NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[54 Pa.B. 5444]
[Saturday, August 24, 2024]

 Section 5(g) of the Regulatory Review Act (71 P.S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b).

 The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRRC Comments Issued
6-354	State Board of Education Academic Standards and Assessment 54 Pa.B. 3353 (June 15, 2024)	07/15/24	08/14/24
2-194	Department of Agriculture Milk Sanitation 54 Pa.B. 3318 (June 15, 2024)	07/15/24	08/14/24

State Board of Education Regulation # 6-354
(IRRC # 3404)

Academic Standards and Assessment

August 14, 2024

 We submit for your consideration the following comments on the proposed rulemaking published in the June 15, 2024 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P.S. § 745.5b). Section 5.1(a) of the RRA (71 P.S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.

1. Legislative Comments.

 Representatives Gleim, D'Orsie, and Scialabba, minority members of the House Education Committee, expressed concerns and objections to several of the provisions in the proposed regulations. Many of their concerns were with the content of specific substrands in Appendix C-1 (Academic Standards for Economics), Appendix D-1 (Academic Standards for Family and Consumer Sciences), Appendix E-1 (Academic Standards for Career Education and Work), and Appendix F (Academic Standards for Personal Finance). Some of the objections and recommendations raised by House members include that:

 • Labor unions be removed as an example of a nongovernmental economic institution (Nongovernmental organizations Standards 6.4.6-8.F and 6.4.9-12.F);

 • A clear connection be made between the fundamental economic term of scarcity and the price of goods and services (Scarcity Standards 6.1.3-5.C, 6.1.6-8.C, 6.1.9-12.C); (Economic Choice Standards 6.1.6-8.D, 6.1.9-12.D); and (Supply and demand Standards 6.2.3-5.D, 6.2.6-8.D and 6.2.9-12.D);

 • Price controls mandated by the government are not an example of promoting free markets (Monopolies Standard 6.2.9-12.C);

 • Certain Economics standards equate government growth with private sector growth. It is suggested that standards be revised to present an analysis that government may use savings from spending cuts to then also cut taxes (Economic indicators Standard 6.3.9-12.A); (Fiscal Policy Standards 6.3.6-8.C and 6.3.9-12C); and (Economic Role of Government Standards 6.3.6-8.G and 6.3.9-12.G);

 • Certain Career Education and Work standards may present individuals with intellectual disabilities with a significant disadvantage when assessed under the proposed standards. (Oral and written communication Standards 13.2.K-2.B, 13.2.3-5.B, 13.2.6-8.B and 13.2.9-12.B); and

 • The phrase ''behavioral biases'' be clarified in the final standards (Financial mindset and behaviors Standards 17.1.6-8.D and 17.1.9-12.D) and (Investing risk tolerance Standard 17.4.9-12.K).

 The House members also recommended an amendment to clarify Section 4.21(e)(8) (regarding elementary education planned instruction for career education). They believe that the provision would be improved by deleting the phrase ''social-emotional learning'' and replacing it with ''interpersonal skills.'' Interpersonal skills are generally considered a broader category that incorporates social-emotional skills along with other practical communication and interaction abilities.

 Comments were also received from Senator Lindsey Williams, Minority Chair of the Senate Education Committee, acknowledging the deliberative process under taken by the Board to develop the standards. The lawmaker emphasized the importance of providing financial education to all students, including those with disabilities. She stated that students with disabilities can and do meet academic standards. She further noted that a student's Individualized Education Program is the appropriate mechanism to establish accommodations and set personalized goals that allow the student to make progress towards those standards. The legislator believes this also is consistent with the language in Act 35 of 2023 (Act 35).

 Her remarks also encouraged the Academic Standards Committee to consider the feedback from the Pennsylvania Association of the Education of Young Children (PENNAEYC) and Trying Together and explore including early child/K-2 educators as an example of a potential career pathway as they develop the final rulemaking.

 Under the RRA, the comments, objections, or recommendations of a committee and written comments submitted by current members of the General Assembly are two of the criteria the Commission must consider when determining if a regulation is in the public interest. When this proposal is delivered as a final-form regulation to this Commission and the standing committees for review, we will review the Board's responses to the issues raised by the legislators in determining whether the rulemaking is in the public interest.

2. Fiscal impact.

 In response to Regulatory Analysis Form (RAF) # 20, which asks the promulgating agency to provide a specific estimate of the costs and or savings to the local government (in this case school entities) associated with compliance, the Board states:

''. . .Act 35 requires school entities to offer a half credit course in personal financial literacy aligned with personal finance standards in Chapter 4 and requires all students in Pennsylvania to complete the course during grade 9, 10, 11, or 12. Act 35 further directed the Board to review and, as necessary, update the existing standards for CEW, ECON, and FCS. As such, costs related to the implementation of the standards updates in this proposed rulemaking are responsive to the requirements established by the General Assembly in Act 35.'' (Emphasis added.)

 The Board's response does not specifically address the costs and or savings incurred by school districts to provide the planned instruction that is aligned to the new academic standards for Personal Finance at the high school level. Act 35 directs the Department of Education (Department) to clarify which certifications are necessary to qualify an educator to provide instruction in personal financial literacy. It is further tasked with reviewing its certification and staffing policy guidelines and revising, if necessary, to implement Act 35. An educator who is assigned to provide this instruction may not bear any costs related to earning an add-on certification necessary to provide the required instruction. §§ 24 P.S. 1551 (b.1)(4) and (5)(ii).

 Has the Department revised the certification and staffing guidelines to implement Act 35? If so, what is the fiscal impact of these changes, if any, on school entities? Will school entities need to hire additional personnel or pay for coursework for add-on certifications that may be needed to qualify educators to teach such courses? The Board should revise the Preamble and the RAF to the final regulation by providing a specific estimate of the costs and or savings to school entities to comply with this rulemaking.

Department of Agriculture Regulation # 2-194 (IRRC # 3405)

Milk Sanitation

August 14, 2024

 The Independent Regulatory Review Commission (Commission) submits for your consideration the following comments on the proposed rulemaking published in the June 15, 2024 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (RRA) (71 P.S. § 745.5b). Section 5.1(a) of the RRA (71 P.S. § 745.5a(a)) directs the Department of Agriculture (Department) to respond to all comments received from us or any other source.

1. Section 59a.2. Definitions.—Statutory authority; Clarity.

 The definition of ''Grade ''A'' PMO or PMO'' states that it will be ''[t]he most current revision of the Grade ''A'' Pasteurized Milk Ordinance and its appendices, as published by the United States Department of Health and Human Services, Public Health Service and the [United States Food and Drug Administration.'' The phrase ''most current revision'' is unclear. Is the Department referencing the revision current as of the date that the regulation takes effect, or is the Department intending to automatically adopt future revisions? If it is the former, we ask the Department to clarify which specific revision is to be used to define Grade ''A'' PMO. If it is the latter, we ask the Department to explain how this delegation of authority is lawful.

 Additionally, we ask the Department to combine subsections (b) and (c) into one paragraph.

2. Section 59a.5. Standards for Pennsylvania-approved dairy laboratories, official laboratories and other laboratories; reports of results.—Clarity.

Subsection (a)

 This subsection provides for general laboratory standards. Under paragraph (a)(4) (regarding alternate laboratory methods), the Department may evaluate and approve alternative laboratory sampling or testing standards and procedures concerning bacteriological analysis of milk, milk products, and manufactured dairy products as necessary and publish such approved methods in the Pennsylvania Bulletin. We ask the Department to amend the final regulation to clarify that the approved alternate laboratory methods also will be available on the Department's website.

Subsection (b)

 This subsection addresses laboratory reports. Paragraph (b)(3) states that the Department, through publication in the Pennsylvania Bulletin, may specify the format in which laboratories must submit test results. We ask the Department to clarify its intent regarding publishing the formatting requirements. Does the Department intend to publish the formatting requirements along with the final regulation? If so, we ask the Department to include the formatting requirements as an appendix or addendum to the final regulation. Additionally, we ask the Department to publish any formatting requirements on its website.

3. Section 59a.6. Approved sampler and weigher/sampler.—Statutory authority; Protection of the public, health, safety, and welfare; Reasonableness.

 This new section provides for a person to apply to be certified as an approved sampler or a weigher/sampler.

Subsection (c)

 This subsection establishes the criteria for approval of certification. Paragraph (c)(3) states that ''[t]he Department may modify criteria for approval to be consistent with provisions of the Grade ''A'' PMO, in particular Appendix B (relating to milk sampling, hauling and transportation), which specifies the required training and periodic evaluation of samplers and weighers/samplers.'' (Emphasis added.) We have two issues with this proposed language. First, we ask the Department to explain in the preamble to the final rulemaking how it is lawful to change the qualifications for approval in the manner set forth in this paragraph. Second, the phrase ''in particular'' is non-regulatory language and we ask the Department to either delete or clarify the language.

Subsection (e)

 This subsection provides for the duration and renewal of certificates. The provision states that a certificate expires as of January 1 of each calendar year. A commenter asks the Department to align with the Grade ''A'' Pasteurized Milk Ordinance (Grade ''A'' PMO), making the length of a certificate two years. We ask the Department to explain why the length of time for the certificate of an approved sampler or weigher/sampler provided in the final regulation is reasonable and protects the public health, safety, and welfare. Additionally, if this standard is more stringent that the federal standards, we ask the Department to revise the final preamble and Regulatory Analysis Form (RAF) to address the need for a more stringent requirement and the impact on the regulated community.

 Paragraph (e)(1) states that a person may ''[a]pply or reapply by December 31 of the calendar year preceding the year for which certification is requested.'' Is this a sufficient and reasonable timeframe for the Department to approve a person to work as an approved sampler or weigher/sampler beginning on January 1?

4. Section 59a.12. Permits.—Clarity; Implementation procedures.

 Subsection (b) provides for exceptions from the permit requirement of subsection (a), which states, ''A person may not sell milk, milk products or manufactured dairy products within this Commonwealth without having a current, valid permit from the Secretary, unless the person is exempt from this permit requirement under subsection (b).'' The proposed regulation amends the exemption in paragraph (b)(5) to read, ''A person producing and selling milk from a single cow. The registration shall be renewed every 2 years.'' (Emphasis added.) This last sentence does not seem to apply to this provision. We ask the Department to delete the last sentence in paragraph (b)(5) or clarify this provision in the final regulation.

5. Section 59a.110. Somatic cell count.—Protection of the public health, safety, and welfare; Reasonableness.

 In subsection (c), the Department proposes to reduce the somatic cells per millimeter from 750,000 to 500,000 for goat/sheep milk. In the preamble, the Department states that this change is requested by the regulated community. Further, the Department explains that ''the industry is already requiring these lower counts from the producers: the lower somatic cell counts make the milk easier to pasteurize and process and help to ensure a safer raw milk product.'' However, Dairy Farmers of America opposes the reduced limits for somatic cell count per millimeter and asserts that this proposed standard is inconsistent with the Grade ''A'' PMO. Another commenter also asserts that these standards should be the same as the Grade ''A'' PMO. We ask the Department to explain in the preamble how the somatic cells per millimeter in the final regulation protects the public health, safety, and welfare. If the standard for somatic cells per millimeter in the final regulation differs from the Grade ''A'' PMO, we ask the Department to explain the reasonableness of this provision in the preamble to the final regulation. Additionally, if this standard is more stringent than the federal standards, we ask the Department to revise the final preamble and RAF to address the need for a more stringent requirement and the impact on the regulated community.

6. Subchapter F. Raw milk for human consumption.—Reasonableness.

 We received comments asking for the expansion of permitted raw milk products and comments opposing raw milk product sales entirely and opposing specifically the expansion of permits for raw butter. In the preamble, the Department explains that the issuance of an additional raw milk butter permit to raw milk permitholders is ''in response to the industry-driven initiative to provide more raw milk products.'' We ask the Department to explain in the preamble to the final regulation how it determined that it is reasonable to expand permitting for raw butter and only raw butter.

7. Section 59a.402. Raw milk; prohibitions.—Reasonableness.

 The Department proposes to add to subsection (a) the following provision: ''The term ''sell'' also includes selling, exchanging or delivering to a consumer who is a member of a ''buyer's club,'' cow herd share agreement or other type of membership purchasing group.'' A commenter opposes this change, stating that buyer's clubs' farmers have been exempt. Have buyer's clubs' farmers been exempt from the definition of sell? If so, we ask the Department to explain the reasonableness of including buyer's clubs in the definition of ''sell'' in this provision and to revise the final preamble and RAF to address any impacts on the regulated community.

8. Compliance with the provisions of the RRA or the regulations of the Commission in promulgating the regulation.

 Section 5.2 of the RRA directs the Commission to determine whether a regulation is in the public interest. 71 P.S. § 745.5b. In making this determination, the Commission reviews the information a promulgating agency is required to provide in the Regulatory Analysis Form (RAF) pursuant to Section 5(a) of the RRA. 71 P.S. § 745.5(a).

 RAF Question # 22 asks the promulgating agency to submit a statement of legal, accounting or consulting procedures and additional reporting, recordkeeping or other paperwork, including copies of forms or reports, which will be required of the regulated community and local and state governments for implementation of the regulation and an explanation of measures which have been taken to minimize these requirements. The Department did not provide a response to this question in the proposed regulation. We ask the Department to include this information in the final regulatory package.

GEORGE D. BEDWICK, 
Chairperson

[Pa.B. Doc. No. 24-1188. Filed for public inspection August 23, 2024, 9:00 a.m.]

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