714 Notice of comments issued

Notice of Comments Issued

[30 Pa.B. 2177]

   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 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 5a(h) and (i) of the act (75 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 regulations must be submitted by the dates indicated.

			Final-Form
			Submission
Reg. No.	Agency/Title	Issued	Deadline
2-128	Department of    Agriculture	4/13/00	3/13/02
	Importation and Intrastate       Transportation of Animals;       Brucellosis
2-119	Department of    Agriculture	4/13/00	3/13/02
	Farm Safety and Occupational       Health Grant Program
2-122	Department of    Agriculture	4/13/00	3/13/02
	Farm Safety and Occupational       Health Development and       Instructional Program
2-123	Department of    Agriculture	4/13/00	3/13/02
	Farm Safety andOccupational       Health Tuition Assistance       Program
15-392	Department of    Revenue	4/13/00	3/13/02
	Sales and Use Tax; Computer       Software, Hardware and Related       Transactions

Department of Agriculture Regulation No. 2-128

Importation and Intrastate Transportation of Animals; Brucellosis

April 13, 2000

   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 has 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 If the final-form regulation is not delivered by March 13, 2002, the regulation will be deemed withdrawn.

1.  Section 3.103(d) Designation of other tests as acceptable--Statutory authority; Legislative intent.
Section 7.72(a) Designation of vaccine--Statutory authority; Legislative intent.

   Section 3.103(d) provides that the Secretary may designate a new test for equine infectious anemia by publishing an order in the Pennsylvania Bulletin, provided a proposed regulation follows within 1 year. Section 7.72 provides that the Secretary may designate a new brucellosis vaccine in the same manner. These provisions are modeled after section 2322 of the Agriculture Code (3 Pa.C.S. § 2322(d)) which authorizes the Secretary to designate additional transmittable diseases through issuance of a temporary order published in the Pennsylvania Bulletin, which stays in effect for 1 year, unless reissued, or until a regulation designating the disease is adopted, whichever occurs first.

   These regulatory provisions implement section 2325 of the Code (3 Pa.C.S. § 2325), which authorizes the Department to promulgate regulations governing diagnostic agents and vaccines. Language authorizing the Department to do so by publication of a temporary order is conspicuously absent from this statutory provision. Although we agree that it would be expeditious to designate tests and vaccines through temporary orders, we object to these provisions because they are not consistent with the Department's statutory authority and the intent of the General Assembly.

2.  Section 3.103(c) Inconsistent results--Clarity.
Section 7.72(c) Official vaccination--Clarity.

   Section 3.103(c) requires that the Pennsylvania State Veterinarian grant permission before an equid may be imported into the Commonwealth if inconsistent tests results are reported. Section 7.72(c) requires the permission of the Pennsylvania State Veterinarian for the vaccination of cattle over the age of 12 months to be considered an ''official vaccination.'' What is the procedure for obtaining permission? Is there a written procedure? The regulation should outline how permission is requested and granted from the State Veterinarian, or provide a cross reference to an existing regulation if there is one.

3.  Section 7.72. Procedure--Clarity.

   Subsection (c) states that a vaccination given to cattle over 12 months of age is not considered an official vaccination. The Department should cross reference 9 CFR 78.1 or define ''official vaccination.''

4.  Section 7.73. Identification on vaccination report--Clarity.

   There is a typographical error in subsection (c). The Department should delete ''or'' from the last sentence.

Department of Agriculture Regulation No. 2-119

Farm Safety and Occupational Health Grant Program

April 13, 2000

   We submit for consideration the following objections and recommendations regarding this regulation. Subsections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) list the criteria the Commission must use to determine if the regulation is in the public interest. 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 by March 13, 2002, the regulation will be deemed withdrawn.

1.  Section 138k.1. Program objectives.--Consistency with other regulations and Clarity.

Subsection (b) Competitive program.

   The second sentence of this subsection states: ''Grant requests and related documentation will be collected by the Department and reviewed by the Board [Farm Safety and Occupational Health Advisory Board] and Secretary.'' Similar phrasing occurs in sections 138k.4(c) and 138k.6(a)--(c) of this regulation. These sections indicate that the Board will participate in the review of grants and applications.

   Giving the Board this duty is inconsistent with similar provisions in two simultaneously submitted proposed regulations (#2-122 and #2-123). All three proposed regulations, currently under review, are designed to implement section 6 of the Farm Safety and Occupational Health Act (act) (3 P. S. § 1906).

   In the other two regulations, this provision states that the grants will be ''reviewed by the Secretary or a designee.'' The Board is not included. It is our understanding that the Board meets only three times per year. Since the Department plans to review and approve grant applications within 30 days, it is not feasible to include the Board in the review of each application. Therefore, this proposed regulation should be revised to be consistent with the other two regulations.

2.  Section 138k.2. Definitions.--Consistency with statute.

Board

   The definitions of the term ''Board'' in the regulation and the term ''Advisory Board'' in the act are identical. Both refer to the ''Farm Safety and Occupational Health Advisory Board.'' Therefore, for consistency with the statute, the Department should replace ''Board'' with ''Advisory Board.''

3.  Section 138k.4. Applications generally.--Clarity.

   Another part of the regulation, subsection 138k.6(a), is entitled ''Grant application requirements.'' It sets forth a list of required attachments to an application. To improve clarity, the contents of subsection 138k.6(a) should be moved to section 138k.4 (relating to applications generally). Alternatively, the contents could be placed in a new section captioned ''Application requirements'' following section 138k.4 and preceding section 138k.5 (relating to application deadline).

   Section 138k.4 requires applicants to complete and submit application forms provided by the Department. However, the regulation does not list the basic information that is required on an application form. The Department should include basic information on the contents of the application form in this section.

4.  Section 138k.6. Review of application.--Reasonableness and Clarity.

Subsection (b) Factors.

   This section should include a reference to subsection 138k.3(c) (relating to the use of grant funds), or list the types of projects that will qualify for grant funding.

5.  Section 138k.7. Notice of disposition of application.--Reasonableness and Clarity.

   This section states, ''[G]rant applicants will be notified by the Secretary within 30 days of a decision to reject or approve the grant.'' How long will it take the Department to issue a decision once the application is received? The Department should clarify the length of time it will take to evaluate an application.

   The last sentence of this section provides that grant money shall be used within 1 year of the date of the grant agreement unless the Secretary allows an extension. There are two concerns. First, what constitutes use of the grant money? Must the grant money be actually expended within a year, or can it also be committed but not actually spent?

   Second, this regulation should also state what happens if the grant funds are not used within 1 year of their receipt. There are two parts to this concern. First, this section should indicate how a grant recipient could apply for an extension. Second, it should indicate what action the Department may take and whether these actions could include cancellation of the grant under section 138k.10 of this regulation.

6.  Section 138k.8. Recordkeeping.--Paperwork requirements and Reasonableness.

   Grant recipients must submit a final report with documentation as required under section 138k.9. Why must they also retain copies of documents and records for 3 years after the grant year?

7.  Section 138k.9. Verification of use.--Clarity.

Subsection (a) Verification.

   Subsection (a) requires applicants to submit to the Department written receipts for the project costs, a final report and a narrative report. While the written receipts are due to the Department within 3 months of the project completion date, there are no due dates for submission of the other two reports. The Department should provide a time limit for submission of the final and narrative reports in this subsection.

8.  Miscellaneous Issues.--Consistency with other regulations and statute and Clarity.

   Proposed Regulations (2-122 and 2-123) include provisions for requesting additional documentation from an applicant when an application is deficient (§§ 138j.6(c) and 138i.6(c)). They also suspend processing of an incomplete application until the Department receives the data. The applicant must submit the requested data within 10 days (§§ 138j.7(a) and 138i.7(a)).

   The Department should consider adding similar provisions to this regulation (2-119). In addition, it should also state that the Department will confirm in writing all requests for, and submission of, additional data.

   Proposed Regulations 2-122 and 2-123 also contain conflict of interest provisions (§§ 138j.12 and 138i.9). These provisions allow a member of the Board to apply for a grant, subject to the cited statutory and regulatory requirements relating to conflict of interest. Similar conflict of interest provisions should be added to this rulemaking.

Department of Agriculture Regulation No. 2-122

Farm Safety and Occupational Health Developmental and Instructional Program

April 13, 2000

   We submit for consideration the following objections and recommendations regarding this regulation. Subsections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) list the criteria the Commission must use to determine if the regulation is in the public interest. 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 by March 13, 2002, the regulation will be deemed withdrawn.

1.  Section 138j.2. Program objectives.--Reasonableness and Clarity.

Subsection (a) Purpose.

   This subsection lists the four types of institutions that qualify for the program: the Pennsylvania Fire Academy; a public or private college or university; a community college; or a vocational or technical school. This list is repeated in sections 138j.4(a), 138j.6(a) and 138j.9(b) of the regulation. According to subsection 6(c)(1) of the Farm Safety and Occupational Health Act (act) (3 P. S. § 1906(c)(1)), these are the only types of institutions that are eligible for the grants covered by this regulation. Is it necessary to repeat this list? For example, the four types of institutions could be listed once in the definition of a new term ''eligible applicant'' or ''eligible recipient.'' The new term could be added to the Definitions section and replace the lists in the four sections.

Subsection (b) Competitive program.

   The phrase ''the Secretary or a designee'' is used in this subsection and in sections 138j.5--138j.9 in the regulation. However, the term ''designee'' is not defined. The regulation should include a definition of ''designee.''

2.  Section 138j.3. Definitions.--Consistency with statute and Clarity.

Board

   The definitions of the term ''Board'' in the regulation and the term ''Advisory Board'' in the act are identical. Both refer to the ''Farm Safety and Occupational Health Advisory Board.'' Therefore, for consistency with the statute, the Department should replace ''Board'' with ''Advisory Board.''

Farm laborers

   The first sentence of this definition reads, in part: ''An individual employed by a farmer in raising, cultivating. . . .'' Hence, the term should be ''farm laborer'' not ''farm laborers.''

Members of farm families

   The definition of ''members of farm families'' includes the phrase ''collateral relation of the first degree.'' This phrase is unclear. It is our understanding that it applies to nieces, nephews and grandchildren. To improve clarity, the phrase ''collateral relation of the first degree'' should be replaced with ''nieces, nephews and grandchildren'' and any others that the Department decides to include in this definition. In addition, there is a conflict between plural and singular nouns in the term ''members of farm families'' and the first phrase of its definition: ''Any son, daughter or spouse of a farmer. . . .''

3.  Section 138j.4. Limitation on grants.--Clarity.

Subsection (c) Recipient's use of FSDIP grant funds.

   The term ''FSDIP'' is not defined by this regulation. The term ''program'' is defined by this section 138j.3 as the ''Farm Safety and Occupational Health Developmental and Instructional Program.'' Therefore, the term ''program'' should replace ''FSDIP'' in this rulemaking.

4.  Section 138j.5. General conditions.--Clarity.

Subsection (c) Verification.

   Subsection (c) requires a grant recipient to submit a final report to the Department that includes documentation of the projects costs. Additionally, a grant recipient must submit another final report that includes ''pertinent documentation and a narrative report describing the project documentation and objectives.'' We have two concerns regarding this subsection.

   First, are the final reports mentioned in this subsection one document, or two? If one document is required, the regulation should include a list of the content requirements that specifically identifies the types of financial information and other project data to be included in the report.

   Second, the phrase ''pertinent documentation'' is unclear. The Department should provide examples of ''pertinent documentation'' in subsection (c).

5.  Section 138j.6. Applications.--Clarity.

   Another part of the regulation, subsection 138j.9(c), is entitled ''Grant application requirements.'' It sets forth a list of required attachments to an application. To improve clarity, the contents of subsection 138j.9(c) should be moved to section 138j.6 (relating to applications). Alternatively, it could be a new section captioned ''Application requirements'' following section 138j.6.

   Section 138j.6 requires applicants to complete and submit application forms provided by the Department. However, the regulation does not list the basic information that is required on an application form. The Department should include basic information on the contents of the application form in this section.

6.  Section 138j.7. Processing of applications.--Clarity.

Subsection (b) Approval power.

   Subsection (b) is closely related to section 138j.8 (relating to notice of disposition of application). It should be moved to section 138j.8.

Subsection (c) Board.

   This subsection states ''the Board shall recommend program priorities to the Secretary.'' It adds, ''the Board shall recommend the amount of funds to be allocated for Program grants.'' It is our understanding that the Board meets three times per year. Since the Department plans to review and approve grant applications within 30 days, it is not feasible to include the Board in the review of each application. Therefore, it is not practical to include this language in provisions involving the review of applications. The Department should clarify the Board's role in the grant process. One alternative would be to place language similar to that in subsection (c) in section 138j.4 (relating to limitation on grants).

7.  Section 138j.8. Notice of disposition of application.--Clarity.

Subsection (a) Applications deemed complete.

   To improve the clarity of the sequence of steps involved with review and approval of applications, we recommend that this section follow, rather than precede, section 138j.9 (relating to review of applications) and immediately precede section 138j.10 (relating to conflict of interest).

Subsection (b) Applications deemed incomplete.

   This provision follows other subsections related to the approval of applications. Any notice concerning the ''completeness'' of an application should occur before a final decision. Hence, this subsection should precede provisions concerning the final disposition of applications.

8.  Section 138j.11. Recordkeeping.--Paperwork requirements and Reasonableness.

   Grant recipients must submit a final report with documentation as required under subsection 138j.5(c). Why must they also retain copies of documents and records for 3 years after the grant year?

9.  Section 138j.12. Grant cancellation.--Reasonableness and Clarity.

   This section states that a ''grant may be canceled by the Secretary upon a determination that the funds are not being or were not properly used.'' What is meant by the term ''used''?

10.  Miscellaneous Clarity Issues.

   Section 138j.1 is entitled ''Authority'' and includes a discussion of three different subsections from the act. However, the section does not establish or clarify the Department's procedures and requirements for implementing the act. The section is unnecessary, and should be deleted.

Department of Agriculture Regulation No. 2-123

Farm Safety and Occupational Health Tuition Assistance Program

April 13, 2000

   We submit for consideration the following objections and recommendations regarding this regulation. Subsections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) list the criteria the Commission must use to determine if the regulation is in the public interest. 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 by March 13, 2002, the regulation will be deemed withdrawn.

1.  Section 138i.2. Program objectives.--Reasonableness and Clarity.

Subsection (b) Competitive program.

   The phrase ''the Secretary or a designee'' is used in this subsection and in sections 138i.7, 138i.8 and 138i.10 in the regulation. However, the term ''designee'' is not defined. The regulation should include a definition of ''designee.''

2.  Section 138i.3. Definitions.--Consistency with statute and Clarity.

Board

   The definitions of the term ''Board'' in the regulation and the term ''Advisory Board'' in the act are identical. Both refer to the ''Farm Safety and Occupational Health Advisory Board.'' Therefore, for consistency with the statute, the Department should replace ''Board'' with ''Advisory Board.''

Farm laborer

   The last sentence in this definition states, in part: ''. . . or a farm product as defined in 1 Pa.C.S. § 1991.'' (Emphasis added.) In proposed regulation 2-122, also from the Department, the last sentence in the same definition states: ''. . . or any farm product as defined in 1 Pa.C.S. § 1991.'' (Emphasis added.) For consistency with other chapters of the Department's regulations, the regulations should use either ''any'' or ''a,'' but not both, in this definition.

Members of farm families

   The definition of ''members of farm families'' includes the phrase ''collateral relation of the first degree.'' This phrase is unclear. It is our understanding that it applies to nieces, nephews and grandchildren. To improve clarity, the phrase ''collateral relation of the first degree'' should be replaced with ''nieces, nephews and grandchildren'' and any others that the Department decides to include in this definition. In addition, there is a conflict between plural and singular nouns in the term ''members of farm families'' and the first phrase of its definition: ''Any son, daughter or spouse of a farmer. . . .''

3.  Section 138i.6. Applications.--Clarity.

Subsection (a) Application required.

Subsection (b) Obtaining an application and assistance.

   Another part of the regulation, subsection 138i.8(c), is entitled ''Grant application requirements.'' It sets forth a list of required attachments to an application. To improve clarity, the contents of subsection 138i.8(c) should be moved to section 138i.6 (relating to applications). Alternatively, it could be a new section captioned ''Application requirements'' following section 138i.6.

   Subsection 138i.6(a) and (b) require applicants to complete and submit application forms provided by the Department. However, the regulation does not list the basic information that is required on an application form. The Department should include basic information on the contents of the application form in this section.

Subsection (d) Application deadline.

   This subsection includes the phrase ''Applications for grants under this chapter shall be received by the Department prior to the date of the project the applicant wishes to attend.'' The phrase ''prior to the date'' is unclear. What is the intent? How many days before the project date will be sufficient? The Department should clarify this deadline in the final regulation.

4.  Section 138i.7. Processing of applications.--Clarity.

Subsection (a) Review by the Secretary.

   This subsection includes three different topics: criteria or standards for review of applications; requests for additional information for incomplete applications; and approval of applications. Hence, it duplicates portions of section 138i.8 relating to review of applications and section 138i.10 relating to notice of disposition of application. The Department should clarify the purpose and structure of this subsection. The procedures and criteria for reviewing applications and completeness review should be separate from, and precede, those sections relating to final disposition. Provisions concerning the final disposition of an application should be set forth in section 138i.10.

   Additionally, subsection (a) is very long and confusing. To increase readability, this section could be broken down into outline form.

Subsection (b) Board.

   This subsection states ''the Board shall recommend program priorities to the Secretary.'' It adds, ''the Board shall recommend the amount of funds to be allocated for Program grants.'' It is our understanding that the Board meets three times per year. Since the Department plans to review and approve grant applications within 30 days, it is not feasible to include the Board in the review of each application. Therefore, it is not practical to include this language in provisions involving the review of applications. The Department should clarify the Board's role in the grant process. One alternative would be to place language similar to that in subsection (b) in section 138i.4 (relating to limitation on grants).

5.  Section 138i.12. Grant cancellation.--Reasonableness and Clarity.

   This section states that a ''grant may be canceled by the Secretary upon a determination that the funds are not being or were not properly used.'' What is meant by the term ''used''?

6.  Miscellaneous Clarity Issues.

   Section 138i.1 is entitled ''Authority'' and includes a discussion of three different subsections from the act. However, the section does not establish or clarify the Department's procedures and requirements for implementing the act. The section is unnecessary, and should be deleted.

Department of Revenue Regulation No. 15-392

Sales and Use Tax; Computer Software, Hardware and Related Transactions

April 13, 2000

   We submit for consideration the following objections and recommendations regarding this regulation. Subsections 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) list the criteria the Commission must use to determine if the regulation is in the public interest. The Department of Revenue (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by March 13, 2002, the regulation will be deemed withdrawn.

1.  General.--Fiscal impact; Clarity.

   The proposed regulation sets forth those computer software and hardware items that are and are not taxable. However, the regulation is silent on whether canned software downloaded over the Internet or from another source is subject to tax. We understand from discussions with the Department that downloaded software is not considered ''tangible personal property'' and, therefore, is not taxable. Based on the Department's response, the regulation should clearly state that canned software that is purchased and delivered by computer download from the Internet, or transferred from the seller's computer to the purchaser's own storage media, is not subject to tax.

2.  Section 31.33. Computer software, hardware and related transactions.--Clarity.

Subsection (a) Definitions.

Canned software

   The definition of the term ''canned software'' is simply ''[A]ll computer software that does not qualify as custom software.'' This definition is vague. For clarity, the Department should consider providing examples of ''canned software'' in this definition.

Computer hardware

   The examples in subsection (iv) of the definition of ''computer hardware'' are not uniformly plural. For example: ''memory chip,'' ''microphone'' and ''digitizer'' should be rewritten as ''memory chips,'' ''microphones'' and ''digitizers.''

Subsection (b)(2)(i)(B) Computer software

   This subsection states, ''Charges for the custom software or modifications must be reasonable. . . .'' We have two concerns. First, this subsection incorrectly refers to custom software when it is only charges for modifications made to canned software that must be reasonable. The Department should consider deleting the phrase ''custom software or.''

   Second, the term ''reasonable'' is vague. The Department should explain the standards they will use to determine whether or not charges for modifications are ''reasonable.''

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 00-714. Filed for public inspection April 28, 2000, 9:00 a.m.]