NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[33 Pa.B. 1547] 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's 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. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg No. Agency/Title Comment Period Issued 16A-425 State Board of Barber Examiners 12/2/02 3/6/03 Deletion of Examination Fees (32 Pa.B. 5416 (November 2, 2002)) 16A-603 State Board of Vehicle Manufacturers, 12/2/02 3/6/03 Dealers and Salespersons Vehicle Auction License (32 Pa.B. 5418 (November 2, 2002)) 16A-604 State Board of Vehicle Manufacturers, 12/2/02 3/6/03 Dealers and Salespersons Established Place of Business for Dealers (32 Pa.B. 5417 (November 2, 2002)) 16A-607 State Board of Vehicle Manufacturers, 1/13/03 3/6/03 Dealers and Salespersons Consignment Sales (32 Pa.B. 6134 (December 14, 2002)) 64-3 Treasury Department 12/30/02 3/10/03 Estimation Calculations for Determining Unclaimed Property Liability (32 Pa.B. 5893 (November 30, 2002)) 8-3 Department of General Services 11/25/02 3/10/03 General Conditions of Contract (32 Pa.B. 5277 (October 26, 2002)) 4-72 Department of Community and 11/12/02 3/10/03 Economic Development Industrial Housing (32 Pa.B. 5075 (October 12, 2002))
State Board of Barber Examiners
Regulation No. 16A-425
Deletion of Examination Fees
March 6, 2003 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 State Board of Barber Examiners (Board) 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 3.103. Fees.--Clarity
This proposed rulemaking deletes eight examination fees. They are being deleted because a professional testing organization administers the examinations and sets the fees.
Section 3.41 (a) requires applications for examinations to be filed with the Board. However, the Board's website instructs applicants to submit applications directly to the testing organization.
Section 3.45 (b) states that applicants may request a personal interview with the Board for review of examination papers. However, the Board does not administer the examination and no longer provides opportunities for personal interviews.
The Board has acknowledged that these sections are outdated. We recommend that the Board incorporate any changes to these sections in the final-form regulation. This would provide the regulated community a clearer understanding of how the examination process works.
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State Board of Vehicle Manufacturers,
Dealers and Salespersons Regulation No. 16A-603
Vehicle Auction License
March 6, 2003 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. § 745.5b) which have not been met. The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) 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 19.19. Standards of licensure for retail or public auction. Section 19.20. Standards of licensure for wholesale auction.--Consistency with existing statutes; Reasonableness; Clarity.
Sections 19.19 and 19.20 both contain subsections that are virtually identical in structure and language. The following paragraphs outline questions and concerns with subsections that are in both sections.
Subsection (a)(2). Auction activities from an established place of business
This provision prohibits a business from conducting auction related activities other than from its established place of business. A commentator stated that it accepts bids on vehicle auctions from remote bidders via the Internet and requests that the regulation specifically allow for this type of bidding. The Board should clearly indicate in the final-form regulation whether vehicle auctions with established places of business in this Commonwealth can conduct business via the Internet and other electronic or telephonic methods.
Subsection (b)(1). Permanent enclosed building
This provision requires an established place of business for a public or retail auction to include a permanent enclosed building ''for use as an auction facility.'' A commentator has questioned the feasibility of this provision since salvage vehicles typically are not operable and cannot be driven into an enclosed building. Is it the Board's intent to require the sale to take place within the enclosed building?
Subsection (b)(5). Certificate of occupancy
The proposed regulation directs auctions to possess a certificate of occupancy issued pursuant to the Fire and Panic Act. Because pertinent provisions of the Fire and Panic Act were repealed by enactment of the Pennsylvania Construction Code (35 P. S. §§ 7210.101--7210.1103), the regulation should be updated to reference current law.
2. Section 19.19. Standards of licensure or public auction.--Public safety; Reasonableness; Need; Clarity.
Subsection (b)(8)
This subsection describes the requirements for a public or retail auction vehicle display area. In comments dated February 25, 2003, the House Professional Licensure Committee questioned whether a display area open to the public for auctions should be required to abide by the same safety requirements mandated for dealer display areas.
In the Preamble of this proposed regulation, the Board indicates that Act 27 was not intended to apply the same facility requirements to auctions that apply to dealers. However, the Board adds in the Preamble that ''public safety considerations demand that the Board provide minimum requirements for auction facilities.'' The Board should review and justify the minimum requirements that it intends to place on public or retail auctions including the grading and surfacing requirements for dealers in 49 Pa. Code § 19.18(3).
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State Board of Vehicle Manufacturers,
Dealers and Salespersons Regulation No. 16A-604
Established Place of Business for Dealers
March 6, 2003 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. § 745.5b) which have not been met. The State Board of Vehicle Manufactures, Dealers and Salespersons (Board) 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 19.18. Established place of business for dealers.--Protection of public safety; Clarity.
Paragraph (3)(ii) states that a dealership may display up to five vehicles without regard for grading or surfacing requirements ''so long as customers are not permitted to be present in the nonconforming area.'' The House Professional Licensure Committee questioned how the public will be kept out of the nonconforming display area when dealership personnel are not present or during non-business hours. We agree and question how public safety will be protected. In addition, will dealerships be held responsible for keeping the public out of ''nonconforming areas''? The Board should add requirements to make areas inaccessible to the public or provide additional justification for this amendment when it submits the final-form regulation.
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State Board of Vehicle Manufacturers,
Dealers and Salespersons Regulation No. 16A-607
Consignment Sales
March 6, 2003 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 State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 19.18a. Consignment sales.--Clarity.
The House Professional Licensure Committee recommends that the Board adopt minimum size and clarity specifications for the written disclosure required by subsection (d) to ensure proper notice to potential buyers. We agree. The Board should consider requiring use of standard language and specifying a minimum font size for this notice.
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Treasury Department Regulation No. 64-3
Estimation Calculations for Determining Unclaimed Property Liability
March 10, 2003 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 Treasury Department (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 951.8. Estimation calculations.--Clarity.
The second paragraph of this section begins with the phrase ''Where no holder's records exist. . . .'' This language expresses the negative in the actor. However, the negative in this instance belongs with the action, not the actor. Therefore, the Department should change the language in this section to read ''Where a holder's records do not exist. . . .''
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Department of General Services Regulation No. 8-3
General Conditions of Contract
March 10, 2003 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 General Services (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.
General.--Consistency with existing regulations.
This proposed rulemaking repeals existing Chapter 63. The Department should review the other chapters of Title 4 to delete outdated references to Chapter 63. For example, 68.61 references a document contained in Exhibit A of Chapter 63. Upon final promulgation of the proposed rulemaking, this reference will be obsolete.
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Department of Community and Economic Development Regulation No. 4-72
Industrial Housing
March 10, 2003 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 Community and Economic Development (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 145.36. Applicability of locally-enacted codes and ordinances.--Statutory authority, Reasonableness; Clarity.
Subsection (e) provides that these regulations will not apply to local codes, ordinances or regulations except where ''local codes, ordinances or regulations preclude the siting of industrialized housing in a manner that does not show a reasonable relationship to legitimate public health, safety or welfare considerations.'' We understand that this language is consistent with the decision of the Pennsylvania Supreme Court in Geiger v. Zoning Hearing Board of the Township of North Whitehall, 507 A.2d 361 (1986). However, we question how these regulations will apply in those situations. Nothing in either the Court's opinion or in the Industrialized Housing Act authorizes the Department to oversee local ordinances, codes or regulations. The Department should justify its authority to do so, or delete this provision.
If the Department demonstrates that it has this authority, it should explain how it would enforce this provision. It should also explain how it would determine whether local ordinances, codes or regulations are needed to protect the public health, safety or welfare. The final-form regulation should include the criteria upon which this determination will be based.
2. Section 145.53. Variations.--Clarity.
The Modular Building Systems Association commented that it is unclear if third party review and approval of plans is required for every building. This section appears to require preconstruction approval of plans and specifications for every building that varies to any degree from previously approved building system documentation. Is this the Department's intent? If not, the final-form regulation should clearly set forth the circumstances under which preconstruction approval is required for variations from a previously approved building system design.
3. Section 145.72a. Frequency of inspections.--Reasonableness; Clarity.
Subsection (d) requires dwelling units to be selected for inspection ''in a manner and frequency necessary to confirm that the manufacturer's approved compliance control program is effective in assuring installation consistent with the manufacturer's approved building system documentation.'' What criteria will be used to judge ''in a manner and frequency necessary. . .''?
Also under subsection (d), the final-form regulation should specify the time frame within which a manufacturing facility must produce the documentation of an onsite inspection when the Department requests it.
4. Section 145.94. Fees.--Need; Clarity.
Subsection (e)
This subsection lists fees which the manufacturer ''may be required to pay'' when the Department is authorized to monitor or inspect or provide evaluation services. As written, this provision could be interpreted to mean that the fees for the services rendered by the Department in paragraphs (1)--(3) are optional. Subsection (e) should be revised to clearly state that if the Department renders any of the services in paragraphs (1)--(3), the corresponding fees for these services will be assessed.
Subsection (f)
Existing subsection (f) authorizes the Department to establish ''reasonable handling and other administrative fees as indicated elsewhere in this chapter. . . .'' Is this subsection necessary given that the Department is updating all the fees in this proposed regulation? What other ''handling'' and ''administrative'' fees would apply?
5. Miscellaneous clarity issue.
The first sentence of the Preamble, as published in the Pennsylvania Bulletin, contains a typographical error in the citation to the Department's statutory authority. The Preamble to the final-form regulation should list the Department's statutory authority as 35 P. S. § 1651.5.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 03-530. Filed for public inspection March 21, 2003, 9:00 a.m.]
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