INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[30 Pa.B. 286]
Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Commission may issue comments within 10 days of the close of the committee comment period. The Commission comments are based upon the criteria contained in section 5a(h) and (i) of the act (75 P. S. § 745.5a(h)(i)).
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 regulations must be submitted by the dates indicated.
Reg. No. Agency/Title Issued Deadline
18-349 Department of
Practice and Pro-
12/23/99 11/22/01 (October Pa.B. 5515, (October 23, 1999)) 16A-422 State Board of Ex-
12/23/99 11/22/01 (29 Pa.B. 5521 (October 23, 1999))
Department of Transportation Regulation
Administrative Practice and Procedure;
December 23, 1999
We have reviewed this proposed regulation from the Department of Transportation (Department) and submit for consideration the following objections and recommendations. Subsections 5.1(h) and 5.1(i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ in determining whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to reasonableness, need and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.
Interested parties and other participants and party[ies]
In several sections, the phrase ''interested parties and other participants'' has been replaced with the term ''parties.'' Other sections retain this phrase. With respect to notice requirements, why has the scope of the regulation been reduced to ''parties''? How will this change affect the Department's current practices? Also, will this change result in a person with an interest in a proceeding not receiving notice of that proceeding?
Unless the Department has a valid reason for retaining the phrase ''interested party[ies] and other participants,'' this phrase should be deleted, and the term ''part[ies]'' should be used consistently throughout the regulation. Finally, the term ''party'' should be defined in section 491.2.
2. Section 491.2. Definitions.--Clarity.
Office of the agency
The phrase ''upon which commencement of process is made upon the Secretary'' is unclear. The Department should incorporate the first sentence of section 491.4(c) in this definition.
3. Section 491.2a. Separation of adjudicatory function from representation of the Department.--Need; Clarity.
Subsection (b) Ex Parte discussions
Subsection (c) Prohibited discussions with employes
Both of these subsections convey prohibitions, but do so with inconsistent verbs. Subsection (b) uses ''no'' in conjunction with ''may,'' and subsection (c) uses ''will not.'' For conformity with the Legislative Reference Bureau's Style Manual, both sections should use ''may not.''
The word ''likewise,'' which begins subsection (c), should be deleted because it is not clear what that term relates to.
Subsection (d) Designation by Chief Counsel and Secretary
For the same reason discussed above, ''prohibited from participating'' should be replaced with ''may not participate.'' Similarly, ''should designate'' should be replaced with ''shall designate.''
4. Section 491.3. Request for hearing.--Reasonableness; Clarity.
Subsection (a) Content
We have two concerns with this subsection. First, it does not require that the party requesting the hearing provide an address at which documents may be served. This requirement should be added to the final-form regulation.
Second, paragraph (3) uses the phrase ''gives rise for the occasion of the appeal.'' For clarity, the Department should consider more direct language, such as ''is the subject of the appeal.''
Subsection (b) Timeliness of petition for hearing
We have two concerns with this subsection. First, the beginning point of the 30-day period referenced in paragraph (b)(1) is unclear. That period begins with the Department's ''determination.'' However, the period referenced in subparagraph (2)(i) begins on the mailing date of the Department's letter. The beginning of the time period referenced in these paragraphs should be consistent and should begin on the date of mailing (which is the date of service under the General Rules, 1 Pa. Code § 33.34) of the Department's determination.
Second, subparagraph 2(ii) should only become operative in instances where the Department's notice was either not mailed or misdirected, so that the party did not receive it. Only in that case, should the date of actual or constructive notice begin the 30-day period.
Subsection (c) Determination of insufficiency
Subsection (c) does not explain what kind of deficiency will lead to a matter being closed, thereby depriving the filing party of any opportunity for relief. Also, it does not provide any opportunity for a party to correct a deficiency. We recommend that the Department clarify what type of deficiencies are correctable and consider allowing a filing party a period of time to correct a deficiency.
Subsection (d) Department's request for clarification of the issues
Subsection (d) allows the Department to request clarification of the issue giving rise to the appeal, but does not specify the time period within which clarification must be provided. The final-form regulation should provide how long a party has to respond to a request for clarification of the issues.
5. Section 491.4. Institution of proceedings.--Clarity.
Subsection (c) Docket clerks designated office of the agency/timely filings
The last sentence of this subsection provides that the date of receipt at the office of the agency--not the date of deposit in the mails--is determinative for timely filing purposes. This sentence should be relocated to the preceding section as a new paragraph (c). Alternatively, ''date of filing'' could be defined as the date of receipt at the office of the agency in section 491.2 (relating to definitions).
6. Section 491.6. Notice and conduct of hearing.--Clarity.
Subsection (a) Written notification to parties
The Department should explain how the interest of a person entitled to notice under 67 Pa. Code Chapter 441 will be protected if notice is not given. In the final-form regulation, the Department should clarify whether notice to a party in interest will be effective from the time the party receives actual notice of the matter, or from the time the party should have known of the matter.
Subsection (d) Intervention
The underlying premise of the subsection (d)(1) rule is that a person knows or should have known about the hearing matter, but unduly delayed beyond the deadline in filing their petition to intervene. However, the regulation does not indicate what the time frame for intervention is, or when the deadline for intervention occurs. Under 1 Pa. Code § 35.30, the deadline for intervention is published in the Pennsylvania Bulletin. The Rules of Civil Procedure provide that intervention is allowed during the pendency of a matter (Pa.R.C.P., Rule 2327). The Department should examine both approaches and establish an allotment of time or deadline. Without any indication of the allowable window for intervention, it is not possible to determine if a petition to intervene has been unduly delayed.
Is subparagraph (2)(ii) properly titled ''Supersedeas,'' or should it be titled ''Supplementation''? It appears that ''Supplementation'' is the appropriate heading.
Subsection (g) Request for a stay or supersedeas
The caption of this subsection implies that there is a difference between the terms ''stay'' and ''supersedeas.'' Black's Law Dictionary indicates that these terms are used synonymously. If there is a difference between these two terms within the context of the Department's procedures, the Department should indicate what that difference is. Otherwise, the Department should use one term consistently and define that term in section 491.2 (relating to definitions).
7. Section 491.7. Filing requirements.--Reasonableness; Clarity.
Subsection (b) Telefacsimile and electronic transmission not accepted
This subsection adds a prohibition on electronic filing of documents to the existing prohibition on telefacsimile filings. Why does the Department prohibit the telefacsimile and electronic transmission of documents?
8. Section 491.9. Order to show cause.--Clarity.
Subsection (b) Notification to respondent
Subsection (b) states in part: ''the docket clerk will forward a copy of the order to the respondent.'' The term ''forward'' is vague and potentially confusing. For greater clarity, the Department should replace ''forward'' with the term ''serve.''
Subsection (e) Notification to parties
Subsection (f) Scheduling of hearing
Subsection (g) Waiver
These subsections refer to ''parties.'' In a proceeding on an order to show cause, what other parties are involved besides the respondent? If there are none, the term ''parties'' should be replaced with ''respondent.''
State Board of Barber Examiners Regulation
December 23, 1999
We have reviewed this proposed regulation from the State Board of Barber Examiners (Board) and submit for consideration the following objections and recommendations. Subsections 5.1(h) and 5.1(i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, need and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.
1. Section 3.103. Fees--Fiscal Impact, Need and Clarity.
Administrative overhead costs.
In the proposed regulation's fee report forms, there are significant differences in the costs covered by different fees except for ''Administrative Overhead'' costs. The overhead costs for eight of the proposed fee revisions are $8.08; and the overhead costs for the remaining fee (Certification of Exam Scores) are $9.76. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs by the number of active licensees. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.
For overhead cost allocations, there appears to be no relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the ''projected revenues will meet or exceed projected expenditures'' under section 14(b) of the Barber License Law (63 P. S. § 564(b)).
We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.
Application of Licensure of Barber School.
This proposed fee is increasing from $100 to $280. The reason for this significant increase is not addressed in the preamble. In the fee report form, the section on fee-related costs identifies one activity as ''Board Meeting--discuss/vote.'' The fee report form estimates that this activity will take half an hour and cost $195. We request the Board explain the costs and the need for this substantial increase.
JOHN R. MCGINLEY, Jr.,
[Pa.B. Doc. No. 00-82. Filed for public inspection January 7, 2000, 9:00 a.m.]
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