INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [32 Pa.B. 3850] 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. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Close of the Public IRRC Reg. No. Agency/Title Comment Period Comments Issued #57-224 Pennsylvania Public Utility Commission 6/4/02 7/3/02 Generic Competitive Safeguards (32 Pa.B. 1986 (April 20, 2002)) #7-376 Environmental Quality Board 6/18/02 7/18/02 Coal Mining (32 Pa.B. 2217 (May 4, 2002)) #7-377A Environmental Quality Board 6/18/02 7/18/02 Stream Redesignations; Oysterville Creek, et al. (32 Pa.B. 2219 (May 4, 2002)) #2-140 Department of Agriculture 6/17/02 7/18/02 Aquaculture Development Plan (32 Pa.B. 2468 (May 18, 2002))
______ Pennsylvania Public Utility Commission Regulation No. 57-224 Generic Competitive Safeguards July 3, 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 Pennsylvania Public Utility Commission (PUC) 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regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.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 63.141. Statement of purpose and policy.--Clarity.
Subsection (c) states that the code of conduct in this proposed regulation ''supersedes and replaces any other codes of conduct applicable to any LEC.'' This provision is vague because it implies that there are multiple codes of conduct currently in place but does not identify them. Based on discussions with PUC staff, however, we understand that the Interim Code of Conduct adopted in the Global Order for Verizon-PA is the only code of conduct currently in effect. The final-form regulation and the accompanying order should specifically identify the code of conduct that will be superseded by this rulemaking.
2. Section 63.142. Definitions.--Consistency with statute; Clarity.
Competitive service
This term is defined as ''a service or business activity offered by an incumbent or CLEC . . . . '' To be consistent with other references to incumbent local exchange carriers (ILEC) in this regulation, the acronym ''ILEC'' should replace the word ''incumbent'' in this definition.
Telecommunications service
The proposed definition includes the words ''signaling'' and ''data'' that are not included in the statutory definition (66 Pa.C.S. § 3002). The PUC should either use the statutory definition of ''telecommunications service'' or explain why it is necessary to include the words ''signaling'' and ''data'' within the definition in the final-form regulation. If these words remain within the definition, then they should be defined in the final-form regulation and the PUC should explain its jurisdiction over signaling and data transmission.
Wholesale functions and retail services
The proposed regulation utilizes these terms but does not define them. Clarity would be improved if these terms were defined in the final-form regulation.
3. Section 63.143. Accounting and audit procedures for large ILECs.--Need; Fiscal impact; Reasonableness; Clarity.
Paragraph (2)
This paragraph requires the wholesale operating unit of the ILEC to ''keep separate accounting and business records.'' We have two concerns which were also raised by Representative Dennis M. O'Brien, Chairperson of the House Consumer Affairs Committee and Representative Joseph Preston, Jr., Democratic Chairperson of the House Consumer Affairs Committee.
First, the regulation does not specify what documents the ILEC is required to maintain. Verizon estimates that its implementation costs could range from $10,000 to $100 million depending on how the PUC interprets the recordkeeping requirements. Without specific record keeping requirements in the regulation, compliance costs cannot be determined.
Second, the purpose of these requirements is unclear. According to the Preamble, the accounting rules and business record keeping requirements will allow the PUC ''to monitor and prevent discriminatory conduct.'' However, the PUC has not explained and we are unable to determine how the requirements in paragraph (2) will accomplish this goal.
We note that paragraph (8) provides a means for the PUC to monitor the ILEC's business practices through an independent compliance review. This review can be tailored to specific concerns, such as discriminatory practices. Absent greater specificity and compelling justification for the recordkeeping requirements, the PUC should eliminate the requirements in paragraph (2) and rely on its ability to audit specific areas of concern under paragraph (8).
Paragraph (3)
This paragraph prohibits the wholesale operating unit from engaging in ''any marketing, sales, advertising or subscription activities directed at retail customers.'' Since the function of the wholesale operating unit is to provide wholesale services to competitive local exchange companies (CLECs), not retail customers, it is unclear why this provision is included in the regulation. The PUC should delete this provision in the final-form regulation or explain how it would apply to the wholesale operating unit.
Paragraph (4)
Under this paragraph, costs of resources associated with performance of wholesale functions ''shall be allocated using appropriate allocation factors.'' However, the regulation neither specifies the allocation factors nor prescribes the criteria for determining ''appropriate'' factors. The final-form regulation should specify the factors or the criteria for determining allocation factors.
Paragraph (6)
This paragraph prohibits employees of the wholesale operating unit from promoting the ILEC's retail services. Consistent with our comment on paragraph (3), we question how this prohibition applies to the wholesale operating unit, since this unit provides services to CLECs, not retail customers. The PUC should delete this provision or explain how it would apply to the wholesale operating unit.
Paragraph (7)
This provision requires the ILEC to ''maintain contemporaneous records documenting all tariffed and nontariffed transactions between its wholesale operating unit and its other operations.'' In its comments, Verizon asserts that there are no tariffed transactions between its wholesale unit and its retail unit. It is also unclear what nontariffed transactions are encompassed by this requirement. We request the PUC explain the need for and purpose of this requirement or delete it from the final-form regulation.
Paragraph (8)
Under this paragraph, ''an independent compliance review may be conducted every calendar year.'' However, it is not clear under what circumstances the PUC will conduct reviews. The PUC should explain how it will determine when an ''independent compliance review'' is necessary and include the criteria for making this determination in the final-form regulation.
4. Section 63.144. Code of Conduct.--Reasonableness; Clarity.
Omission of Interim Code of Conduct paragraph (3)
Paragraph (3) of the Interim Code of Conduct contains the following provision:
The incumbent local exchange company shall simultaneously make available to any competitor any market information not in the public domain that is supplied to any competitive local exchange affiliate or division.
It appears that this provision was intended to prevent the ILEC from securing a competitive advantage by withholding market information from CLECs. However, this competitive safeguard is not included in the proposed regulation. CLECs have commented that without this safeguard, they will not have a level playing field on which to compete. We believe this is a valid concern.
In the Preamble, the PUC states that the code of conduct is intended to ''prevent unfair competition and ensure nondiscriminatory access to an ILEC's services and facilities by competitors . . . . '' Paragraph (3) of the Interim Code of Conduct appears to be consistent with these goals. Therefore, the PUC should include this provision in the final-form regulation or explain why it is not in the public interest to do so.
Paragraph (1)
Paragraph (1)(i) states that ''an ILEC may not give itself . . . any preference or advantage over any other CLEC . . . unless expressly permitted by State or Federal law.'' The exception allowed under other State or Federal laws is vague and open to interpretation. We note that the comparable provision in the electric code of conduct (52 Pa. Code § 54.122(1)) does not contain this exception. In the final-form regulation, the State and Federal laws that allow an ILEC to give itself preference should be referenced, or this exception should be deleted.
Paragraph (1)(ii) states that ''an ILEC may not condition the sale, lease or use of any noncompetitive service on the purchase, lease or use of any other goods or services offered by the ILEC or on a direct or indirect commitment not to deal with any CLEC.'' Clarity would be improved if the terms ''direct commitment'' and ''indirect commitment'' were defined in this section.
5. Section 63.145. Remedies.--Clarity.
Subsection (a) states '' . . . under relevant provisions of 66 Pa.C.S. (relating to the Public Utility Code).'' The PUC should cite the specific sections of the Public Utility Code that apply.
____ Environmental Quality Board Regulation No. 7-376 Coal Mining July 18, 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 Environmental Quality Board (EQB) 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 86.6. Extraction of coal incidental to government-financed highway construction or reclamation projects.--Consistency with other regulations; Clarity.
The proposed regulation establishes an exemption for government-financed highway construction or reclamation projects. Coal extraction that is incidental to these projects will be exempt from the requirements of the coal mining regulations in 25 Pa. Code Chapters 86--88. There are two concerns.
First, subsection (a)(1) is similar to the Federal regulation in 30 CFR 707.5 except that the Federal exemptions are not limited to highway construction and reclamation projects. Federal exemptions for coal extraction incidental to government-financed projects include ''coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction.''
The Federal regulations include exemptions for coal extraction incidental to other types of government-financed construction projects. Why doesn't the proposed regulation also include these exemptions?
Second, the proposed regulation contains no references to the water quality and environmental protection regulations that will still apply to government-financed projects. The Preamble of the proposed regulation states ''government-financed highway projects are not exempt from other Department permitting requirements like those under Chapters 92, 102 and 105 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance; erosion and sediment control; and dam safety and waterway management).'' The proposed regulation should include references to Chapters 92, 102 and 105.
____ Environmental Quality Board Regulation
No. 7-377AStream Redesignations; Oysterville Creek, et al. July 18, 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 Environmental Quality Board (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.
Our comment on this regulation should not be construed as being in opposition to the redesignation of Cove Creek. We want to be clear that it is the process used to redesignate Cove Creek that raises concerns related to our criteria. We are not raising a concern with nor an objection to the appropriate protection of the waters in this Commonwealth.
1. Cove Creek--Consistency with existing regulation; Feasibility; Reasonableness; Clarity.
Reference stream selected
The reference stream selected by the Department of Environmental Protection (Department) for Cove Creek is identified as Fishing Creek in Clinton County. The Department determined an Exceptional Value (EV) designation is appropriate for Cove Creek, based on comparisons with a reference station in Fishing Creek. However, Fishing Creek is designated as a High Quality-Cold Water Fishery (HQ-CWF) in two sections and CWF in a third section, as found in § 93.9l (relating to Drainage List L). It is also located approximately 50 miles away from Cove Creek. We object to the Board's selection of an HQ reference stream to make an EV determination. As explained, the selection of Fishing Creek, an HQ stream, as a reference stream raises the following concerns:
* Consistency with the Department's regulations and guidance documents.
* Flawed percentage comparison.
* Use of obsolete data from February 1995.
The Board has designated numerous streams as EV in this Commonwealth, including many in the same drainage basin. It is not clear how or why the Board selected Fishing Creek as an appropriate reference stream for Cove Creek. The Board should use an EV reference stream, which is in a reasonable proximity to Cove Creek, to act as a reference stream for Cove Creek. Otherwise, the Board should explain the rationale for selecting Fishing Creek as a reference stream to make the EV determination.
Consistency with the Department's regulations and guidance documents
The Board proposed standards for this Commonwealth in Rulemaking #7-310, Water Quality Amendments--Antidegradation, after the Environmental Protection Agency officially preempted the Commonwealth, effective January 8, 1997, and established Federal water quality standards (for example, antidegradation standards) for this Commonwealth. In our comments on Rulemaking #7-310, we recommended that the Board amend the regulation to specify the evaluation criteria for the biology test for HQ and EV streams. The Board responded by adding criteria to the regulation in relation to a reference stream. However, the Board did not specify in the regulation how a reference stream must be chosen. In supplemental information provided June 14, 1999, the Board stated that the Department would ''develop more detailed guidance describing the process for choosing reference streams.'' Rulemaking #7-310 was published as final on July 17, 1999.
The Department's guidance document titled Water Quality Anti-Degradation Implementation Guidance (Document ID 391-0300-002), Draft April 16, 2001, Chapter 5, Subchapter 2, Section B states:
A biologist must use watersheds with a designated or existing use of EV as references in evaluating waters proposed as HQ or EV using the biological assessment qualifier . . . If the watershed does not represent the best attainable biological community, it should not be used as a benchmark, against which other candidate waters are judged.
The Board should explain how the selection of the reference stream Fishing Creek, an HQ stream, is consistent with 25 Pa. Code Chapter 93 and the Department's related guidance documents.
Percentage comparisons
An EV designation requires a percent comparison to the reference stream greater than 92%, while an HQ designation requires a percent comparison to the reference stream of at least 83%. In the explanation of Cove Creek's EV determination in the Stream Redesignation Evaluation Water Quality Standards Review, Cove Creek's Station 7CC biological condition score is 93% of Fishing Creek's Station 2FC. However, Cove Creek's score may not have been greater than 92% if the reference stream selected was an EV stream. In fact, a score of 93% in comparison to an HQ stream could be as low as 77% in comparison to an EV stream.
The data used to support a redesignation should be compared to more uniform benchmarks. Why is it appropriate and reasonable to rely on percentage comparisons using a stream with an HQ designation to make an EV determination?
Data from 1995
The data that forms the basis for the redesignation of Cove Creek is from a survey done by the Department in February 1995, which was originally included in a rulemaking published September 5, 1998. Both of these actions were taken prior to when Rulemaking #7-310 was published as final on July 17, 1999, and the development of guidance documents including Water Quality Anti-Degradation Implementation Guidance. We have three questions. First, how was the information updated or reviewed in accordance with the Department's current regulations and guidance documents prior to filing this rulemaking on April 23, 2002? Second, has the Department examined any more recent samples to reconfirm the quality of Cove Creek? Third, why is it appropriate to base the redesignation on samples taken in February of 1995?
____ Department of Agriculture Regulation No. 2-140 Aquaculture Development Plan July 18, 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.
1. Program Costs.--Economic Impact.
The Preamble to the proposed regulation states that there is a separate account in the State Treasury called the Aquaculture Development Account. The Preamble further states that this account is funded by fees and charges generated under the Aquaculture Development Law (Act). However, the Department also acknowledges that ''moneys for use in the development and administration of the grant and loan programs established by this proposed rulemaking will need to be provided through future appropriations to the Aquaculture Development Account.'' We have questions relating to program funding.
* When will these programs be funded?
* How is the program ''revenue neutral'' as stated in the regulatory analysis form?
* Will registration fees for aquaculture producers increase as a result of implementation of the Aquaculture Development Plan?
The Department should respond to these questions in the Comment and Response document.
2. Issues Common to the Application and Review Processes for these Programs.--Need; Reasonableness; Clarity.
Payment of participation fees
The programs this proposed regulation will require applicants to pay participation fees. However, it is unclear when these fees must be paid. Subchapters C--G appear to contain contradictory language. They require the participation fee to be submitted with the application in one subsection, and then, in a later subsection, require the fee to be paid after receiving notice of acceptance into a program (for example, §§ 106.104(b)(5) and 106.107(a)). The final-form regulation should clarify when the participation fees for each program are due.
Return of participation fees
When a program requires a participation fee and the applicant is rejected, will the participation fee be refunded? If so, the final-form regulation should include provisions that prescribe how and when participation fees will be returned to the applicant.
Structure of regulations
The regulation is structured so the review of applications sections comes before the processing of applications sections. Since the processing of applications sections of the regulation address items such as completeness of the application and requests for additional data, clarity may be improved by reversing the order of the review of applications and processing of applications sections.
Review of applications
The Aquaculture Education Enhancement Program (AEEP), the Aquaculture Product Information Program (APIP), the Aquaculture Product Promotion Program (APPP) and the Aquaculture Export Promotion Program (AEPP) each have sections relating to review of applications (for example, §§ 106.53 and 106.105). Subsections (a) and (b) are not needed and should be deleted from the final-form regulation. Subsection (c) duplicates provisions found in the sections relating to processing of applications. Therefore, it should also be deleted.
The regulation contains a list of factors that the Department will consider in selecting participants for the Aquaculture Education Enhancement Activity Program, the AEPP and the APIP. Included in the list of factors is the applicant's ''ability to pay, or cost share, the . . . activity costs'' (§§ 106.53(d)(5), 106.135(d)(6) and 106.165(d)(6)). Sections 106.52, 106.134 and 106.104 require payment of the participation fee with the application. It is unclear if the ability to pay/cost share provision has any relationship to the participation fee for the programs. If the ability to pay/cost share provision is the same as the participation fee, then the ability to pay/cost share provision is duplicative and should be deleted.
Approval of applications
In Subchapters A, C and E--G, in the processing of applications sections, the Department states that it may ''approve, approve with special conditions or reject applications and issue participation approval . . . . '' We request the Department explain how ''participation approval'' is different from approval.
Release and hold harmless provisions
For each program authorized by this regulation, there is a requirement that eligible participants release and hold harmless the Department and the Commonwealth from liabilities and losses (for example, § 106.53(e)). The regulation should specify if there are any forms or agreements that must be signed to comply with this requirement.
Aquaculture Advisory Committee member participation in programs
The regulation authorizes an Aquaculture Advisory Committee member to participate in the aquaculture development programs if ''all decisions regarding the application are subject to 65 Pa.C.S. § 1103(j) (relating to restricted activities) and the action does not violate the State Adverse Interest Act (71 P. S. §§ 776.1--776.9) or 4 Pa. Code Chapter 7, Subchapter K (relating to code of conduct for appointed officials and State employees)'' (§§ 106.3(e)(3), 106.44, 106.109, 106.140 and 160.170). We request the Department explain how the determination will be made that an Aquaculture Advisory Committee member's participation meets these requirements.
Subchapter A. Aquaculture Production Development Program 3. Section 106.1. Program objectives.--Clarity.
This section states that low-interest financing will be available to businesses ''unable to fully finance these projects with equity, bank financing or other private and public sources.'' The final-form regulation should specify the documentation that the applicant must provide to demonstrate that this criterion has been met.
4. Section 106.3. Eligibility.--Clarity.
Subsection (b)
Subsection (b)(2) states that, ''the project adopts generally acceptable pollution prevention and environmental stewardship practices.'' What are ''generally acceptable pollution prevention and environmental stewardship practices''? These practices should be defined in the final-form regulation. Alternatively, if these practices are defined elsewhere in existing regulations or guidance documents, these documents or regulations should be cross-referenced in the final-form regulation.
Subsection (b)(3)(ii) states that the required certification can be obtained by an ''environmental professional approved by the Department.'' We have three concerns.
First, the term ''environmental professional'' is vague. Adding a definition of this term or citation to a definition would improve clarity.
Second, the regulation requires the ''environmental professional'' to be approved by the Department. We request the Department explain the approval process.
Finally, how will the list of environmental professionals approved by the Department be provided to the public? The final-form regulation should identify where and how this information will be made available.
5. Section 106.4. Ineligible activities.--Clarity.
Subsection (b) addresses nonprejudicial approvals. However, the title of this section is ''ineligible activities.'' Subsection (b) should be removed from § 106.4 and either placed in a new section or moved to § 106.3.
6. Section 106.5. Program requirements.--Fiscal Impact; Reasonableness; Clarity.
Subsection (c)
This subsection requires that one full-time job be created or preserved when the project is funded under the Aquaculture Product Development Program (APDP). What is the basis for this requirement? Given that loan amounts could be as small as $10,000, is it reasonable to require the creation or preservation of one full-time equivalent job for each project funded under the APDP? If this requirement is not met within 3 years from completion of the project, is the loan recipient required to immediately repay the entire loan amount?
Subsection (e)
This subsection sets forth the terms for loan agreements. Explain the basis for the payment periods in subsection (e).
Paragraph (g)
Paragraph (2) states ''reasonable loan processing fees may be charged.'' On what basis will the ''reasonable'' fees be determined?
Additionally, paragraph (2) states that the applicant ''should'' check with the local provider regarding fees. ''Should'' is nonregulatory language which is inappropriate in regulations. It would be clearer to simply state that the local service provider or area loan organization will set the fees.
Subsection (i)
Paragraph (i)(1) refers to ''good credit ratings containing no late payments or write-offs.'' It appears that the standard which must be met under this paragraph is ''no late payments or write-offs.'' The use of the word ''good'' is superfluous and creates an undefined standard. The Department should either delete ''good'' or include criteria for determining what credit rating constitutes a ''good'' credit rating.
Paragraph (i)(4) refers to a ''proven profit-making venture.'' What criteria will be used to determine if a venture meets the ''proven profit-making'' requirement?
7. Section 106.6. Application submission and approval procedure.--Clarity.
Paragraph (d)(14) states ''The collateral position of the Department will not be less than a second lien on the assets being funded unless specifically approved in writing by the Department.'' Under what circumstances would the Department accept a collateral position less than a second lien on the assets?
8. Section 106.12. Contact information.--Clarity.
Subsection (a) lists methods to contact the Department but does not include an email address. If the Department is available by email, that information should be included in the final-form regulation.
Subchapter B. Aquaculture Producer Resource Program 9. Section 106.22. Limitations.--Clarity.
Subsection (a) references the Department's Internet site but does not list the address. Has the Department considered including the Internet address in the final-form regulation?
Subchapter C. Aquaculture Education Enhancement Program General Provisions
10. Section 106.43. Notice of activities.--Implementation procedures.
Subsection (a) states that the Department will use one of three methods to notify eligible applicants of AEEP activities. The three methods include publication in the Pennsylvania Bulletin, direct mailing and advertisements. If the Department uses only one method of notification, such as the Pennsylvania Bulletin, many eligible applicants may not be aware of upcoming activities. Is it the Department's intent to use only one method of notification, or will the Department use a combination of the methods in paragraphs (a)(1)--(3)? If the Department intends to use a combination of methods, subsection (a) should be modified to clearly reflect this intent.
Additionally, has the Department considered posting AEEP activities on their website?
Aquaculture Education Enhancement Activity Program
11. Section 106.54. Processing of applications.--Reasonableness.
Subsection (b) addresses how the Department will process applications. We have two concerns.
First, under paragraph (b)(5), will 5 days be sufficient for the applicant to obtain the additional information? We note that the comparable provision in § 106.65(b)(5) gives applicants 10 days to respond.
Second, under paragraph (b)(6)(iv), will 7 days be sufficient time for the applicant to respond? Is the notification date the same as the date of mailing?
12. Section 106.55. Notice of disposition of application.--Reasonableness; Clarity.
Subsection (a) states the Department will notify applicants within 15 days of its decision to approve, approve with special conditions or reject the application. Subsection (b) states the Department will notify applicants of its decision to reject the application or request additional information within 10 days. We have three concerns.
First, what is the reason for the different time frame in subsections (a) and (b)?
Second, if the Department does not render a decision within the allotted time for complete applications, is the application deemed approved?
Third, subsection (a) requires an approved applicant to submit the participation fee within 5 days of receipt of the approval letter. The APPP and the AEPP allow 10 days for the applicant to submit the fee. Why is the Department allowing only 5 days for the submittal of the fee for the AEEP?
Aquaculture Education Enhancement Grant Program
13. General.--Clarity.
Must an applicant return the unused portion of a grant? If so, when?
14. Section 106.65. Processing of applications.--Reasonableness.
Under paragraph (b)(5), is 10 days sufficient to obtain the additional information?
Subchapter E. Aquaculture Product Identification Program 15. Section 106.102. Limitations.--Clarity.
Subsection (a) addresses applicant eligibility. The regulation requires the aquaculture propagator or aquaculture-related company to be ''in good standing.'' The final-form regulation should specify under what standards ''in good standing'' will be judged.
16. Section 106.103. General conditions.--Clarity.
Subsection (b) addresses renewal of APIP participation. Will renewal applications require a participation fee? If so, this subsection should be revised to state that renewal applications require payment of a participation fee.
17. Section 106.104. Application.--Clarity.
The phrase ''non-profit entity'' is vague. The Internal Revenue Code (26 U.S.C.A.) and the Pennsylvania Tax Reform Code commonly use the phrase ''not-for-profit.'' A specific citation to the Internal Revenue Code describing the types of businesses at issue would add clarity to the regulation.
18. Section 106.105. Review of applications.--Clarity.
Subsection (d) addresses factors to be considered by the Department in selecting APIP participants. Under paragraph (d)(2), what documentation must an applicant provide to verify that all products are produced in this Commonwealth?
19. Section 106.106. Processing of applications.--Reasonableness.
Paragraph (b)(5) gives an applicant 10 business days to submit additional information at the Department's request. Is this enough time to provide the additional information?
Subchapter G. Aquaculture Export Promotion Program 20. Section 106.162. Limitations.--Clarity.
Subsection (b) requires ''a majority'' of the displayed products at an AEPP to be grown or manufactured in this Commonwealth. The term ''majority'' is vague and open to interpretation. We note that the corresponding provision in Subchapter F (§ 106.132(b)) establishes a threshold of 60%. The final-form regulation should include a specific threshold as a percentage of production.
21. Miscellaneous clarity issues.
Section 106.2.
There are two typographical errors in this section. In the Pennsylvania Bulletin version of this regulation, the word ''aquaculture'' is misspelled in the definitions of ''AEEP'' and ''APRP.''
Section 106.3
There is a grammatical error in the first sentence of subsection (d)(1). The word ''is'' should be changed to ''are.''
Section 106.10.
The last sentence in this section includes the word ''thereon.'' This word is unnecessary and should be deleted.
Section 106.163.
In paragraph (e)(1), it appears that the words ''more than'' before ''80%'' are extraneous and should be deleted.
Section 106.165.
There is a typographical error in subsection (a). The word ''the'' before ''applicant'' should be deleted.
Section 106.166.
Subsection (b)(1) is unclear. Clarity would be improved if this subsection was rewritten.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 02-1348. Filed for public inspection August 2, 2002, 9:00 a.m.]
