NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[34 Pa.B. 2241] 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 2-145 Department of Agriculture 3/15/04 4/14/04 Food Employer Certification (34 Pa.B. 831 (February 14, 2004)) 11-217 Insurance Department 3/15/04 4/14/04 Annual Audited Insurers' Financial Report Required (34 Pa.B. 844 (February 14, 2004)) 17-65 Pennsylvania State Police 3/15/04 4/14/04 Use of Unmarked Vehicles (34 Pa.B. 853 (February 14, 2004)) 16A-5118 State Board of Nursing 3/15/04 4/14/04 Approval of Diploma Programs in Transition to Degree-Granting Status (34 Pa.B. 851 (February 14, 2004))
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Department of Agriculture Regulation No. 2-145
Food Employee Certification
April 14, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Agriculture (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 15, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 76.7. Certification training programs: Food safety protection and training standards and § 76.12. Renewal of certificate.--Statutory authority.
The Food Employee Certification Act (act) requires the Department to establish in regulations ''[T]he number of hours necessary to prepare employees for safe food handling due to the food establishment's scope of business'' (3 P. S. § 6504(g)(1)(iii)). The act's requirement is met by existing § 76.7(a) which requires ''at least 15 hours of instruction'' and existing § 76.12(a) which requires ''at least 7.5 hours of approved continuing education.'' However, this rulemaking deletes the number of hours from §§ 76.7(a) and 76.12(a). If the Department deletes these provisions, how will the regulation be in compliance with the act?
2. Miscellaneous clarity issues.
a) The following terms are being deleted from § 76.2. However, these terms continue to be used in the regulation as follows. The Department should either retain these definitions or explain why they are no longer needed.
Term
Used
Food contact surface Definition of ''sanitizing'' HACCP § 76.8(1)--(3) Retail food store Definition of ''food establishment'' Water activity Definition of ''potentially hazardous food'' b) We were unable to find the term ''food code'' used in the regulation. It should be deleted from § 76.2 or the Department should explain the need for it.
c) Section 76.3(b) states ''The certificate shall be in the general category unless one of the following is accurate: . . . .'' (Emphasis added.) It would be clearer to state ''. . . unless one of the following applies: . . . .''
d) Section 76.5(b)(2)(iii) ends with the phrase ''are accurate.'' This phrase should be replaced with ''apply.''
e) Section 76.5(b)(2)(iv)(B), which addresses programs administered by an entity other than the Department, ends with the phrase ''. . . and meets the requirements referenced in clause (A).'' The dependence of clause (B) on requirements in clause (A) gives the appearance that entities other than the Department fall ''under section 4(g)(2) of the act.'' Is the intent for programs in clause (B) to only meet ''the course content requirements in § 76.7(b)''?
f) Section 76.8(1)--(3) makes a general cross reference to § 76.5(b)(2). More specific cross references should be used since there are specific subparagraphs in § 76.5(b)(2) that directly correspond to each certificate category. For example, § 76.8(3) describes a ''modified'' certificate and should therefore cross reference § 76.5(b)(2)(iii).
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Insurance Department Regulation No. 11-217
Annual Audited Insurers' Financial Report Required
April 14, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Insurance Department must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 15, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 147.8. Scope of audit and report of independent certified public accountant.--Clarity.
Subsection (d) states ''The Commissioner may from time to time prescribe that additional auditing procedures be observed by the independent certified public accountant in the audit of the financial statements of insurers under this chapter.'' The phrase ''from time to time'' is vague and should be deleted. Also, the final-form regulation should identify under what circumstances additional auditing procedures may be required.
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Pennsylvania State Police Regulation No. 17-65
Use of Unmarked Vehicles
April 14, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Pennsylvania State Police (State Police) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 15, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 42.1. Purpose.--Clarity; Implementation procedures.
This section states the following: ''This chapter governs the use of unmarked vehicles. It is necessary to establish uniformity in the use of unmarked vehicles for the purpose of law enforcement.'' Under 75 Pa.C.S. § 3328, regarding unmarked police vehicles, the State Police is directed to ''. . . promulgate regulations for the use of unmarked vehicles by police officers.'' More specifically, subsection (a)(1) directs the State Police to ''establish the procedure to be used by a police officer in an unmarked vehicle when stopping a motorist.''
Does this regulation apply to stops or pursuits regarding traffic violations or all stops or pursuits that involve unmarked vehicles? In the final-form rulemaking, the State Police should clearly indicate the scope of the requirement in its preamble and in § 42.1.
We note the phrase ''permit the use of unmarked vehicles for law enforcement'' also appears in § 42.2. If any changes are made to § 42.1, a similar change should be made to § 42.2.
2. Section 42.2. Policy and effect.--Statutory authority; Legislative intent; Conflict with statute; Policy decision requiring legislative review.
This section includes the following: ''Failure to comply with this chapter does not affect the legality of any arrest or citation, nor will it be grounds for the suppression of evidence.'' We have several concerns with this statement.
First, we question whether there is a statutory or constitutional basis for this provision. As regulations have the force and affect of law, a police officer's failure to comply may raise a question as to the legality of the arrest. Is it the intent of the regulation to prevent a judge from considering the arresting officer's compliance with the regulations in deciding a suppression motion or allowing a defense to the prosecution?
Second, we believe that § 42.2 conflicts with Act 75's amendment to 75 Pa.C.S. § 3733(c). As amended, 75 Pa.C.S. § 3733(c) authorizes a defense to a prosecution based on, among other things, recognition of the police officer's vehicle, the ability to identify the police officer because of his uniform or badge and ''any other factor considered relevant by the court.'' (Emphasis added.) Therefore, a court is authorized by law to consider a police officer's ''failure to comply'' with regulations addressing vehicle identification and uniform requirements.
Third, we question whether § 42.2 belongs in the regulation. We believe it represents a policy decision of such substantial nature that it requires legislative review. There is nothing in the previously cited statutory provisions regarding unmarked cars that indicates the legislative intent to restrict what may or what may not be entered into evidence. In contrast, whenever the General Assembly intended to address what a court may consider, it did so in clear and unmistakable terms. For instance, 75 Pa.C.S. § 1547(c), regarding chemical testing to determine sobriety, clearly establishes what may be entered into evidence. Likewise, 18 Pa.C.S. § 5721.1(b) explicitly establishes what nonconstitutional violations a court may consider in deciding a suppression motion.
3. Section 42.3. Definitions.--Conflict with existing regulations; Clarity.
Light bar assembly
The definition of ''light bar assembly'' differs from that of the Department of Transportation in 67 Pa. Code § 173.2. Section 42.22(b) states that 67 Pa. Code § 173, regarding flashing or revolving lights on emergency and authorized vehicles, shall be utilized when officers stop suspected violators. To avoid confusion, we recommend that the definition of ''light bar assembly'' be amended to be consistent with the definition in 67 Pa. Code § 173.2.
Marked police vehicle and unmarked police vehicle
This section defines the terms ''marked police vehicle'' and ''unmarked police vehicle.'' However, these terms are not used in the body of the regulation. Instead, the terms ''marked unit'' and ''unmarked vehicle'' are used throughout the regulation. We recommend using the defined terms ''marked police vehicle'' and ''unmarked police vehicle'' in the regulation.
''Unmarked police vehicle'' is defined as ''A police vehicle not equipped with a roof mounted light-bar assembly. The vehicle may display graphics, markings or decals identifying the agency or department.'' The second sentence creates ambiguity in the definition and should be deleted.
Police officer
The term ''police officer'' is used in 75 Pa.C.S. § 3328. This rulemaking uses the term ''officer.'' The preamble to the final-form rulemaking should explain the reason for using the term ''officer'' instead of ''police officer'' and note who would fall under the definition of ''officer.'' We also recommend defining the term ''officer'' and using it throughout the regulation.
4. Section 42.21. Identification and uniform requirements.--Clarity.
Identification
Subsection (a) establishes the procedures to be used by officers when identifying themselves. It states, in part: ''If the officer does not carry official identification, the officer should not attempt to stop traffic law violators, unless there is immediate threat to public safety.'' (Emphasis added.) The term ''should'' is nonregulatory language, which indicates that this provision is optional. It is inappropriate to include optional provisions in a regulation. We recommend that the term ''should' be replaced with the word ''shall.''
Uniforms
Subsection (b) establishes uniform requirements for officers using unmarked vehicles. It states, in part: ''Markings on alternative attire should be visible from the front and back.'' (Emphasis added.) Similar to our previous comment, we recommend that the term ''should'' be replaced with the word ''shall.''
5. Section 42.22. Vehicle stops and pursuits.--Implementation procedures.
Subsection (b) relates to the use of audible and visual signals while operating an unmarked vehicle. It states that the requirements and standards in 67 Pa. Code § 173 shall be used when officers stop suspected violators. Under 75 Pa.C.S. § 3328(a)(2), the regulations shall ''require the use of audible and visual signals which meet the requirements and standards set forth in this title and in regulations adopted by the department.''
Section 173 of 67 Pa. Code does not address audible signal requirements. What audible standards are the State Police required to use when stopping suspected violators? We recommend the State Police add a citation to the specific regulations governing audible requirements in this section.
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State Board of Nursing Regulation No. 16A-5118
Approval of Diploma Programs in Transition to Degree-Granting Status
April 14, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Nursing (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 15, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 21.51. Establishment.--Reasonableness; Implementation procedures; Need; Clarity.
Subsection (a)--accreditation agencies and leadership
Subsection (a) states that a nursing program shall be developed at a regionally accredited university or college, or a hospital approved by the Joint Commission on Accreditation of Hospitals (JCAHO), and under the leadership of a registered nurse. There are two areas of concern.
The House Professional Licensure Committee (House Committee) in its comments questioned whether a program transitioning from a hospital-based nursing education program would be required to be under the leadership of a registered nurse. This question relates both to the existing structure of subsection (a) and the use of the phrase ''except as follows'' in the proposed regulation. According to the Board counsel, the intent is that all nursing education programs be under the leadership of a registered nurse. This is consistent with existing §§ 21.71(b) and 21.74(b) which require advanced degrees in nursing and nursing experience for directors of both diploma and degree programs.
Since the requirement is in place elsewhere in existing regulations, inclusion of the phrase ''under the leadership of a registered nurse'' in subsection (a) may be duplicative and unnecessary. To avoid confusion, the Board should consider amending the regulation in the final-form version by deleting this phrase or moving it to a separate subsection that states it is a requirement for all programs including ones in transition from diploma-granting to degree-granting status.
Second, a commentator suggested that the subsection identify both the JCAHO and the Healthcare Facilities Accreditation Program (HFAP) as agencies that can approve hospitals. The commentator noted that the Federal government has approved both the HFAP and the JCAHO for hospital accreditation.
The shortage of nursing staff is a recognized and well documented concern. The existence of more nursing education programs could stimulate greater entry by qualified people into the profession. Therefore, the Board should review the need to limit diploma programs to hospitals accredited by the JCAHO when hospitals may receive accreditation from other organizations.
Subsection (a)(1)--approval status
Subsection (a)(1)(iii) states that a hospital-based nursing program must maintain ''full approval status under § 21.33 (relating to types of approval) for at least 3 years prior to the transition.'' The process for accreditation and final approval for degree-granting status may take 6 years after an institution first receives initial approval by the Department of Education (Department). It is our understanding that the Board will require programs to achieve ''full approval status'' for 3 years before they start the transition. In the final-form regulation, the Board should amend § 21.51(a)(1)(iii) to specify that programs need to have 3 years of ''full approval status'' before they apply to the Board to start the transition process.
Subsection (a)(2)(ii) and (iii)--transition requirements
Subsection (a)(2) sets forth requirements for programs in transition to degree-granting status. There are two concerns with these subsections.
First, subsection (a)(2)(ii) requires programs in transition to submit annual progress reports. Existing § 21.124 already requires schools of nursing to file annual reports with the Board. To avoid duplicative language, we recommend that the final-form regulation be amended to delete the annual report requirement in subsection (a)(2)(ii).
Second, subsection (a)(2)(iii) states that the program shall be reviewed onsite, but does not identify what entity will do the review. It is also unclear when the review will take place. The final-form regulation should clearly state that the Board will perform the review. It should also reference section 6.1 of the Professional Nursing Law (act) (63 P. S. § 216.1) that requires a site visit to a nursing education program at least once every 3 years.
Subsection (a)(2)(iv)--time period for transition
This subsection requires programs in transition to continue on initial approval under § 21.33 until the university or college achieves full approval status from the Department or for 6 years, whichever occurs first. There are two concerns with this subsection.
First, the House Committee questions the intent of this subsection and what happens after 6 years if the program does not obtain full approval from the Department. We share the House Committee's concern and note that § 21.33(a) does not include a specific time limit for initial approval.
If the program does not obtain full approval from the Department within 6 years, the next step is unclear. What happens to the program and its students? Will the program in transition be required to follow the provisions in § 21.41, regarding discontinuance of a school of nursing, or will it revert back to a hospital-based program? The final-form regulation should specify the consequences of not meeting the 6-year time limit.
Second, the preamble indicates that it may take up to 6 years for a college or university to obtain ''full approval for regional accreditation.'' However, it is our understanding that 6 years is the approximate time it takes. It could take less or more time for a legitimate institution to achieve accreditation. The 6-year time frame is an estimate. Is it necessary to use 6 years as a time limit? The programs are already required to file annual reports with the Board and the Board is required to do onsite reviews at least once every 3 years. Therefore, the Board should be able to monitor their progress. Retaining the 6-year time frame could force the Board to close an educational program that was actually on the verge of receiving accreditation.
Subsections (a)--(e)--nursing education programs, procedures and requirements
In the existing regulation, subsection (a) states that colleges, universities and hospitals must be accredited to establish nursing education programs. Subsections (b)--(e) set forth procedures and requirements for these programs. The proposed regulation adds a new nursing education program option and its procedures and requirements to subsection (a). We have three concerns.
First, the new language in subsection (a) identifies the programs in transition as an exception. In contrast, the act includes these programs in its list of ''approved programs'' for nursing education. The last sentence of section 6(a) of the act (63 P. S. § 216(a)) reads:
Approved programs shall include baccalaureate degree, associate degree, diploma nursing programs and programs in transition from approved diploma-to degree-granting programs when all other requirements of the Board have been met.Hence, the diploma programs in transition are not an exception in the act. They are approved programs. Subsection (a) should reflect the act by listing the different types of approved nursing education programs.
Second, subsection (a)(1) begins with a lengthy and complex sentence followed by a list of requirements. The long sentence seeks to describe programs in transition by using numerous modifiers. If the basic definition of the programs in transition is moved to subsection (a), then the standards and requirements for these programs could be a separate provision. The unique content of subsection (a)(1) and (2) could be set forth in a separate subsection in the same way that requirements for the existing programs are contained in subsections (b)--(e).
Third, it is unclear whether the existing requirements in subsections (b)--(e) will also apply to programs in transition since they are identified as exceptions. The final-form regulation should specify whether these programs must also comply with subsections (b)--(e).
Miscellaneous clarity
In the course of our review, we identified the following issues regarding clarity.
The first paragraph of § 21.51(a) uses the term ''nursing program'' and this term is also used in existing § 21.51(b)(1)(ii) and (iii). Section 21.51(a)(1) and (2) uses the term ''nursing education program.'' If ''nursing program'' and ''nursing education program'' are the same type of program, then the regulation should use just one of the two terms.
Second, the word ''wishing'' is not standard regulatory language. It is used in subsection (a)(1) and (2) in the proposed regulation. The final-form regulation should state that diploma-granting programs may be modified into degree-granting programs if they meet the specified requirements.
Third, § 21.51(a)(1)(iii) refers to ''full approval status'' under § 21.33. There are three different types of approval identified in existing § 21.33. Full approval is described in § 21.33(b). Section 21.51(a)(1)(iii) should identify the specific subsection (§ 21.33(b)) that defines full approval for nursing education programs. In addition, the reference in § 21.51(a)(2)(iv) to ''initial approval'' under § 21.33 should specifically refer to § 21.33(a).
Fourth, subsection (a)(2)(i) refers to ''all other Board regulations pertaining to nursing education programs.'' Would this provision be necessary if these programs were considered another version of an approved nursing education program rather than an exception? If it is necessary, then it should reference Chapter 21, Subchapter A.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 04-700. Filed for public inspection April 23, 2004, 9:00 a.m.]
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