NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Action Taken by the Commission
[40 Pa.B. 6487]
[Saturday, November 6, 2010]The Independent Regulatory Review Commission met publicly at 10 a.m., Thursday, October 21, 2010, and announced the following:
Regulations Deemed Approved under Section 5(g) of the Regulatory Review Act—Effective October 20, 2010:
Insurance Department #11-243: Standards to Define Insurers Deemed to be in Hazardous Financial Condition (amends 31 Pa. Code Chapter 160)
Bureau of Professional and Occupational Affairs #16A-6804: Schedule of Civil Penalties—Audiologists, Speech-Language Pathologists and Teachers of the Hearing Impaired (amends 49 Pa. Code Chapter 43b)
Action Taken—Regulations Approved:
Department of Revenue #15-448: Personal Income Tax—Innocent Spouse Relief (amends 61 Pa. Code § 119.30)
Department of Public Welfare #14-516: Nonpublic and County Nursing Facilities (amends 55 Pa. Code Chapters 1187 and 1189)
Environmental Quality Board #7-465: Mercury Emissions: Repeal (deletes 25 Pa. Code §§ 123.201 to 123.215)
Environmental Quality Board #7-454: Administration of the Uniform Environmental Covenants Act (amends 25 Pa. Code Chapter 253)
Environmental Quality Board #7-453: Administration of the Land Recycling Program (amends 25 Pa. Code Chapter 250)
Environmental Quality Board #7-442: Beneficial Use of Coal Ash (amends 25 Pa. Code Chapters 287, 290 and 299)
Environmental Quality Board #7-448: Paper, Film and Foil Surface Coating Processes (amends 25 Pa. Code Chapters 121 and 129)
State Real Estate Commission #16A-5618: Seller Property Disclosure Statement (amends 49 Pa. Code Chapter 35)
Bureau of Professional and Occupational Affairs #16A-51: Schedule of Civil Penalties—Veterinarians and Veterinary Technicians (amends 49 Pa. Code § 43b.21a)
Action Taken—Regulations Disapproved:
State Board of Funeral Directors #16A-4818: Continuing Education Enforcement (amends 49 Pa. Code Chapter 13)
Bureau of Professional and Occupational Affairs #16A-47: Schedule of Civil Penalties—Funeral Directors and Funeral Establishments (amends 49 Pa. Code § 43b.6)
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Approval Order Public Meeting held
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Department of Revenue—
Personal Income Tax—Innocent Spouse Relief;
Regulation No. 15-448 (#2829)On March 29, 2010, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Revenue (Department). This rulemaking amends 61 Pa. Code § 119.30. The proposed regulation was published in the April 10, 2010 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 10, 2010.
This regulation implements a provision of Act 87 of 2002 which allows an innocent spouse to claim relief from state tax liability if the spouses are separated and the innocent spouse was unaware of an understatement of taxes in the joint filing.
We have determined this regulation is consistent with the statutory authority of the Department (72 P. S. § 3310-212(d)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Department of Public Welfare—
Nonpublic and County Nursing Facilities;
Regulation No. 14-516 (#2778)On July 21, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Public Welfare (Department). This rulemaking amends 55 Pa. Code Chapters 1187 and 1189. The proposed regulation was published in the August 1, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 13, 2010.
This final-form regulation amends the payment methodology for Medical Assistance nursing facility services as directed by Act 44 of 2008. It also makes revisions to streamline and simplify rate-setting for non-public nursing facilities and eliminates obsolete regulatory provisions.
We have determined this regulation is consistent with the statutory authority of the Department (62 P. S. §§ 201(2), 206(2), 403(b) and 443.1) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Environmental Quality Board—
Mercury Emissions: Repeal;
Regulation No. 7-465 (#2875)On September 17, 2010, the Independent Regulatory Review Commission (Commission) received this regulation from the Environmental Quality Board (Board). This rulemaking deletes 25 Pa. Code §§ 123.201 to 123.215. Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This final-omitted regulation repeals 25 Pa. Code §§ 123.201 to 123.215, the ''Standards for Contaminants Mercury Emissions,'' in their entirety.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. § 4005(a)(1)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Environmental Quality Board—Administration
of the Uniform Environmental Covenants Act;
Regulation No. 7-454 (#2824)On February 24, 2010, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapter 253. The proposed regulation was published in the March 6, 2010 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 20, 2010.
This regulation implements Act 68 of 2007, the Uniform Environmental Covenants Act.
We have determined this regulation is consistent with the statutory authority of the Board (27 Pa.C.S.A. § 6515(a)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Environmental Quality Board—
Administration of the Land Recycling Program;
Regulation No. 7-453 (#2823)On February 24, 2010, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapter 250. The proposed regulation was published in the March 6, 2010 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 20, 2010.
This final-form rulemaking updates numeric Statewide health-based standards relating to the cleanup of contaminated sites under the Land Recycling and Environmental Remediation Standards Act.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. §§ 6026.104(a) and 6026.303(a)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Environmental Quality Board—
Beneficial Use of Coal Ash;
Regulation No. 7-442 (#2808)On October 28, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapters 287, 290 and 299. The proposed regulation was published in the November 7, 2009 Pennsylvania Bulletin with a 45-day public comment period. The final-form regulation was submitted to the Commission on September 20, 2010.
This regulation establishes requirements and procedures for the beneficial use of coal ash.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. § 6018.105(a)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Environmental Quality Board—
Paper, Film and Foil Surface Coating Processes;
Regulation No. 7-448 (#2807)On October 28, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Environmental Quality Board (Board). This rulemaking amends 25 Pa. Code Chapters 121 and 129. The proposed regulation was published in the November 7, 2009 Pennsylvania Bulletin with a 67-day public comment period. The final-form regulation was submitted to the Commission on September 20, 2010.
This final-form regulation limits volatile organic compounds emissions from the use and application of coatings and cleaning materials in paper, film and foil surface coating processes.
We have determined this regulation is consistent with the statutory authority of the Board (35 P. S. §§ 4005(a)(1) and 4005(a)(8)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
State Real Estate Commission—
Seller Property Disclosure Statement;
Regulation No. 16A-5618 (#2838)On April 21, 2010, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Real Estate Commission (Real Estate Commission). This rulemaking amends 49 Pa. Code Chapter 35. The proposed regulation was published in the May 1, 2010 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 10, 2010.
This regulation establishes a minimum seller's property disclosure statement, as required by law. It also tracks the duties imposed on licensees who represent sellers and buyers as well as transaction licensees.
We have determined this regulation is consistent with the statutory authority of the Real Estate Commission (68 Pa.C.S. § 7304 and 63 P. S. §§ 455.404 and 455.604(a)(15.1)) 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
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Bureau of Professional and Occupational Affairs—
Schedule of Civil Penalties—Veterinarians
and Veterinary Technicians;
Regulation No. 16A-51 (#2844)On April 27, 2010, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Bureau of Professional and Occupational Affairs. This rulemaking amends 49 Pa. Code § 43b.21a. The proposed regulation was published in the May 8, 2010 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 10, 2010.
This regulation establishes in regulation a schedule of civil penalties for violations relating to the practice of veterinary medicine and certified veterinary technicians.
We have determined this regulation is consistent with the statutory authority of the Bureau of Professional and Occupational Affairs (63 P. S. § 2205(a)) 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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Second Disapproval Order Public Meeting held
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
State Board of Funeral Directors—
Continuing Education Enforcement;
Regulation No. 16A-4818 (#2760)On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Funeral Directors (Board). This rulemaking amends 49 Pa. Code Chapter 13. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on June 25, 2010. At its August 5, 2010 public meeting, the Commission voted to disapprove the final-form regulation. On September 22, 2010, the Board resubmitted the final regulation without revision under Section 7(b) of the Regulatory Review Act (71 P. S. § 745.7(b)) along with its report to the Committees and the Commission.
This rulemaking is intended to clarify the consequences of failing to comply with the continuing education provisions in the Funeral Director Law (63 P. S. § 479.10(b)) and the Board's regulations (49 Pa. Code §§ 13.401—13.406). Both require a licensee to complete six hours of continuing education credits each biennium in order to qualify for license renewal. Under the amendments in this rulemaking, a licensee who has not completed the amount of continuing education credits may renew, subject to being issued a citation, paying a fine and making up the continuing education credits within six months.
We found on August 5, 2010, that the Board does not have the statutory authority to renew a license for an applicant who has not completed the statutorily mandated six hours of continuing education during the prior two-year license period. As explained below, this regulation does not meet the Regulatory Review Act criterion of statutory authority to promulgate the regulation. 71 P. S. § 745.5b.
In our comments issued July 1, 2009, on the proposed regulation, we stated:
. . . the Board should explain the status of a license between the end of a biennial period when a license would expire and the point in time a licensee provides satisfactory proof of attendance at continuing education courses.
The Board responded in the initial final regulation's Preamble:
Upon renewal of the license, the licensure status is the same as if the licensee had completed the entire continuing education requirement in a timely fashion. Only if the Board later takes disciplinary action, such as if the Board then suspends a license where the licensee still has not completed the required continuing education, would the licensure status change.
The Board's response indicated that the intent of the amended regulatory language, which would be 49 Pa. Code §§ 13.231(a) and 13.401(d), is to allow a renewal of a license when a licensee failed to attend the required six hours of mandatory continuing education during the license period.
Continuing education relating to license renewal is addressed in 63 P. S. § 479.10(b)(1) which states:
The Board shall adopt, promulgate and enforce rules and regulations consistent with provisions of this act establishing requirements of continuing education to be met by individuals licensed under this act as a condition for renewal of their licenses. . . . (Emphases added.)The only exceptions to the continuing education mandate in the statute are for initial licensure and waivers for ''serious illness, military service or other demonstrated hardship'' on a case by case basis. When a licensee does not meet either of these conditions, the applicant, ''as a condition of renewal of their license,'' is required to have attended ''six (6) hours of mandatory continuing education during each two-year license period.'' 63 P. S. §§ 479.10(b) (1) to (4).
In its report to the Committees and the Commission supporting its unrevised regulation, the Board cites two provisions of the Funeral Director Law. Specifically, the Board states the following:
The Board respectfully suggests that IRRC has misconstrued section 10(b) of the Funeral Director Law. While section 10(b)(2) requires licensees to complete mandatory continuing education during each two-year license period, section 10(b)(2) does not make completion of mandatory continuing education a condition of license renewal. Nor does section 10(b)(l) of the Funeral Director Law make completion of mandatory continuing education a condition of renewal. Instead, section 10(b)(l) makes compliance with the mandatory continuing education regulations promulgated by the Board a condition for renewal, and those regulations must be consistent with the provisions of the Funeral Director Law.The Board's interpretation would broaden its authority to write regulations regarding continuing education as a condition of license renewal by disregarding the bounds of the statutory phrase ''consistent with provisions of this act.'' We note that the immediately following statutory provision, 63 P. S. § 479.10(b)(2), states that ''licensees shall be required to attend six (6) hours of mandatory continuing education during each two-year period.'' Similarly, the Board raises its general rulemaking authority at 63 P. S. § 479.16(a), but again disregards its duty to write regulations ''not inconsistent with this act.''
While the Funeral Director Law grants the Board authority to write regulations regarding continuing education, we do not believe the Board's interpretation is correct in light of its statutory limits stated twice in the Funeral Director Law to write regulations ''consistent with provisions in this act'' and ''not inconsistent with this act'' found in 63 P. S. § 479.10(b)(1) and 63 P. S. § 479.16(a), respectively. Consequently, we have determined that the regulation remains inconsistent with the statutory authority of the Board (63 P. S. § 479.10(b)) and the intention of the General Assembly. Therefore, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
The regulation #16A-4814 (IRRC #2760) from the State Board of Funeral Directors—Continuing Education Enforcement was disapproved on October 21, 2010.
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Second Disapproval Order Public Meeting held
October 21, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq.
Department of State—
Bureau of Professional and Occupational Affairs—
Schedule of Civil Penalties—Funeral Directors and Funeral Establishments;
Regulation No. 16A-47 (#2761)On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Bureau of Professional and Occupational Affairs (Bureau). This rulemaking amends 49 Pa. Code § 43b.6. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on June 25, 2010. At its August 5, 2010 public meeting, the Commission voted to disapprovethe final-form regulation. On September 22, 2010 the Bureau resubmitted the final regulation without revision under Section 7(b) of the Regulatory Review Act (71 P. S. § 745.7(b)) along with its report to the Committees and the Commission.
This final regulation would establish a civil penalty schedule for violations of the continuing education requirements of the State Board of Funeral Directors (Board). This regulation is the companion piece to Regulation #16A-4818 (IRRC #2760) from the Board entitled: ''Continuing Education Enforcement.''
At the August 5, 2010 public meeting, Counsel for the Department of State represented that he was authorized to request disapproval given that the companion Regulation #16A-4818 (IRRC #2760) had been disapproved at the same public meeting. Without support from the promulgating Bureau, this Commission determined that the regulation did not meet the reasonableness criterion set forth in the Regulatory Review Act and was not in the public interest.
At the October 21, 2010 public meeting, the Commission disapproved Regulation #16A-4818 (IRRC #2760) for the second time. Without approval of Regulation #16A-4818 and since the Bureau made no changes to Regulation #16A-47 upon resubmittal, the Commission affirms its original finding that this regulation does not meet the reasonableness criterion set forth in the Regulatory Review Act and is not in the public interest.
By Order of the Commission:
The regulation #16A-47 (IRRC #2761) from the Bureau of Professional & Occupational Affairs—Schedule of Civil Penalties—Funeral Directors and Funeral Establishments was disapproved on October 21, 2010.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 10-2121. Filed for public inspection November 5, 2010, 9:00 a.m.]
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