NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Actions Taken by the Commission

[27 Pa.B. 1215]

   The Independent Regulatory Review Commission met publicly at 11 a.m., Thursday, February 20, 1997, and took the following actions:

Regulations Approved:

   Department of Transportation # 18-318: Prequalification of Bidders (amends 67 Pa. Code Chapter 457)

   Department of Agriculture # 2-106:  Tuberculosis and Brucellosis Testing and Documentation Requirements for Cattle, Goats and Bison (amends 7 Pa. Code Chapters 3, 5, 7, 8 and 9)

Regulations Disapproved:

   Department of Education # 6-255:  Community College Courses (amends 22 Pa. Code Chapter 335)

Regulations Deemed Approved Under § 5(b.3) of the Regulatory Review Act--Effective February 19, 1997:

   Department of Agriculture # 2-95:  Noxious Weeds (amends 7 Pa. Code Chapter 110)

Commissioners Present:  John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
February 20, 1997

Department of Transportation--Prequalification of Bidders; Doc. No. 18-318

Order

   On February 16, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Transportation (Department). This rulemaking would amend certain provisions of 67 Pa. Code Chapter 457 relating to the prequalification of bidders. The amendments are proposed under the authority of section 404.1 of the State Highway Law, as amended (36 P. S. § 670-404.1). The proposed regulation was published in the March 2, 1996 edition of the Pennsylvania Bulletin, with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 30, 1997.

   Chapter 457 of 67 Pa. Code sets forth detailed procedures and requirements for evaluating the capacity and qualifications of prospective bidders (for example, contractors) seeking to perform highway project work in Pennsylvania under contract with the Department. Updating the procedures will assure efficient operation of the contract program for highway projects, minimize delays in awarding contracts after bids are opened, and, overall, assure the integrity and competency of bidders. This regulation incorporates provisions of the Contractor Responsibility Program contained in the Governor's Management Directive 215.9 (of July 17, 1990). Its updating incorporates much needed modifications agreed upon by the Department and the Associated Pennsylvania Constructors Association (APC).

   Under the definitions section (section 457.1), the definition of ''bidder'' has been deleted and replaced by definitions of ''contractor'' and ''subcontractor'' to reflect that subcontractors are now separately prequalified. The term ''debarment'' refers to action by the Department to prohibit a contractor, subcontractor, or individual from contracting with or participating in contracts with the Department for a specified period of time. This is distinguished from ''suspension,'' which is a temporary prohibition of up to 3 months (but which may be extended) pending the completion of an investigation. Suspension could lead to debarment or legal proceedings.

   Amendments are proposed under section 457.3 (General requirements) to streamline the application processing of bids. Section 457.3(d) is amended to provide rules governing a prime contractor's prequalification. Prequalification will last for 2 years (up from the current 1 year) where applicants have complied with the option to furnish statements under oath (under section 457.4(a)(5)). This latter change is designed to reduce paperwork by about 50%.

   Currently, no time extensions of prequalifications are permitted under section 457.3(d)(3). This has been changed to allow a 30-day extension on a current prequalification if the renewal certificate has not been issued prior to its scheduled expiration in cases where the renewal application had been applied for and the applicant is otherwise in good standing. This will allow contractors to have standing to continue bidding until the new certificate is issued.

   Section 457.3(h) would be amended to require out-of-State contractors to designate a resident agent in Pennsylvania. Under section 457.3(i), the Department's Prequalification Office must retain the contractor's and subcontractor's prequalification forms and related files for at least 3 years beyond the expiration of the certificate. This could prove useful for comparing an applicant's past prequalification with its current application.

   A new subsection (j) to section 457.3 deals with subsidiaries. It provides for the issuance of umbrella prequalification certificates to a parent company and as many as three of its subsidiaries/divisions. This could be done by the filing of a single application and a combined financial statement. Presently, individual certificates are issued to each individual company based on its own credentials.

   Amendments to section 457.4 would reduce some of the required paperwork and establish more stringent provisions relating to the contractor's financial health and financial statements. Under section 457.5, the Department proposes to amend some of the various categories of classification codes which the Department uses to classify contractors and subcontractors. The codes establish the type of work an applicant will be eligible to bid upon given the applicant's experience and financial capacity qualifications.

   During the proposed rulemaking phase, the Department proposed to raise the limit of those contractors classified as of ''unlimited financial capacity'' from $100 million to $500 million (in section 457.7(f)(1)). However, the Department provided no history of problems or overextension by any of the 71 contractors with unlimited capacity to justify this proposed change.

   The only commentator (other than the Commission) on the proposed rulemaking, the Associated Pennsylvania Constructors (APC), asserted that this proposed, new higher maximum level may restrict competition and increase costs to the Commonwealth. The APC also pointed out that marketplace forces impose the necessary protective effects:  bonding companies are vigilant at these higher commitment levels and do not permit contractors to accept more work than they can adequately perform. After reviewing the issue, we concurred with the APC; we objected to the increase unless the Department could provide justification for it. In the final-form regulation, the Department went back to the current $100 million figure.

   In response to another recommendation in the Commission's Comments on the proposed version of this rulemaking, the Department has amended section 457.10(b) to provide that the Past Performance Report shall include valuation of a contractor's attitude and cooperation, equipment, organization and management, scheduling (for example, ability to complete previous projects on time), and work performance. This report, along with other information, is used to determine the past performance rating of the contractor as well as the classification of the contractor. Poor or unsatisfactory ratings for specific work classifications can result in the revocation of classifications previously granted.

   A new section 457.16(b) would prohibit subletting any part of highway construction work under the terms of a contract to any contractor or subcontractor who is suspended, debarred or otherwise disqualified from bidding on, or participating in, such construction work. Section 457.17 requires contractors to notify the Prequalification Office within 30 days of a corporate or affiliate change, or a reduction of more than 20% of their maximum capacity rating, or both, as well as changes in certain required information. A failure to do so may result in suspension.

   This regulation affects all persons, businesses and organizations, including prime contractors and subcontractors, who perform work for prime contractors and who bid on construction work through the Department. Approximately 1,200 firms submit prequalification applications on an annual basis. These rulemaking changes will provide uniform, consistent and compatible application of the suspension/debarment process of contractors on a Statewide basis. It will also ease the paperwork burden on contractors and the Department.

   These amendments will not have any cost impacts (because there are no increased costs) or impose additional reporting or recordkeeping requirements on the Commonwealth, local governments or the private sector. The Department estimates that reporting and recordkeeping requirements on affected parties will be reduced by about 50%. These amendments will accomplish that primarily by extending the expiration date of Prequalification Certificates from 1 year to 2 years, thereby reducing by half the submission of required documentation and paperwork. Similarly, applicants for ''prime contractor'' status will only be required to submit audited financial statements every 2 years instead of every year.

   Other benefits of these amendments include a provision that the Department will accept a Review Financial Statement in lieu of an audited financial statement from applicants whose net working capital does not exceed $50,000. The change will benefit small firms by making it easier for them to be prequalified as prime contractors.

   This rulemaking continues the option of allowing an applicant to be considered eligible to perform work only as a subcontractor. This option eliminates the requirement for such an applicant to submit an audited financial statement to satisfy the Contractor's Financial Statement.

   We have reviewed this regulation and find it to be in the public interest. We believe these amendments will update and improve the Department's requirements for prequalification of bidders and reduce attendant paperwork and costs. Additionally, Commonwealth drivers and the safety of public roadways will benefit from more stringent qualifications for contractors hired to do contract road repair or construction. These amendments should help reduce the disruptions and problems resulting from contractors being financially unable to proceed with their work.

Therefore, It Is Ordered That:

   1.  Regulation No. 18-318 from the Department of Transportation, as submitted to the Commission on January 30, 1997, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
February 20, 1997

Department of Agriculture--Tuberculosis and Brucellosis Testing and Documentation Requirements for Cattle, Goats and Bison; Doc. No. 2-106

Order

   On July 31, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking would amend certain provision of 7 Pa. Code Chapters 3, 5, 7, 8 and 9 relating to tuberculosis and brucellosis testing. The amendments are proposed under the authority of section 1702 of the act of April 9, 1929 (P. L. 177, No. 175) (71 P. S. § 442) and sections 2, 3 and 9 of the act of April 17, 1929 (P. L. 553) (3 P. S. §§ 342, 343 and 349). The former requires the Department to take measures to prevent, control and eradicate diseases in animals. The latter requires the Department to identify and regulate animals with dangerous transmissible diseases and, inter alia, quarantine them or restrict their transportation into or within this Commonwealth. The proposed regulation was published in the August 10, 1996 edition of the Pennsylvania Bulletin, with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 29, 1997.

   Under current regulation, producers of cattle, goats and bison must test for tuberculosis and brucellosis and, in order to ship these animals within Pennsylvania and in interstate commerce, be able to document on a health certificate that they are disease-free. That is because when these diseases are present, they are dangerous and transmissible to other animals and to humans.

   The Department proposes to delete the universal testing and documentation requirements in the regulation as no longer necessary because tuberculosis and brucellosis have been eliminated in cattle, goats and bison in 36 states, including Pennsylvania. The diseases are very rare in the remainder of the United States and there is a Nationwide trend to reduce or eliminate tuberculosis and brucellosis testing requirements.

   While there is some slight risk that tuberculosis or brucellosis may occur, the Department has determined that its other ongoing disease monitoring efforts and the Federal requirements governing interstate shipping of cattle, goats and bison are adequate to detect, isolate and eradicate any outbreaks of tuberculosis and brucellosis in these animals in Pennsylvania. In addition, the Department and the United States Department of Agriculture (USDA) maintain surveillance and emergency preparedness on numerous foreign animal diseases which, although not found in this Commonwealth or the remainder of the United States, pose a real and constant threat to animal health.

   These amendments will facilitate Pennsylvania intrastate commerce of cattle, goats and bison, and allow the Department to redirect its resources to other threats to animal health such as pseudorabies, rabies, pullorum, influenza and others. No new requirements will be imposed.

   The specific areas of the regulation affected by the proposed deletions in testing and documentation requirements are:  Chapter 3 (relating to the health requirements for importation and intrastate transportation of animals); Chapter 5 (relating to animal markets); Chapter 7 (relating to brucellosis-free certifications); and Chapter 9 (relating to control and eradication of tuberculosis of livestock).

   The proposed revisions to section 3.151 would require diseased or contaminated cattle, goats and bison that are to be moved within Pennsylvania, as well as animals used for exhibition, to be identified by an official ear tag or other unique identification device approved and recorded by the Department. Under section 3.151(a), no new identification requirements will be imposed on feeder cattle, spayed heifers, and cattle going directly to slaughter. Such animals will be exempt form identification requirements unless they are diseased, contaminated or shipped for exhibition purposes. The practical effect of the proposed amendments would be to limit the health testing requirements for tuberculosis and brucellosis in animals moved within the Commonwealth and no longer require a Pennsylvania health certificate for every animal.

   The Department also proposes to amend section 9.34, relating to milk for human or animal consumption, to delete the requirement that pasteurized milk for human or animal consumption originate from a herd that was tuberculin-tested within the last 5 years. This requirement has been deemed unnecessary because pasteurization kills any tuberculosis virus present in milk. However, raw (unpasteurized) milk for human or animal consumption would have to come from a herd that was tuberculin-tested within the previous year. If tuberculosis or brucellosis reoccurs, restrictions would be imposed on the disposition of animals and products (milk and meat) originating from exposed herds.

   These amendments will decrease the documentation, paperwork and cost currently incurred by the Commonwealth's cattle, bison and goat producers under the present regulation. The Department estimates that those producers will be the primary beneficiaries of these changes, in the aggregate amount of $687,777 for each of the next 5 fiscal years. The Department bases that figure upon 1996 figures for health charts ($271,665), brucellosis tests ($200,000) and tuberculosis tests ($216,112). These changes, conversely, will likely decrease the income of licensed practitioners of veterinary medicine who have performed tuberculosis and brucellosis testing required under the Department's current regulation.

   The Department also estimates that it will save approximately $14,500 in each of the next 5 fiscal years as a result of not having to acquire forms and ear tags for cattle, bison and goats, shipped intrastate, to meet the current regulation's testing requirements for tuberculosis and brucellosis. The Department also projects this rulemaking will enable it to reduce its administrative requirements as well as the time spent by regional office field staff in ensuring compliance with current testing and documentation requirements. This rulemaking will not impact local governments.

   Representative Raymond Bunt, Jr., Majority Chairperson of the House Agriculture and Rural Affairs Committee (House Committee), advised the Commission in a letter that on February 5, 1997, the House Committee met and its members agreed with the Chairperson's recommendation that the Commission approve this final-form regulations.

   The following parties commented on the proposed version of this rulemaking:  the House Committee; Representative Sheila Miller, a member of the House Committee; a private citizen; and this Commission.

   The Department met with more than 10 interested industry producer groups prior to publishing the proposed version of these amendments for public comment. The Department also spoke with the Pennsylvania Livestock Association in September 1996, and they had no concerns with the proposed amendments.

   In response to commentators' comments, including the Commission's, the Department amended sections 3.151, 9.5 and 9.6 of the final-form regulation to use the term ''bison'' throughout in place of the word ''buffalo.'' The Department also stated that it plans a systematic updating of its animal health regulation over the next 2 years to carry out its responsibilities under the Domestic Animal Law (3 Pa.C.S. § 2323(a)) (to update identification standards for domestic animals) and it will use the term ''bison'' throughout that revised regulation. We commend the Department for its intention to further revise and update its entire animal health regulation.

   In response to the Commission's recommendation, the Department revised and clarified the Preamble to the final-form regulation to explain that section 3.151(a) will remain as proposed because the language gives the Department the necessary discretionary latitude to carry out its responsibilities (under the Domestic Animal Law) to establish animal identification standards. While an ear tag may be used to identify a diseased/contaminated animal under section 3.151, the Department believes the proposed language will also allow it to approve the use of newer, superior electronic forms of identification as they come into use. Section 3.151(a) allows the Department to approve and record--but not mandate--animal identification devices other than ear tags.

   The Department also stated that the amended section 3.151(a) will not impose a new identification requirement on feeder cattle, spayed heifers and cattle going directly to slaughter. Such animals will continue to be exempt from identification requirements unless they are diseased, contaminated or shipped for exhibition purposes.

   The Department also agreed to consider our suggested changes to sections 7.4 and 9.4 in connection with the planned extensive revisions to its animal health regulations necessitated by the Domestic Animal Law.

   We have reviewed this regulation and find it to be in the public interest. Given the absence of tuberculosis and brucellosis in animals in Pennsylvania for the past 15 years, and the Department and USDA requirements which maintain surveillance and emergency preparedness on those and numerous other animal diseases, the changes proposed in this rulemaking are appropriate. They will also result in cost savings for cattle, goat and bison producers. Currently, producers must test all animals for tuberculosis and brucellosis diseases and, in order to ship these animals within Pennsylvania and in interstate commerce, be able to document on a health certificate that they are disease-free.

Therefore, It Is Ordered That:

   1.  Regulation No. 2-106 from the Department of Agriculture, as submitted to the Commission on January 29, 1997, is approved; and

   2.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau.

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
February 20, 1997

Department of Education--Community College Courses; Doc. No. 6-255

Order

   On October 19, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Education (Department). This rulemaking would amend 22 Pa. Code Chapter 335 under the authority of section 1913-A of the Public School Code of 1949 (act) (24 P. S. § 19-191333- A(b)(1.2)). The proposed regulation was published in the October 29, 1994 Pennsylvania Bulletin with an 86-day public comment period. The final-form regulation was submitted to the Commission on January 27, 1997.

   On June 7, 1993, the act was amended to require the Secretary of Education, in consultation with the community colleges, to promulgate standards for credit and noncredit courses that will be eligible for reimbursement by the Commonwealth. The act further requires that the standards should specifically exclude from eligibility for reimbursement any course or program in avocational or recreational pursuits.

   The standards in this regulation will provide assurance that Commonwealth funding of community college operating expenses goes to support instruction which is consistent with the statutory defined mission of these institutions. Community college operating expenses are shared between the Commonwealth, the local sponsor and students (through tuition). The act specifically requires that programs and curricula of community colleges are to further the objectives of industrial development, reduce unemployment and improve the employability skills of area residents. Although community colleges also offer courses related to leisure time pursuits, hobbies and individual enrichment subjects, such courses do not meet program requirements specified under the act and are therefore specifically excluded from Commonwealth reimbursement.

   The regulation proposed by the Department of Education (Department) establishes the criteria credit and noncredit courses must meet in order for the courses to be eligible for reimbursement. Many of the criteria, such as those relating to course approval, course structure and course outlines, were drawn from existing policies or practices at community colleges. Others were developed specifically to make a clear distinction between credit and noncredit courses. The proposed regulation also establishes an implementation schedule and describes the documentation required of the colleges to verify that their courses meet the standards.

   Because the act mandates that courses or programs in avocational or recreational pursuits are not to be reimbursed by the Commonwealth, the Department defines the terms ''courses or programs in avocational pursuits'' and ''courses or programs in recreational pursuits'' in the regulation. The term ''avocational pursuits'' is defined as courses or programs designed to provide enrollees with skills or knowledge to be used in an activity which is subordinate to their current or their planned future customary employment. The term ''recreational pursuits'' is defined as courses or programs designed to provide enrollees with diversion or distraction from workaday routines.

   Comments were filed on the proposed regulation by the House and Senate Education Committees, Reading Area Community College, Montgomery County Community College, Luzerne County Community College and Plum Borough Senior Citizens' Center.

   The House Education Committee met on February 5, 1997, and voted unanimously to approve the final-form rulemaking. The Senate Education Committee chairperson, by letter dated February 10, 1997, expressed two concerns with the final-form regulation. First, he recommended that section 335.31 in the final-form regulation be amended to make it clear that the standards would apply to all new courses. Second, he recommended that implementation of these standards be integrated with other requirements of the Department.

   The Department made significant amendments to the regulation in response to comments received from the House and Senate Education Committees, this Commission and others. The Department moved the definitions for several terms to a new subsection devoted to definitions at the beginning of Subchapter A and adopted recommended changes to the definition of ''noncredit courses'' in Subchapter C to eliminate extraneous terms and clarify vagueness.

   The Department agreed to revise the implementation date and also noted in the final-form regulation that beginning with fiscal year 1999-2000, and for each fiscal year thereafter, credit and noncredit courses shall meet the applicable standards under Chapter 335.

   The Department changed the format of section 335.42 in order to simplify wording and to achieve parallel construction in the description of requirements relating to the preparation and maintenance of course outlines. The Department also included a determinate period of time for the retention of course evaluations, program audits, college catalogs and faculty records.

   Despite all of these changes, the Department acknowledged at our public meeting that the concern of the Senate Education Committee Chairperson should be addressed prior to final adoption. Since the Regulatory Review Act does not permit an agency to amend a final- form regulation after it has been submitted to the Commission, the Department requested that we disapprove the regulation so that the Department could incorporate the Senate Education Committee Chairperson's suggested clarification. Section 335.31 provides in part:

   Beginning July 1, 1997 to be eligible for reimbursement by the Commonwealth, each new credit course for Fiscal Year 1997-98 shall meet the standards in Subchapters A and B . . . (emphasis added).

   The Senate Education Committee Chairperson suggested that this provision should apply for all new courses, regardless of whether they are started in the 1997-98 fiscal year or a subsequent fiscal year. We agree with the Senate Education Committee Chairperson's suggestion and urge the Department to promptly resubmit a revised regulation.

Therefore, It Is Ordered That:

   1.  Regulation No. 6-255 from the Department of Education, as submitted to the Commission on January 27, 1997, is disapproved; and

   2.  The Department of Education shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;

   3.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and

   4.  This Order constitutes a bar to final publication of Regulation No. 6-255 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman

Public meeting held
February 20, 1997

Department of Agriculture--Noxious Weeds; Doc. No. 2- 95

Order

   On March 27, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Agriculture (Department). This rulemaking would amend 7 Pa. Code Chapter 110 by deleting one plant from the noxious weed control list and adding another plant to the list. The authority for this regulation is contained in section 3(b) of the Noxious Weed Control Law (3 P. S. § 255.3(b)). The proposed regulation was published in the April 6, 1996 edition of the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on January 29, 1997.

   The Noxious Weed Control Law (Law) was established to help control plants determined to have an adverse affect on waterways or whose growth results in the killing of other necessary plants. The Law established a minimum number of plants to be contained on the Noxious Weed Control List and established the Noxious Weed Control Committee (Committee) which has the authority to add other plants it determines are noxious weeds.

   In March of 1986, the Committee held a public meeting to determine if Cichorium intybus, commonly referred to as either chicory, succory or blue daisy, should be deleted from the Noxious Weed Control List. From this public hearing, it was determined that Cichorium intybus has a great potential as a forage crop and some farmers have shown an interest in growing this plant. However, the Cichorium intybus was listed in the Law as a noxious weed and the Department needed to work with the General Assembly to delete this plant from the Law. In 1994, the General Assembly amended the Law by deleting the Cichorium intybus as a noxious weed. Therefore, the Department is deleting the Cichorium intybus from its regulations to be consistent with the 1994 amendment.

   On June 13, 1994, the Committee held a public hearing to consider adding Lythrum salicaria, commonly referred to as Purple Loosestrife, to the Noxious Weed Control List. The Lythrum salicaria is a wetland plant indigenous to Europe and Asia. Once this plant has established itself in a wetland area, it crowds out other native plants which are sources of food for species found in the wetland. If the Lythrum salicaria forms a significant mass, it can dry up a wetland resulting in destruction of this important environmental habitat. Therefore, the Committee decided to add this plant to the Noxious Weed Control List.

   On February 6, 1997, we received a letter from Representative Raymond Bunt, Chairperson of the House Agricultural and Rural Affairs Committee, indicating that the Committee had no opposition to the rulemaking and recommended its adoption.

   The final-form regulation contains no changes from the proposed regulation. We did not file any comments on the proposed regulation. Furthermore, we did not receive any negative recommendations on the final-form regulation from the Senate or House Agricultural and Rural Affairs Committees.

Therefore:

   The Commission will notify the Legislative Reference Bureau that Regulation No. 2-95 from the Department of Agriculture, as submitted to the Commission on January 29, 1997, was deemed approved under section 5(b.3) of the Regulatory Review Act (71 P. S. § 745.5(b.3)) on February 19, 1997.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 97-378. Filed for public inspection March 7, 1997, 9:00 a.m.]

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