INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[51 Pa.B. 2891]
[Saturday, May 22, 2021]
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 ins 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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
7-558 Board of Coal Mine Safety
Prohibiting Electronic Liquid-Vaporizing Devices at Underground Bituminous Coal Mines
51 Pa.B. 1316 (March 13, 2021)
4/12/21 5/12/21 16A-4824 State Board of Funeral Directors
Child Abuse Reporting Requirements
51 Pa.B. 1320 (March 13, 2021)
4/12/21 5/12/21 12-112 Unemployment Compensation Board of Review Appeals from Determinations of Department
51 Pa.B. 1318 (March 13, 2021)
Board of Coal Mine Safety
Regulation # 7-558
(IRRC # 3292)
Prohibiting Electronic Liquid-Vaporizing Devices at Underground Bituminous Coal Mines
May 12, 2021
We submit for your consideration the following comments on the proposed rulemaking published in the March 13, 2021 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Board of Coal Mine Safety (Board) to respond to all comments received from us or any other source.
1. Section 208.375. Smoking prohibition: surface work areas.—Statutory authority; Clarity and lack of ambiguity; Implementation procedures.
Subsection (b) subjects an individual who violates the mandatory safety standards relating to smoking, including electronic liquid-vaporizing devices and e-cigarettes, to a civil penalty. Chapter 5 of the Bituminous Coal Mine Safety Act of 2008 (Act) lists the enforcement remedies available to the Board. 52 P.S. §§ 690-501—690-511. For example, under the Act, the Board can issue enforcement orders (§ 690-501), injunctions (§ 690-502), administrative penalties against mine officials and operators (§ 690-503), and certification actions (§ 690-510). Page 2 of the Preamble states that the ''proposed regulation would give the Department [of Environmental Protection (Department)] additional authority to assess a civil monetary penalty. . . .'' The Board should explain its statutory authority to assess a civil penalty.
We have two additional concerns. First, the process to determine that an individual has violated this section is not explained. Second, other remedies available to the Department in paragraph (2) are not provided. We ask the Board to explain how this subsection will be implemented. Further, the Board should consider clarifying this subsection to explain the additional remedies available to the Department, if appropriate.
This comment also applies to Section 208.376(d) (relating to smoking prohibition: underground areas).
2. Section 208.376. Smoking prohibition: underground areas.—Implementation procedures; Clarity and lack of ambiguity.
Subsections (b) and (d) state smoking-related articles that may not be carried into mines. For clarity, the Board should revise these subsections to contain identical lists of items or explain why it is not necessary to do so.
3. Regulatory Analysis Form (RAF).
The RAF provides the number of bituminous coal mines in Questions # 15—17 and 19. However, individuals who work at these coal mines are directly impacted by this regulation as acknowledged in Question # 27, which states that ''this proposed rulemaking addresses the individual conduct of miners, mine officials, and other persons in and about mines.'' The number of individuals affected by the regulation should be included in these questions in the RAF submitted with the final-form regulation. We also ask the Board to estimate the cost to the regulated community in Question # 23 and provide the number of individuals who have been decertified for violating existing smoking prohibitions.
State Board of Funeral Directors
Regulation # 16A-4824
(IRRC # 3293)
Child Abuse Reporting Requirements
May 12, 2021
We submit for your consideration the following comments on the proposed rulemaking published in the March 13, 2021 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the State Board of Funeral Directors (Board) to respond to all comments received from us or any other source.
1. Implementation procedures.
The proposed rulemaking does not address funeral directors from reciprocal states who hold limited licenses under Section 13.77 (relating to limited license). Under 23 Pa.C.S. § 6311(a)(2) (relating to persons required to report suspected child abuse), funeral directors are mandated reporters. We ask the Board to explain how the child abuse recognition and reporting training and continuing education requirements in 23 Pa.C.S. § 6383(b)(3)(i) and (ii) (relating to education and training) will be implemented for these funeral directors. Further, we ask the Board to consider clarifying requirements for limited license funeral directors in a future rulemaking or explain why it is not necessary to do so.
2. Section 13.301. Definitions relating to child abuse reporting requirements.—Clarity and lack of ambiguity.
Subparagraphs (i)(D) and (ii)(D) of the definition of ''perpetrator'' limit this term to individuals of certain ages who are responsible for a child's welfare. However, the specifically-defined term ''person responsible for the child's welfare'' is not used. To improve clarity, we ask the Board to revise the definition of ''perpetrator'' to use the term defined in this section.
3. Section 13.302. Suspected child abuse—mandated reporting requirements.—Protection of the public health, safety and welfare; Clarity and lack of ambiguity.
Subsection (a) requires a funeral director to report suspected child abuse when there is ''reasonable cause to suspect that a child is a victim of child abuse'' under a set of circumstances derived from 23 Pa.C.S. § 6311(b)(1). This subsection does not include the responsibilities in 23 Pa.C.S. § 6311(b)(2) and (3) to report suspected child abuse when certain information is not known. To protect the public health, safety and welfare, the Board should add the omitted statutory provisions or explain why it is unnecessary to do so.
4. Section 13.303. Photographs, medical tests and X-rays of child subject to report.—Clarity and lack of ambiguity.
Under this section, a funeral director is required to send ''[m]edical summaries or reports of the photographs, X-rays and relevant medical tests taken'' to the county children and youth social service agency after the written or electronic report is made. Under 23 Pa.C.S. § 6314 (relating to photographs, medical tests and X-rays of child subject to report), these materials ''shall be made available to law enforcement officials in the course of investigating cases.'' For consistency, the Board should add the statutory requirement to make these materials available to law enforcement officials or explain why it is not necessary to do so.
5. Section 13.306. Confidentiality—waived.—Protection of the public health, safety and welfare; Clarity and lack of ambiguity.
This section is included in the proposed rulemaking without amendments. This section is not amended to include the requirements in 23 Pa.C.S. § 6311.1 (relating to privileged communications) stating that privileged communication between a mandated reporter and a client does not apply to a situation involving child abuse and does not relieve the mandated reporter of the duty to make a report of suspected child abuse. We ask the Board to explain why the statutory requirement is not included in this regulation. The Board should consider adding privileged communication in a future rulemaking to protect the public health, safety and welfare, or explain why it is not necessary to do so. Further, this section should not be published in the final-form regulation as it is not being amended.
6. Section 13.308. Child abuse recognition and reporting—mandatory training requirement.—Implementation procedures; Clarity and lack of ambiguity.
Subsection (a) requires an individual applying for initial licensure as a funeral director to complete at least three hours of training in child abuse recognition and reporting requirements and to ''submit proof of completion.'' Section 13.309(b)(13) (relating to child abuse recognition and reporting course approval process) requires approved course providers to electronically report attendance to the Bureau of Professional and Occupational Affairs. We ask the Board to revise this subsection to include the implementation procedures for submission of proof of training.
Under subsection (c), an applicant or licensee may apply for an exemption from subsection (a) or (b). Paragraph (3) directs an applicant or licensee to submit documentation demonstrating that the individual ''should not be subject to the training or continuing education requirement.'' A request for exemption is ''considered on a case-by-case basis.'' We have three concerns. First, the standards for documentation and evaluation are vague. Second, this subsection does not specify if the exemption is limited to one biennial renewal period. Third, the process for notification of approval or denial is not stated. We ask the Board to explain the standards for sufficient documentation and the evaluation process for reviewing a request for exemption, including if there is a time frame for completion of training prior to applying for an exemption. We also ask the Board to considering clarifying this subsection to state the time period of the exemption and the process for notifying applicants and licensees.
7. Miscellaneous clarity.
• In Section 13.307(b)(4) (relating to noncompliance), the phrase ''convicted of a prior offense under § 6319'' should be revised to cross-reference 23 Pa.C.S. § 6319.
• In Section 13.308(c) (relating to child abuse recognition and reporting—mandatory training requirement), ''licensee holder'' should be corrected to ''licensee.''
• We identified the following clarity issues in the RAF:
o The citation to the Child Protective Services Law in Question # 7 should be updated to 23 Pa.C.S. §§ 6301—6387.
o The number of limited license funeral directors should be included in responses to Questions # 15, 16 and 19.
Unemployment Compensation Board of Review Regulation # 12-112
(IRRC # 3295)
Appeals from Determinations of Department
May 12, 2021
We submit for your consideration the following comments on the proposed rulemaking published in the March 13, 2021 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)) directs the Unemployment Compensation Board of Review (Board) to respond to all comments received from us or any other source.
4. Section 101.82. Time for filing appeal from determination of Department.—Reasonableness of requirements, implementation procedures and timetables for compliance by the public and private sectors; Clarity and lack of ambiguity.
Subsection (b) lists filing methods for unemployment compensation appeals. Paragraphs (4) and (4.1) provide the procedures for filing an appeal by e-mail and through the Pennsylvania UC Claims System (System), respectively. We have three concerns with these paragraphs.
First, the Preamble explains that a party is ''effectively [placed] on notice that if the confirmation is not received, the appeal has not been filed, prompting additional action by the party.'' What additional actions will a party need to take when confirmation is not received? We ask the Board to explain the implementation procedures when a confirmation e-mail is not received or the System does not generate an acknowledgment. We also ask the Board to explain the reasonableness of omitting additional actions a party will need to take when there are specific timetables for compliance. The Board should consider revising these filing methods to establish standards that are achievable for the regulated community.
Second, these paragraphs do not state the deadline for timely filing of an appeal. We ask the Board to improve the clarity of these paragraphs by stating the deadline.
Third, do the confirmation sent by e-mail and the acknowledgment sent by the System include the date the appeal was deemed filed? We ask the Board to describe the information stated in the confirmation and acknowledgment and clarify these paragraphs to include these details.
5. Regulatory Analysis Form (RAF).
We ask the Board to submit screen shots of the portion of the System used to file an appeal in response to RAF Question # 22b.
In addition, responses to RAF Question # 29 state that the ''amendments will become effective upon publication of final-form rulemaking in the Pennsylvania Bulletin on the date of implementation'' of the System. We note that the updated System is scheduled to be launched in June 2021. Given that the System will be operational before publication of the final-form regulation, we ask the Board to explain when these amendments will become effective and update the response to RAF Question # 29 and the Preamble accordingly.
6. Miscellaneous clarity.
The definition of ''personal delivery'' in Section 101.2 (relating to definitions) should be updated to cross-reference Section 101.82(b)(1)—(4.1). (Emphasis added.)
GEORGE D. BEDWICK,
[Pa.B. Doc. No. 21-817. Filed for public inspection May 21, 2021, 9:00 a.m.]
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