PROPOSED RULEMAKING
DEPARTMENT OF
LABOR AND INDUSTRY
[ 34 PA. CODE CH. 63 ]
Responsibilities of Employers
[40 Pa.B. 5179]
[Saturday, September 11, 2010]The Department of Labor and Industry (Department), Office of Unemployment Compensation Tax Services (UCTS), proposes to amend Chapter 63 (relating to responsibilities of employers) to read as set forth in Annex A.
A. Statutory Authority
This rulemaking is proposed under section 201(a) of the Unemployment Compensation Law (law) (43 P. S. § 761(a)), which authorizes the Department to promulgate and amend rules and regulations necessary to administer the law.
B. Background and Description of Proposed Rulemaking
The purpose of this proposed rulemaking, which covers 50 sections of Chapter 63, is to update the regulations to conform to current law and practice.
This proposed rulemaking rescinds 12 sections of Chapter 63 and deletes portions of additional sections. The Department is rescinding provisions that are obsolete, inconsistent with the law or superseded by a subsequent statutory enactment. In some cases, the Department is rescinding a provision and combining it with other regulatory provisions to consolidate regulations with similar subject matter. In cases when a regulation is superfluous because it merely repeats an existing statutory provision, the regulation is rescinded or amended to refer to the statute.
References to obsolete subdivisions of the Department are removed or replaced with references to the current agency or the Department generally. References to specific forms, some of which are outdated, are removed whenever possible.
In addition to the previous changes that occur throughout the proposed rulemaking, there are particular changes described as follows.
The law requires the Department to transfer the experience record and reserve account balance of a predecessor to its successor-in-interest if they share common ownership, control or management. The Department interpreted this provision of the law to apply if there was common ownership at the time of the business transfer and without regard to the duration of that common ownership. See Armco, Inc. v. Department of Labor and Industry, 713 A. 2d 1208 (Pa. Cmwlth. 1998). Proposed § 63.1a (relating to determining common ownership, control or management) modifies the Department's interpretation of the statute. It provides that the Department will not transfer a predecessor's employment experience to its successor-in-interest if the entities' common ownership, control or management started immediately before the business transfer.
Section 63.2 (relating to part transfers of organization, trade or business) regarding part transfers of an employer's experience record and reserve account balance, applies only to transfers that occurred before July 1, 2005. Subsequent transfers will be governed by the regulations that deal with transfers generally and the 2005 amendments to the law.
Proposed amendments to § 63.3 (relating to required forms and time limits for applications) clarify that an application for transfer of an employer's experience record and reserve account balance is necessary in cases when a transfer is desired and specify when the Department will consider an untimely application for transfer to be filed nunc pro tunc.
Proposed amendments to § 63.4 (relating to disapproval of applications for delinquency) delete a subsection allowing a redundant 30-day period to pay the predecessor's delinquency to obtain a transfer of the predecessor's experience record and reserve account balance to the successor.
Section 63.15 (relating to determination under combined experience provision) is extensively amended to consolidate the provisions that determine the earliest calendar year for which a combination of the predecessor's experience and successor's experience will apply to the contribution rate of the successor. Under certain circumstances, the combined experience applies to the successor's rate for the year in which the transfer of business or workforce to the successor occurred. These provisions apply to a transfer of the predecessor's experience record and reserve account balance that is requested by the successor.
Proposed amendments to § 63.21 (relating to notification of rate and prerequisites for applications for review and redetermination) provide that an employer is not notified of its contribution rate until the Department issues a contribution rate notice to the employer. As amended, this section will also provide that an employer may not assert a reason for objecting to the Department's rate determination that it has not included in its appeal.
In § 63.22 (relating to supporting data), the supporting data to be furnished with a rate appeal are expanded to address types of delinquency rates that exist as a result of recent amendments to the law.
In § 63.23 (relating to unacceptable reasons), unacceptable reasons for filing a rate appeal are expanded to include a challenge to the reserve account balance based on an alleged error that is over 4 years old. New provisions addressing the consequences of a payment plan default are added. A rate that is revised upwards due to a default may be appealed, but the only issue that may be raised is whether there was a default justifying the increase.
Proposed § 63.25 (relating to filing methods) enumerates acceptable methods for filing documents with the UCTS. Also, it specifies the dates on which documents submitted to the Department by these methods will be deemed to be filed.
Proposed § 63.26 (relating to appeal to the secretary) provides procedures for appeals of UCTS decisions to the Secretary. It concerns rate appeals, petitions for reassessment and applications for refund or credit.
Sections 63.31—63.36, regarding relief from charges, are amended and § 63.36a (relating to duration of relief from benefit charges and notice of changed circumstances) is proposed. New definitions and a list of circumstances under which an employer will be granted relief are provided. The method to be used, and time limit, for filing requests for relief are amended. The new section addresses termination of relief from benefit charges.
Section 63.51 (relating to initial and renewed registration) is amended to include the circumstances under which an employer shall file a renewed registration document with the Department.
Proposed amendments to § 63.52 (relating to quarterly reports from employers) require that employers file quarterly reports electronically.
Proposed § 63.59 (relating to PEO quarterly reports) specifies the method of filing, and the filing date of, Professional Employer Organization reports. It will replace a statement of policy issued on this subject.
Under proposed § 63.60 (relating to mass layoff report), if an employer lays off 50 or more individuals within a 7-day period, the employer is required to provide information to assist the Department to process the workers' benefit claims.
Section 63.63 (relating to agreement to compromise), regarding agreements to compromise tax liability, is amended to specify when an application to compromise is effective.
Section 63.64 (relating to records to be kept by employer), regarding records that an employer shall retain for unemployment compensation purposes, is amended to include workers whom the business believes are not ''employees'' and workers covered by a professional employer arrangement. In addition, more types of records are required.
Proposed § 63.66 (relating to power of attorney) provides that a business may empower an agent to represent it before the Department.
Proposed amendments to § 63.91 (relating to elections) specify the minimum and maximum periods of an election of reimbursable status.
Proposed amendments to § 63.93 (relating to filing of surety bond) specify the term of a surety bond and clarify that the bond applies to benefits that are based on wages paid during the period of reimbursable status, including benefits paid after that status has ended.
Under the proposed amendments to § 63.94 (relating to filing of security deposit), a nonprofit organization that provides money or securities as collateral in connection with an election of reimbursable status shall provide new collateral if it renews its reimbursable status when the current election expires. The proposed amendments also specify the reimbursement obligations that are secured by collateral in the form of money or securities.
Proposed § 63.96a (relating to conversion to contributory status) establishes procedures for situations when an employer elects reimbursable status but fails to provide collateral or a surety bond ceases to be effective during the period of an election. It also provides that unpaid reimbursement obligations are a basis for a delinquency contribution rate, if the employer converts to contributory status. Also, this section clarifies that a reimbursable employer that becomes a contributory employer remains liable for benefits that are based on wages paid during reimbursable status.
If a reimbursable employer provides securities as collateral, the Department may sell the securities to satisfy any amount owed by the employer. As amended, § 63.97 (relating to return or sale of money or securities) clarifies that any interest or increase in value accruing on the security may also be applied to the employer's debt.
Proposed amendments to § 63.99 (relating to assignment of rate of contribution) update provisions specifying how the Department will determine an employer's contribution rate if the employer previously had been a reimbursable employer.
Proposed Subchapter D (relating to payment by electronic transfer) is new and specifies the circumstances in which an employer shall pay liabilities by electronic transfer. An employer that is not required to pay by electronic transfer and a claimant who is repaying an overpayment of benefits may use electronic transfer voluntarily.
C. Affected Persons
The proposed rulemaking potentially affects approximately 280,000 employers covered by the law.
D. Fiscal Impact
Commonwealth and the regulated community
This proposed rulemaking will allow the Department, under certain circumstances, to use the unemployment compensation employer experience of both the predecessor and the successor-in-interest to calculate the successor's contribution rate for the year in which the transfer of business or workforce occurred. Although the amount of unemployment compensation tax savings for successor employers and the corresponding decrease in tax revenues for the Unemployment Compensation Fund cannot be estimated, the Department expects the number of affected employers to be small and the overall monetary impact to be minimal. The Department is unable to estimate the cost to nonprofit, reimbursable employers of the provision requiring them to increase the value of their security as payrolls increase.
Political subdivisions
This proposed rulemaking does not affect political subdivisions except to the extent that they are employers covered by the law.
General public
This proposed rulemaking does not affect the general public.
E. Paperwork Requirement
If an employer ceases to provide employment and subsequently resumes providing employment, proposed amendments to § 63.51 will require the employer under certain circumstances to renew its unemployment compensation registration. While § 63.64, as amended, requires employers to keep employment records on workers and to preserve additional types of records, it does not require employers to create records or information that they would not have created otherwise and does not impose additional reporting requirements.
F. Sunset Date
The regulations will be monitored through practice and application. Thus, a sunset date has not been designated.
G. Effective Date
With the exception of §§ 63.52(e) and 63.110—63.114, the proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin. The amendments to §§ 63.11—63.17 apply to transfers of organization, trade, business or workforce under section 301(d)(1)(A) of the law (43 P. S. § 781(d)(1)(A)) that occur on or after the effective date of those amendments. Section 63.59 applies to reports filed on or after the effective date of that section. The amendments to § 63.64(a) apply to employment occurring on or after the effective date of those amendments. The amendments to § 63.94 apply to elections to make payments in lieu of contributions that take effect on or after the effective date of those amendments. Because § 63.2 has been superseded by the act of June 15, 2005 (P. L. 8, No. 5) with regard to transfers of organization, trade, business or workforce that occur on or after July 1, 2005, § 63.2 is amended to restrict its applicability to transfers that occurred before that date.
Sections 63.52(e) and 63.110—63.114 will take effect on January 1, 2011, and apply to calendar quarters and billing periods that begin on or after the effective date of the final-form rulemaking. The Department, however, may delay the effective date of these sections if it is impossible or impractical to implement them on January 1, 2011.
H. Public Comment
Interested parties are invited to submit written comments, objections or suggestions about the proposed rulemaking to Michael L. Ziemke, Office of Unemployment Compensation Tax Services, Room 900, Labor and Industry Building, 651 Boas Street, Harrisburg, PA 17121 within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Written comments received by the Department may be made available to the public.
Comments also may be submitted electronically to mziemke@state.pa.us. A subject heading referencing the proposed rulemaking, name and return mailing address must be included in each transmission. In addition, electronic comments shall be contained in the text of the transmission, not in an attachment.
For further information on this proposed rulemaking, contact Michael L. Ziemke, (717) 772-1581.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 26, 2010, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the House Labor Relations Committee and the Senate Labor and Industry Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
SANDI VITO,
SecretaryFiscal Note: 12-93. (1) Unemployment Compensation Fund;
Unemployment Compensation
Benefit Payment Fund
(4) 2007-08 Program— $2,320,529,000 2006-07 Program— $2,084,260,000 2005-06 Program— $1,998,637,000 (6) Due to the highly specific nature of these calculations, we are unable to accurately project the possible revenue loss to the Unemployment Compensation Fund. The actual loss would depend on the number and types of employers who would take advantage of this revision to the regulation and would be dependent on the particular situation with those employers, thus any estimated future revenue loss to the Fund would be inaccurate; (8) recommends adoption. Loss of revenue is expected to be recovered over time. Implementation of solvency provisions found in Article III of the Unemployment Compensation Law (Act 1 of Special Session 2 of 1936) may be required.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART II. BUREAU OF EMPLOYMENT SECURITY
Subpart A. UNEMPLOYMENT COMPENSATION
CHAPTER 63. RESPONSIBILITIES OF EMPLOYERS
Subchapter A. GENERAL FUNCTIONS
TRANSFERS OF EXPERIENCE RECORDS § 63.1a. Determining common ownership, control or management.
For purposes of determining whether an employer was owned, controlled or managed by its successor-in-interest, whether an employer owned, controlled or managed its successor-in-interest, or whether an employer and its successor-in-interest were owned, controlled or managed by the same interest or interests under section 301(d)(1)(B) of the law (43 P. S. § 781(d)(1)(B)), common ownership, control, management or a combination thereof that exists at the time of the transfer of organization, trade, business or workforce will be disregarded if it commences immediately before the transfer and during a series of nearly contemporaneous business transactions culminating in the transfer.
§ 63.2. Part transfers of organization, trade or business.
(a) Applicability. This section applies to part transfers of an organization, trade or business that occurred before July 1, 2005.
(b) Wage ratios. When an application for part transfer of an employer's experience record and reserve account balance has been approved, or where such a transfer has occurred as provided in section 301(d)(1)(B) of the [Law] law (43 P. S. § 781(d)(1)(B)), the [Bureau shall] Department will determine the ratio that the wages paid during the last 3 completed calendar years prior to the date of the transfer, in that part of the organization, bears to all wages paid by the predecessor in the corresponding period. If the part which is transferred has been in existence for a period of less than 3-calendar years, wages paid during that period shall be used to determine the ratio.
[(b)] (c) Application of ratio. The wage ratio shall be used as the basis to reduce the reserve account of the predecessor and to establish the reserve account of the successor-in-interest, as follows:
* * * * * [(c)] (d) Benefit paid subsequent to transfer. When an application for part transfer of the experience record and reserve account balance of an employer is filed and approved, benefits paid after the date of transfer based on wages paid before the date of transfer, in that part of the organization, trade or business transferred, shall be charged to the experience record and reserve account of the successor-in-interest.
[(d) Part transfers. An application for part transfer of the experience record and reserve account balance of an employer may be approved by the Bureau only if the application is filed in accordance with § 63.3 (relating to required forms and time limits for applications). If the predecessor is a partnership, a majority of the partners shall sign the application, except that when the partnership consists of two individuals, both shall sign the application.]
§ 63.3. Required forms and time limits for applications.
(a) [Application] An application for the transfer of the experience record and reserve account balance of a predecessor under the provisions of section 301(d)(1)(A) of the [Law] law (43 P. S. § 781(d)(1)(A)) shall be filed [on the ''Application for Experience Record and Reserve Account Balance of Predecessor'' provided on page 3 of the Form UC-1, Employer's Initial Statement, and accompanied by an Affidavit of Business Transfer Form (UC-745), or a copy of the bill of sale signed by both parties involved in the transfer, or in such form as to contain the essential information required] in the manner prescribed by the Department and containing the information that the Department requires. The application shall be signed by both the predecessor and the successor-in-interest.
(b) An application for the transfer of the experience record and reserve account balance of a predecessor, either in whole or in part, shall be filed [prior to the end of the calendar year immediately following the calendar year in which the transfer occurred] within the time allowed under section 301(d)(1)(A) of the law.
(c) [When] An application for the transfer of the experience record and reserve account balance of a predecessor that is filed beyond the time allowed under section 301(d)(1)(A) of the law is deemed to have been filed timely when the sole business of the successor-in-interest is that which [he] the successor-in-interest acquires from the predecessor in a total transfer of the predecessor's business, and the successor-in-interest, through error or inadvertence, continues to file contribution reports and pay contributions under the account number of the predecessor and at the rate determined by the [Bureau] Department to apply to the predecessor[, the reporting and payment shall be considered an application for the experience record and reserve account balance of the predecessor with respect to the time limit for filing the application].
§ 63.4. Disapproval of applications for delinquency.
[(a)] If an application for transfer of the experience record and reserve account balance of a predecessor either in whole or part, is filed and the predecessor is delinquent in the payment of contributions, interest or penalties due on wages paid by [him] the predecessor as of the date the business was transferred, the [Bureau shall] Department will disapprove the application if the delinquency is not paid within 30 days of the request for payment by the [Bureau] Department. [The disapproval shall apply to all actions pertaining to the transfer, including the transfer of the predecessor's contribution rate to the successor.
(b) The transfer application may be considered if the following actions are taken within the time allowed in the Law for filing transfer applications:
(1) The successor-in-interest files a timely rate appeal requesting a reconsideration of the transfer application.
(2) The delinquency is paid not later than 30 days following the request for payment by the Bureau (following such appeal).
(c) If a transfer application is approved the transfer shall be effective with the calendar year for which the timely appeal is filed.]
ASSIGNMENT OF CONTRIBUTION RATES § 63.11. [General requirements] (Reserved).
[Where an application for the transfer of the experience record and reserve account balance of a predecessor has been approved, or where the transfer has occurred as provided in section 301(d)(1)(B) of the Law (43 P. S. § 781(d)(1(B)), the contribution rates for the successor-in-interest shall be determined in accordance with the provisions of §§ 63.12—63.17.]
§ 63.12. [Successors not formerly employers] (Reserved).
[The successor-in-interest who prior to the transfer was not an employer during the calendar year in which the transfer occurred (referred to in this section and §§ 63.13—63.17 as the ''transfer year'') shall be assigned the rate of his predecessor for the remainder of that year, if the following requirements were met:
(1) The transfer application was filed by the successor-in-interest prior to the expiration of the rate appeal period for the transfer year (which rate appeal period expires 90 days after the mailing of the rate notice to the successor's last known post office address) or a timely rate appeal was filed and the transfer application was filed within 30 days of notification by the Bureau of the need for such transfer application.
(2) The predecessor paid contributions for the period required under section 301.1(b) of the Law (43 P. S. § 781.1(b)), with respect to the organization, trade or business, or part thereof transferred.]
§ 63.13. [Successors formerly employers] (Reserved).
[Successors-in-interest who prior to the transfer were employers during the transfer year may not be assigned the rate of their predecessors for the remainder of the transfer year.]
§ 63.14. [Rate determination in subsequent years] (Reserved).
[For calendar years subsequent to the transfer year, the rate for the successor-in-interest shall be determined on the basis of the experience record and reserve account balance, or in case of a part transfer the appropriate portion thereof, which has been transferred from the predecessor and combined with that of the successor-in-interest, except that the rate for a successor-in-interest who has acquired a predecessor's reserve account balance which has been adjusted to zero shall be determined in accordance with § 63.16 (relating to periods of subjectivity).]
§ 63.15. Determination under combined experience provisions.
[Subject to § 63.16 (relating to periods of subjectivity), the first calendar year for which combination of experience shall be applicable for computing the contribution rate for the successor-in-interest shall be determined as follows:
(1) If the transfer application is filed prior to the expiration of the rate appeal period for the calendar year immediately following the transfer year, it shall be effective beginning with the calendar year in which it is filed.
(2) If the successor-in-interest has filed a timely application for review and redetermination of contribution rate, and filed a transfer application within 30 days of notification by the Bureau of the need for such application, it shall be effective beginning with the calendar year for which the timely appeal was filed.
(3) If the transfer application is filed after the expiration of the rate appeal period for the calendar year immediately following the transfer year, it shall be effective beginning with the calendar year following the year in which it is filed.]
If a successor-in-interest applies for a transfer of the experience record and reserve account balance of a predecessor, in whole or in part, under section 301(d)(1)(A) of the law (43 P. S. § 781(d)(1)(A)), the Department will combine the experience of the predecessor and the experience of the successor-in-interest, if any, for the purpose of determining the contribution rate of the successor-in-interest. The earliest calendar year for which a combination of experience under section 301(d)(1)(A) of the law will apply to the contribution rate of the successor-in-interest will be determined in accordance with this section.
(1) If the successor-in-interest files its application for a transfer of experience prior to the expiration of the rate appeal period for a calendar year, the year in which the application is filed is the earliest calendar year for which a combination of experience will apply.
(2) If the successor-in-interest files a timely application for review and redetermination of its contribution rate, and files its application for a transfer of experience within 30 days after the Department notifies the successor-in-interest that an application for a transfer of experience is required, the year for which the application for review and redetermination of contribution is filed is the earliest calendar year for which a combination of experience will apply.
(3) If the successor-in-interest files its application for a transfer of experience after the expiration of the rate appeal period for a calendar year, the calendar year following the year in which the application is filed is the earliest calendar year for which a combination of experience will apply.
(4) Notwithstanding paragraphs (1), (2) and (3), the earliest calendar year for which a combination of experience will apply is the year in which the transfer of organization, trade, business or work force occurred, if the successor-in-interest files its application for a transfer of experience within 90 days after the transfer of organization, trade, business or work force and any of the following apply:
(i) The successor-in-interest did not pay wages covered by the law prior to the transfer of organization, trade, business or work force.
(ii) The successor-in-interest most recently paid wages covered by the law prior to the year in which the transfer of organization, trade, business or work force occurred, and the reserve account of the successor-in-interest is terminated in accordance with section 302(d) of the law (43 P. S. § 782(d)) as of the computation date for that year.
(iii) The successor-in-interest most recently paid wages covered by the law prior to the year in which the transfer of organization, trade, business or work force occurred, and the reserve account of the successor-in-interest is not terminated in accordance with section 302(d) of the law as of the computation date for that year.
(5) If the earliest calendar year for which a combination of experience applies to the contribution rate of the successor-in-interest is the year in which the transfer of organization, trade, business or work force occurred, and paragraph (4)(i) or (ii) applies to the successor-in-interest, the rate of the successor-in-interest for the year in which the transfer of organization, trade, business or work force occurred is the rate of the predecessor for that year.
(6) Notwithstanding paragraphs (1)—(5), the experience record and reserve account balance acquired from the predecessor may not affect the contribution rate of the successor-in-interest for any period prior to the date on which the transfer of organization, trade, business or workforce occurs.
§ 63.16. [Periods of subjectivity] (Reserved).
[(a) Subsequent to the transfer year, a successor-in-interest who has acquired the whole or part of the reserve account balance of a predecessor which was adjusted to zero under the provisions of section 302(c) of the Law (43 P. S. § 782(c)) shall not have his rate determined on the basis of the combined experience of the predecessor and the successor-in-interest until the expiration of three calendar years following the computation date on the which the predecessor's account was adjusted to zero, unless prior to the expiration of the three-year period the successor-in-interest as of any computation date meets either of the following reporting requirements:
(1) Has been subject under the Law for 14 or more consecutive calendar quarters.
(2) Has been subject under the Law for a period as long as, or longer than, the preceding employer.
(b) A successor-in-interest whose period of subjectivity under the Law is not sufficient to meet the requirements of subsection (a) of this section shall pay contributions at the rate provided in section 301(d)(1)(D)(3) of the Law (43 P. S. § 781(d)(1)(D)(3)).]
§ 63.17. Binding effect of transfers.
A transfer of an experience record and reserve account balance, in whole or in part, having been approved by the [Bureau] Department on the basis of an application for the transfer of predecessor experience record and reserve account balance, [shall be binding on] binds both the predecessor and the successor-in-interest. [The experience record and reserve account balance thus transferred shall be included with that of the successor-in-interest for determination of rates for calendar years subsequent to the year of transfer except as provided in § 63.16 (relating to periods of subjectivity). The predecessor may not be entitled to adjusted rates for calendar years subsequent to the transfer year, based upon the experience record and reserve account balance which has been transferred.]
APPLICATIONS FOR REVIEW AND REDETERMINATION OF CONTRIBUTION RATES § 63.21. [Prerequisites] Notification of rate and prerequisites for applications for review and redetermination.
(a) For purposes of section 301(e)(2) and (j) of the law (43 P. S. § 781(e)(2) and (j)), an employer is not notified of its rate of contribution for a calendar year until the Department issues a Contribution Rate Notice to the employer.
[An] (b) The Department may consider an application for review and redetermination of contribution rate filed under section 301(e)(2) of the [Law (43 P. S. § 781(e)(2)) shall be considered] law only if it meets the following conditions:
(1) It is filed within [90 days after the mailing of the contribution rate notice to the last known post office address of the employer] the time specified in section 301(e)(2) of the law.
(2) The reasons set forth by the employer contain factual statements, not mere generalities, showing specifically where the contribution rate [of] or reserve account balance is incorrect. The Department may not consider any factual or legal reason that the employer fails to assert in its application for review and redetermination.
§ 63.22. Supporting data.
Employers who wish to file an application for review and redetermination of contribution rate shall furnish [the following type of] supporting data as follows:
(1) To contest a ruling [by the Bureau] of insufficient experience, the employer shall submit information to show that his employer experience record meets the eligibility requirements of section 301.1(b) of the [Law] law (43 P. S. § 781.1(b)) for a rate of less than the standard rate provided in section 301(a)(1) [(43 P. S. § 781(a)(1))] or [section 301(a)](3) of the law (43 P. S. § 781(a)(1) and (3)), whichever is applicable.
(2) To contest a [ruling by the Bureau of money or report delinquency] contribution rate assigned under section 301(a)(2) of the law, the employer shall submit information to show [whether] that it filed all reports establishing the amount of contributions and showing the amount of wages paid for calendar quarters through the second quarter of the preceding calendar year, and that it paid all contributions, penalties and interest due on wages paid to the end of the second quarter of the preceding calendar year [have been paid. If a delinquency does exist, he may remove this cause of his ineligibility for a reduced rate by filing the reports and paying the delinquent amount within 30 days after the Bureau, in response to his request, notifies the employer of the missing reports and amounts due].
(3) To contest a contribution rate assigned under section 301(a)(2.1) of the law, the employer shall submit information to show that it filed the reports required under section 315(a)(1), (2) and (3) of the law (43 P. S. § 715(a)(1), (2) and (3)).
(4) To contest the accuracy of any figures shown on the [Form UC-657,] Contribution Rate Notice, the employer shall submit information obtained from his records to substantiate the alleged discrepancy.
§ 63.23. Unacceptable reasons.
[An] (a) The Department will not approve an application for review and redetermination of contribution rate based on the following reasons [shall not be approved by the Bureau]:
(1) Questions of eligibility. [(i) That claimants] Claimants who caused the benefit charges were ineligible to receive unemployment compensation.
[(ii)] (i) Questions of eligibility for compensation shall be resolved conclusively under sections 501—512 of the [Law] law (43 P. S. §§ 821—832) and § 65.63 (relating to filing of appeals)[, and the affected employers shall be notified with respect thereto].
[(iii)] (ii) Appeals raising questions of eligibility for compensation shall be filed in the manner and within the time prescribed [therein] in the law and this subpart. (For detailed instructions, see [the reverse side of] Form UC-44F, Notice of Financial Determination, which is mailed to base-year employers at the time the [Bureau] Department makes the financial determination on the application for benefits by the claimant.)
(2) Claimants who caused benefit charges. [(i) That claimants] Claimants who caused benefit charges were separated from the applicant due to being discharged for willful misconduct connected with their work or due to leaving work without good cause attributable to their employment.
[(ii)] (i) Questions as to the right to relief from charges for these reasons shall be resolved conclusively under section 302(a) of the [Law] law (43 P. S. § 782(a)) and §§ 63.31—63.37 (relating to relief from benefit charges)[, and the affected employers shall be notified with respect thereto].
[(iii)] (ii) Requests raising these questions shall be filed in the manner and within the time prescribed [therein] in the law and this subpart. (For detailed instructions, see Form UC-44FR, Request for Relief from Charges, which is mailed to base-year employers with the Form UC-44F.)
(3) Benefits charged to employer's reserve account. [(i) That benefits] Benefits charged to the reserve account of the employer as shown on Form UC-640, Monthly Notice of Compensation Charged, are incorrect.
[(ii)] (i) Questions [as to] regarding the accuracy of benefit charges on Form UC-640, shall be resolved conclusively under section 301(e)(1) of the [Law] law (43 P. S. § 781(e)(1))[, and the affected employers shall so be notified].
[(iii)] (ii) Protests contesting the accuracy of [such] the charges shall be filed in the manner and within the time prescribed in [Form UC-640] the law and this subpart. (For detailed instructions, see [the reverse side of] Form UC-640, Monthly Notice of Compensation Charged, which is mailed to base-year employers following the payment of unemployment compensation to their former employes.)
(4) Reserve account balance. The reserve account balance as indicated on the Contribution Rate Notice is inaccurate, if the alleged inaccuracy is attributable to an error that occurred more than 4 years prior to the computation date for the contribution rate in question.
(5) Payment plan default. The rate of contribution assigned after the employer defaults on a deferred payment plan is incorrect for reasons unrelated to the payment plan or the default.
(i) Under section 301(a)(2) of the law, an employer that is delinquent in the payment of contributions, interest or penalty is assigned a rate of contribution that is the sum of 3% plus the employer's rate as otherwise determined. However, if the employer is complying with a deferred payment plan, section 301(a)(2) of the law provides that the Department will issue a rate of contribution that does not include the additional 3%. If the employer defaults on the payment plan, section 301(a)(2) of the law provides that the employer's contribution rate or rates for the period of the payment plan are retroactively revised to include the additional 3%.
(ii) If an employer with a deferred payment plan is assigned a rate that does not include the additional 3% and the employer is dissatisfied with the assigned rate, the employer is responsible to timely contest the assigned rate. If an employer defaults on a payment plan and the employer's rate is revised to include the additional 3%, an application for review and redetermination of contribution rate filed in response to the rate revision is limited to the issue of whether a default on the payment plan occurred.
(b) [While an] An application for review and redetermination of contribution rate [shall] will not be [approved on the grounds described herein] disapproved under this section while the issues of benefit eligibility or charge relief are [still] pending under the provisions specified, neither shall the application be disapproved pending such proceedings. In [all such] those cases, the employer's application shall be held in abeyance until final resolution of the issue of eligibility or relief from charges [as the case may be].
§ 63.24. Unacceptable applications.
(a) [Applications shall be denied for the following reasons] The Department will deny the following applications for review and redetermination of contribution rate:
(1) Applications which are not timely filed [according to] under § 63.21(1) (relating to notification of rate and prerequisites for applications for review and redetermination).
(2) Applications based upon the reasons in § 63.23 (relating to unacceptable reasons) [shall be denied and returned to the employers with letters explaining the reasons for the denial].
(b) [Applications] The Department may deny applications for review and redetermination of contribution rate which do not furnish the information required in § 63.21(b)(2) or § 63.22 (relating to supporting data) [shall be returned to the employer with a statement of the reasons for returning such applications].
(c) [Any of the forms referred to in this section and §§ 63.21—63.23 (relating to applications for review and redetermination of contribution rates) may be obtained by writing to the Bureau of Employment Security, Department of Labor and Industry, Harrisburg, Pennsylvania 17121.] If an application is denied under this section, the Department will inform the employer and advise the employer of the reasons for the denial.
FILINGS AND APPEALS § 63.25. Filing methods.
(a) Applicability. Except as otherwise provided in the law or this chapter, a document shall be filed with the Office of Unemployment Compensation Tax Services (UCTS) in accordance with subsections (b)—(g).
(b) United States mail. The filing date will be determined as follows:
(1) The date of the official United States Postal Service postmark on the envelope containing the document, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(2) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the document.
(3) If the filing date cannot be determined by any of the methods in paragraph (1) or (2), the filing date will be the date recorded by UCTS when it receives the document.
(c) Common carrier. A document may be delivered by a common carrier of property that is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date recorded by UCTS when it receives the document.
(d) Fax transmission.
(1) The filing date will be determined as follows:
(i) The date of receipt imprinted by the UCTS fax machine.
(ii) If the UCTS fax machine does not imprint a legible date, the date of transmission imprinted on the faxed document by the sender's fax machine.
(iii) If the faxed document is received without a legible date of transmission, the filing date will be the date recorded by UCTS when it receives the document.
(2) A party filing a document by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the document may not be properly or timely filed.
(e) Electronic transmission other than fax transmission. The filing date is the receipt date recorded by the UCTS electronic transmission system, if the electronic record is in a form capable of being processed by that system. A party filing by electronic transmission shall comply with UCTS instructions concerning format. A party filing by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the document may not be properly or timely filed.
(f) Personal delivery. The filing date will be the date the document was personally delivered to UCTS during its normal business hours.
(g) Additional and suspended methods.
(1) UCTS may prescribe additional filing methods. If UCTS prescribes an additional filing method, it will designate the date on which a document is filed by that method.
(2) UCTS may suspend one or more of the filing methods prescribed under subsections (b)—(g)(1) when it determines, in its discretion, that the method is obsolete, impractical, inefficient or infrequently used.
§ 63.26. Appeal to the Secretary.
(a) If an employer files an application for review and redetermination of its contribution rate under section 301(e)(2) of the law (43 P. S. § 781(e)(2)) and the employer is aggrieved by the determination of the Office of Unemployment Compensation Tax Services (UCTS), the employer may appeal to the Secretary or the Secretary's designee within 30 days of the mailing date of the UCTS determination.
(b) If UCTS issues an assessment under section 304 of the law (43 P. S. § 784) and the person to whom the assessment is directed is aggrieved by the assessment, the person may appeal to the Secretary or the Secretary's designee by filing a petition for reassessment within the time allowed under section 304.
(c) If an employer applies for a refund or credit under section 311 of the law (43 P. S. § 791) and the employer is aggrieved by the determination of UCTS, the employer may appeal to the Secretary or the Secretary's designee within 30 days of the mailing date of the UCTS determination.
(d) The following provisions apply to an appeal under subsection (a), (b) or (c):
(1) The appellant shall file the appeal with the Unemployment Compensation Tax Review Office at the address indicated in the UCTS determination or assessment and in the manner prescribed by the Unemployment Compensation Tax Review Office, and serve a copy on UCTS.
(2) The appellant shall set forth in the appeal all factual assertions and legal arguments that are the basis for the appeal. The Secretary or the Secretary's designee may not consider any factual or legal grounds for relief that are not set forth in the appeal.
(3) The decision of the Secretary or the Secretary's designee is the final decision of the Department.
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