NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Action Taken by the Commission
[37 Pa.B. 6859]
[Saturday, December 22, 2007]The Independent Regulatory Review Commission met publicly at 10:30 a.m., Thursday, December 6, 2007, and announced the following:
Regulations Approved:
State Board of Education #6-302: Foreign Corporation Standards (amends 22 Pa. Code Chapter 36)
Pennsylvania Public Utility Commission #57-239: Regulation of Interexchange Carriers and Services (amends 52 Pa. Code Chapter 63)
Department of Revenue #15-429: Realty Transfer Tax Amendments (amends 61 Pa. Code Chapter 91) [Dissenting Statement of Commission John F. Mizner reads as follows.]
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Approval Order Public Meeting held
December 6, 2007Commissioners Voting: Arthur Coccodrilli, Chairperson; Alvin C. Bush, Vice Chairperson, by Phone; David J. DeVries, Esq.; John F. Mizner, Esq.
State Board of Education--
Foreign Corporation Standards;
Regulation No. 6-302 (#2548)On June 19, 2006, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Education (Board). This rulemaking amends 22 Pa. Code Chapter 36. The proposed regulation was published in the July 1, 2006 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on October 31, 2007.
This final-form regulation amends standards that govern the operation and approval of postsecondary degree-granting institutions that are operated or owned by a foreign corporation.
We have determined this regulation is consistent with the statutory authority of the Board (24 P. S. § 26-2603-B) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Approval Order Public Meeting held
December 6, 2007Commissioners Voting: Arthur Coccodrilli, Chairperson; Alvin C. Bush, Vice Chairperson, by Phone; David J. DeVries, Esq.; John F. Mizner, Esq.
Pennsylvania Public Utility Commission--
Regulation of Interexchange Carriers and Services;
Regulation No. 57-239 (#2512)On December 7, 2005, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking amends 52 Pa. Code Chapter 63. The proposed regulation was published in the December 17, 2005 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on October 18, 2007.
This final-form regulation implements the provisions of Act 183 of 2004 by deleting current regulations dealing with interexchange telecommunications carriers and replacing them with new provisions.
We have determined this regulation is consistent with the statutory authority of the PUC (66 Pa.C.S. §§ 501 and 3018) and the intention of the General Assembly. Having considered all of the other criteria of the Regulatory Review Act, we find promulgation of this regulation is in the public interest.
By Order of the Commission:
This regulation is approved.
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Dissenting Statement of Commissioner
John F. Mizner
Department of Revenue--
Realty Transfer Tax Amendments;
Regulation #15-429 (IRRC #2503)This matter involves a rulemaking order designed to implement the Realty Transfer Tax Act. For the reasons set forth below, I respectfully dissent.
First, this regulation threatens the economic and fiscal health of the Commonwealth. 71 P. S. § 745.5b(b)(1). Implementation may result in significant costs to the Commonwealth, its political subdivisions and the private sector. I agree with commentators who contend that implementation of this regulation will result in a tax structure that puts Pennsylvania at a disadvantage in comparison to other states competing for investment dollars. Moreover, as evidenced by various interpretations submitted by the Department and commentators, this regulation is confusing and fails to supply sufficient guidance to the regulated community. The foreseeable result of such confusion is increased legal, consulting and accounting costs that will be incurred in the public and private sectors.
Second, this regulation fails to meet the standard of clarity, feasibility and reasonableness required by the Regulatory Review Act. 71 P. S. § 745.5b(b)(3). The definitions of ''living trust'' and ''ordinary trust'' conflict with definitions of the same terms in the Realty Transfer Tax Act, 72 P. S. § 8101-C. Additionally, I disagree with Sections 91.153 and 91.168 of the regulation to the extent they allow the Department the latitude to tax like-kind exchanges and sale-leaseback transactions multiple times.
Third, this regulation represents a policy decision of such a substantial nature that it requires legislative review. 71 P. S. § 745.5b(b)(4). In the preamble to this regulation, the Department indicates it developed Section 91.132 ''to address the court decision in Allebach v. Commonwealth, 546 Pa. 146, 683 A.2d 625 (1996).'' Rather than heed the Pennsylvania Supreme Court's admonition in Allebach, the Department chose to violate the General Assembly's dictate that taxing statutes be strictly construed. If indeed there is a problem to be fixed, then that fix must come from the General Assembly because the current statutory framework does not provide the Department with the necessary statutory authority.
Therefore, I respectfully dissent.
John F. Mizner, Commissioner
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 07-2372. Filed for public inspection December 21, 2007, 9:00 a.m.]
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