Research Program; Doc. No. 2-99

Order

   On September 5, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Agriculture). This rulemaking would replace 7 Pa. Code § 104.11 with 7 Pa. Code §§ 104.12--104.18. The authority for this regulation is section 11 of the Agricultural Commodities Marketing Act of 1968 (act) (3 P. S. § 1011). The proposed regulation was published in the September 16, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 21, 1996.

   The act (3 P. S. §§ 1001--1013) allows the producers of a particular agricultural commodity to establish a marketing program. To start such a program, a majority of affected producers, who also must represent a majority by volume of the commodity's production, must vote to establish the program by a referendum. Under the act, the Pennsylvania Potato Research Program (Program) was established in 1987. As a result of a referendum amendment to the Program in 1993, the Program is funded through collection of a $4-per-acre producer charge from those potato producers who plant 5 or more acres of potatoes in a calendar year for sale or marketing.

   The primary purpose of this regulation is to set forth the responsibilities of producers and sales agents in verifying that the appropriate producer charges are collected. Producers are required to file an annual statement with the Program that report the number of acres of potatoes planted that are subject to the producer charge. Producers must pay the producer charge on an annual basis.

   Sales agents are responsible for retaining records related to potato sales transactions for at least 2 years. The regulation defines ''sales agent'' as follows:

A processor, a producer or a person who purchases, handles, receives, sells or contracts to sell potatoes originating from a producer. A producer may be a sales agent with respect to potatoes of his own production.

   Upon receipt of a written demand from the Program, a sales agent is responsible for producing information requested by the Program. The type of information requested by the Program is specified in the regulation.

   Section 104.18 sets forth the provisions for calculation of the minimum producer charge. The formula uses the minimum weight of potatoes produced by an affected producer and the average per-acre yield figure provided by the Pennsylvania Agricultural Statistics Service. The Program will use information from both sales agents and producers to determine the minimum weight of potatoes produced.

   Agriculture does not believe that this regulation will measurably increase the costs imposed upon potato growers and sales agents. The records required by this regulation are identical to those records which these parties would ordinarily maintain in the course of their respective businesses.

   On November 3, 1995, the House Agriculture and Rural Affairs Committee (House Committee) voted unanimously to approve the proposed version of this regulation. Representative Raymond Bunt, Jr., Chairperson of the House Committee, also offered two comments.

   We have reviewed this regulation and find it to be in the public interest. Agriculture responded to both questions submitted by the House Committee. First, it deleted the word ''Irish'' from the regulation's definition of ''potatoes.'' In considering the House Committee's questions concerning the use of the word ''Irish,'' Agriculture acknowledged that the proposed definition may have caused confusion or have been less inclusive than intended. In response to the House Committee's request for an explanation for using acres planted rather than actual potato yields to calculate the producer charges, Agriculture noted that the $4-per-acre charge on all potatoes planted assessment was approved by a majority of affected planters in a 1993 referendum. Agriculture is bound by the act to enforce this assessment system. On the House Committee's question regarding enforcement, Agriculture stated the Program will conduct random spot-audits of producers under sections 104.16 and 104.17 of this proposed regulation. It added:

It is expected that in the vast majority of cases, though, the Program will only calculate a minimum producer charge in accordance with § 104.18 when it has evidence that a particular producer's potato production outstrips the average county per-acre yield figures--thereby suggesting the producer under-reported the acreage from which the potatoes were produced.

   Finally, Agriculture corrected a typographical error in a reference to another regulation in section 104.17(f) of the proposed regulation.

Therefore, It Is Ordered That:

   1.  Regulation No. 2-99 from the Department of Agriculture, as submitted to the Commission on May 21, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson--Dissenting; John F. Mizner; Irvin G. Zimmerman

Public meeting held
June 20, 1996

State Board of Private Licensed Schools--Private Licensed Schools; Doc. No. 6-253

Order

   On October 6, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Private Licensed Schools (Board). This rulemaking would amend certain sections of 22 Pa. Code Chapter 73. The authority for this rulemaking is section 4 of the Private Licensed Schools Act (act) (24 P. S. § 6504). The act (24 P. S. § 6501 et seq.), inter alia, defines and provides for the licensing and regulation of private schools, and establishes and empowers the Board to perform its functions. The proposed regulation was published in the Pennsylvania Bulletin on October 22, 1994, with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 22, 1996.

   These rulemaking amendments are designed to separate the Board's prosecutorial and adjudicatory functions. Its revisions also more clearly specify the types of schools/occupations that are subject to the Board's licensure requirements and those that qualify from exemption from licensure.

   In response to the court case of Lyness v. Commonwealth State Board of Medicine, 605 A.2d. 1204 (1992), the Board proposed to retain its adjudicative functions but transfer its prosecutorial and investigative ones (under sections 73.183a and 73.185) to a new Review and Recommendation Panel. It will consist of three Board members, one of whom is a public member, who direct the Board's staff in performing prosecutorial functions involving enforcement actions against schools.

   If a violation of the act or the Board's regulation is found, a complaint will issue and a hearing will be held before a Hearing Panel. A ''Hearing Panel'' is defined as three members, one of whom is a public member, who preside over hearings requested by schools to contest enforcement actions and to submit proposed findings and recommendations to the full Board for its adjudication.

   The Board added the provision to include a public member (for example, a person with no current affiliation to private licensed schools), on both types of panels at the recommendation of the Senate Education Committee made during the proposed rulemaking phase. The purpose is to promote balance and consumer protection in the activities of each Panel. Several other sections, notably a new section 73.183a, and sections 73.184, 73.185, 73.186, 73.188 and 73.192 are revised to conform with these major procedural changes.

   The immediate catalyst for this rulemaking was the decision of the Commonwealth Court in Blanco v. State Board of Private Licensed Schools, 631 A.2d 1076 (1993) (Blanco), which directed the Board to promulgate additional regulations further clarifying which entities and occupations are exempt from licensure.

   The Board proposed to amend section 73.41 to provide that any school which trains or educates individuals so that they may pursue an occupation or career which is listed in the Dictionary of Occupational Titles (1991 edition) must obtain a license under the act and the Board's regulation before operating, advertising or enrolling students, unless the school is specifically exempt from licensure under section 73.42. For improved flexibility, the Board added the words ''as amended or supplemented'' to the reference to the Dictionary of Occupational Titles (1991 edition) in the final-form regulation in response to one of the recommendations we suggested in our Comments on the proposed version of this rulemaking. The Board also added an exemption in the final-form regulation for individual classes or short courses offered by an entity which are ancillary to the sale, lease, or use of a product, as distinguished from those which provide training to pursue an occupation or career.

   The Board proposed a new section 73.42, which defines the various categories of schools which are exempt from licensure. It also interprets the statutory term ''public and other service occupations,'' so that regulated entities will know or be able to determine whether they must be licensed by the Board before operating. Section 73.42(3) addresses what constitutes ''a school providing training in public service or other service occupation,'' but it has no provision exempting hospital-based allied health education programs. During the proposed rulemaking phase, the House and Senate Education Committees submitted comments opposing the Board's failure to provide such an exemption. The Board's interpretation also generated opposition from the Hospital Association of Pennsylvania (HAP), its counsel, and hospital-based or affiliated schools. Letters from a few other commentators raised additional questions or suggested amendments. Our Comments also included various recommendations for the final-form regulation.

   After carefully considering commentators' comments, the Board further revised the text of the controversial section 73.42(3) to closely track the language of the act by limiting ''public service occupations'' to ''ambulance personnel, emergency medical technicians, fire fighters, police, school bus drivers and school crossing guards.'' The Board exempted ambulance personnel and emergency medical technicians because the Department of Health (Health) provides or oversees educational training as part of accrediting those occupations. The final-form regulation continued to exclude allied health occupations and hospital-based education programs from the list of exempted occupations since Health does not provide the educational oversight for such programs that it does for ambulance personnel and emergency medical technicians. Persons exempted under the final-form regulation for being in ''other service occupations'' are limited to maids, butlers and chauffeurs, barber schools or a school of cosmetology.

   The Board stated in its preamble narrative to this rulemaking that it did not add allied health occupations or other health service occupations providing a public benefit to the list of exempted occupations because it believes such general exemptions are contrary to the intent of the statute. The Board noted that training in health care service occupations is also provided by proprietary schools in addition to hospital-affiliated training programs.

   On June 6, 1996, the House Education Committee voted to approve the final-form regulation. However, its Chairperson, Representative Jess Stairs, noted in his letter to the Commission that the Committee ''continues to question the appropriateness of including hospital-based schools of education within the regulations governing the licensing authority of the State Board of Private Licensed Schools. Representative Stairs stated that the House Committee intends to move expeditiously on House Bill No. 2680, which would amend the Private Licensed Schools Act (Act 174 of 1986) to exempt hospital-based schools from Board licensure.

   Senator James J. Rhoades, Chairperson of the Senate Education Committee, sent a letter to the Commission dated June 6, 1996. In it he stated reasons why the Senate Committee believed that the portion of the regulation which would require hospital-based schools to be licensed by the Board is not, under the Regulatory Review Act, in the public interest. The Board's Chairperson, Wayne Zanardelli, responded to Senator Rhoades in a letter dated June 10, 1996.

   In connection with the final-form regulation, the standing committees received a letter opposing the regulation from HAP and many letters of opposition from hospital-based schools and affiliated individuals. The letters and petitions asserted that such programs are already regulated by the Departments of Health and State; they urged that the regulation exempt hospital-based education programs from licensure by the Board.

   The Board asserts that the only fiscal impact of this rulemaking will be upon those entities that will be faced with becoming licensed as a result of the Board defining the categories of licensure. If this rulemaking is approved, each previously unlicensed entity will have to pay the $1,500 initial application fee and the one time site inspection user fee of $250. Approximately 75 to 80 hospital-based programs will be affected, representing a total cost of approximately $140,000. After 1 year of operation, renewal fees will occur biennially (at a cost of $750 annually) and on a graduated scale based on gross tuition revenue. HAP and its counsel believe that the $140,000 aggregate cost cited by the Board is the minimal up-front cost and that all costs related to licensure will drive the total price tag up to the $350,000--$500,00 range.

   We have reviewed this regulation and find it to be in the public interest. The Board has the authority under the act to adopt and promulgate an appropriate regulation and, indeed, has been directed to do so by the Commonwealth Court in the aforementioned Blanco decision. The Board has exercised its discretion reasonably in this rulemaking, we believe, because the Board lacks the clear authority under the current language of the act to provide a specific, limited exemption for hospital-based schools of allied health.

   Even if the total cost impact of licensing is nearer to the Board's estimate than HAP's, we agree with the concerns about over-regulation raised by Senator Rhoades and other commentators. Hospital-based schools are already regulated by other government entities, both State and Federal, and requiring them to also be licensed by the Board is unnecessarily duplicative and not in the public interest. However, only the General Assembly, not the Board, can provide the authority to exempt these schools.

   The House Education Committee, in approving this rulemaking, acknowledged the limitation of the Board's current authority under the act with the introduction of House Bill No. 2680 (Session of 1996). That legislation would provide an additional exemption from Board licensure for a school operated by a hospital licensed under the act of July 19, 1979 (P. L. 130, No. 48), known as the Health Care Facilities Act, and which is accredited by a regional or national accreditation agency. We applaud this action of the House Education Committee and recommend the General Assembly give the bill prompt consideration.

Therefore, It Is Ordered That:

   1.  Regulation No. 6-253 from the State Board of Private Licensed Schools, as submitted to the Commission on May 22, 1996, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; John F. Mizner; Irvin G. Zimmerman

Public meeting held
June 20, 1996

Department of Agriculture--Milk Sanitation; Doc. No. 2-101

Order

   On November 20, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking would amend 7 Pa. Code Chapter 59 by extending the ''sell by'' date posted on containers of pasteurized milk by 2 days. The amendments are proposed under the authority of the act of July 2, 1935 (act) (31 P. S. §§ 645--660f) which authorizes the Department to regulate the production, processing, storage and packaging of milk to safeguard human health. The proposed regulation was published in the December 2, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 21, 1996.

   Currently, milk processors are required to stamp milk containers with a ''sell by'' date that does not exceed 12 days from midnight of the day the milk was pasteurized. This market-driven change will extend that 12-day limit to 14 days. Milk processors in contiguous states (New York, New Jersey, Maryland, Delaware and Ohio) may establish a ''sell by'' date which is predicated upon individual processors submitting shelf-life studies to state regulators indicating the date by which they may sell their milk with acceptable levels of bacteria. Milk processed in Ohio, New Jersey and New York typically has ''sell by'' dates of 16 days.

   The present 12-day maximum ''sell by'' date has placed Pennsylvania milk processors at a disadvantage when attempting to compete in these markets. Pennsylvania milk processing plants are forced to apply different ''sell by'' dates to their milk containers based upon the market in which the milk is to be sold which means that they are also required to keep two inventories which is both costly and burdensome. The proposed 14-day ''sell by'' date is a compromise that will enable Pennsylvania milk processors to remain more competitive in other states.

   Pennsylvania State University's Department of Food Science conducted five separate studies between June of 1992 and October of 1994 to observe the keeping quality of milk over time. Milk samples were maintained at a temperature of 45° Fahrenheit for a period of 10 to 14 days. The studies determined that milk kept for up to 14 days after being pasteurized did not pose any increased risk to human health. Indeed, if proper storage conditions are maintained, (that is, a temperature of 45° Fahrenheit) pasteurized milk has a maximum shelf life of around 21 days.

   The Department notes that the milk ''sell by'' date controls the time within which the milk may be sold rather than the time within which the milk may be consumed. Under both the current 12-day and proposed 14-day maximum ''sell by'' dates, it is the milk purchaser who ultimately determines the point beyond which bacterial growth adversely affects the quality of the milk. If the milk is properly refrigerated, this point should extend well beyond the proposed 14-day maximum ''sell by'' date.

   In addition to the 2-day extension, the regulation also clarifies that the ''sell by'' date requirement is applicable to containers of pasteurized milk at food establishments and retail food stores. The Food Act (31 P. S. §§ 20.1--20.18) recently established the requirements that ''food establishments'' register with the Department and defines the terms ''food establishment'' and ''retail food store.'' Therefore, the Department has incorporated these definitions verbatim from the Food Act to add greater clarity to the provisions relating to milk.

   The final-form regulation contains no changes from the proposed regulation. We did not file any comments on the proposed regulation. Furthermore, we did not receive any negative recommendations on the final-form regulation from either the House or Senate Agriculture and Rural Affairs Committees.

Therefore:

   The Commission will notify the Legislative Reference Bureau that Regulation No. 2-101 from the Department of Agriculture, as submitted to the Commission on May 21, 1996, was deemed approved under section 5(b.3) of the Regulatory Review Act (71 P. S. § 745.5(b.3)) on June 11, 1996.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 96-1105. Filed for public inspection July 5, 1996, 9:00 a.m.]



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