NOTICES
INDEPENDENT REGULATORY
REVIEW COMMISSION
Actions Taken by the Commission
[54 Pa.B. 6075]
[Saturday, September 21, 2024]The Independent Regulatory Review Commission met publicly at 10 a.m., Wednesday, September 11, 2024, and announced the following:
Actions Taken—Recommendations Approved:
Department of Aging
• 6 Pa. Code Chapter 20 (relating to Family Caregiver Support Program); and
• 6 Pa. Code Chapter 21 (relating to Domiciliary Care Services for Adults).
Department of Corrections
• 37 Pa. Code Chapter 91 (relating to Administration);
• 37 Pa. Code Chapter 93 (relating to State Correctional Institutions and Facilities);
• 37 Pa. Code Chapter 94 (relating to Release and Prerelease Programs);
• 37 Pa. Code Chapter 95 (relating to County Correctional Institutions); and
• 37 Pa. Code Chapter 97 (relating to State Intermediate Punishment Drug Offender Treatment Program).
Department of Health
• 28 Pa. Code Chapter 5 (relating to Clinical Laboratories);
• 28 Pa. Code Part I, Chapter 30 (relating to Blood Banks);
• 28 Pa. Code Part III, Chapter 51 (relating to General Information);
• 28 Pa. Code Part III, Subpart A, Chapter 53 (relating to Photo Identification Badges);
• 28 Pa. Code Part IV, Subpart B, Chapters 101 to 158 (relating to General and Special Hospitals); and
• 28 Pa. Code Part IV, Subpart F, Chapters 551 to 573 (relating to Ambulatory Surgical Facilities).
Department of Labor and Industry
• 34 Pa. Code Chapter 5 (relating to Blasting, Demolition, Fireworks and Explosives);
• 34 Pa. Code Chapter 13, Subchapter B (relating to Propane and Liquefied Petroleum Gas, specifically Lead Corroding and Oxidizing);
• 34 Pa. Code Chapter 23, Subchapter B (relating to Laundering and Dyeing Establishments, specifically Dry Cleaning and Dyeing);
• 34 Pa. Code Chapter 31, Subchapter C (relating to Migrant Labor, specifically Seasonal Farm Labor);
• 34 Pa. Code Chapter 38 (relating to Building Energy Conservation Standards);
• 34 Pa. Code Chapter 47, Subchapter D (relating to Miscellaneous Provisions, specifically Facilities for Handicapped);
• 34 Pa. Code Chapter 60 (relating to Universal Accessibility Standards);
• Regulations issued under the General Safety Law (Act 174 of 1937);
• 34 Pa. Code Chapter 29, Subchapter F (relating to Mechanical Apparatus—Miscellaneous, specifically Abrasive Wheels);
• 34 Pa. Code Chapter 41, Subchapter B (relating to Sanitation, specifically Railroad Sanitation); and
• 34 Pa. Code Chapter 47, Subchapter K (relating to Miscellaneous Provisions, specifically Safety Glazing Material).
Department of State
• 4 Pa. Code—Campaign Finance Reports Filed on Diskettes; and
• 4 Pa. Code—Fees for Notary Services.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Aging—
Family Caregiver Support Program
6 Pa. Code Chapter 20The House Aging and Older Adult Services Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations in 6 Pa. Code, including:
• Chapter 20 Family Caregiver Support Program; and
• Chapter 21 Domiciliary Care Services for Adults.
This order addresses Chapter 20 which sets forth the rules governing the administration and operation of the Family Caregiver Support Program. The content of Chapter 20 includes general provisions, program administration, caregiver participation, core program services, and reimbursed services. The underlying statutory authority for Chapter 20 was updated by Act 20 of 2021 (Pennsylvania Caregiver Support Act) (Act 20), which was enacted on June 11, 2021.
The Department of Aging (Department) reviewed Chapter 20 and acknowledged that Act 20 updated the Chapter 20 requirements. The Department recommended the following sections be revised, modified or eliminated to align with Act 20:
• Section 20.2 Definitions;
• Section 20.12 Administrative Functions;
• Section 20.21 Eligibility;
• Section 20.22 Conditions of Participation;
• Section 20.23 Assessment and Care Management;
• Section 20.34 Caregiver Education and Training;
• Section 20.41 General Reimbursement;
• Section 20.43 Home Modifications; and
• Section 20.62 Waivers.
Although we appreciate the Department's willingness to modify the existing regulations, it has not provided a timeframe within which it intends to update the Chapter 20 regulations. Consequently, we find the above-listed sections of Chapter 20 are no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, economic impact and clarity. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 20 regulations to align with current state law and Department practices.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Aging—
Domiciliary Care Services for Adults
6 Pa. Code Chapter 21The House Aging and Older Adult Services Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations in 6 Pa. Code, including:
• Chapter 20 Family Caregiver Support Program; and
• Chapter 21 Domiciliary Care Services for Adults.
This order addresses Chapter 21 which establishes standards for domiciliary care services. The content of Chapter 21 includes: eligibility determination, certification and application processes; Department of Aging responsibilities; Area Agency on Aging responsibilities; provider rights and responsibilities; client rights and responsibilities; fair hearing and appeals; and other administrative provisions.
The Commission's review determined that since Chapter 21 became effective in 1990, there have been legislative amendments at both the state and federal levels that are not reflected in the existing Chapter 21 regulations. The amendments at the state level include Act 169 of 1996 (Older Adults Protective Services Act—Omnibus Amendments) and Act 13 of 1997 (Older Adults Protective Services—Amend). The federal amendments include the Older Americans Act of 1965 which was reauthorized in 1992, expired in 1996, and again reauthorized with amendments in 2000, 2006, 2016, and 2020.
The Department of Aging (Department) has reviewed the existing Chapter 21 regulations and determined that the following sections may need to be revised, modified or eliminated:
• Section 21.2 Definitions;
• Section 21.23 Application process for domiciliary care services and the domiciliary care supplement;
• Section 21.24 Redetermination of eligibility;
• Section 21.28 Provider application and home certification;
• Section 21.55 AAA placement activities;
• Section 21.61 Domiciliary care service's relationship to service management;
• Section 21.79 Fire and safety activities; and
• Section 21.82 Other provider responsibilities.
While we appreciate the Department's willingness to update the existing regulations, it has not provided a timeframe within which it intends to update the Chapter 21 regulations. Consequently, we find the above-listed sections of Chapter 21 are no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, economic impact, and clarity. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 21 regulations to align with current state and federal law and Department practices.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Aging—
Pharmaceutical Assistance Contract for the Elderly (PACE)
6 Pa. Code Chapter 22The House Aging and Older Adult Services Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations in 6 Pa. Code, including:
• Chapter 20 Family Caregiver Support Program;
• Chapter 21 Domiciliary Services for Adults; and
• Chapter 22 Pharmaceutical Assistance Contract for the Elderly (PACE).
This order addresses Chapter 22 which sets forth regulations governing the administration, provision, and receipt of prescription drug benefits available to older Pennsylvanians under the PACE Program.
The Department of Aging (Department) has reviewed Chapter 22 and determined that the PACE regulations remain relevant and continue to serve the administrative needs, including applicant and provider enrollment, claims adjudication, and appeals. The Department further notes that the underlying statutory authority for the regulations continues, and the regulations maintain consistency with the enabling legislation.
The Commission's review identified one issue regarding the definition of ''Act'' in Section 22.2. The definition cites a statute that was immediately repealed after the rulemaking became effective. The outdated definition in Section 22.2 states:
Act—The Pharmaceutical Assistance Contract for the Elderly Act (62 P.S. §§ 2901—2908).We find that the above-listed provision of Chapter 22 is no longer in the public interest under the RRA criteria of comments by the Committee and clarity. See 71 P.S. § 745.5b. This issue requires legislative action to correct. We, therefore, recommend that the General Assembly add a short title to the PACE Program statute to provide the Department with a consistent citation to its authority that does not change with future statutory amendments.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Corrections—
Administration
37 Pa. Code Chapter 91The House Judiciary Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Department of Corrections (Department) in 37 Pa. Code including:
• Chapter 91 Administration;
• Chapter 93 State Correctional Institutions and Facilities;
• Chapter 94 Release and Prerelease Programs;
• Chapter 95 County Correctional Institutions; and
• Chapter 97 State Intermediate Punishment Drug Offender Treatment Program.
This order addresses Chapter 91 which applies to an institution, motivational boot camp, or community corrections center operated or contracted by the Department. The content of Chapter 91 includes reception and discharge of inmates, catchment areas, and use of force and restraints.
Chapter 91 regulations identified by the Committee for the Commission's review include:
• No. 19-5 (# 2196) Administration and State Correctional Institutions and Facilities; and
• No. 19-6 (# 2403) Administration, State Correctional Facilities and Release and Prerelease Programs).
The Department has acknowledged the need to amend these regulations to address statutory changes resultingfrom Act 33 of 2009 (Act 33) and Act 59 of 2021 (Act 59), as well as litigation and policy changes that have occurred since the regulations were initially promulgated and is working towards making the necessary updates. However, given that the regulations listed above were finalized between the years of 2001 and 2005, we find that the delay in updating those regulations in Chapter 91 renders them no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, reasonableness, clarity, and economic impact. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 91 regulations to align with Act 33 and Act 59 as well as Department practices resulting from litigation and policy changes.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Corrections—
State Correctional Institutions and Facilities
37 Pa. Code Chapter 93The House Judiciary Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Department of Corrections (Department) in 37 Pa. Code including:
• Chapter 91 Administration;
• Chapter 93 State Correctional Institutions and Facilities;
• Chapter 94 Release and Prerelease Programs;
• Chapter 95 County Correctional Institutions; and
• Chapter 97 State Intermediate Punishment Drug Offender Treatment Program.
This order addresses Chapter 93 which applies to Department institutions and facilities. The content of Chapter 93 includes inmate rights and privileges and motivational boot camps.
Chapter 93 regulations identified by the Committee for the Commission's review include:
• No. 19-3 (# 2010) Motivational Boot Camps;
• No. 19-5 (# 2196) Administration and State Correctional Institutions and Facilities; and
• No. 19-6 (# 2403) Administration, State Correctional Facilities and Release and Prerelease Programs).
The regulation at 37 Pa. Code Subsection 93.12(e) contains fees that were specified in the regulation more than 15 years ago. This provisions states:
''The fee for any medical service in subsection (c) is $3. This amount will be increased to $4 on July 1, 2005, and $5 on July 1, 2007, except that an inmate is required to pay a fee equivalent to the total cost of medical services provided to another inmate as a result of the inmate's assaultive conduct.''
Given that the fees in Subsection 93.12(e) have been in place for over 15 years, we find that the above-listed fees contained in Chapter 93 are no longer in the public interest under the criteria of comments by the Committee, reasonableness and economic impact.
The Department has acknowledged the need to amend these regulations to address statutory changes resulting from Act 33 of 2009 (Act 33), Act 115 of 2019 (Act 115), and Act 59 of 2021 (Act 59), as well as litigation and policy changes that have occurred since the regulations were initially promulgated and is working towards making the necessary updates. However, given that the regulations listed above were finalized between the years of 2000 and 2005, and fees for medical services have been in place for over 15 years, we find that the delay in updating those regulations in Chapter 93 renders them no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, reasonableness, clarity, and economic impact. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 93 regulations to align with Act 33, Act 115 and Act 59 as well as Department practices resulting from litigation and policy changes.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Corrections—
Release and Prerelease Programs
37 Pa. Code Chapter 94The House Judiciary Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Department of Corrections (Department) in 37 Pa. Code including:
• Chapter 91 Administration;
• Chapter 93 State Correctional Institutions and Facilities;
• Chapter 94 Release and Prerelease Programs;
• Chapter 95 County Correctional Institutions; and
• Chapter 97 State Intermediate Punishment Drug Offender Treatment Program.
This order addresses Chapter 94 which applies to Department release and prerelease programs. The content of Chapter 94 includes prerelease programs and procedures for participating in such programs, application and notification processes, and staff responsibilities.
Chapter 94 regulations identified by the Committee for the Commission's review include:
• No. 19-5 (# 2196) Administration and State Correctional Institutions and Facilities; and
• No. 19-6 (# 2403) Administration, State Correctional Facilities and Release and Prerelease Programs).
The Department has acknowledged the need to amend these regulations to address statutory changes resulting from Act 33 of 2009 (Act 33) and Act 59 of 2021 (Act 59), as well as litigation and policy changes that have occurred since the regulations were initially promulgated and is working towards making the necessary updates. However, given that the regulations listed above were finalized between the years of 2000 and 2005, we find that the delay in updating those regulations in Chapter 94 renders them no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, reasonableness, clarity, and economic impact. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 94 regulations to align with Act 33 and Act 59 as well as Department practices resulting from litigation and policy changes.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Corrections—
County Correctional Institutions
37 Pa. Code Chapter 95The House Judiciary Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Department of Corrections (Department) in 37 Pa. Code including:
• Chapter 91 Administration;
• Chapter 93 State Correctional Institutions and Facilities;
• Chapter 94 Release and Prerelease Programs;
• Chapter 95 County Correctional Institutions; and
• Chapter 97 State Intermediate Punishment Drug Offender Treatment Program.
This order addresses Chapter 95 which applies to county correctional institutions. The content of Chapter 95 includes administrative standards, regulations and facilities, and grants to counties for prison construction.
Chapter 95 regulations identified by the Committee for the Commission's review include:
• No. 19-4 (# 2011) County Correctional Institutions; and
• No. 19-9 (# 2544) Correctional Institutions.
The Department has acknowledged the need to amend these regulations to address core correctional practices that have evolved since the regulations were initially promulgated and is working towards making the necessary updates. However, given that the regulations listed above were finalized between the years of 2000 and 2008, we find that the delay in updating those regulations in Chapter 95 renders them no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, reasonableness, clarity, and economic impact. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 95 regulations to align with correctional practices that have evolved since the regulations were initially published.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Corrections—
State Intermediate Punishment Drug Offender Treatment Program
37 Pa. Code Chapter 97The House Judiciary Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Department of Corrections (Department) in 37 Pa. Code including:
• Chapter 91 Administration;
• Chapter 93 State Correctional Institutions and Facilities;
• Chapter 94 Release and Prerelease Programs;
• Chapter 95 County Correctional Institutions; and
• Chapter 97 State Intermediate Punishment Drug Offender Treatment Program.
This order addresses Chapter 97 which applies to certain defendants convicted of drug-related offenses. The content of Chapter 97 includes commitment for assessment, assessment for addiction and other treatment needs, selection committee personnel and duties, selection criteria, program standards, program advancement and regression, community-based therapeutic community, outpatient addiction treatment facility, supervised reintegration into the community, treatment and disciplinary sanctions, suspension and expulsion from the program, and consent to disclosure of information.
The Chapter 97 regulation identified by the Committee for the Commission's review is:
• No. 19-9 (# 2590) State Intermediate Punishment.
The regulation at 37 Pa. Code Subsection 97.116(d)(3) contains a fee that was established more than 15 years ago. This provision states:
''A participant who is indigent as defined in Department policy DC-ADM 803, 'Inmate Mail and Incoming Publications,' will be afforded copy service and legal postage up to a maximum of $10 per month and all moneys received in the inmate's account shall be used to pay for the cost of the copies and legal postage. A nonindigent inmate will incur copying charges in accordance with Department policy 3.1.1, 'Fiscal Administration.''' Emphasis added.The Department has acknowledged the need to amend Chapter 97 to address statutory changes resulting from Act 115 of 2019 (Act 115) and programmatic changes that have occurred since the regulation was initially promulgated and is working towards making the necessary updates. However, given that the regulation listed above was finalized in 2008, and the monetary allowance for copy service and legal postage has been in place for over 15 years, we find that the delay in updating the regulation in Chapter 97 renders the regulation no longer in the public interest under the RRA criteria of statutory authority, legislative intent, comments by the Committee, reasonableness, clarity, and economic impact. See 71 P.S. § 745.5b. We recommend that the Department amend the Chapter 97 regulations to align with Act 115 and programmatic changes.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
Clinical Laboratories
28 Pa. Code Chapter 5The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapter 5 (Clinical Laboratories), which includes requirements for permits, personnel, physical facilities, procedures, records, quality control, ethical practice, and equipment to determine blood alcohol content. Chapter 5 was last amended in 1984.
Based upon this Commission's review of this regulation, the enabling statute and subsequent amendments, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of legislative intent, clarity, consistency with statutes, and comments by the Committee. See 71 P.S. § 745.5b. We recommend the Department amend Chapter 5 to address, at a minimum, the following issues:
1. Since Chapter 5 is based on and defines the Clinical Laboratory Improvement Amendments of 1967, it should be updated to reflect the Clinical Laboratory Improvement Amendments of 1988 or any subsequent legislation.
2. Section 5.1 (relating to definitions) defines ''Clinical Laboratories Improvement Act of 1967 (CLIA)—Section 353 of the act of July 1, 1944, Pub.L. No. 90-174 (42 U.S.C.A. § 263), and the regulations which apply thereto.'' The current standard is the CLIA of 1988 (not 1967). The citation to 42 U.S.C.A. § 263 should be 42 U.S.C.A. § 263a. Additionally, since this definition is used within Chapter 5 at Sections 5.41(c)(3) and 5.83, these provisions commensurately set an outdated standard.
3. The definition of ''Clinical Laboratory'' in Section 5.1 lacks clarity and is outdated, as written. The list of exceptions in Subparagraph (ii) has not been amended since 1984. It does not include any innovations since this definition was implemented.
4. Section 5.2. (relating to scope and exception), states ''[T]his chapter is applicable to all clinical laboratories operating within this Commonwealth. . .'' Whereas, amendments to the statute made by Act 122 of 2013, Section 3 apply ''. . .regardless of whether the person or clinical laboratory is located in this Commonwealth. . .'' Therefore, the scope Section 5.2 sets for Chapter 5 is not consistent with Act 122.
5. Subsection 5.11(b) includes the statutory $25 permit fee established by Act 389 of 1951 (35 P.S. § 2154). However, Act 389 of 1951 was repealed insofar as it establishes a fee that is inconsistent with the fees set forth in Act 48 of 1981. Regardless, the $25 fee in Subsection 5.11(b) is outdated.
6. Section 5.71 (relating to restrictions on solicitation) is outdated because it does not reflect the statutory amendments made by Section 3 of Act 122 which expanded upon unlawful conduct.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
Blood Banks
28 Pa. Code Chapter 30The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapter 30 which, as written, applies to all blood banks operating in Pennsylvania (except blood banks operated by the Federal government, or to any blood bank operated purely for research and teaching purposes, provided blood or blood products from such research or teaching are not injected into humans). The content of Chapter 30 includes requirements for licensing, fees, inspections, physical facilities, records, and compliance with federal law.
Based upon this Commission's review of this regulation, the enabling statute and subsequent amendments, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of clarity, consistency with statutes, and comments by the Committee. See 71 P.S. § 745.5b. We recommend the Department amend Chapter 30 to address, at a minimum, the following issues:
1. Subparagraph 30.30(7)(i) states: ''. . .The possible presence of the agent or viral hepatitis in donors cannot at present be detected with certainty by any available means. . .'' (Emphasis added.) The Hepatitis Screening Act (35 P.S. §§ 630.11—630.16), effective September 19, 2016, addresses testing and screening for Hepatitis C. The Hepatitis B Prevention Act (35 P.S. §§ 630.1—630.3), effective March 29 of 1996, requires a statewide program for Hepatitis B immunization relating to school aged children. The Centers for Disease Control and Infection website currently includes discussion of tests for Hepatitis (https://www.cdc.gov/hepatitis/abc/index.htm). Subsection 30.30(7)(i) needs to be updated accordingly.
2. Subparagraph 30.30(7)(ii) refers to the former United States Department of Health, Education, and Welfare. The regulation should be updated to the current name of the agency, which is the United States Department of Health and Human Services.
3. Subsection 30.32(c) refers to The Clinical Laboratory Act of 1951. 35 P.S. § 2151 specifies a short title of ''The Clinical Laboratory Act.'' The amended law is The Clinical Laboratory Act of 1988. The regulation should be updated accordingly.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
General Information
28 Pa. Code Chapter 51The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapter 51 which contains standards which are applicable to all entities licensed as health care facilities under the Health Care Facilities Act (HCFA). It also identifies specific health care services which are restricted to specified health care facilities.
In response to the Commission's request for information, the Department explained that pursuant to Act 95 of 1998, hospices are operating under the HCFA and under Federal law and regulations. The Department further explained that while Act 13 of 2002 abrogated 28 Pa. Code § 51.3(f) and (g) for a ''medical facility,'' Subsections (f) and (g) are still applicable to home healthcare agencies, hospices, and long-term care nursing facilities due to the broader definition in Section 802a of the HFCA. Thus, the reporting requirements in Subsections (f) and (g) are still applicable to home health care agencies, home care agencies, hospices, and long-term care nursing facilities. Finally, the Department acknowledged that Act 87 of 2022 abrogated 28 Pa. Code §§ 51.22 and 551.21 in part, to allow cardiac catheterization to be performed in outpatient settings as opposed to only in an acute care hospital.
Based upon this Commission's review of this regulation, the enabling statute and subsequent amendments, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of legislative intent, clarity, consistency with statutes, and comments by the Committee. See 71 P.S. § 745.5b. We recommend the Department amend Chapter 51 to address, at a minimum, the following issues:
1. Act 95 of 1998 amended the HCFA to include hospice services. Act 95 provided that hospice and hospice services established therein, including application fees and licensure requirements, should be directly in regulation. Accordingly, the regulation should be amended to include these services.
2. Act 13 of 2002 abrogated Subsections 51.3(f) and (g) (relating to notification) ''with respect to a medical facility upon the reporting of a serious event, incident or infrastructure failure pursuant to section 313.'' The regulation should specify the facilities Subsections (f) and (g) continue to apply to.
3. Act 87 of 2022 abrogated Section 51.22. (relating to cardiac catheterization) and Section 551.21 (relating to criteria for ambulatory surgery) insofar as they are inconsistent with Section 822 of the HCFA. The regulation should be amended to reflect the Department's specific interpretation of Act 87.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
Photo Identification Badges
28 Pa. Code Chapter 53The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapter 53 which contains photo identification badge standards that apply to all entities licensed as health care facilities and the private practice of a physician. Chapter 53 was adopted as an interim regulation pursuant to Section 809.2(b) of Act 110 of 2010 (Act 110), which amended the Health Care Facilities Act (HCFA). 35 P.S. § 448.80-9b. The interim regulation was effective December 10, 2011, and expired 18 months following the effective date.
The Department explains that the requirements for photo identification badges are set forth by statute in Section 809.2 of the HCFA. However, it acknowledges that interim Chapter 53 has expired. The Department also explains that Act 79 of 2022 (Act 79), effective July 11, 2022, provides the Department with two years to implement the statutory amendments to Section 809.2(a)(1) and (e). To date, the Department has not met the timeframe specified by Act 79.
Based upon this Commission's review of this regulation, the enabling statute, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, need, reasonableness, and comments by the Committee. See 71 P.S. § 745.5. To avoid any possibility of confusion, we recommend the Department amend or repeal Chapter 53 to comply with Act 110 and Act 79.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
General and Special Hospitals
28 Pa. Code Part IV, Subpart B, Chapters 101 to 158The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapters 101 to 158 of Part IV, Subpart B ''which applies to all general and special hospitals within this Commonwealth except those hospitals operated by the United States. Chapters 101 through 158 include 32 chapters that address a broad range of topics, including governance and management, admission and discharge, medical staff, as well as nursing services, pharmacy services, emergency services, surgical services, neonatal services, and many other services. The majority of the chapters, 26 of them, were last amended in the 1980s, three were amended in the 1990s, and a single chapter was amended in 2008.
Based upon this Commission's review of this regulation, the enabling statute, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, economic impact, need, reasonableness, clarity, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department amend the regulation to address, at a minimum, the following outdated provisions:
1. Section 101.4 (relating to Definitions) defines the terms ''May'' and ''Must.'' These definitions are not needed because Section 6.7 of the Pennsylvania Code and Bulletin Style Manual already specifies how they are to be used and their meaning. Further, the regulation's definition of ''must'' as synonymous with ''shall'' is inconsistent with the Pennsylvania Code and Bulletin Style Manual.
2. In section 101.4 (relating to Definitions), the term ''Sexual assault'' is defined by reference to 18 Pa.C.S. Chapter 31, Subchapter B (relating to definition of offenses) and includes two exceptions. The definition should be updated to exclude additional offenses from the definition of ''sexual assault'' for purposes of the regulation. For example, § 3131 (relating to unlawful dissemination of intimate image) and § 3133 (relating to sexual extortion) should also be considered for exclusion.
3. Section 101.63 refers to both the current Department of Environmental Protection and ''DER.'' This provision should be updated.
4. Section 101.151 refers to the Department of Public Welfare. This provision should be updated to the Department of Human Services.
5. Under Section 101.181, all of the fees but one fee referred to in 35 P.S. § 448.807 were established by Act 179 of 1992. The ''Home care agency or home care registry'' fee was established by Act 69 of 2006. The Department should approach the legislature for changes to these statutory fees to better reflect inflation and the Department's costs.
6. Subparagraph 107.12(14)(iii) refers to ''the Medical Practice Act of 1974 (63 P.S. §§ 421.1—421.18) (Repealed).'' This provision needs to be updated.
7. The statement of policy in Section 107.12a Specified professional personnel regarding the status of Certified Registered Nurse Practitioners, Physician Assistants, and Certified Nurse Midwife should be updated and directly integrated into the regulation.
8. Section 109.7 refers to the State Board of Nurse Examiners. This is currently the State Board of Nursing.
9. Section 115.15 cross references 7 Pa. Code by stating ''. . .regulations of the Department of Environmental Resources, set forth in 7 Pa. Code §§ 78.21—78.24, 78.31 and 78.32 (Reserved). . . .'' However, 7 Pa. Code Chapter 78 has been deleted.
10. Section 111.25 references 7 Pa. Code §§ 78.41—78.43 (Reserved), which has been deleted.
11. Section 111.26 references 7 Pa. Code §§ 78.61—78.65 (Reserved), which has been deleted.
12. Section 113.30 requires that if the administration suspects mishandling of drugs, it shall contact the Bureau of Drugs of the Office of Attorney General. This should be updated, presumably to the Attorney General ''Bureau of Narcotics Investigation and Drug Control.''
13. Section 115.24, relating to microfilm medical records, should be updated to recognize and address newer technologies.
14. Section 125.14 states the remains of a deceased patient shall not be removed. . .until a physician. . .has pronounced death. . .'' This provision should be updated to recognize other professions that can pronounce a death, including Certified Registered Nurse Practitioners and Professional Nurses. (Act 68 of 2012 and 35 P.S. § 450.507.)
15. In Paragraph 137.21(b)(8), the reference to 35 P.S. § 621 should be rewritten to include that the referenced law was enacted in 1965 and has since been amended in 1992 (P.L. 398, No. 86).
16. In Subsection 137.24(e), the reference to 35 P.S. §§ 351—353 should be rewritten to reflect that this law was updated in 1943 by P.L. 650, No. 286.
17. The cross reference in Section 147.1 to ''Department of Environmental Protection in 25 Pa. Code Chapter 173 (Reserved)'' should be updated.
18. Subsection 155.8(e) refers to the ''Mental Health Procedures Act of 1976 (50 P.S. §§ 7101—7503).'' Since the entire Act is referenced, it is not clear what ''Bill of Rights'' must be used to comply with Subsection 155.8(e).
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Health—
Ambulatory Surgical Facilities
28 Pa. Code Part IV, Subpart F, Chapters 551 to 573The House Health Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Health (Department) in 28 Pa. Code (relating to Health and Safety). These regulations include:
• Chapter 5 Clinical Laboratories;
• Chapter 30 Blood Banks;
• Chapter 51 General Information;
• Chapter 53 Photo Identification Badges;
• Part IV, Subpart B General and Special Hospitals, encompassing Chapters 101 to 158; and
• Part IV, Subpart F Ambulatory Surgical Facilities, encompassing Chapters 551 to 573.
This Order addresses Chapters 551 to 573 of Part IV, Subpart F which applies to outpatient surgical hospitals. It includes 11 chapters covering topics that include ownership, medical staff, quality assurance, nursing services, and medical records. Subpart F was established in 1987. The 11 chapters were last amended in 1999.
Based upon this Commission's review of this regulation, the enabling statute, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, economic impact, need, reasonableness, clarity, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department amend the regulation to address, at a minimum, the following outdated provisions:
1. The definition of ''Act'' in Section 551.3 is outdated. The current HCFA is 35 P.S. §§ 448.101 to 448.904b.
2. The definition of ''Dentist'' in Section 551.3 is outdated. At 49 Pa. Code § 33.1, the State Board of Dentistry defines ''Act'' as ''The Dental Law (63 P.S. §§ 120—130i). . .''
3. The definition of Nurse practitioner in Section 551.3 is inconsistent with The Professional Nurse Law (63 P.S. § 212) and the State Board of Nursing (49 Pa. Code § 21.251), which both define the term ''Certified registered nurse practitioner.''
4. Section 551.21 in the Pa. Code includes a note that ''Under section 2 of the act of July 11, 2022 (P.L. 1575, No. 87), the provisions of § 551.21 are abrogated insofar as they are inconsistent with section 822 of the HCFA (35 P.S. § 448.822)).'' Consequently, both Sections 551.21 and 551.22 should be updated to reflect the Department's specific interpretation of Act 87.
5. In Paragraph 553.12(b)(9), the citation to the Health Care Services Malpractice Act (40 P.S. § 1301.103) needs to be updated. The provision cited was repealed by Act 13 of 2002.
6. In Section 561.15, the cross reference to 49 Pa. Code § 27.16(b)(4) needs to be corrected to 27.16(b)(3).
7. Section 561.26 requires, upon suspicion of mishandling drugs, that the administration contact the Bureau of Drugs of the Office of Attorney General. This should be updated, presumably to the Attorney General ''Bureau of Narcotics Investigation and Drug Control.''
8. Section 563.7, relating to microfilm medical records, should be updated to recognize and address newer technologies.
9. Subsections 567.33(c) and 567.51(a) should be updated to refer to the Department of Environmental Protection.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Blasting, Demolition, Fireworks and Explosives
34 Pa. Code Chapter 5The House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapter 5 which applies to blasting, demolition, fireworks, and explosives. Chapter 5 was last amended in 1969.
The Department is not currently enforcing Chapter 5 due to authority for Subchapter A being transferred to the Department of Environmental Resources (now the Department of Environmental Protection or DEP) under 71 P.S. § 751-35 in 1981. The statutory authority cited in the Pennsylvania Code for Subchapters B, C, and D is Act 174 of 1937. Act 174 was partially repealed by Act 147 of 1971, and subsequently affected by Reorganization Plan No. 2 of 1975. Any requirements in Chapter 5 that are not consistent with DEP's regulations, the Uniform Construction Code (UCC), and federal regulations can only serve to cause confusion and impose unnecessary costs.
Based upon this Commission's review of this regulation, the enabling statute, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, economic impact, protection of the public safety, duplication of existing regulations, need, reasonableness, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department repeal Chapter 5 to the extent it is not consistent with the enabling statute, DEP regulations, the UCC, and applicable federal regulations.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Elevators, Lifts, Escalators, Dumbwaiters,
Hoists and Tramways
34 Pa. Code Chapter 7The House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapter 7 which applies to elevators, lifts, escalators, dumbwaiters, hoists, and tramways. Chapter 7 was last amended in 1980.
According to the Department, Chapter 7 remains in effect for equipment installed prior to 2004 and functions as a complement to Chapter 405 under the Uniform Construction Code (UCC). Section 7.2 (Scope) provides:
This chapter sets forth rules to safeguard the lives, limbs, maintenance and health of workers involved in the installation, operation and maintenance of elevators, lifts, escalators, dumbwaiters, hoists and tramways in this Commonwealth, and places the responsibility of compliance with the rules upon both employer and employe.34 Pa. Code § 7.2.
As written, Section 7.2 is no longer clear regarding what it applies to and is inconsistent with the Department's response to our review.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of economic impact, clarity, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department amend Chapter 7 to clarify that it only applies to equipment installed prior to the effective dates specified in Chapter 450 of the UCC.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Propane and Liquefied Petroleum Gas; Lead Corroding and Oxidizing
34 Pa. Code Chapter 13, Subchapter BThe House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapter 13 (Propane and Liquefied Petroleum Gas) and Subchapter B (Lead Corroding and Oxidizing). These regulations were last amended in 1977.
The Department explains, ''Although these regulations no longer apply to private sector workplaces pursuant to the federal Occupational Safety and Health Act (OSHA), they retain ongoing applicability in the event of issues arising in public sector workplaces.'' This explanation represents a change in the applicability of Chapter 13, Subchapter B that is not in regulation.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of economic impact, clarity, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department amend Sections 13.2 (Scope) and 13.131 (Purpose) to reflect the Department's response that Chapter 13, Subchapter B only applies to workplaces not regulated by OSHA.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Laundering and Dyeing Establishment; Lead Corroding and Oxidizing
34 Pa. Code Chapter 23, Subchapter BThe House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapter 23 (Laundering and Dyeing Establishments), Subchapter B (Dry Cleaning and Dyeing). These were last amended in 1968. The authority for Subchapter B, as printed in the Pennsylvania Code, states, ''The provisions of this Subchapter B issued under the Dry Cleaning and Dyeing Law (35 P.S. §§ 1269.19) (Repealed), unless otherwise noted.'' (Emphasis added.)
The Department explains, ''Although these regulations no longer apply to private sector workplaces pursuant to the federal Occupational Safety and Health Act (OSHA), they retain ongoing applicability in the event of issues arising in public sector workplaces.'' The Department does not cite any other statutory authority. Furthermore, Section 23.72 (Scope) does not reflect the limited applicability of Subchapter B as explained by the Department.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, economic impact, clarity, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department amend Section 23.72 to reflect the limited applicability of Chapter 23, Subchapter B.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Migrant Labor; Seasonal Farm Labor
34 Pa. Code Chapter 31, Subchapter CThe House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapter 31 (Migrant Labor), Subchapter C (Seasonal Farm Labor). These regulations were last amended in 1979. The authority for Subchapter C, as printed in the Pennsylvania Code, states, ''The provisions of this Subchapter C issued under act of May 2, 1929 (P.L. 1518, No. 452) (35 P.S. §§ 341—1356), unless otherwise noted.''
The Committee expressed concern that the Pennsylvania Code incorrectly cites Act 452 of 1929. The Department explained that its jurisdiction and authority is under the Seasonal Farm Labor Act. Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is still in the public interest under the RRA. See 71 P.S. § 745.5. Our recommendation is for the Department to correct the citation in the Pennsylvania Code through the Legislative Reference Bureau to avoid confusion.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Building Energy Conservation Standards; Miscellaneous Provisions, Facilities for the Handicapped; and Universal Accessibility Standards
34 Pa. Code Chapter 38; Chapter 47, Subchapter D; and Chapter 60The House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses Chapters 38 (Building Energy Conservation Standards), Chapter 47 (Miscellaneous Provisions), Subchapter D (Facilities for Handicapped), and 60 (Universal Accessibility Standards). These regulations were last amended in 1982, 1971, and 1994, respectively.
The authority for these regulations has been repealed and superseded by the Uniform Construction Code.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of statutory authority, legislative intent, and comments and objections of the Committee. See 71 P.S. § 745.5. We recommend the Department repeal Chapters 38, 47, and 60 through the rulemaking process.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Regulations Issued Under the General Safety Law
(Act 174 of 1937)
34 Pa. Code Part I, Chapters 1—60The House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 5 Blasting, Demolition, Fireworks and Explosives;
• Chapter 7 Elevators, Lifts, Escalators, Dumbwaiters, Hoists and Tramways;
• Chapter 13 Propane and Liquefied Petroleum Gas, Subchapter B Lead Corroding and Oxidizing;
• Chapter 23 Laundering and Dyeing Establishments, Subchapter B Dry Cleaning and Dyeing;
• Chapter 31 Migrant Labor, Subchapter C Seasonal Farm Labor;
• Chapter 38 Building Energy Conservation Standards;
• Chapter 47 Miscellaneous Provisions, Subchapter D Facilities for Handicapped;
• Chapter 60 Universal Accessibility Standards; and
• Regulations issued under the General Safety Law (Act 174 of 1937), citing a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60).
This Order addresses regulations promulgated under the General Safety Law (Act 174 of 1937). The committee cited a list of 25 chapters and subchapters under 34 Pa. Code Part I (Chapters 1 to 60) to be considered for repeal or modernization. The most recent amendments for some of these regulations go back as far as 1966; the latest is 1980.
The Department acknowledged that most, if not all, of these regulations should be repealed or amended. Specifically:
1. Chapter 27 (Lighting) because the subject matter is also regulated under the Uniform Construction Code (UCC).
2. Chapter 47 (Miscellaneous Provisions) and its Subchapters B (Cereal Mills, Malthouses and Grain Elevators), E (Foundries), and I (Textile Industries) because of the federal Occupational Safety and Health Administration Act (OSHA).
3. The following regulatory provisions retain applicability to public sector workplaces but no longer apply to the private sector pursuant to OSHA:
a. Chapter 6 Construction and Repairs;
b. Chapter 19 Industries—Food and Drink;
c. Chapter 21 Ladders
d. Chapter 23 Laundering and Dyeing Establishments;
e. Chapter 25 Lifting and Carrying Apparatus;
f. Chapter 29 Mechanical Apparatus—Miscellaneous;
g. Chapter 35 Paints;
h. Chapter 39 Safety Standards—General;
i. Chapter 41 Sanitation;
j. Chapter 43 Tunnel Construction and Compressed Air Work;
k. Chapter 45 Woodworking and Related Operations; and
l. Chapter 47 Miscellaneous Provisions, Subchapters C Dry Color Industry, F Printing and Related Industries, G Railings, Toeboards, Open-Sided Floors, Platforms and Runways, and J Window Cleaning).
All of these chapters have at least one section addressing scope, purpose, or applicability that is not consistent with the Department's response that they now only apply to public sector workplaces.
Based upon this Commission's review of these regulations, information provided by the Department, and concerns raised by the Committee, we find these regulations are no longer in the public interest under the RRA criteria of legislative intent, economic impact, clarity, need, reasonableness, and comments and objections raised by the Committee. See 71 P.S. § 745.5. We recommend the Department repeal these regulations or amend them to update and clarify the proper regulated community to align with state and corresponding federal law to avoid confusion.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of Labor and Industry—
Abrasive Wheels, Railroad Sanitation, and Safety Glazing Material
34 Pa. Code Chapter 29, Subchapter F; Chapter 41, Subchapter B; and Chapter 47, Subchapter KThe House Labor and Industry (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of existing regulations of the Pennsylvania Department of Labor and Industry (Department) in 34 Pa. Code (relating to Labor and Industry). These regulations include:
• Chapter 29 Mechanical Apparatus—Miscellaneous, Subchapter F Abrasive Wheels;
• Chapter 41 Sanitation, Subchapter B Railroad Sanitation; and
• Chapter 47 Miscellaneous Provisions, Subchapter K Safety Glazing Material.
This Order addresses regulations promulgated under Chapter 29, Subchapter F; Chapter 41, Subchapter B; and Chapter 47, Subchapter K. Chapter 41 was last amended in 1968 and Chapter 47 was amended in 1979. The Pennsylvania Code does not specify when Subchapter F was last amended but its sole section (§ 29.231 Reference to national standards) references standards last amended in 1971.
The Department explained that the federal Occupational Safety and Health Act (OSHA) preempted Chapters 29 and 41 for private workplaces and narrowed the scope of the regulations to public sector workplaces. Additionally, the U.S Department of Labor's regulations, most recently amended in 2018, govern the use of abrasive wheels found in Chapter 29 of the Department's regulations.
The Department also acknowledged that the federal Consumer Protection and Safety Act preempts part of Chapter 47, Subchapter K. Accordingly, these regulations can be amended to reflect these changes. Chapter 27 (Lighting) because the subject matter is also regulated under the Uniform Construction Code (UCC).
Based upon this Commission's review of these regulations, information provided by the Department, and concerns raised by the Committee, we find these regulations are no longer in the public interest under the RRA criteria of legislative intent, economic impact, clarity, need, reasonableness, and comments and objections raised by the Committee. See 71 P.S. § 745.5. We recommend the Department repeal these regulations or amend them to update and clarify the proper regulated community, to align with state and corresponding federal law, and to avoid unnecessary duplication and confusion.
____
Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairperson; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of State—
Campaign Finance Reports Filed on Diskettes
4 Pa. CodeThe House State Government Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of regulations of the Pennsylvania Department of State (Department) in 4 Pa. Code (relating to Administration). The Committee provided three categories of concern: Committee substantive concerns, repealed regulations, and requests for additional information that is not on IRRC's website. The Committee's substantive concerns were raised in the following regulations:
• IRRC # 2100 (# 16-22) Campaign Finance Reports Filed on Diskettes; and
• IRRC # 2407 (# 16-33) Fees for Notary Service.
This Order addresses IRRC #2100, which updated references to the official Campaign Finance Reporting Forms and added a provision for reports to be filed on diskette. This regulation was approved by the Commission in 2000 and can be found in 4 Pa. Code Chapter 177 (Reports by Candidates, Political Committees and other Persons). The Committee stated this regulation may be outdated by requiring the filing of campaign fliers on diskettes. The requirement provides:
The Department also accepts campaign finance reports on diskette in lieu of a paper report as long as it meets the technical specifications of the Department and is accompanied by a cover page and signed affidavit. This information can be obtained by accessing the Department's website at www.dos.state.pa.us or contacting the Bureau at (717) 787-5280. Act 73 of 2013, as amended in 2016 Act 73 of 2013, as amended in 2016.4 Pa. Code § 177.9(d).
The Department agreed this requirement is outdated and stated it will explore future revisions as it continues its review of the campaign finance regulations. This Commission also notes that the requirement is inconsistent with the Department guidance on its website, which allows reports to be filed online.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of reasonableness, need, and comments by the Committee. See 71 P.S. § 745.5. We recommend the Department revise 4 Pa. Code § 177.9(d) to align with current technologies and practices.
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Order Public Meeting Held
September 11, 2024Commissioners Voting: George D. Bedwick, Chairperson; John F. Mizner, Esq., Vice Chairpesron; John J. Soroko, Esq.; Murray Ufberg, Esq.; Dennis A. Watson, Esq.
Department of State—
Fees for Notary Services
4 Pa. CodeThe House State Government Committee (Committee) submitted a letter to the Independent Regulatory Review Commission (Commission) requesting review under Section 8.1 of the Regulatory Review Act (RRA) (71 P.S. § 745.8a) of regulations of the Pennsylvania Department of State (Department) in 4 Pa. Code (relating to Administration). The Committee provided three categories of concern: Committee substantive concerns, repealed regulations, and requests for additional information that is not on IRRC's website. The Committee's substantive concerns were raised in the following regulations:
• IRRC # 2100 (# 16-22) Campaign Finance Reports Filed on Diskettes; and
• IRRC # 2407 (# 16-33) Fees for Notary Service.
This Order addresses IRRC # 2407, which provided for notary service fees. This regulation was effective in 2005. Since that time, Act 97 of 2020 (Act 97) was passed to provide ''for authority to perform notarial act, providing for notarial act performed for remotely located individual and further providing for notification regarding performance of notarial act on electronic record and selection of technology.'' The Committee expressed concern that this regulation is outdated and does not ''account for the implementation and impact of the enactment of remote notarization'' in Act 97.
The Department acknowledges this regulation should be updated to implement Act 97, as well as Act 73 of 2013, as amended in 2016, also known as the Revised Uniform Law on Notarial Acts (RULONA). The Department explains it is in the process of addressing these issues and that future RULONA regulations will repeal and replace the content of IRRC # 2407.
Based upon this Commission's review of this regulation, information provided by the Department, and concerns raised by the Committee, we find the regulation is no longer in the public interest under the RRA criteria of legislative intent, economic impact, reasonableness, need, and comments by the Committee. 8 See 71 P.S. § 745.5. We recommend the Department revise or repeal this regulation to align with current state law.
GEORGE D. BEDWICK,
Chairperson
[Pa.B. Doc. No. 24-1362. Filed for public inspection September 20, 2024, 9:00 a.m.]
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