NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[27 Pa.B. 2490] The Independent Regulatory Review Commission met publicly at 1 p.m., Thursday, May 1, 1997, and took the following actions:
Regulation Approved:
#1698 State Conservation Commission #7-291: Nutrient Management (creates 25 Pa. Code Chapter 83)
#1744 Pennsylvania Public Utility Commission #57-167: Rescission of Obsolete Regulations Regarding Motor Carriers; Amendment of Medallion Program (rescinds obsolete provisions in 52 Pa. Code Chapters 29--31)
#1821 State Board of Chiropractic #16A-438: Examination and Business Provisions (amends 49 Pa. Code § 5.6, 5.12, 5.15, 5.16 and 5.32)
#1822 State Registration Board for Professional Engineers, Land Surveyors & Geologists #16A-474: Fees (amends 49 Pa. Code § 37.17)
#1823 State Board of Optometry #16A-524: Fees (amends 49 Pa. Code § 23.91)
#1824 State Board of Pharmacy #16A-545: Examination Fees (amends 49 Pa. Code Chapter 27)
#1825 State Board of Cosmetology #16A-453: Examination Fees (amends 49 Pa. Code § 7.2)
#1826 State Board of Dentistry #16A-466: Fictitious Names (amends 49 Pa. Code §§ 33.3 and 33.302)
#1762 Environmental Quality Board #7-297: Hazardous Waste Management (amends 25 Pa. Code Chapters 261, 262, 264, 265 and 266)
____Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Conservation Commission--Nutrient Management; Doc. No. 7-291
Order On December 18, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Conservation Commission (Conservation Commission). This rulemaking would create 25 Pa. Code Chapter 83. The authority for this regulations are contained in section 4 (1)of the Nutrient Management Act (act) (3 P. S. § 1704(1)). The proposed regulation was published in the December 30, 1995 edition of the Pennsylvania Bulletin with an 89-day public comment period. The final-form regulation was submitted to the Commission on April 1, 1997.
The act was enacted in 1993 to help decrease nonpoint source pollution, especially nitrogen, into the waterways of this Commonwealth and the Chesapeake Bay. The act specifically requires agriculture operations with at least two animal equivalent units (AEUs) per acre to have a nutrient management plan (plan). The act defines an AEU as one thousand pounds live weight of livestock or poultry animals regardless of the actual number of individual animals comprising the unit. According to the Conservation Commission, approximately 5%--10% of the agriculture operations in this Commonwealth meet this standard and will be required to submit a plan.
The act authorizes the Conservation Commission to promulgate regulations that establish the standards for the development and review of plans. In developing the rulemaking, the Conservation Commission worked closely with the Nutrient Management Advisory Board which consists of commercial farmers, local governments, associations representing farming interests and citizens.
The regulation provides that all certified agriculture operations (CAOs) must submit a plan within 1 year from the final adoption of the regulation. The plan must be developed by a nutrient management specialist who has been certified by the Department of Agriculture. The plan must address nutrient application rates, utilization of excess manure, proper manure management in the barnyard and stormwater runoff control.
Once the plan has been developed, it must be reviewed by the Conservation Commission within 90 days of receipt. If a farmer lives in a county that has a delegation agreement with the Conservation Commission, the local county conservation district will be responsible for reviewing and approving the nutrient management plan. Once the plan has been approved, the farmer will have 3 years to fully implement the provisions contained in the plan.
The regulation also includes the procedures for providing financial assistance to farmers for the costs of developing and implementing a plan. Financial assistance may consist either of grants, loans or loan guarantees.
The House Agricultural Committee approved the final-form regulation on April 15, 1997. We received a letter from the Chesapeake Bay Foundation (CBF) recommending the final regulation be disapproved.
We, along with other commentators, submitted extensive comments on the proposed rulemaking. The Conservation Commission, in conjunction with the Nutrient Management Advisory Board, has adequately responded to our Comments by either adopting our recommendations or providing justification for their position. Some of the more significant issues with the proposed rulemaking, as well as the issues of concern of the CBF are discussed below.
The proposed regulation defined land suitable for manure spreading to include, in part, only land that is located within 10 miles of the point of manure generation. This limitation reduced the available land a farmer could use in spreading manure and increased the number of farming operations required to submit a plan. Many commentators opposed this restriction because they did not believe there was any basis for such a restriction and believed that all land owned by a farmer should be available for manure application. In response to these comments, the Conservation Commission deleted the 10-mile limit because it recognized some farmers currently transport manure greater distances as part of their current operation and that this may become a more common practice in the future.
The CBF opposes the deletion of the 10 mile limit for the determination of which farming operations will be required to submit a plan. The CBF believes that some farming operations may avoid submitting a plan by expressing an intent to apply manure on land significant distances from the point of generation, but in reality never use the land for manure application. Therefore, the CBF supports re-inserting the 10 mile limitation to discourage attempts of a farming operation to avoid submitting a plan.
Although the potential exists for a farming operation to provide false information to avert the requirements of the regulation, we believe there are adequate controls to discourage this practice. Specifically, the regulation requires that in determining whether an agricultural operation is a CAO the land is or will be used in the application of manure. If a agricultural operation provides false statements about the land intended to be used for manure application, the agricultural operation would be in violation of the regulations and be subject to civil penalties in accordance with section 1712 of the act. Therefore, we encourage the Conservation Commission, in conjunction with the Department of Agriculture, to monitor farming operations to ensure that an agricultural operation's expressed intentions for manure application on distant land is actually followed by the operator.
The proposed regulation required the submittal of an erosion and sedimentation control plan (E&S plan) along with the nutrient management plan. The E&S plan is a requirement contained in the Department of Environmental Protection's regulations at 25 Pa. Code Chapter 102. Since the Nutrient Management Act does not require the E&S plan to be submitted with the nutrient management plan, we and other commentators opposed the requirement. Instead, we believed it is the responsibility of the DEP to assure that all farmer operations required to submit an E&S plan do so. In response to these comments, the Conservation Commission deleted the required submittal of an E&S plan as part of the nutrient management plan. However, this deletion does not alleviate farming operations from submitting an E&S plan if required to do so in accordance with 25 Pa. Code Chapter 102.
The CBF supports the requirement of an E&S plan because the uncontrolled, accelerated erosion from cropland significantly undermines the effectiveness of the nutrient management plan. Furthermore, the CBF believes the General Assembly intended to require specific soil conservation practices as part of the plan.
We agree soil conservation is an important environmental practice that should be employed by farming operations. Although the regulation no longer requires the submittal of an E&S plan, it does require the identification of critical runoff problems areas where nutrients directly discharge into surface water or ground water. In addition, the plan shall contain a list of specific runoff control base management practices to address the critical runoff problem areas. Because the regulation does address runoff control problems, we believe the Conservation Commission has met the intent of the General Assembly to address this problem area. We do not believe it is in the public interest to require the E&S plan to be submitted with the nutrient management plan simply because the required submittal of an E&S plan is not being followed under 25 Pa. Code Chapter 102. Instead, we believe the DEP should be making efforts to encourage the submittal and implementation of the E&S plan.
The proposed regulation allowed the Conservation Commission to delegate the administration of the financial assistance program, including the authority to review and approve applications, to one or more agents through a written agreement. We opposed the provision that allowed a third party, by a contract with the Conservation Commission, to determine how State revenues are to be distributed. We observed that such delegation was unlawful and contrary to caselaw. Therefore, we recommended the regulation be amended to allow the Conservation Commission to contract with a third party for the initial review of financial applications, but that the final determination on awarding financial assistance must remain with the Conservation Commission. The Conservation Commission agreed and amended the regulation accordingly.
We commented that the regulation should provide a more streamlined approach in describing the requirements for those farming operations volunteering to develop and implement a nutrient management plan. In response, the Conservation Commission has amended the regulation to list all applicable requirements for volunteers in one section and to simplify the recordkeeping requirements for these individuals.
Finally, we believed that proposed requirements for manure exporters to provide information packets to importers, including Conservation Commission fact sheets, the Manure Management Manual, and additional educational and information items supplied by the Commission, placed an unnecessary burden on CAOs and volunteer agricultural operations. The Conservation Commission has amended the regulation to limit this requirement to CAOs. Further, it will require only the documents that have been made available to the exporter by the Conservation Commission or its delegated agent and only if the broker or importer does not have a current copy of the informational material.
We have reviewed this regulation and find it to be in the public interest. The Conservation Commission is to be commended for its work on this significant rulemaking and its involvement of the farming community and environmental groups in the development of the regulation. The Conservation Commission has adequately responded to concerns raised during the public comment period by either adopting recommendations made or providing justification for its position. The implementation of the regulation will help control the amount of non-point pollution from entering the waters of the Commonwealth.
Therefore, It Is Ordered That:
1. Regulation No. 7-291 from the State Conservation Commission, as submitted to the Commission on April 1, 1997, 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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997Pennsylvania Public Utility Commission--Rescission of Obsolete Regulations Regarding Motor Carriers; Amendment of Medallion Program; Doc. No. 57-167
Order On May 30, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would rescind some obsolete provisions in 52 Pa. Code Chapters 29--31 relating to motor carriers of passengers and property and make certain other changes, as described below. The amendments are proposed under the authority of sections 501 and 2412 of the Public Utility Code, 66 Pa.C.S. §§ 501 and 2412, and section 201 of the Commonwealth Documents Law (45 P. S. § 1201 et seq.). The proposed regulation was published in the June 15, 1996 edition of the Pennsylvania Bulletin, with a 30-day public comment period. The final-form regulation was submitted to the Commission on April 4, 1997.
This rulemaking, in general, would rescind some obsolete provisions applicable to motor carriers of passengers and property. The amendments also provide cross referencing to other provisions of law. A new provision would require motor carriers of property that operate leased equipment to either inspect the equipment or ensure that the equipment has a valid inspection decal. The final-form regulation also incorporates revised antidiscrimination provisions in the PUC's taxicab service regulation for the City of Philadelphia. The following are the specific changes made by this rulemaking.
In 52 Pa. Code Chapter 29 (motor carriers of passengers), § 29.71(b), relating to exceptions, includes a new subparagraph (ii) which provides that the required marking of vehicles (that is, with a PUC certificate of public convenience number) used as common carriers of passengers under § 29.71(a) does not apply to vehicles operated in luxury limousine service as provided in § 29.333(c).
This rulemaking also amends § 30.75, relating to taxicab driver standards under the 52 Pa. Code Chapter 30 medallion program. The medallion program is in effect in cities of the first class (that is Philadelphia). In the proposed version, § 30.75(f), which prohibits discrimination, was amended to prohibit a taxicab driver from discriminating against a person with a disability. The PUC sought to add this to the existing prohibitions against refusing taxicab service based on sex, race, religious preference, nationality, age and the person's point of origin or intended point of destination.
In the final-form regulation, the PUC further amended § 30.75(f) to provide that, in a street hail of a taxicab in Philadelphia, an available taxicab driver is required to stop and determine if the service requested by a person with a disability can be reasonably accommodated by that driver's vehicle. If not, the driver is excused from providing the service but is required to call a dispatcher on the spot to arrange for service by the closest available vehicle equipped to handle the customer's request, and to so advise the person of the status before departing. These additional procedures added to the final-form regulation were recommended to the PUC in our Comments on the proposed version of § 30.75(f).
In the proposed version, the PUC proposed to delete 52 Pa. Code § 31.13, relating to transportation of hazardous materials, as obsolete given the provisions of other existing hazardous materials regulations. In our Comments, we noted that deleting this provision will mean that there will be no PUC regulation which addresses or provides any guidance to anyone attempting to ascertain the requirements governing the transportation of explosives.
We recommended, accordingly, that the PUC retain § 31.13 and amend it to include references to other applicable laws, including providing specific citational references. We also recommended that the PUC revise its narrative description of this section accordingly. In the final-form regulation, the PUC adopted our recommendation except that it did not include specific citational references to the referenced laws in the text of § 31.13, although it did so in the general narrative (that is in the PUC's order approving the final-form regulation).
The PUC has also deleted 52 Pa. Code § 31.14, relating to transportation of unauthorized persons, as obsolete in light of the PUC's provisions in Chapter 37 pertaining to ''Safety Code for Transportation of Property and Passengers.'' Chapter 37 incorporates by reference parts of federal law (from 49 CFR Parts 382 and 390--396, relating to transportation).
Section 31.32 of 52 Pa. Code, relating to equipment, is amended to permit a motor carrier to take possession of equipment under lease after either: (1) performing an inspection or ensuring that the vehicle has a valid inspection decal; or (2) complying with the periodic inspection requirements found at § 37.204(7). Section 37.204(7) incorporates 49 CFR Part 396 by reference, which sets forth Federal requirements for motor vehicle inspection, repair and maintenance.
The Senate Consumer Protection and Professional Licensure Committee voted unanimously to approve this regulation on April 15, 1997. There were no public comments submitted on the proposed version of this rulemaking.
In terms of the impact of these rulemaking changes, the revisions in inspection procedures will affect limousine carriers and motor carriers of property. The public should benefit from updated requirements which ensure that vehicles and vehicle equipment have been inspected.
The new medallion program prohibition against taxicab drivers in Philadelphia discriminating against a customer with a disability will affect the owners and operators of taxicabs in Philadelphia, taxicab patrons, local government enforcement officers, and the PUC staff. The expanded anti-discrimination requirement should benefit persons with disabilities in street hail situations. Costs associated with these amendments will be minimal and no increased costs for private entities are anticipated.
We have reviewed this regulation and find it to be in the public interest. These amendments will update and improve the clarity of the foregoing provisions of the PUC's rules as a result of cross-referencing interrelated regulatory provisions and eliminating obsolete requirements. The amendments also benefit the safety of the riding public by requiring motor carriers to ensure that equipment has been inspected. The provisions prohibiting taxicab drivers in Philadelphia from discriminating against prospective street-hail riders with disabilities is an appropriate expansion of the prohibitions against discrimination by a regulated public carrier.
Therefore, It Is Ordered That:
Regulation No. 57-167 from the Pennsylvania Public Utility Commission, as submitted to the Commission on April 4, 1997, is approved; and
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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Board of Chiropractic--Examination and Business Provisions; Doc. No. 16A-438
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Chiropractic (Board). This rulemaking would amend the Board's examination and business provisions at 49 Pa. Code §§ 5.6, 5.12, 5.15, 5.16 and 5.32. The authority for this regulation is found in section 502 of the Chiropractic Practice Act (act) (63 P. S. § 625.502). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The existing regulation provides that the Board will administer an oral and practical examination in Chiropractic Technic as part of its requirements to license chiropractors. Section 502(b) of the act requires the Board's licensure examination to have oral, practical, and written components and include a practical demonstration of chiropractic technique. Section 502(d) of the act (63 P. S. § 625.502(d)) requires all examinations to be prepared and administered by a qualified and approved professional testing organization. Section 502(d) also requires the Board to use the testing organization's oral/practical examination when it becomes available.
The National Board of Chiropractic Examiners (NBCE) administers Parts I, II and III of the National Board Examination (NBE) and, as of January 1996, developed an oral and practical examination component of the NBE in Chiropractic Technic, known as Part IV. Accordingly, this rulemaking consists of the following changes which have been submitted to comply with the mandate of section 502(d) of the act.
In § 5.6 (relating to fees), the Board has deleted the $45 fee provision to take the oral/practical examination in chiropractic technic for the May 1996 examination (only) because it will no longer administer the oral/practical examination in chiropractic technic. Once these proposed changes go into effect, candidates for licensure will pay the fee(s) to take the NBE directly to the NBCE.
In § 5.12 (relating to licensure by examination), the Board amended subsection (a)(4) to provide that an applicant for licensure by examination must achieve a passing score on Part IV of the NBE. Existing references to the Board or its designee administering the oral, practical, written exams for chiropractic technique and jurisprudence are deleted. In addition, some minor clarifying changes in language have been made in two other subsections.
The Board has amended § 5.15(a)(1) and (2) (relating to licensure examinations), by adding Part IV of the NBE (to the requirements that an applicant must meet to be licensed by examination). Section 5.15(d) is amended to state that a passing score on Part IV of the NBE obtained at any time since Part IV has been offered by the NBCE will satisfy the Part IV NBE requirement under § 5.12(a)(4). This means that any candidate who confirms that they passed Part IV of the examination since January 1996 (when it was first offered) will satisfy the Part IV requirement. Section 5.15(e) deletes the reference to ''oral/practical/written examinations'' and replaces it with ''Pennsylvania Chiropractic Law Examination'' (PCLE).
In § 5.16(b) (relating to failure on examination; reexaminations), the Board has deleted the reference to oral/practical/written examinations in chiropractic technique or jurisprudence in favor of referencing that the PCLE may be retaken within 2 years.
In § 5.32 (relating to corporate and fictitious names; professional corporations), an existing restriction on the types of health care professionals that licensed chiropractors may affiliate with is deleted. The regulation retains a general provision allowing chiropractors to form corporations with other health care professionals.
The Senate Committee on Consumer Protection and Professional Licensure met and voted unanimously to approve this rulemaking on April 15, 1997, and the House Committee on Professional Licensure did the same on April 23, 1997.
These amendments will benefit graduates of chiropractic schools who seek to be licensed in Pennsylvania. Under this revised regulation, students and recent graduates will be able to take all parts of the examination, including the oral/practical examination and the jurisprudence examination (Part IV), at their chiropractic colleges in the spring and the fall of the academic year. The Board estimates that approximately 392 persons (the number of chiropractors newly licensed in Pennsylvania in 1995) will be required to comply with these revised requirements.
The Board estimates the costs to the regulated community to comply with these revised regulatory requirements will be $505. That figure represents the difference between the $45 fee for the deleted Board-administered oral/practical examination and the $550 fee charged by the NBCE for an applicant to take Part IV of the NBE. However, the Board is mandated by section 502(b) of the act to use Part IV now that it is available and candidates for licensure are required by law to pay all costs of examination.
Graduates who have passed Part IV of the NBE at any time since Part IV was first offered in one of the 22 other states which require Part IV as a condition of licensure will not need to retake the examination a second time (per amended section 5.15(d)). Also, Pennsylvania licensees who have passed Part IV of the NBE will get reciprocal credit towards licensure in the other 22 states which require Part IV as a condition of licensure.
On April 25, 1997, the Board's Counsel submitted to the standing committees and the Commission some minor, nonsubstantive, clarifying amendments to this rulemaking. The changes consisted of amending § 5.12(a)(ii) (licensure by examination) to reference all four parts of the NBE, and deleting subsections (a)(3) and (4) as surplusage. These revisions make the language of § 5.12 more parallel with the language in § 5.15 (licensure examinations). Section 5.15(e), relating to the PCLE, was amended by adding a cross reference to the fee provisions of § 5.6.
These proposed amendments have no cost impact on state or local government. No additional formal reporting, recordkeeping or paperwork will be required by the proposed amendments, nor will any legal, accounting or consultant procedures be impacted.
We have reviewed this regulation and find it to be in the public interest. These amendments will update the examination and licensure requirements of the Board and bring them into compliance with section 502(b) of the act. We must also note, however, that these regulatory amendments were submitted to the standing committees and this Commission well after the Board first voted (in August 1995) to recognize Part IV of the NBE and its vote (in April, 1996) to require the use in Pennsylvania of Part IV of the NBE, effective in November 1996. We urge the Board to act more promptly to amend its regulations after it decides to implement changes in its licensure requirements and policies.
Therefore, It Is Ordered That:
Regulation No. 16A-438 from the State Board of Chiropractic, as submitted to the Commission on April 4, 1997, and amended on April 25, 1997, is approved; and
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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting date
May 1, 1997State Registration Board for Professional Engineers, Land Surveyors and Geologists--Fees; Doc. No. 16A-474
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board). This rulemaking would amend 49 Pa. Code § 37.17 relating to schedule of fees. The authority for this regulation is section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a) and sections 4(d) and 9 of the Engineer, Land Surveyor and Geologist Registration Law (63 P. S. §§ 151(d) and 156). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This regulation reduces the fees for the Fundamentals of Geology examination and the Principles and Practice of Geology examination. The fee for each of these two licensure examinations was $175. This regulation will reduce the fee to $150. Both examinations are prepared and administered by the National Association of State Boards of Geology (NASBG). When the fees were originally established in section 37.12, the contract price for each examination was $175. This contract was re-negotiated to decrease the price for each of the two examinations by $25.
This regulation will have no additional fiscal impact on the Commonwealth or local governments. The NASBG administers the examinations to Pennsylvania applicants in April and October. The regulation will be effective upon publication in the Pennsylvania Bulletin. However, applicants for the April 1997 examinations were notified of the reduced fee and were charged $150 for each examination. According to the Board, 12 applicants took the examinations in April.
The Senate Consumer Protection and Professional Licensure Committee met and approved this regulation on April 15, 1997. The House Professional Licensure Committee met on April 23, 1997, and also voted to approve this regulation.
We have reviewed this regulation and find it to be in the public interest. This regulation stands in significant contrast to most fee regulations promulgated by the professional licensure boards since it is a decrease. Section 812.1(b) of The Administrative Code of 1929 requires that the ''applicants' fees cover the entire cost of the examination.'' This regulation is necessary to meet this statutory requirement. We commend the State Board and Bureau of Professional and Occupational Affairs for securing lower fees for examinations administered by a National testing organization.
Therefore, It Is Ordered That:
Regulation No. 16A-474 from the State Registration Board for Professional Engineers, Land Surveyors and Geologists, as submitted to the Commission on April 4, 1997, is approved; and
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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Board of Optometry--Fees; Doc. No. 16A-524
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Optometry (Board). This rulemaking would amend 49 Pa. Code § 23.91. The authority for this regulation is found in sections 4.1 and 9(c) of the Optometric Practice and Licensure Act (act) (63 P. S. §§ 244.4a and 244.9(c)). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
Act 130 of 1996, which added section 4.1 to the act, empowered the Board to certify qualified licensees to prescribe and administer pharmaceutical agents for therapeutic purposes (TPAs). Section 9(c) of the act requires the Board to fix fees by regulation to match revenues with expenditures. The proposed regulation establishes a fee of $25 for optometrists seeking certification to prescribe and administer TPAs. Qualified applicants who are licensed optometrists in Pennsylvania and apply under either Category A or B will receive a license with a modified license number to indicate the additional authorization to prescribe and administer TPAs. The requirements of Categories A and B are as follows:
Category A: Applicant has graduated from an accredited school of optometry and, as a condition of graduation, has successfully completed a minimum of 100 hours in the prescription and administration of pharmaceutical agents for therapeutic purposes and has passed a licensure examination to practice optometry which examination included the prescription and administration of pharmaceutical agents for therapeutic purposes.Category B: Applicant has completed a board approved course of a minimum of 100 hours in the prescription and administration of pharmaceutical agents for therapeutic purposes and has passed an examination on the prescription and administration of pharmaceutical agents for therapeutic purposes which examination was prepared and administered by a qualified and approved professional testing organization.In order for an optometrist to maintain the authority to prescribe and administer TPAs, the licensee must complete continuing education requirements relating to the prescription and administration of TPAs.
The Senate Consumer Protection and Professional Licensure Committee approved the regulation on April 15, 1997. The House Professional Licensure Committee approved the regulation on April 23, 1997.
We have reviewed this regulation and find it to be in the public interest. However, we note that this regulation is only the first step necessary for the Board to comply with the requirements of Act 130. Act 130 not only authorizes the Board to certify qualified licensees to prescribe and administer TPAs, but also requires the licensees to complete a total of 30 hours of continuing education every 2 years, 6 hours of which must relate to TPAs. The Board's existing regulations on continuing education requirements at 49 Pa. Code §§ 23.81-- 23.89 only require 24 hours of continuing education and make no specific reference to TPA requirements. It is our understanding that the Board is developing a proposed regulation which will update the existing continuing education requirements and define a board-approved course in TPAs. We encourage the Board to proceed expeditiously with the promulgation of this proposed regulation to bring the Board's existing regulations into compliance with Act 130.
Therefore, It Is Ordered That:
Regulation No. 16A-524 from the State Board of Optometry, as submitted to the Commission on April 4, 1997, is approved; and
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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Board of Pharmacy--Examination Fees; Doc. No. 16A-545
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Pharmacy (Board). This rulemaking would amend 49 Pa. Code Chapter 27. The authority for this regulation is contained in section 6(k) of the Pharmacy Act (63 P. S. § 390-6(k)) and section 812.1 of The Administrative Code of 1929 (71. P. S. § 279.3(a)). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The Board is amending its examination regulations because the National testing organization, the National Association of Board of Pharmacy (NABP), is changing its method of testing candidates from a ''pencil and paper'' test to a computer based test. In March 1997, the NABP began to offer the North American Pharmacist Licensure Examination as the National uniform exam.
The specific amendments to the regulation include requiring the applicant to file an examination application 45 days prior to the exam. Part of the materials to be submitted include proof of graduation with a B.S. or an advanced degree in pharmacy granted by an ACPE accredited school, as well as affidavits of all internships.
The regulation also changes the passing score for the National American Pharmacist Licensure Examination (NAPLEX) and the Federal Drug Law Examination (FDLE) from an established score of 75 to a specific score to be determined by the NABP.
Finally, the regulation reduces the NAPLEX examination fee from $295 to $250 and maintains the FDLE examination fee at $75.
The Senate Consumer Affairs and Professional Licensure Committee approved the regulation on April 15, 1997. The House Professional Licensure Committee approved the regulation on April 23, 1997.
When the regulation was originally submitted on April 4, 1997, it contained an inconsistent standard for the minimum passing score for the NAPLEX and the FDLE. The Board agreed, and on April 11, 1997, the Board amended the regulation to indicate that after March 1, 1997, the minimum passing score for both exams will be determined by the NABP. At our request, the Board also provided further clarification on type of accredited schools the Board recognizes and the forms that must be submitted with the examination application.
We have reviewed this regulation and find it to be in the public interest. The regulation will allow the Board to institute the use of a computer based examination for licensure, which should be a more efficient and convenient method to test candidates for licensure.
Therefore, It Is Ordered That:
1. Regulation No. 16A-545 from the State Board of Pharmacy, as submitted to the Commission on April 4, 1997, and amended on April 11, 1997 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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Board of Cosmetology--Examination Fees; Doc. No. 16A-453
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Cosmetology (Board). This rulemaking would amend 49 Pa. Code § 7.2. The authority for this regulation is section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a) and section 16(a) of the Cosmetology Law (63 P. S. § 522(a)). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The Board has restructured § 7.2 by deleting obsolete fees in subsection (a) and the currently effective fees from subsection (b). All licensure examination fees are now relocated in subsection (a). The complete licensing examination fees for a cosmetologist, cosmetician, manicurist or teacher examination is increased from $52.50 to $59. The fee includes a theory examination at $31, also required of managers, and a performance examination at $28. The new subsection (b) includes the various licensure, registration, renewal and certification fees previously established in regulation.
The Board has eliminated the Pennsylvania Law Examination, which tested knowledge of State law, rules and regulations, from the examination requirements for all license categories. The new fee structure is as follows:
Licensure Current Fees Proposed Fees Categories Cosmetologist, Manicurist, Cosmetician and Teacher $52.50 Complete $59.00 $27.00 Written (theory) $31.00 $24.00 Practical (Performance) $28.00 $18.50 Pennsylvania Law Deleted $69.50 Total (if taken separately) $59.00 Manager $28.50 Complete $27.00 Written (theory) $31.00 $18.50 Pennsylvania Law Deleted $45.50 Total (if taken separately)
The proposed new fees will be effective for the term of the Board's contract with the testing agency, which runs from July 1, 1997 to June 30, 2002. The new fees are necessary because the Board executed a new contract with a professional testing organization. Testing fees for candidates will decrease overall because the Pennsylvania law examination is no longer required.
The Senate Consumer Affairs and Professional Licensure Committee approved this regulation on April 15, 1997. The House Professional Licensure Committee approved this regulation on April 23, 1997.
We have reviewed this regulation and find it to be in the public interest. However, we are concerned that the Board, through notification to schools of cosmetology on September 16, 1996, announced that the State law portion of the examination would no longer be given effective January 1997. We question why the Board did not elect to change its testing requirements effective with the July 1997 examination after approval of the final-omitted rulemaking by the standing committees and the Commission. As it stands, the Board's action conflicts with the requirements in § 7.2(b). Alternatively, the Board could have submitted this final-omitted regulation in a more timely manner. In either case, we believe administrative actions of the Board should be consistent with it is regulations.
Therefore, It Is Ordered That:
1. Regulation No. 16A-453 from the State Board of Cosmetology, as submitted to the Commission on April 4, 1997, 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; Alvin C. Bush; Arthur Coccodrilli; John F. Mizner
Public meeting held
May 1, 1997State Board of Dentistry--Fictitious Names; Doc. No. 16A-466
Order On April 4, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the State Board of Dentistry (Board). On April 25, 1997, the Board submitted an amended regulation to incorporate technical revisions suggested by the House Professional Licensure Committee. This rulemaking would amend 49 Pa. Code §§ 33.3 and 33.302 to be consistent with the amendments to Act 113 of 1996 (Act 113). The authority for this regulation is 63 P. S. § 122(g.1). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
The existing regulation provides that the Board will charge a fee to review a dental facility fictitious name application and approve or disapprove the application based upon the Board's judgment on whether the names are false, misleading or deceptive. Act 113 added section 3(g.1) (63 P. S. § 122(g.1)) to the Dental Law which provides the Board with the power and duty ''to receive and record all filings of the names and fictitious names of providers of dental services but shall not make determinations or judgments as to the appropriateness of such names.'' Accordingly, the Board is changing the name of the fee in § 33.3 from ''Dental facility name application'' fee to ''Fictitious name registration'' fee. The fee of $35 is not proposed to be amended. The Board is proposing amendments to § 33.202 to delete several provisions for approval or disapproval of applications and to replace the word ''application'' with ''registration.''
The Board believes public comment is not necessary because the new provisions of Act 113 repeal the approval provisions in the Board's regulations. The Board stated that all persons affected by the proposed amendments were notified of the Board's intention to modify the regulations before the final-omitted regulation was filed.
The Senate Consumer Protection and Professional Licensure unanimously approved this proposed regulation on April 15, 1997. The House Professional Licensure Committee approved this proposed regulation on April 23, 1997, but recommended technical revisions to the Board. The Board responded to the House Professional Licensure Committee's recommendations by submitting a revised final-omitted regulation on April 25, 1997, incorporating the technical revisions. The Pennsylvania Dental Association submitted a letter, dated April 20, 1997, stating no objection to the proposed amendments to the regulation.
Approximately 100 dentists apply each year to use fictitious names. The Board does not believe this proposed regulation will adversely affect anyone. The Board believes the proposed change is a benefit because dentists will no longer have to wait for the Board's approval to use or advertise under fictitious names.
We have reviewed this regulation and find it to be in the public interest. While the Board has made the changes necessary to reflect the registration requirements of Act 113, it will continue to charge a $35 fee, even though the fee will be for registration of a fictitious name rather than the existing application and review process. This shift in duties should reduce the amount of work involved in processing fictitious name filings. The Board has requested a review of the fee through the Department of State's Bureau of Professional and Occupational Affair's revenue office to determine whether the fee can be reduced. Although we believe it would have been appropriate for this rulemaking to include a change in the fee along with the other amendments, we strongly encourage the Board to file a change in the fee as soon as possible to better reflect the cost of the reduced procedures associated with registration of a fictitious name.
Therefore, It Is Ordered That:
1. Regulation No. 16A-466 from the State Board of Dentistry, as submitted to the Commission on April 4, 1997, and amended April 25, 1997, 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; Alvin C. Bush; Arthur Coccodrilli--Dissenting; John F. Mizner
Public meeting held
May 1, 1997Environmental Quality Board--Hazardous Waste Management; Doc. No. 7-297
Order On July 24, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (EQB). This rulemaking would amend 25 Pa. Code Chapters 261, 262, 264, 265 and 266. Under sections 105, 401--403 and 501 of the Solid Waste Management Act, the EQB has the statutory authority to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste as are necessary to protect the public's health, safety and welfare, as well as protect the environmental resources of the Commonwealth. The proposed regulation was published in the Pennsylvania Bulletin with a 60-day public comment period. The final-form regulation was submitted to the Commission on April 1, 1997.
The EQB proposes to amend the existing hazardous waste regulations by adding a universal waste rule that is essentially identical to the Environmental Protection Agency (EPA) universal waste rule. The EPA promulgated its universal waste rule at 40 CFR Part 273 because it concluded that the existing regulatory structure is not appropriate for certain widely generated wastes referred to as ''universal wastes.'' Universal wastes include nickel cadmium and other types of batteries, pesticides and mercury-containing thermostats. The universal waste rule is a set of simplified management standards for the collection and transportation of universal wastes.
Universal wastes share the following common characteristics:
* They may be generated in a variety of settings other than industrial settings;
* They may be generated by a large community which imposes program implementation difficulties; and
* They may be present in significant volumes in nonhazardous waste management systems.
The universal waste rule is designed to accomplish three general goals. The first goal is to encourage resource conservation, while ensuring adequate protection of human health and the environment. The second goal is to improve implementation of the current hazardous waste regulatory program. The third goal is to provide incentives for individuals and organizations to collect the unregulated portions of these universal waste streams and manage them using the same systems developed for the regulated portion, thereby removing universal wastes from the municipal waste stream.
On the proposed rulemaking, the EQB received letters from Bethlehem Apparatus Company, Inc. (Bethlehem), SmithKline Beecham and an association of companies called Specialty Steel Industry of Pennsylvania (SSIPA). Bethlehem and SmithKline Beecham did not comment directly on provisions in the regulation, but rather responded to the EQB's request for comments and supporting documentation concerning the inclusion of fluorescent tubes, as well as other wastes or waste categories, under the universal waste rule on final publication. SSIPA commented that fluorescent tubes should be included under the universal waste rule and commented on a concern with shipping papers and labeling of universal wastes.
The EQB believes the full hazardous waste regulations have inhibited the creation of systems to collect and transport universal wastes. The universal waste rule will make management standards less complex and less costly. The EQB believes Pennsylvania will benefit from the universal waste rule because the rule will prevent pollution by facilitating the proper disposal or recycling of wastes under the program.
The EQB lacks the data to estimate costs related to this regulation. However, since the EQB's proposed regulation is essentially equivalent to the EPA's universal waste rule, the EQB expects cost reductions similar to EPA's analysis that indicates management costs for generators of universal wastes should be reduced by 50% when compared to management under full Subtitle C RCRA standards. Comments on the proposed rulemaking advocated adding wastes to the universal waste program which supports the theory that costs will be reduced.
The Department of Environmental Protection (DEP) intends to provide assistance with compliance with the universal waste rule. DEP plans to prepare fact sheets to help explain how the universal waste rule works. DEP also intends to work with industry groups to develop workshops to explain how individuals can use the universal waste rule to establish collection systems to recycle or properly dispose of universal wastes.
SSIPA commented on the final-form rulemaking regarding their concern with shipping papers and labeling of universal wastes. Bethlehem submitted comments concerning the process to add additional univeral wastes, but subsequently withdrew their comments. SSIPA's comments on the final-form rulemaking reiterated its concern that the regulation remains unclear on the proper shipping name for a universal waste. We have reviewed the EQB's position and SSIPA's concern. Since the regulation requires labeling as a univeral waste in addition to US DOT labeling, we believe the EQB is correct that contents of a package will be labeled as a waste. Since we believe the regulation is clear, we consider this issue to be resolved.
We have reviewed this regulation and find it to be in the public interest. The main issue in our Comments concerned the EQB's proposed petition process to add additional universal wastes. The EQB proposed a process which would have allowed DEP to amend the regulation by other than a regulation, thereby circumventing the legislative and public scrutiny afforded by the regulatory review process. In our Comments, we strongly recommended that the EQB delete the proposed petition process in its entirely in the final-form regulation. Instead we recommended that the EQB use rulemakings to add additional wastes to the universal waste rule.
In Subchapter P, the EQB's final-form regulation indicates that parties may petition the DEP for a regulatory amendment to add additional universal wastes. However, in order to understand the full obligation required to petition DEP to add an additional universal waste, the petitioner will need to meet the specific requirements of Subchapter P of Chapter 266 and Chapter 23 Environmental Quality Board Policy for Processing Petitions--Statement of Policy. One important difference between Subchapter P and Chapter 23, is that Subchapter P does not directly require the petitioner to provide proposed regulatory language, whereas Chapter 23 does. Therefore, we believe the final-form regulation would be clearer if Subchapter P referenced Chapter 23. DEP stated at our Public Meeting that this was an oversight due to their familiarity with the use of Chapter 23 and agreed that a cross reference would be helpful. DEP assured the Commission that successful petitions under Subchapter P would be processed as rulemakings under Chapter 23. With the public assurance from DEP that they will process successful petitions into rulemakings and that DEP will make this point clear upon publication of the final-form rulemaking in the Pennsylvania Bulletin, we consider this issue to be resolved.
Therefore, It Is Ordered That:
1. Regulation No. 7-297 from the Environmental Quality Board, as submitted to the Commission on April 1, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 97-793. Filed for public inspection May 16, 1997, 9:00 a.m.]
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