SENATE AMENDED
PRIOR PRINTER'S NOS. 884, 2457, 2568, PRINTER'S NO. 2670
2610, 2616
No. 784 Session of 1985
INTRODUCED BY BARBER, MANDERINO, PIEVSKY, LAUGHLIN, TRELLO,
OLIVER, COLE, HUTCHINSON, GEORGE, HARPER, SALOOM, WIGGINS,
PETRARCA, FRYER, RYBAK, MORRIS, FREEMAN, MRKONIC, PRATT,
RICHARDSON, F. E. TAYLOR, MANMILLER, MICOZZIE, CIVERA,
RAYMOND, DURHAM, LUCYK, ARTY, FREIND, KOSINSKI, BELARDI,
CAWLEY, TIGUE, KUKOVICH, GRUITZA, DORR, HAYES, RYAN, WILSON
AND E. Z. TAYLOR, MARCH 26, 1985
AS AMENDED, ON THIRD CONSIDERATION, IN SENATE,
DECEMBER 11, 1985
AN ACT
1 Amending the act of June 25, 1982 (P.L.633, No.181), entitled <--
2 "An act providing for independent oversight and review of
3 regulations, creating an Independent Regulatory Review
4 Commission, providing for its powers and duties, making
5 repeals and making an appropriation," further providing for
6 agency submissions of rulemaking and for time periods for
7 review of rulemaking; and making editorial changes.
8 AMENDING THE ACT OF JUNE 25, 1982 (P.L.633, NO.181), ENTITLED <--
9 "AN ACT PROVIDING FOR INDEPENDENT OVERSIGHT AND REVIEW OF
10 REGULATIONS, CREATING AN INDEPENDENT REGULATORY REVIEW
11 COMMISSION, PROVIDING FOR ITS POWERS AND DUTIES, MAKING
12 REPEALS AND MAKING AN APPROPRIATION," EXTENDING THE
13 EXPIRATION DATE OF THE ACT.
14 The General Assembly of the Commonwealth of Pennsylvania
15 hereby enacts as follows:
16 Section 1. Section 2 of the act of June 25, 1982 (P.L.633, <--
17 No.181), known as the Regulatory Review Act, is amended to read:
18 Section 2. Legislative intent.
19 The General Assembly has enacted a large number of statutes
1 conferring on boards, commissions, departments and other
2 agencies of the executive branch of government the authority to
3 adopt rules and regulations to supplement and implement those
4 statutes. The General Assembly has found that this delegation of
5 its authority has resulted in regulations being promulgated
6 without effective review concerning cost benefits, duplication,
7 inflationary impact and conformity to legislative intent. The
8 General Assembly finds that it must provide a procedure for
9 oversight and review of regulations adopted pursuant to this
10 delegation of legislative power to curtail excessive regulation
11 and to establish a system of accountability so that the
12 bureaucracy must justify its use of the regulatory authority
13 before imposing hidden costs upon the economy of Pennsylvania.
14 It is the intent of this act to establish a method for
15 continuing and effective review, accountability and oversight.
16 It is the further intent of this act to provide for primary
17 review by a commission with sufficient authority, expertise,
18 independence and time to perform that responsibility. It is the
19 further intent of this act to provide ultimate review by the
20 General Assembly of those regulations which may be contrary to
21 the public interest or to legislative intent. To facilitate
22 conformity to legislative intent the commission should attempt
23 to enhance communication between the commission and the standing
24 committees of the General Assembly. This act is intended to
25 provide a method of oversight and review of regulations issued
26 by executive agencies to assist the Governor and the General
27 Assembly in their supervisory and oversight functions and it is
28 not intended to create any right or benefit, substantive or
29 procedural, enforceable at law by a party against the
30 Commonwealth, its agencies, officers or any person.
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1 Section 2. Sections 4, 5, 6, 7, 9 and 15 of the act, amended
2 December 9, 1982 (P.L.1023, No.238), are amended to read:
3 Section 4. Creation of commission; membership, compensation;
4 vacancies; removal.
5 (a) The Independent Regulatory Review Commission shall
6 consist of five members to be known as commissioners. One member
7 of the commission shall be appointed by the Governor to serve at
8 his pleasure, one by the President pro tempore of the Senate,
9 one by the Speaker of the House of Representatives, one by the
10 Minority Leader of the Senate and one by the Minority Leader of
11 the House of Representatives. No member of the General Assembly
12 or any other officer or employee of State Government shall serve
13 as a member of the commission.
14 (b) Of the original members, the two members appointed by
15 the Speaker of the House and the Minority Leader of the House of
16 Representatives respectively shall serve for an initial term of
17 two years and the two members appointed by the President pro
18 tempore of the Senate and the Minority Leader of the Senate
19 respectively shall serve for an initial term of three years.
20 Thereafter each appointment provided for by this act shall be
21 for a term of three years and such appointments shall be made in
22 the same manner as the original appointments.
23 (c) All vacancies shall be filled, for the remainder of the
24 unexpired term, in the same manner as original appointments. Any
25 commissioner, upon the expiration of his term, shall continue to
26 hold office until his successor shall be appointed.
27 (d) The commissioners shall receive $125 per day as
28 compensation for their services. The commissioners shall also be
29 entitled to reimbursement for travel and other necessary
30 expenses incurred as a result of their duties as members of the
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1 commission. The expenses incurred by the commissioners, or by
2 any employees of the commission, shall be allowed and paid on
3 the presentation of itemized vouchers therefor, which vouchers
4 shall be subject to the approval of the commission.
5 (e) Except as authorized pursuant to this section and except
6 for the Governor's appointee who shall serve at his pleasure, no
7 commissioner may be removed from office during his term. The
8 Governor may, with the approval of two-thirds of the members of
9 the Senate, upon a clear and convincing evidence of misfeasance
10 or malfeasance in office or neglect of duty, remove a
11 commissioner prior to the expiration of the term. The Governor
12 shall provide the commissioner so removed with a detailed
13 written statement of the reasons for his removal.
14 (f) Any member of the commission formally charged before a
15 court of record with the commission of a felony shall
16 immediately be suspended as a member of the commission until the
17 charge is dismissed or a verdict of acquittal is announced. If
18 any commission member shall be convicted of a felony, then that
19 commissioner's membership shall become vacant automatically upon
20 announcement of the verdict by a trial court or upon acceptance
21 of a plea of guilty or nolo contendere. No commission member
22 shall participate in deliberations regarding any regulation in
23 which he, or any member of his family, has a financial interest.
24 (g) Within 60 days following the appointment of a quorum of
25 the commission, the Governor shall convene an organization
26 meeting of the commission and the Governor or his designee shall
27 preside at such meeting until a chairman shall be elected.
28 (h) A chairman shall be elected by the commission who shall
29 serve for a term of two years and until his successors shall be
30 elected. The chairman shall preside at meetings of the
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1 commission and shall execute documents relating to the formal
2 actions of the commission.
3 (i) The commission shall meet at least twice a month at such
4 times and places as shall be set by the chairman. A commissioner
5 who fails to attend three consecutive meetings without cause
6 shall be removed as a commissioner by the authority appointing
7 the commissioner.
8 (j) Each member of the commission shall be equally
9 independent of each other. The commission may not establish any
10 rules governing conduct of a commissioner which unduly impairs,
11 inhibits or prevents the execution of the business of the
12 commission. Dissenting opinions should be noted along with the
13 final disposition of the matter.
14 Section 5. Proposed regulation; criteria for review, existing
15 regulations.
16 (a) For proposed regulations, submitted after the effective
17 date of this section, at the same time that proposed regulations
18 [and any changes thereto] are submitted to the Legislative
19 Reference Bureau for publication of notice of proposed
20 rulemaking in the Pennsylvania Bulletin as required by the act
21 of July 31, 1968 (P.L.769, No.240), referred to as the
22 Commonwealth Documents Law, the agency proposing the regulation
23 shall forward a copy of such proposal to the commission and the
24 designated standing committee of each House of the General
25 Assembly and additional information including but not limited to
26 the following:
27 (1) The name of the agency proposing the regulation and
28 a statement of the statutory or other authority under which
29 the regulation or change is proposed and if such regulation
30 or change is proposed to implement the requirements of
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1 Federal statute or Federal regulation, such Federal statute
2 or regulation shall be cited with specificity.
3 (2) A brief explanation of the proposed regulation or
4 change.
5 (3) A statement of the need for the regulation or
6 change.
7 (4) Estimates of the direct cost to the Commonwealth and
8 direct and indirect cost to its political subdivisions and
9 indirect cost to the private sector. Insofar as the proposal
10 relates to direct cost to the Commonwealth, the agency may
11 submit in lieu of its own statement the fiscal note prepared
12 by the Office of the Budget pursuant to section 612 of the
13 act of April 9, 1929 (P.L.177, No.175), known as "The
14 Administrative Code of 1929."
15 (5) A statement of legal, accounting or consultant
16 procedures which may be required for implementation of the
17 regulation by those affected by it.
18 (6) A statement of any additional reporting,
19 recordkeeping or other paperwork required by the proposed
20 regulations including copies of any forms or reports which
21 will be required in the implementation of the proposed
22 regulation.
23 (7) An outline of conformance and relevant dates
24 including dates by which comments must be received, copies of
25 comments received as a result of the proposed regulation
26 being published in the Pennsylvania Bulletin, dates of
27 proposed public hearings, the effective date of final
28 regulations, date by which compliance with the proposed
29 regulations will be required, including the date by which any
30 required permits, licenses or other approvals must be
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1 obtained.
2 (8) The name of the author or authors of the regulation
3 with their office address and phone numbers included.
4 (9) An identification of the types of persons,
5 businesses and organizations which would be affected by the
6 regulation.
7 (10) Identification of any other regulations which would
8 be affected by the regulation.
9 The requirements of this section shall not diminish the Notice
10 of Proposed Rule Making requirements of the Commonwealth
11 Documents Law but the information required by this section may
12 be included in the Notice of Proposed Rule Making requirement
13 for publication in the Pennsylvania Bulletin in lieu of the
14 information required by paragraphs (2) and (3) of section 201 of
15 the Commonwealth Documents Law. The commission may waive an
16 information requirement of this section for a proposed
17 regulation when any specific requirement is deemed by the
18 commission to be unnecessary or inappropriate.
19 (b) In addition to the requirements of subsection (a), for
20 regulations which impose fiscal impacts on the public sector,
21 private sector, or both of over $1,000,000, in any year, or
22 which impose other major impacts as determined by the
23 commission, the agency proposing the regulation shall forward at
24 the request of the commission a written regulatory analysis.
25 Such regulatory analysis shall state:
26 (1) the financial, economic and social impacts of the
27 regulation on individuals, business and labor communities or
28 other public and private organizations. When practicable, an
29 evaluation of the benefits expected as a result of the
30 regulation should be included;
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1 (2) that alternative approaches have been considered and
2 the least burdensome acceptable alternative has been
3 selected;
4 (3) that, in arriving at the acceptable alternative,
5 consideration was given to minimizing new reporting,
6 accounting and legal requirements;
7 (4) that a plan for the evaluation of the effectiveness
8 of the regulation after its issuance has been developed; and
9 (5) the manner in which, when it is lawful, desirable
10 and feasible, special provisions have been developed to meet
11 the particular needs of affected groups and persons
12 including, but not limited to: minorities, elderly, small
13 businesses and farmers.
14 (c) The standing committee shall, within 20 calendar days
15 from the [day it receives] date the proposed regulation is
16 published in the Pennsylvania Bulletin, approve or [recommend
17 disapproval to the commission.] disapprove the proposed
18 regulation. The standing committee shall notify the commission
19 of approval or disapproval. Failure of both standing committees
20 to [recommend disapproval of any such] disapprove a regulation
21 within the 20 calendar days shall constitute approval thereof.
22 Along with a notification of approval or disapproval the
23 committee shall convey a report which includes:
24 (1) A copy of the proposed regulation.
25 (2) A summary of the objections of the committee, if
26 any, stating the reasons why the committee has found the
27 proposed regulation unacceptable, and a copy of any staff
28 reports deemed pertinent by the committee.
29 In the event the standing committees are prevented from
30 completing their 20-day review because of expiration of the
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1 legislative session in even-numbered years, consideration of the
2 proposed regulation shall be automatically suspended until the
3 [first day] fourth Monday in January of the next succeeding
4 session of the General Assembly. On that date, the agency shall
5 resubmit the proposed regulation to the designated standing
6 committee of each chamber, or its successor committee, and to
7 the commission. The standing committees, or their successor
8 committees, shall have 20 calendar days and the commission shall
9 have 30 calendar days from [receipt of] the date the proposed
10 regulation is published in the Pennsylvania Bulletin to review
11 such regulation. In computing the 20-day committee review period
12 and the 30-day commission review period, the number of days in
13 which the proposed regulation had been under review by the
14 standing committees and by the commission as of the expiration
15 of the prior session shall be subtracted from the 20-day
16 committee and the 30-day commission review periods,
17 respectively. Failure of the agency to resubmit the proposed
18 regulation on the [first day] fourth Monday in January of the
19 next succeeding session shall constitute withdrawal thereof. No
20 proposed regulation shall be submitted to the commission or the
21 standing committees for review during the period from the end of
22 the legislative session of even-numbered years to the first day
23 of the next succeeding legislative session, but emergency
24 regulations may be adopted pursuant to the provisions of section
25 6(b).
26 (d) In order to ascertain whether a proposed regulation is
27 in the public interest, the commission shall consider the
28 following criteria in the review of any proposed regulation:
29 (1) Conformity to the statutory authority of the agency.
30 (2) Consistency with the legislative intent of the act
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1 which the regulation is designed to implement.
2 (3) Possible adverse effects on prices of goods and
3 services, productivity or competition.
4 (4) Whether the regulation represents a policy decision
5 of such substantial nature that it requires a legislative
6 review.
7 (5) Direct costs to the Commonwealth, direct and
8 indirect cost to political subdivisions and indirect cost to
9 the private sector.
10 (6) Reasonableness of requirements, implementation
11 procedures and timetable for the public and private sectors.
12 (7) The nature of any reports, forms or other paperwork
13 and the estimated cost of their preparation by individuals,
14 businesses and organizations in the private and public sector
15 where such reports would be required.
16 (8) Possible conflict with or duplication of statutes or
17 other existing regulations.
18 (9) The nature and estimated cost of any legal,
19 consulting or accounting services which the private or public
20 sector would incur.
21 (10) The impact on the public interest of exempting or
22 setting lesser standards of compliance for individuals or
23 small businesses when it is lawful, desirable and feasible to
24 do so.
25 (11) Clarity and lack of ambiguity.
26 (12) Need for the rule or regulation.
27 (13) Approval or disapproval by the designated standing
28 committee of the House of Representatives or the Senate.
29 (e) Regulations for which notice of proposed [making]
30 rulemaking is omitted pursuant to section 204 of the
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1 Commonwealth Documents Law and regulations which the agency
2 intends to submit for final publication with modifications from
3 the initial text as published under section 201 of the
4 Commonwealth Documents Law shall be submitted to the commission
5 and the designated standing committees for review in the same
6 fashion as proposed regulations at the same time that the
7 regulations are submitted to the Attorney General for review as
8 provided in the Commonwealth Attorneys Act. For regulations
9 which are adopted containing modifications to the proposed text
10 as published, the time period set forth in subsection (c) shall
11 begin to run from the date the standing committee receives the
12 modification. No final order adopting such regulation shall be
13 published until completion of review pursuant to this act.
14 (f) The agency which proposes the regulation shall forward
15 to the commission within two days of receipt, a copy of any
16 comments received by the agency which refers to the proposed
17 regulation.
18 (g) The commission, either on its motion or on the request
19 of any individual, agency, corporation, member of the General
20 Assembly or any other entity which may be affected by a
21 regulation, may also review any existing regulation or
22 administrative procedure. Whenever a committee of the Senate or
23 the House of Representatives shall request a review of a
24 regulation, the commission shall make such review and shall
25 assign it high priority. The commission may submit
26 recommendations to any agency recommending changes in existing
27 regulations where it finds the existing regulations or
28 administrative procedure to be contrary to the public interest
29 under the criteria established in this section. The commission
30 may also make recommendations to the General Assembly and the
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1 Governor for statutory changes whenever it finds that any
2 existing regulation or procedure may be contrary to the public
3 interest.
4 Section 6. Procedures for commission consideration and agency
5 review.
6 (a) Whenever the commission shall find that a proposed
7 regulation submitted to the Legislative Reference Bureau for
8 publication of notice of proposed rulemaking in the Pennsylvania
9 Bulletin or that a regulation for which notice of proposed
10 rulemaking is omitted pursuant to section 204 of the act of July
11 31, 1968 (P.L.769, No.240), referred to as the Commonwealth
12 Documents Law, or a regulation which the agency intends to
13 submit for final publication with modifications from the initial
14 text as published under section 201 of the Commonwealth
15 Documents Law submitted to the Attorney General for review prior
16 to publication [without notice pursuant to section 204 of the
17 Commonwealth Documents Law,] may be contrary to the public
18 interest under the criteria set forth in section 5, the
19 commission shall notify the agency promulgating such regulation
20 of its finding. Such notification shall set forth the
21 commission's objections in reasonable detail. The agency shall
22 review the commission's finding and not later than two weeks
23 following the notification unless the commission grants extended
24 time to comment shall respond to the commission as to whether or
25 not the proposed regulation will be withdrawn [or], revised or
26 returned in its original form with added justification or
27 documentation by the agency. If the commission does not notify
28 the agency of any objection within 30 days of publication, in
29 the case of proposed rulemaking, or within 30 days of receipt
30 [under section 5], in the case of omission of proposed
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1 rulemaking or in the case of modifications to the proposed text
2 as published, the agency may proceed to promulgate the
3 regulation as provided in the [act of July 31, 1968 (P.L.769,
4 No.240), referred to as the] Commonwealth Documents Law.
5 (b) The commission may, when notifying an agency of its
6 objections pursuant to subsection (a) or at any time following
7 such notification but prior to publication of a final order
8 adopting a regulation, issue an order barring the publication of
9 a final order adopting a regulation pending subsequent review of
10 the regulation in the manner provided in section 7. The
11 commission may not however issue an order against a proposed
12 regulation to the extent that the Attorney General certifies
13 that proposed regulation is required pursuant to the decree of
14 any court or to implement the provisions of a statute of the
15 United States or regulations issued thereunder by a Federal
16 agency nor shall the commission issue an order against a
17 proposed regulation when such regulation is transmitted with the
18 certification of the Governor that it is required to meet an
19 emergency which shall include but not be limited to conditions
20 which may cause a significant budget deficit or create need for
21 supplemental or deficiency appropriations. In such case, the
22 regulation can take effect for up to 120 days but after that
23 time may be suspended by the commission unless it has been
24 approved by the General Assembly under the procedures contained
25 in section 7(b).
26 (c) Whenever a designated standing committee of the House of
27 Representatives or the Senate has notified the commission of its
28 disapproval and the commission approves the proposed regulation,
29 the commission shall notify the said designated standing
30 committee of such approval.
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1 Section 7. Procedures and subsequent review.
2 (a) If the commission determines after reviewing an agency's
3 response that the agency still intends to implement such
4 regulation, the commission shall, [within seven days of] at its
5 next public meeting following receipt of an agency's response to
6 its objections or, if its next public meeting is less than seven
7 days from the date of receipt, at its second public meeting
8 following receipt of an agency's response to its objections,
9 either approve the regulations or, if the commission believes
10 that said regulation would be contrary to the public interest as
11 determined under section 5, notify the Governor, who shall
12 within 45 days review the proposed regulation and the commission
13 findings. Failure of the commission to notify the Governor of
14 its continued objections to a proposed regulation [within seven
15 days] by its next public meeting following receipt of an
16 agency's response or, if its next public meeting is less than
17 seven days from the date of receipt, at its second public
18 meeting following receipt of an agency's response shall
19 constitute approval thereof. Within seven days of an agency's
20 response, the commission may continue an order barring
21 publication of a final order adopting a regulation, issue such
22 an order if none was previously issued, or withdraw its order.
23 (b) If the Governor and the agency determine that it is
24 desirable to implement the proposed regulation without
25 revisions, the Governor shall submit a report to the General
26 Assembly containing the findings of the commission, the response
27 of the initiating agency and his own recommendations regarding
28 the regulation. At the time of the submission of the report by
29 the Governor, the commission shall, within 14 days of submission
30 of the report, either approve the regulation or transmit the
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1 proposed regulation to the General Assembly for consideration in
2 accord with the procedures set forth in the act of April 7, 1955
3 (P.L.23, No.8), known as the "Reorganization Act of 1955."
4 Failure of the commission to transmit a regulation to the
5 General Assembly for consideration within 14 days of submission
6 of the Governor's report shall constitute approval of the
7 proposed regulation. However, if the commission is prevented
8 from transmitting the regulation to the General Assembly within
9 14 days because of recess or adjournment, it may transmit the
10 regulation on the first subsequent session day. Failure to
11 submit a proposed regulation on the first subsequent session day
12 shall constitute approval thereof. Pending the review of a
13 regulation by the General Assembly, the commission may continue
14 an order barring publication of a final order adopting a
15 regulation, issue such an order if none was previously issued,
16 or withdraw its order. If the General Assembly disapproves a
17 regulation, the disapproval shall constitute a permanent order
18 barring publication, or shall rescind a regulation for which a
19 final order was published pending review of the regulation by
20 the commission or the General Assembly. The General Assembly may
21 at its discretion, however, disapprove a regulation to indicate
22 the intent of the General Assembly, but permit publication of a
23 final order adopting a regulation.
24 (c) Whenever a designated standing committee has received
25 the notice required under section 6(c), the designated standing
26 committee may within ten days report to the House of
27 Representatives or Senate a concurrent resolution and notify the
28 affected agency which shall be the official notice to the
29 agency. A final order adopting the regulation shall not be
30 published for 30 calendar days or ten legislative days,
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1 whichever is longer, from date of reporting the concurrent
2 resolution. If both the House of Representatives and the Senate
3 agree to the concurrent resolution within the allotted time
4 period, the adoption of the concurrent resolution shall
5 constitute a permanent order barring publication, or shall act
6 as an order rescinding a regulation for which a final order was
7 published pending review of the regulation. Failure of the House
8 of Representatives and the Senate to act on the concurrent
9 resolution within the allotted time period shall constitute
10 approval of the regulation. In addition, notice as to any final
11 disposition of any concurrent resolution considered in
12 accordance with this act shall be published in the Pennsylvania
13 Bulletin. The General Assembly may, at its discretion, adopt a
14 concurrent resolution disapproving the regulation to indicate
15 the intent of the General Assembly, but permit publication of a
16 final order adopting a regulation.
17 Section 9. Commission staff.
18 The commission shall appoint and fix the compensation of an
19 executive director, who shall devote his full time to the
20 general supervision of all the affairs of the commission. In
21 addition, the commission shall appoint a chief counsel who shall
22 not be subject to the supervision of the Attorney General or the
23 General Counsel [and it]. Both the executive director and chief
24 counsel shall report directly to the commission. The commission
25 shall appoint a permanent liaison person to provide direct
26 communication between the commission and the General Assembly.
27 The commission may appoint and fix the compensation of such
28 other employees as the commission may from time to time find
29 necessary for the proper performance of the functions of the
30 commission. In determining the necessity for such additional
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1 staff, the commission shall consider the fact that the General
2 Assembly is required under this act to participate in the review
3 process and its staff will be providing assistance to the
4 commission through the legislative review provisions of this
5 act.
6 Section 15. Effective date.
7 Except for the provisions of sections 3, 4, 9, 11 and 13,
8 which shall take effect in 30 days, this act shall take effect
9 on March 1, 1983. This act shall expire on December 31, [1985]
10 1990 unless it is sooner reenacted by the General Assembly.
11 Section 3. This act applies to proposed and final rulemaking
12 submitted to the Legislative Reference Bureau after the fourth
13 Wednesday following the effective date of this act.
14 Section 4. This act shall take effect immediately.
15 SECTION 1. SECTION 15 OF THE ACT OF JUNE 25, 1982 (P.L.633, <--
16 NO.181), KNOWN AS THE REGULATORY REVIEW ACT, AMENDED DECEMBER 9,
17 1982 (P.L.1023, NO.238), IS AMENDED TO READ:
18 SECTION 15. EFFECTIVE DATE.
19 EXCEPT FOR THE PROVISIONS OF SECTIONS 3, 4, 9, 11 AND 13,
20 WHICH SHALL TAKE EFFECT IN 30 DAYS, THIS ACT SHALL TAKE EFFECT
21 ON MARCH 1, 1983. THIS ACT SHALL EXPIRE ON [DECEMBER 31, 1985]
22 JULY 31, 1987, DECEMBER 31, 1986, UNLESS IT IS SOONER REENACTED <--
23 BY THE GENERAL ASSEMBLY.
24 SECTION 2. THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
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