[34 Pa.B. 2421]
[Continued from previous Web Page] Senator Waugh also requested the Department carefully consider the comments offered by the York County Board with respect to this section.
Response: The requested clarification has been added to § 138e.201(a)(1) of the final-form rulemaking.
Comment 23: IRRC reviewed proposed § 138e.202(a) (relating to inspections) and noted that where a tract of land is placed under agricultural conservation easement relatively late in the year it might be difficult for a county to comply with the proposed requirement that the initial inspection of the restricted land occur within sufficient time to be included in the annual report that must be submitted to the State Board by March 1 of the following year. IRRC asked whether the proposed inspection requirement would be practical under these circumstances.
Response: The Department agrees with the commentator and has revised the referenced provision accordingly.
Comment 24: Senator Waugh requested the Department consider revising proposed § 138e.204(a) (relating to enforcement) to address concerns raised informally by several county agricultural land preservation program directors outside of the formal comment process. These commentators recommended the subsection be revised to reflect that a county board might enter into agreements with local government units under which the county would enforce an agricultural conservation easement owned solely by the local government unit.
Response: The Department believes a county board is free to contract with a land trust to assume responsibility for enforcement of agricultural conservation easements acquired or owned by a land trust, but that this is properly the subject of contract between the county board and the land trust, rather than of this final-form rulemaking.
Comment 25: The Association considered proposed § 138e.222, and expressed concern over the long-term maintenance of agricultural conservation easements. The Association believes this provision ''. . . does not specifically address remedies and/or penalties for violating a conservation plan agreement'' and urged the Department to include these remedies and penalties in the final-form rulemaking.
Response: The Department believes § 138e.204 and § 138e.206 (relating to enforcement actions) adequately address the extent of the authority and procedure by which the terms of an agricultural conservation easement are to be enforced. The ultimate remedy for a violation of the terms of a Deed of Agricultural Conservation Easement or a conservation plan required under the terms of the easement sale is an action in the appropriate Court of Common Pleas seeking injunctive relief to abate the violation and restore the affected land. Primary enforcement responsibility lies with the County Agricultural Land Preservation Board. The act does not provide the Department authority to impose a monetary penalty on a landowner who violates the terms of a deed of agricultural conservation easement.
Comment 26: The Lancaster County Board offered comments with respect to the conservation plan and conservation plan agreement form referenced in proposed § 138e.91(8). Those comments are previously summarized and addressed. The commentator noted the referenced comments are also applicable to proposed § 138e.222.
Response: The Department has addressed this comment in response to Comment 14.
Comment 27: The Lehigh County Board considered proposed § 138e.222, and offered the following comment: ''We feel the requirement for a signed conservation plan agreement and an approved conservation plan prior to State Board approval is a very good idea. We do need to make landowners more aware that good conservation will be a requirement for all land enrolled in the farmland preservation program!''
Response: The Department agrees with this comment, for the reasons stated in its response to Comment 14.
Comment 28: Senator Waugh and Representative Bunt requested the Department carefully consider the various comments offered previously with respect to proposed § 138e.222.
Response: The Department gave careful consideration to these requests from members of the Legislature, and has addressed this subject in its response to Comment 14.
Comment 29: Senator Waugh requested that the Department consider revising proposed § 138e.254(c) (relating to applying for a reimbursement grant) to address concerns raised informally by several county agricultural land preservation program directors outside of the formal comment process.
Response: The Department has deleted proposed § 138e.254(c)(4), which would have required that a soil report form accompany a reimbursement grant application. In addition, the Department has addressed the substance of these informal comments in responses to Comments 4 and 5.
Comment 30: Several comments were received with respect to proposed § 138e.255(b)(3)(i)(B).
At the time the comments were offered, the clause allowed a land trust to be reimbursed for up to $5,000 of the expenses incidental to the acquisition of an agricultural conservation easement if the easement covered a tract of at least 25 acres. Although this minimum acreage figure had been 50 acres in previous guidelines for the Program, the guidelines were subsequently revised to lower this minimum acreage figure to 25 acres in the proposed rulemaking.
Some time after the comment period for the proposed rulemaking expired, the Department amended the procedures and standards for the Program by deleting the requirement that an agricultural conservation easement acquired by a land trust be of any specific minimum acreage for the land trust to be eligible for reimbursement of a portion of its expenses under the Program. This revision was published at 33 Pa.B. 39, and has been incorporated into the final-form rulemaking in § 138e.255(b)(3). This is explained in the responses to Comments 4 and 5. The final-form rulemaking would formalize this revision, and is expected to increase the number of easement purchases that qualify for reimbursement under the Program.
The Association commented that the Department should maintain the 50-acre minimum standards, and requested the Department's rationale for proposing to reduce the standard to 25 acres. As stated in the previous paragraph, the minimum acreage standard has since been eliminated altogether.
The Farm and Natural Lands Trust of York County supported the proposed 25-acre minimum standard. The commentator offered that many landowners ''can not fully utilize the tax deduction created by a conservation easement due (to) the IRS code restriction on charitable deductions not exceeding 30% of adjusted gross income.'' The commentator believes the proposed 25-acre standard would allow a landowner to realize the full extent of the favorable tax consequences that attend the donation of an agricultural conservation easement to a land trust by allowing for a series of smaller donations over several years.
The Pennsylvania Farmland Protection Association also registered its support for the proposed 25-acre minimum standard previously described, noting the preservation of ''small farmland tracts can be very important in maintaining the agricultural integrity of areas targeted for farmland preservation.''
Response: The Department has addressed this comment in its responses to Comments 4 and 5.
Comment 31: The Lehigh County Board expressed its general approval of proposed Chapter 138l, and offered several additional comments addressed.
Response: The Department accepts the comment.
Comment 32: Attorney Hartman offered the general comment that although the act and proposed Chapter 138l imply that an ASA is typically a single ''unified area,'' in reality an ASA is ''usually a smattering of properties throughout a municipality.'' The commentator believes this causes confusion in the interpretation of the act and the regulations.
Response: The commentator's observation is correct. An ASA need not be comprised of contiguous tracts, as long as any tract that is not contiguous to other tracts included in the ASA is comprised of at least 10 acres or has anticipated yearly gross income of $2,000 from agricultural production. This is described in proposed § 138l.12 (relating to eligibility to propose the creation of an ASA). The Department is aware there has been confusion on this subject in the past, and expects the regulation will help reduce this confusion.
Comment 33: Attorney Hartman also offered the following general comment with respect to proposed Chapter 138l: ''The term 'modification' is used in two respects with regard to ASAs. One is with respect to changes to ASA proposals; the other is with respect to changes to existing ASAs. This can be confusing. I would prefer 'modification' to refer only to proposals, and that the terms 'additions' or 'removals' would be used in the context of changes to existing ASAs.''
Response: The Department believes the term ''modification'' adequately describes any change to an ASA, whether that change is an addition or removal of land. For this reason, the Department declines to implement the recommended change.
Comment 34: The Association raised several general questions regarding proposed Chapter 138l. First, the Association requested an explanation of what happens to an ASA when, through removal of parcels from the ASA, the total remaining acreage of the ASA is less than the required 250-acre minimum. Second, the Association asked how the Department determined there would be no fiscal cost involved in implementing the proposed rulemaking. Third, the Association asked: ''What is the agricultural goal of Farmland Preservation?''
Response: In response to the first comment, an ASA is, by definition in section 3 of the act, a ''unit of 250 or more acres.'' If an ASA loses acreage to the point it no longer contains 250 acres, it ceases being an ASA.
In response to the second comment, the Department determined there would be no new costs on the public, the private sector, local government or State government as a result of the promulgation of proposed Chapter 138l because the proposed rulemaking does not require any of these entities to do any act or incur any expense it is not already required to incur under the act. To the extent there are costs associated with the creation and modification of an ASA, these costs are imposed by the act, rather than by regulation.
In response to the third comment, the Department assumes the question relates to the objective of the proposed rulemaking. The Department seeks to replace the long outdated and inadequate regulatory provisions regarding the creation, operation and termination of ASAs with a set of regulatory standards that tracks with statutory authority.
This Commonwealth leads the Nation in the number of acres preserved for agricultural production, and is looked to as a leader in this area. The Department seeks to retain this hard-earned status, and preserve as much quality farmland as resources allow.
The Department's priorities with respect to farmland preservation include the preservation of the best soils, including prime soils, soils of Statewide importance and soils in Land Capability Classes I--IV.
The Department also seeks to emphasize the importance of preserving blocks of farmland or clustering blocks of preserved farmland to sustain a stable agricultural economy in the farming community.
The Department also seeks to maintain this Commonwealth's ability to produce food, enhance production and the agricultural way of life.
It is not an objective of the Department's farmland preservation efforts to compete with development and growth.
Comment 35: Senator Waugh offered the suggestion that a new section be added to proposed Chapter 138l to explain the benefits a landowner might realize from having land within an ASA. The commentator noted the current § 138.3 describes these benefits, and that the Department proposes to rescind that provision without adding a similar provision to Chapter 138l. The commentator believes the referenced current regulatory language ''is significant and imperative, and should be retained.'' The commentator also noted that the referenced current regulatory language is consistent with the protections afforded certain agricultural operations under the act of June 10, 1982 (P. L. 454, No. 133) (3 P. S. §§ 951--957). Senator Waugh offered proposed language through which the Department could implement his suggestion.
Response: The Department has implemented the commentator's suggestion in the final-form rulemaking by adding § 138l.4 (relating to benefits of having land within an ASA).
Comment 36: IRRC offered several comments with respect to proposed § 138l.1 (relating to definitions).
First, IRRC noted the section defines the terms ''eligible counties,'' ''planning commission'' and ''Secretary'' in a manner that does not match the definition of these same terms in the act. The commentator requested the Department either justify its proposed language or revise these definitions to track with the act.
Second, the commentator recommended the definition of ''economic viability of farmland for agricultural production'' be reconfigured to include the reference to § 138e.16(a) at the beginning of the definition.
Third, the commentator noted the proposed definition of the term ''interim review'' contains the term itself, and suggested this be revised.
Response: In response to the first comment, the Department has revised the referenced definitions in the final-form rulemaking to read as they appear in the act.
In response to the second comment, the Department declines to revise the definition of ''economic viability of farmland for agricultural production.'' This term is also defined in § 138e.3, is used extensively in the context of the Department's Agricultural Conservation Easement Purchase Program and has been adopted by most (if not all) eligible counties in their agricultural conservation easement purchase programs. On balance, the Department believes the recommended revision would not be so significant an improvement as to offset the problems and confusion that would be attendant to implementing this revision.
In response to the third comment, the definition has been revised as suggested by the commentator.
Comment 37: The Lehigh County Board reviewed proposed § 138l.13(a) (relating to ASA proposal form) and asked whether a governing body would have the right to designate open enrollment periods for additions to ASAs and refuse acceptance of applications at other times.
Response: The Department believes that although a local government unit might encourage applications to be submitted during particular periods, it may not require applications to be submitted during these periods. The act describes a timetable for review and action that begins when the governing body of a local government unit receives an application by certified mail with return receipt requested. This is found in section 5(a.1) of the act. The timetables for review and action on the application begin as of this official submission date. The Department does not believe that the act affords local government units the authority to refuse a properly-submitted application. A local government unit might, in the interest of keeping costs to a minimum or for administrative convenience, encourage applications to be filed during designated application periods.
Comment 38: Proposed § 138l.17(b)(2) (relating to local government unit action upon receipt of an ASA proposal) would require a local government unit to post notice of an ASA proposal in at least five conspicuous places within, adjacent to or near the proposed ASA. Attorney Hartman suggested the notice provision would be more effective if it required the notices be posted within, adjacent or near to the parcels being added to the ASA, and not within, adjacent or near to the existing portions of the ASA.
The commentator also described a situation where several noncontiguous parcels are being added to an existing ASA. In these instances, the commentator has advised his clients that a total of five notices must be posted, rather than five notices at each separate location of noncontiguous land to be included in the ASA. The commentator suggested this could be clarified in the final-form rulemaking.
Response: The Department is reluctant to revise the proposed rulemaking to specifically require that the referenced postings be made in proximity to the land being considered for inclusion in the ASA. The referenced regulatory language comes from section 5(b) of the act.
The Department believes the phrase ''within, adjacent to or near the proposed ASA'' in proposed § 138l.17(b)(2) provides adequate guidance as to the requirements for posting the referenced notice, and declines to revise that language in the final-form rulemaking.
Comment 39: Attorney Hartman noted proposed § 138l.17(c)(3) would allow a person owning land within, adjacent to or near a proposed ASA or proposed ASA modification to offer a modification to the ASA proposal. The commentator believes the proposed language is more general than section 5(b)(3) of the act, and could be interpreted as allowing the referenced landowners to force the inclusion of another person's land in an ASA without the consent of the landowner. The commentator noted that if this were possible, then ASAs could be designed to look more like zoning districts, perhaps overlaying effective agricultural zoning districts.
Response: The Department believes the act and the regulations are sufficiently clear that a person cannot force the inclusion of another person's land in an ASA. Sections 5(a) of the act and 8(e) of the act (3 P. S. § 908(e)), respectively, make clear that ''an owner or owners of land'' may apply to include that land in an ASA and that participation in an ASA is available ''on a voluntary basis to landowners . . . .''
Comment 40: Attorney Hartman identified a typographical error in proposed § 138l.18(a)(1) (relating to public hearing by local government unit on ASA proposal).
Response: The Department has made the correction in the final-form rulemaking.
Comment 41: IRRC suggested that the term ''person'' in proposed § 138l.18(b)(ii)(A) be replaced with ''landowner.'' IRRC noted this revision would make the final-form rulemaking more consistent with section 6(c) of the act (3 P. S. § 906(c)).
Response: The Department has implemented the suggested change in the final-form rulemaking.
Comment 42: IRRC reviewed the factors listed in proposed §§ 138l.19(b) (relating to decision of local government unit) and noted the list does not contain the reference to existing utilities found in the corresponding provision of the act (section 8(a)). IRRC recommended this reference be added to the final-form rulemaking.
Response: The Department has implemented the recommended change in the final-form rulemaking.
Comment 43: Attorney Hartman reviewed the factors listed in proposed § 138l.19(b) and § 138l.26(a) (relating to factors to be considered by the governing body of the local governing unit, the planning commission and the advisory committee) and asked why the factors are in two separate locations in the proposed rulemaking. The commentator suggested combining the referenced subsections.
Response: The Department believes it appropriate to maintain the two referenced subsections addressing review requirements. The factors identified in proposed § 138l.26(a) are factors to be considered by all reviewing entities, and are required by section 7(a) of the act (3 P. S. § 907(a)). The factors identified in § 138e.19(b) are factors to be considered by the local government unit, and include all of the factors listed in proposed § 138l.26(a), as well as the additional factors required by section 8(a) of the act.
Comment 44: Attorney Hartman reviewed proposed § 138l.20 (relating to notice of decision of the local government unit) and requested the Department more clearly identify the ''affected'' landowners to whom the notice described in § 138l.20 is to be provided.
Response: The Department believes the term ''affected'' is sufficiently specific in the context in which it is used in the proposed rulemaking. The Department is also apprehensive it could not craft a regulatory definition for this term that would be applicable in all instances. Although the typical person ''affected'' by a decision regarding an ASA proposal would be the person who submits it for consideration, there are circumstances where other landowners might have an interest in the decision. On balance, the Department is satisfied the term ''affected'' is as specific as the final-form rulemaking should be on this subject.
Comment 45: Attorney Hartman suggested the phrase ''or as otherwise prescribed by the act'' be deleted from proposed § 138l.21(b) (relating to effective date of the creation or modification of an ASA).
Response: The Department declines to implement this suggestion. The referenced phrase is intended to address the fact there would be lag time between an amendment of the act and a revision of the act's attendant regulations. The referenced phrase is intended as a reminder that the language of the act shall prevail over the regulation.
Comment 46: The Lehigh County Board suggested proposed § 138l.22 (relating to filing of ASA description by governing body; recording of the ASA description) be revised to add the local farmland preservation office (if one exists) to the list of entities upon which a governing body is required to file an ASA description.
Senator Waugh requested the Department carefully consider the comments offered with respect to proposed § 1381.22.
Response: The Department has added language affording governing bodies of local government units the option to notify the office of the county board (if the county has a county board) of the creation or change in composition of an ASA. This language is added to § 138l.22(a)(4) of the final-form rulemaking.
Comment 47: Attorney Hartman noted that proposed § 138l.23 (relating to notification of secretary by governing body) makes reference to notices that are required upon termination of an ASA. The commentator suggested this subject be addressed later in the document, in Subchapter (D) or Subchapter (E) (relating to removing land from an existing ASA; and seven-year review and interim review) addressing termination of an ASA and removal of land from an ASA.
Response: Although the commentator's point is well taken, the Department declines to implement the suggested change. The Department acknowledges there are repeated references to notification requirements throughout the proposed rulemaking. Given the importance of these requirements and the fact they have been frequently overlooked or ignored by governing bodies in the past, the Department believes it reasonable to repeat these requirements at every juncture in the proposed rulemaking where notification of the Department is necessary.
Comment 48: The Lehigh County Board suggested proposed §§ 138l.24 and 138l.25 (relating to planning commission action with respect to an ASA proposal; and advisory committee action with respect to an ASA proposal) and § 138l.26 should be renumbered as §§ 138l.18, 138l.19 and 138l.20, respectively. The commentator stated that this would ''put the information in the sequence that the municipalities should follow after receiving an ASA proposal.''
Response: The Department understands the commentator's point, but declines to rearrange the referenced sections. Subchapter B (relating to formation of an agricultural security area) groups the basic responsibilities of a local government unit in §§ 138l.18--138l.23 before addressing the responsibilities of the planning commission and the advisory committee. Although this format does not place the sections in strict chronological order, the Department believes this arrangement is clear and that any confusion can be resolved by reference to the list of sections in the subchapter.
Comment 49: Attorney Hartman identified a typographical error in proposed § 138l.24(b).
Response: The Department has made the correction in the final-form rulemaking.
Comment 50: Proposed § 1381.24(d)(2) requests an impact analysis from the noncounty planning commission, but not a recommendation. Attorney Hartman made note of this, and suggested ''there should be a recommendation, as well as an impact analysis.'' The commentator also acknowledged that the referenced provision follows the act.
Response: As the commentator acknowledges, the proposed regulatory language is consistent with section 5(d) of the act. Given this fact, the Department is reluctant to add a specific requirement that a recommendation accompany the impact analysis. The planning commission is free to include a recommendation as part of its impact analysis, but is not required under the act to do so.
Comment 51: Proposed § 1381.26(a)(3) requires that if land is subject to zoning restrictions it be ''zoned so as to permit agricultural use.'' Attorney Hartman asked whether land upon which a lawfully nonconforming agricultural use exists meets this requirement, and referenced the most recent amendments to the Pennsylvania Municipalities Planning Code.
Response: The Department believes land upon which a lawfully nonconforming agricultural use exists meets the referenced regulatory requirement. The Department notes that the regulation essentially restates section 7(a)(2) and (3) of the act.
Comment 52: Proposed § 1381.31(d) (relating to adding land to an existing ASA) provides that land being added to an existing ASA need not meet the same 250-acre minimum that would be required for the initial formation of an ASA. Attorney Hartman asked whether noncontiguous tracts of land being considered for inclusion into an existing ASA would have to meet the minimum acreage (10 acres) or minimum annual agricultural income ($2,000) standards in proposed § 138l.12(4).
Response: The Department believes noncontiguous tracts of land being considered for inclusion into an existing ASA would have to meet the minimum acreage (10 acres) or minimum annual agricultural income ($2,000) standards in proposed § 138l.12(4).
Comment 53: The Lehigh County Board requested proposed § 138l.32 (relating to automatic inclusion of certain parcels bisected by the dividing line between local government units) be revised by adding examples.
The commentator presented the following scenario, and asked whether it is accurate: ''If a farm bisected by a township boundary has previously enrolled the majority of its viable agricultural land in Township A's ASA, the farmland owner needs to apply to Township B to get the other portion of their farm into an ASA, if township B has an existing ASA. In a different scenario, where Township B does not have an existing ASA, the landowner would apply to Township A to get their additional land into Township A's ASA.''
Response: Act 14 revised section 5(a.2) of the act to allow for automatic inclusion of certain parcels bisected by the dividing line between local government units. The factual scenario presented by the commentator is accurate.
The Department believes the act and the regulations are sufficiently clear on this subject, and declines to insert examples into the final-form rulemaking. If subsequent experience demonstrates the need for examples, the Department is willing to revisit this final-form rulemaking.
Comment 54: The Lehigh County Board reviewed proposed § 138l.33 (relating to automatic inclusion of certain parcels bisected by the dividing line between local government units upon the purchase of an agricultural conservation easement by certain entities), and asked why that provision is not applicable to agricultural conservation easement purchases purchased solely by the Commonwealth.
Response: Act 14 revised the act to allow for the automatic incorporation of land into an ASA in the context of certain designated agricultural conservation easement purchase transactions. The language describing the types of agricultural conservation easement purchases where this automatic incorporation can occur, though, does not authorize this automatic incorporation in the context of an agricultural conservation easement purchase made solely by the Commonwealth. The relevant statutory language is in section 14.1(b)(2)(i)(A) and (B) of the act.
Comment 55: The Lehigh County Board and the PFPA raised the same question as in the preceding comment with respect to proposed § 138l.34 (relating to automatic inclusion of portions of certain parcels bisected by the dividing line between counties upon the purchase of an agricultural conservation easement by certain parties). The PFPA acknowledged that the act is specific in this regard, but expressed a desire to see the act revised.
Response: The Department offers the same response it offered with respect to Comment 54.
Comment 56: Attorney Hartman suggested proposed § 1381.34 is unnecessary, because ''when a parcel is divided by a county line, it is also always divided by a municipal boundary,'' and that subject is addressed in proposed § 138l.33.
Response: The Department agrees that when a parcel is divided by a county line, it is also always divided by a municipal boundary line. The Department notes that the act treats farmland tracts that are divided by county lines differently than it treats tracts that are only divided by township lines. Since the distinction between whether a tract is bisected by a county line or a township line is a meaningful distinction under the act, the Department believes it important to preserve and clarify this distinction in the corresponding regulations. The act addresses the referenced distinctions in section 14.1(b)(2)(i)(B) and (C) of the act.
Comment 57: Several comments were received with respect to proposed §§ 138l.41 and 138l.42 (relating to removing land that has been in an ASA for 7 years or more; and removing land in the course of the 7-year review or an interim review).
Senator Waugh requested the Department carefully consider the various comments offered with respect to the referenced proposed sections.
Representative Bunt offered a detailed comment with respect to proposed §§ 138l.41 and 138l.42, noting it was ''. . . the original (and continuing) intent for deletions of land from an ASA to occur only after at least seven years have passed since the land was included in the ASA and a proposal to delete land can only occur during and in accordance with. . .'' the 7-year review process or the interim review process described in the act. Representative Bunt offered a detailed explanation of the evolution of the statutory language describing the circumstances under which land may be removed from an ASA. The statutory analysis concluded with the recommendation that proposed §§ 138l.41 and 138l.42 be revised to reflect that ''. . . a proposal for deletion of land from an ASA must follow the same procedures as that of adding land, and shall only occur at the seven-year review period provided for in Section 9 of the act.''
Proposed § 138l.41 would require land to remain in an ASA for at least 7 years before it can be removed by the landowner. The Bureau takes the position that a landowner can remove his land from an ASA at any time, and that the proposed provisions ''contradict this long held interpretation of the law.'' The Bureau asked what would happen to a landowner who wishes to remove land from an ASA before it has been in the ASA for 7 years, and what the regulatory consequences for the farmer might be.
The Lancaster County Board expressed its belief that the act only allowed the withdrawal of land from an ASA at the 7-year review interval or at an interim review, and asked whether the language of proposed § 138e.41(a) was the product of an amendment of the act. If the act doesn't allow a landowner to remove land from an ASA at any time after it has been in the ASA for 7 years, the Lancaster County Board would recommend the proposed section be revised to clarify this. The commentator believes the proposed section ''could cause substantial monitoring problems for townships, counties and the Commonwealth'' and that the 7-year review or interim review standard is more equitable and easy to manage.
The Lehigh County Board expressed concern over the provision in proposed § 138l.41 that allows a landowner to remove his land from an ASA at any time after it has been in the ASA for 7 years or more, and asked whether this option is addressed in the act. The Lehigh County Board was apprehensive that owners of large tracts of land or land speculators might:
. . . use this provision in the regulations to effectively eliminate entire ASAs by pulling enough of their land out of an ASA to cause the termination of an ASA; thus penalizing other farmland owners who may rely on the farming protections afforded by their ASA. This could also be harmful and destabilizing to areas where agricultural conservation easements have been acquired.Response: The section 8(e) of the act provides that ''The deletion of land in the agricultural security area shall only occur after seven years or whenever the agricultural security area is subject to review by the governing body.'' The Department believes that, regardless of the legislative intent behind this provision, the plain grammatical meaning of this sentence is ''The deletion of land in the agricultural security area shall only occur: (1) after seven years; or (2) whenever the agricultural security area is subject to review by the governing body.'' Proposed §§ 138l.41 and 138l.42 were drafted in accordance with this reading of the statutory language.
Although the Department is ordinarily inclined to give great deference to comments offered by legislators with respect to the legislative intent behind particular statutes, in this instance it does not believe it can interpret the statutory language quoted in the preceding paragraph in any way other than it has done. The Department would be supportive of an amendment of the act to clarify the legislative intent on this subject one way or the other. In the absence of that clarification, though, the Department believes it must follow the guidance of 1 Pa.C.S. § 1921(b) (relating to legislative intent controls) that when ''. . . the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.''
Comment 58: Attorney Hartman noted proposed § 138l.41(d) would authorize postponement of the recording of the removal of land from an ASA until the next 7-year review, and suggested the provision be revised to reflect the removal may be recorded with other revisions resulting from an interim review (a review that does not occur at the 7-year intervals).
The commentator also suggested proposed §§ 138l.41 and 138l.42 be combined.
Response: The Department believes its response to the following comment addresses most of the commentator's concerns. With respect to the suggestion that proposed §§ 138l.41 and 138l.42 be combined, the Department prefers to keep these sections separate in the final-form rulemaking. Although a good bit of the material in each section repeats material found in the other, the Department believes the final-form rulemaking will be more readable and user-friendly if these two sections are kept separate.
Comment 59: The PFPA reviewed proposed § 138l.41(d), which would allow a governing body to wait until the next 7-year or interim review of an ASA to record deletions of land from that ASA. The commentator suggested the recording ''should take place within 10 days of the deletion, as is required when land is added to an ASA.'' The commentator emphasized the need for county farmland preservation programs to have accurate and up-to-date information regarding whether land is or is not part of an ASA.
Response: The Department agrees with the commentator, and has revised proposed §§ 138l.41(d) and 138l.42(d) to require the recording of deletions of land from an ASA within 10 days of the deletion. As the commentator suggests, this 10-day deadline is consistent with the recording deadlines for a newly created ASA or modifications to an existing ASA in proposed § 138l.22(a). The comment also prompted a slight revision of proposed § 138l.22(a) to clarify the 10-day deadline is also applicable to modifications of an existing ASA.
Comment 60: The Pennsylvania Farmland Protection Association requested an explanation of the 210-day interval referenced in proposed § 138l.51 (relating to seven-year review).
Response: The Department reviewed the repeated references to the ''210-day'' interval, and agrees the proposed language is confusing. The 210-day figure is the sum of the 180-day period referenced in that section and the 30-day advance notice period referenced in section 9 of the act (3 P. S. § 909). The Department has revised proposed § 138l.51 to remove this confusing reference.
Fiscal Impact
Commonwealth: The final-form rulemaking will impose no costs and have no fiscal impact on the Commonwealth.
Political Subdivisions: The final-form rulemaking is not expected to impose appreciable costs upon political subdivisions. Although local government units are required to absorb the costs associated with the formation and recording of an ASA, this requirement is imposed by the act, rather than the regulations.
Private Sector: The final-form rulemaking will impose no costs and have no fiscal impact upon the private sector.
General Public: The final-form rulemaking will impose no costs and have no fiscal impact upon the general public.
Paperwork Requirements
The final-form rulemaking will not appreciably increase the paperwork burden of the Department, local government units, county agricultural land preservation programs or other affected entities.
Sunset Date
There is no sunset date for the final-form rulemaking. The Department will review the efficacy of this final-form rulemaking on an ongoing basis.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 29, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 775, to IRRC and the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on February 19, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on March 25, 2004, and approved the final-form rulemaking.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Farmland Preservation, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Sandra Robison, (717) 783-3167.
Findings
The Department finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 32 Pa.B. 775.
(4) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapters 138, 138e and 138l, are amended by deleting §§ 138.1--138.14 and Appendix A; by amending §§ 138e.3, 138e.11, 138e.16, 138e.41--138e.43, 138e.61, 138e.65--138e.68, 138e.71, 138e.91, 138e.103, 138e.104, 138e.201--138e.204 and 138e.222; and by adding §§ 138e.73, 138e.93, 138e.251--138e.256, 138l.1--138l.4, 138l.11--138l.26, 138l.31--138l.34, 138l.41, 138l.42, 138l.51 and 138l.52 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's Note: The proposal to amend § 138e.102 has been withdrawn by the Department.)
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This Order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 2027 (April 10, 2004).)
Fiscal Note: Fiscal Note 2-138 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART V-C. FARMLAND AND FOREST LAND
CHAPTER 138. (Reserved) §§ 138.1--138.14. (Reserved).
Appendix A. (Reserved).
CHAPTER 138e. AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM
GENERAL § 138e.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Agricultural conservation easement or easement--An interest in land, less than fee simple, which interest represents the right to prevent the development or improvement of a parcel for a purpose other than agricultural production. The easement may be granted by the owner of the fee simple to a third party or to the Commonwealth, to a county governing body or to a unit of local government. It shall be granted in perpetuity, as the equivalent of covenants running with the land. The exercise or failure to exercise any right granted by the easement will not be deemed to be management or control of activities at the site for purposes of enforcement of the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
Agricultural production--The production for commercial purposes of crops, livestock and livestock products, including the processing or retail marketing of the crops, livestock or livestock products if more than 50% of the processed or merchandised products are produced by the farm operator. The term includes use of land which is devoted to and meets the requirements of and qualifications for payments or other compensation under a soil conservation program under an agreement with an agency of the Federal government.
* * * * * County planning commission--A planning commission or agency which has been designated by the county governing body to establish and foster a comprehensive plan for land management and development within the county.
* * * * * Local government unit--Any city, borough, township or town or any home rule municipality, optional plan municipality, optional charter municipality or similar general purpose unit of government which may be created or authorized by statute.
* * * * * Mansion house--The primary residential structure located upon a parcel.
* * * * * Parcel--A tract of land in its entirety which is assessed for tax purposes by one county, including any portion of that tract that may be located in a neighboring county. The county responsible for assessing an entire tract, on its own or in conjunction with the Commonwealth or a local government unit, or both, shall be eligible to purchase agricultural conservation easements covering the entire tract.
* * * * *
REQUIREMENTS FOR CERTIFICATION OF COUNTY PROGRAM § 138e.11. General requirements.
(a) A county program shall demonstrate that the county has fair, equitable, objective, nondiscriminatory procedures for determining easement purchase priorities.
(b) A county program shall contain written policies and procedures for determining easement purchase priorities and written procedures for purchasing easements. For example, a county program that would allow a farmland tract with a higher farmland ranking score (as described in § 138e.15 (relating to farmland ranking system)) to be bypassed in favor of making an offer to purchase an easement on a farmland tract with a relatively lower farmland ranking score shall set forth the priorities and procedures under which this determination is made.
(c) A county program shall address and meet the standards, criteria and requirements in §§ 138e.12--138e.21. A county program may propose additional standards, criteria and requirements for approval by the State Board. Additional provisions shall be designed to assure that selection of land for easement purchase is consistent with the purposes of the act.
(d) A county program shall contain provisions for the participation of local government units in the preservation of farmland through the purchase of agricultural conservation easements. These provisions shall address the following:
(1) Local government unit recommendations for joint county-local government unit purchases.
(2) Local government unit recommendations for joint Commonwealth-local government unit purchases.
(3) Local government unit recommendations for joint Commonwealth-county-local government unit purchases.
(4) Local government unit agricultural conservation easement purchases authorized under section 14.1(b.1)(4) of the act (3 P. S. § 914.1(b.1)(4)).
§ 138e.16. Minimum criteria for applications.
(a) The county program shall consider the quality of the farmland tract, including the USDA soil classification and productivity. The farmland tract shall:
(1) Be one or more of the following:
(i) Located in an agricultural security area consisting of 500 acres or more.
(ii) Bisected by the dividing line between two local government units, having the majority of its viable agricultural land within an agricultural security area of 500 acres or more and the remainder in another local government unit outside of an agricultural security area.
(iii) Bisected by the dividing line between the purchasing county and an adjoining county, having the land located in the purchasing county within an agricultural security area of 500 acres or more and the remainder in another county outside of an agricultural security area, and with respect to which one of the following applies:
(A) A mansion house is on the tract and located within the purchasing county.
(B) When the mansion house on the tract is bisected by the dividing line between the two counties, the landowner has chosen the purchasing county as the situs of assessment for tax purposes.
(C) When there is no mansion house on the farmland tract, the majority of the tract's viable agricultural land is located within the purchasing county.
(2) Be one or more of the following:
(i) Contiguous acreage of at least 50 acres in size.
(ii) Contiguous acreage of at least 10 acres in size and utilized for a crop unique to the area.
(iii) Contiguous acreage of at least 10 acres in size and contiguous to a property which has a perpetual conservation easement in place which is held by a ''qualified conservation organization,'' as that term is defined in section 170(h)(3) of the Internal Revenue Code (26 U.S.C.A. § 170(h)(3)).
(b) The county program may contain additional criteria to evaluate farmland tracts if the criteria are fair, objective, equitable, nondiscriminatory and emphasize the preservation of viable agricultural land which will make a significant contribution to the agricultural economy, and are approved by the State Board. For example, a county program might require crop yields from a farmland tract to meet or exceed county crop yield averages, or might require the farmland tract to generate annual gross receipts of a particular sum, or might require that structures and their curtilages not occupy more than a certain percentage of the total acreage of the farmland tract.
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