NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[32 Pa.B. 6221]

   Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5(d)) provides that the designated standing Committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (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 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).

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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

		Close of
		the Public	IRRC
		Comment	Comments
Reg. No.	Agency/Title	Period	Issued
2-141	Department of    Agriculture    Milk Sanitation	10/28/02	12/2/02
	(32 Pa.B. 4717 (September 28, 2002))
12-59	Department of Labor    and Industry    Appeals from       Determinations of       Department	10/28/02	12/2/02
	(32 Pa.B. 4720 (September 28, 2002))

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Department of Agriculture Regulation No. 2-141

Milk Sanitation

December 2, 2002

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Agriculture (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

Section 59.22.  Milk dating.--Reasonableness; Implementation procedures; Clarity.

Subsection (e)

   There are three concerns with this subsection.

   The first sentence of the subsection reads: ''The Department will periodically sample containers of pasteurized milk in the possession of the processor or distributor'' (emphasis added). The specific time frame for sampling of product should be included in the final-form regulation.

   Second, the final sentence provides that after two or more samples demonstrate a processor cannot produce pasteurized milk that meets the referenced bacterial limits, the processor is required to use a sell-by date that is less than the new 17-day sell-by date. It is our understanding that a processor may regain use of the 17-day period when it submits samples for additional tests and demonstrates compliance with acceptable standards. The procedure for reestablishing the 17-day sell-by date should be set forth in the final-form regulation.

   Third, when a processor cannot produce pasteurized milk within acceptable parameters and is not allowed to use the 17-day sell-by date, the processor is required to ''use a sell-by date of something less than the 17-day period described in subsection (a).'' We understand the shorter sell-by date period will be determined by specific laboratory test methods. The process for determining the shorter period should be included in the final-form regulation.
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Department of Labor and Industry
Regulation No. 12-59

Appeals From Determinations of Department

December 2, 2002

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Labor and Industry (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 101.81.  Filing of appeal from determination of Department.--Reasonableness; and Clarity.

Subsection (a)

   This subsection describes the process for obtaining Department-provided appeal forms. We have three concerns.

   First, this subsection, as well as § 101.81(c), includes the term ''Department office responsible for unemployment compensation.'' This term is unclear. How will a petitioner know if a Department office is responsible for unemployment compensation? For clarity, the Department should define the term ''Department office responsible for unemployment compensation'' in the final-form regulation.

   Second, the phrase ''Department-provided'' is redundant and should be eliminated, as the forms can be obtained from a Department office.

   Third, could an individual obtain these forms from any other source, including the Department's website? This should be specified in the final-form regulation.

Subsection (b)

   This subsection reveals where an individual would obtain information about filing an appeal. We have five concerns.

   First, this subsection provides that the aforementioned information may be ''obtained from a Department office responsible for unemployment compensation or an office of the Board.'' Are there any other places where an individual could obtain this information?

   Second, this subsection states, ''Information about filing an appeal may be obtained from a Department office responsible for unemployment compensation or an office of the Board.'' We understand that assistance will be available at service centers. These centers are reachable only by phone. For clarification, the Unemployment Compensation Board of Review (Board) should include information on how to receive assistance with the appeal instructions that accompany the notice of determination.

   Third, is the Department able to make available this information on its website? The Department should explain.

   Fourth, subsection (a) states that an appeal form may be obtained from a workforce investment office (WIO). Yet, subsection (b) does not include a WIO as a place where an individual can obtain information about filing an appeal. Can one obtain this information from a WIO?

   Finally, current subsection (b) states that assistance can be obtained in completing an appeal form at a local employment office or at an office of the Board. Why doesn't the revised subsection (b) allow for similar assistance?

Subsection (c)

   Under this subsection, the Department describes the process for filing an appeal and the content of the appeal forms. Why is the signature of the local employment office representative, formerly found in § 101.81(b)(7), being deleted? The Department should explain.

2.  Section 101.82.  Time for filing appeal from determination of Department.--Clarity; Reasonableness; Implementation procedures.

Subsection (b)(1)

   This subsection sets forth the requirements for personal delivery of an appeal. We understand that the Board considers deliveries from private couriers ''personal delivery.'' For clarity, the term ''private courier'' should be included as a method of personal delivery in this subsec-tion. For further clarity, the Board should consider defining the term ''personal delivery,'' and including the term ''private courier.''

Subsection (b)(3)

   This subsection allows for delivery by common carrier. It states the following:

An appeal may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Transportation Board. The date of the 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.

   We have four concerns.

   First, the phrase, ''subject to the authority'' is vague. We understand that common carriers are not registered, but are regulated by the Pennsylvania Public Utility Commission (PUC). How would a person know if the carrier they are using is subject to the authority of the PUC?

   Second, the phrase ''or other record'' is vague. The final-form regulation should specify what other type of proof of delivery is acceptable.

   Third, we question the reasonableness of allowing the filing date to be established by the delivery date to a third party. To illustrate this concern, we have reviewed delivery documentation included in a package delivered to our office by a major common carrier. The documentation includes a ''ship date'' and a ''deliver by'' date. It does not include the date that the package was delivered to the common carrier. How would the Department resolve this discrepancy?

   Finally, if the delivery date cannot be established by documents or other records of the common carrier, how will the Department determine a filing date? We recommend that this paragraph include a provision similar to § 101.82(b)(2)(iii), which states that if the date cannot be determined, the filing date will be the date the appeal was received by the Department.

Subsection (b)(4)

   This subsection allows for filing by fax transmission. We have three concerns.

   First, if there is a discrepancy between the time noted by the Department's fax machine and the sender's fax machine, how will that discrepancy be resolved?

   Second, will faxes received after the close of normal business hours be considered timely?

   Third, we believe that the sender should be aware of the risk involved with sending an appeal by fax transmission. We recommend that this subsection include a provision similar to the provision found in subsection (b)(5), relating to electronic transmission other than fax transmission, which states that the sender ''accepts the risk that the appeal may not be properly or timely filed.''

Subsection (b)(5)

   This subsection allows for filing by electronic transmission other than fax transmission. We have three concerns.

   First, the phrase ''information processing system'' is vague. Does this include e-mail and voice mail? The final-form regulation should specify what types of electronic transmission are acceptable.

   Second, this paragraph requires a person filing electronically to ''comply with Department instructions concerning format.'' The final-form regulation should include the necessary instructions.

   Third, would an electronic transmission have to be sent to a specific e-mail address? If so, that e-mail address should be included in the final-form regulation. In addition, if the transmission is sent to an incorrect e-mail address at the Department, would it be considered properly filed?

3.  Miscellaneous.--Clarity.

   Section 101.102 of 34 Pa. Code references §§ 101.81 and 101.82 and should be revised to reflect the new titles included in this rulemaking.

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 02-2248. Filed for public inspection December 13, 2002, 9:00 a.m.]

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