PRINTER'S NO.  963

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

883

Session of

2011

  

  

INTRODUCED BY GREENLEAF, ALLOWAY, FONTANA AND EARLL, APRIL 4, 2011

  

  

REFERRED TO JUDICIARY, APRIL 4, 2011  

  

  

  

AN ACT

  

1

Amending Title 2 (Administrative Law and Procedure) of the

2

Pennsylvania Consolidated Statutes, consolidating provisions

3

on administrative procedure and rulemaking; and making

4

related repeals.

5

The General Assembly of the Commonwealth of Pennsylvania

6

hereby enacts as follows:

7

Section 1.  Sections 103, 104 and 105 of Title 2 of the

8

Pennsylvania Consolidated Statutes are amended to read:

9

§ 103.  [Administrative Agency Law.] Short title of title.

10

[(a)  General rule.--The provisions of Subchapter A of

11

Chapter 5 (relating to practice and procedure of Commonwealth

12

agencies) and Subchapter A of Chapter 7 (relating to judicial

13

review of Commonwealth agency action) shall be known and may be

14

cited as the "Administrative Agency Law."

15

(b)  Rule making references.--Whenever any statute makes

16

reference to the Administrative Agency Law for procedures

17

relating to the promulgation of administrative regulations, such

18

reference shall hereafter be deemed to be a reference to the act

19

of July 31, 1968 (P.L.769, No.240), known as the "Commonwealth

 


1

Documents Law."] This title shall be known and may be cited as

2

the Administrative Procedure Code.

3

§ 104.  [Commonwealth Documents Law] (Reserved).

4

§ 105.  [Local Agency Law] (Reserved).

5

[The provisions of Subchapter B of Chapter 5 (relating to

6

practice and procedure of local agencies) and Subchapter B of

7

Chapter 7 (relating to judicial review of local agency action)

8

shall be known and may be cited as the "Local Agency Law."]

9

Section 2.  Chapter 3 of Title 2 is amended to read:

10

CHAPTER 3

11

PROMULGATION OF REGULATIONS

12

[(Reserved)]

13

Subchapter

14

A.  Commonwealth Documents Law

15

B.  Legal Review

16

C.  Fiscal Review

17

D.  Independent Regulatory Review Commission

18

SUBCHAPTER A

19

COMMONWEALTH DOCUMENTS LAW

20

Sec.

21

301.  Scope of subchapter.

22

302.  Definitions.

23

303.  Notice of proposed rulemaking.

24

304.  Adoption of regulations.

25

305.  Effective date of regulations.

26

306.  Omission of notice of proposed rulemaking.

27

307.  Approval as to legality.

28

308.  Format of regulations and other documents.

29

309.  Deposit of agency text of regulations required.

30

310.  Unfiled regulations invalid.

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1

§ 301.  Scope of subchapter.

2

This subchapter relates to the filing of documents for

3

publication in the Pennsylvania Bulletin and codification in the

4

Pennsylvania Code.

5

§ 302.  Definitions.

6

The following words and phrases when used in this subchapter

7

shall have the meanings given to them in this section unless the

8

context clearly indicates otherwise:

9

"Adjudication."  Any order, decree, decision, determination

10

or ruling by an agency affecting personal or property rights,

11

privileges, immunities, duties, liabilities or obligations of

12

any or all of the parties to the proceeding in which the

13

adjudication is made.

14

"Administrative regulation."  Any regulation except a

15

proclamation, executive order, executive directive or other

16

similar document promulgated by the Governor. The term includes

17

a regulation which may be promulgated by an agency only with the

18

approval of the Governor.

19

"Agency."  The Governor or any department, departmental

20

administrative board or commission, officer, independent board

21

or commission, authority or other agency of this Commonwealth.

22

The term does not include any of the following:

23

(1)  The Senate.

24

(2)  The House of Representatives.

25

(3)  A court. This paragraph includes an officer or

26

agency of a court.

27

(4)  A political subdivision, municipal authority or

28

other local authority. This paragraph includes an officer or

29

agency of a political subdivision or local authority.

30

"Agency text."  The text of a document as issued, prescribed

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1

or promulgated by the issuing, prescribing or promulgating

2

agency.

3

"Bureau."  The Legislative Reference Bureau. The powers

4

conferred under this subchapter upon the bureau shall be

5

exercised by the Director of the Legislative Reference Bureau

6

or, in the Director's absence, by the Assistant Director.

7

"Department."  The Department of General Services of the

8

Commonwealth.

9

"Document."  Any proclamation, executive order, executive

10

directive or similar instrument promulgated by the Governor and

11

any other order, regulation, rule, statement of policy,

12

adjudication, certificate, license, permit, notice or similar

13

instrument issued, prescribed or promulgated by or under the

14

authority of this Commonwealth. The term includes a home rule

15

charter adopted by the electors of any part of this

16

Commonwealth.

17

"Joint committee."  The Joint Committee on Documents.

18

"Official text."  The text of a document issued, prescribed

19

or promulgated by an agency as published by authority of this

20

subchapter which has become in the manner provided under this

21

subchapter the only valid and enforceable text of such document.

22

"Regulation."  A rule or regulation, or order in the nature

23

of a rule or regulation:

24

(1)  promulgated by an agency under statutory authority

25

in the administration of a statute administered by or

26

relating to the agency; or

27

(2)  prescribing the practice or procedure before the

28

agency.

29

"Statement of policy."  A document, except an adjudication or

30

a regulation, promulgated by an agency which sets forth

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1

substantive or procedural personal or property rights,

2

privileges, immunities, duties, liabilities or obligations of

3

the public or any part of the public. The term includes a

4

document interpreting or implementing a statute enforced or

5

administered by the agency.

6

§ 303.  Notice of proposed rulemaking.

7

Except as provided under section 306 (relating to omission of

8

notice of proposed rulemaking), an agency shall give, in the

9

manner provided under 45 Pa.C.S. § 725 (relating to additional

10

contents of Pennsylvania Bulletin), public notice of its

11

intention to promulgate, amend or repeal any administrative

12

regulation. Notice includes:

13

(1)  The text of the proposed administrative regulation,

14

except any portions omitted under 45 Pa.C.S. § 727 (relating

15

to matter not required to be published), prepared in such a

16

manner as to indicate the words to be added or deleted from

17

the presently effective text.

18

(2)  A statement of the statutory or other authority

19

under which the administrative regulation or change in it is

20

proposed to be promulgated.

21

(3)  A brief explanation of the proposed administrative

22

regulation or change in it.

23

(4)  A request for written comment by any interested

24

person concerning the proposed administrative regulation or

25

change in it.

26

(5)  Any other statement required by law.

27

§ 304.  Adoption of regulations.

28

Before taking action upon any administrative regulation or

29

change in it, the agency shall review and consider written

30

comments submitted under section 303 (relating to notice of

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1

proposed rulemaking) and may hold public hearings as

2

appropriate. If the statute or other authority under which a

3

regulation is proposed to be promulgated, amended or repealed

4

requires the holding of public hearings or establishes other

5

procedures in addition to those prescribed under this

6

subchapter, the agency shall hold public hearings or comply with

7

such other procedures as are not inconsistent with the

8

provisions of this subchapter. The agency text of any

9

administrative regulation or change in it as finally adopted may

10

contain modifications to the proposed text as published under

11

section 303 which do not enlarge its original purpose, but

12

modifications which enlarge the original purpose of a proposal

13

as published under section 303 shall be republished under

14

section 303 prior to final adoption by the agency.

15

§ 305.  Effective date of regulations.

16

Except as otherwise provided by regulations promulgated by

17

the joint committee, the effective date specified in any

18

administrative regulation or change in it subject to the

19

provisions of sections 303 (relating to notice of proposed

20

rulemaking) and 304 (relating to adoption of regulations) shall

21

be not less than 30 days after the required notice of proposed

22

rulemaking has been given unless one of the following paragraphs

23

applies:

24

(1)  The administrative regulation:

25

(i)  grants or recognizes exemption or relieves

26

restriction; or

27

(ii)  interprets a self-executing act of Assembly or

28

administrative regulation.

29

(2)  The agency for good cause finds, and incorporates

30

the finding and the reasons for the finding in the order

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1

adopting the administrative regulation or change in it, that

2

the deferral of the effective date of the administrative

3

regulation or change in it beyond the date specified in the

4

order is impracticable or contrary to the public interest.

5

§ 306.  Omission of notice of proposed rulemaking.

6

Except as otherwise provided by regulations promulgated by

7

the joint committee, an agency may omit or modify the procedures

8

specified under sections 303 (relating to notice of proposed

9

rulemaking) and 304 (relating to adoption of regulations) if any

10

of the following paragraphs apply:

11

(1)  The administrative regulation or change in it

12

relates to:

13

(i)  military affairs;

14

(ii)  agency organization, management or personnel;

15

(iii)  agency procedure or practice;

16

(iv)  Commonwealth property, loans, grants, benefits

17

or contracts; or

18

(v)  the interpretation of a self-executing act of

19

Assembly or administrative regulation.

20

(2)  All persons subject to the administrative regulation

21

or change in it are named in the rulemaking and are either

22

personally served with notice of the proposed promulgation,

23

amendment or repeal or otherwise have actual notice in

24

accordance with law.

25

(3)  The agency for good cause finds, and incorporates

26

the finding and a brief statement of the reasons for the

27

finding in the order adopting the administrative regulation

28

or change in it, that the procedures specified under sections

29

303 and 304 are in the circumstances impracticable,

30

unnecessary or contrary to the public interest.

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1

§ 307.  Approval as to legality.

2

(a)  Requirement.--Administrative regulations and changes

3

shall be approved as to legality by the Attorney General before

4

they are deposited with the bureau under section 309 (relating

5

to deposit of agency text of regulations required).

6

(b)  Appeal.--

7

(1)  If the Attorney General rules illegal all or part of

8

an administrative regulation or change in it promulgated by

9

an agency which is by law independent of the policy

10

supervision and control of the Governor and the agency or a

11

party before the agency supporting the regulation or change

12

in it disagrees with the ruling of the Attorney General, the

13

agency or party may appeal from the determination to

14

Commonwealth Court.

15

(2)  In an appeal under paragraph (1), Commonwealth Court

16

may direct the Attorney General to approve the parts of the

17

administrative regulation or change in it ruled illegal which

18

the court finds to be legal.

19

(3)  In all other cases the decision of the Attorney

20

General shall be final and shall not be subject to any form

21

of judicial review at the instance of the agency or a

22

supporting party.

23

(c)  Other review.--Nothing under this section shall affect

24

the right of a person adversely affected by a regulation or

25

change in it to obtain a determination of the validity thereof

26

in any appropriate proceeding.

27

§ 308.  Format of regulations and other documents.

28

The agency text of all regulations and other documents

29

required or authorized to be deposited with the bureau under 

30

this subchapter shall be prepared in the form and format

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1

prescribed by regulations promulgated by the joint committee.

2

The regulations shall require that every administrative

3

regulation or change in it indicate expressly the statutory or

4

other authority under which it is promulgated.

5

§ 309.  Deposit of agency text of regulations required.

6

The agency text of all administrative and other regulations

7

and changes to the regulations, certified by the executive

8

officer, chair or secretary of the agency, shall be deposited

9

with the bureau in the manner required under 45 Pa.C.S. § 722(a)

10

(relating to deposit of documents required).

11

§ 310.  Unfiled regulations invalid.

12

An administrative regulation or change in it promulgated

13

after July 1, 1969, shall not be valid for any purpose until

14

filed by the bureau, as provided under 45 Pa.C.S. § 722(a)

15

(relating to deposit of documents required).

16

SUBCHAPTER B

17

LEGAL REVIEW

18

Sec.

19

311.  Definitions.

20

312.  General Counsel.

21

313.  Attorney General.

22

§ 311.  Definitions.

23

The following words and phrases when used in this subchapter

24

shall have the meanings given to them in this section unless the

25

context clearly indicates otherwise:

26

"Commonwealth agency."  Any executive agency or independent

27

agency.

28

"Executive agency."  The Governor and the departments,

29

boards, commissions, authorities and other officers and agencies

30

of the Commonwealth government. The term does not include any

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1

court or other officer or agency of the unified judicial system,

2

the General Assembly and its officers and agencies or any

3

independent agency.

4

"Independent agency."  The Office of Attorney General; the

5

Department of the Auditor General, including the Board of

6

Claims; the Treasury Department; the Pennsylvania Public Utility

7

Commission; the Pennsylvania Fish and Boat Commission; the

8

Pennsylvania Game Commission; the Pennsylvania Historical and

9

Museum Commission; the State Civil Service Commission; the

10

Pennsylvania Turnpike Commission; the Milk Marketing Board; the

11

Pennsylvania Liquor Control Board; the Pennsylvania Human

12

Relations Commission; the Pennsylvania Labor Relations Board;

13

the Pennsylvania Securities Commission; the State Tax

14

Equalization Board; Pennsylvania Higher Education Assistance

15

Agency; the Pennsylvania Commission on Crime and Delinquency;

16

and the State Ethics Commission.

17

§ 312.  General Counsel.

18

The General Counsel shall review and approve for form and

19

legality all proposed regulations of executive agencies before

20

they are deposited with the Legislative Reference Bureau as

21

required under section 309 (relating to deposit of agency text

22

of regulations required).

23

§ 313.  Attorney General.

24

(a)  Review of regulations.--The Attorney General shall

25

review for form and legality all proposed regulations of

26

Commonwealth agencies before they are deposited with the

27

Legislative Reference Bureau as required under section 309

28

(relating to deposit of agency text of regulations required).

29

(b)  Determination of invalidity.--If the Attorney General

30

determines that a regulation is in improper form, not

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1

statutorily authorized or unconstitutional, within 30 days after

2

submission, the Attorney General shall notify in writing the

3

agency affected, the Office of General Counsel and the General

4

Assembly through the offices of the Secretary of the Senate and

5

the Chief Clerk of the House of Representatives of the reasons

6

for the determination.

7

(c)  Response by Commonwealth agency.--

8

(1)  The Commonwealth agency may revise a regulation to

9

meet the objections of the Attorney General and submit the

10

revised version for review.

11

(2)  If the Commonwealth agency disagrees with the

12

objection, it may promulgate the regulation with or without

13

revisions and shall publish with it a copy of the Attorney

14

General's objections.

15

(d)  Response by Attorney General.--The Attorney General may

16

appeal a decision under subsection (c)(2) by filing a petition

17

for review with the Commonwealth Court in the manner as is

18

provided for appeals from final orders of government agencies

19

under 42 Pa.C.S. § 763 (relating to direct appeals from

20

government agencies) and may include in the petition a request

21

for a stay or supersedeas of the implementation of the

22

regulation which, upon a proper showing, shall be granted.

23

(e)  Deemed approval.--If a regulation has been submitted to

24

the Attorney General and the Attorney General has not approved

25

it or objected to it within 30 days after submission, the

26

regulation shall be deemed to have been approved.

27

SUBCHAPTER C

28

FISCAL REVIEW

29

Sec.

30

321.  Definitions.

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1

322.  Fiscal notes.

2

§ 321.  Definitions.

3

The following words and phrases when used in this subchapter

4

shall have the meanings given to them in this section unless the

5

context clearly indicates otherwise:

6

"Office."  The Office of the Budget.

7

"Secretary."  The Secretary of the Budget.

8

§ 322.  Fiscal notes.

9

(a)  Duty.--The office shall prepare a fiscal note for

10

regulatory actions and administrative procedures of the

11

administrative departments, boards, commissions or authorities

12

receiving money from the Treasury Department. The fiscal note

13

shall state whether the proposed action or procedure causes a

14

loss of revenue or an increase in the cost of programs to the

15

Commonwealth or its political subdivisions.

16

(b)  Publication.--A regulatory action or an administrative

17

procedure which requires a fiscal note shall be published in the

18

Pennsylvania Bulletin. The fiscal note shall be published in the

19

Pennsylvania Bulletin at the same time the proposed change is

20

advertised.

21

(c)  Contents.--The fiscal note shall provide the following

22

information:

23

(1)  The designation of the fund out of which the

24

appropriation providing for expenditures under the action or

25

procedure shall be made.

26

(2)  The probable cost for the fiscal year the program is

27

implemented.

28

(3)  A projected cost estimate of the program for each of

29

the five succeeding fiscal years.

30

(4)  The fiscal history of the program for which

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1

expenditures are to be made.

2

(5)  The probable loss of revenue for the fiscal year of

3

its implementation.

4

(6)  A projected loss of revenue from the program for

5

each of the five succeeding fiscal years.

6

(7)  The line item, if any, of the General Appropriation

7

Act or other appropriation act out of which expenditures or

8

losses of Commonwealth funds shall occur as a result of the

9

action or procedures.

10

(8)  The recommendation, if any, of the secretary and the

11

reasons therefor.

12

SUBCHAPTER D

13

INDEPENDENT REGULATORY REVIEW COMMISSION

14

Sec.

15

331.  Scope of subchapter.

16

332.  Legislative declarations.

17

333.  Definitions.

18

334.  Composition of commission; membership; compensation;

19

vacancies; removal.

20

335.  Proposed regulations; procedures for review.

21

335.1.  Final-form regulations and final-omitted regulations;

22

procedures for review.

23

335.2.  Criteria for review of regulations.

24

336.  Procedures for disapproval of final-form and final-omitted

25

regulations; emergency-certified regulations.

26

337.  Procedures for subsequent review of disapproved final-form

27

or final-omitted regulations.

28

337.1.  Classification of documents.

29

338.  Changes in final-form and final-omitted regulations.

30

338.1.  Existing regulations.

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1

339.  Commission staff.

2

340.  Subpoena power.

3

341.  Regulations; annual reports; hearings and advisory group

4

meetings.

5

342.  Clearinghouse.

6

342.1.  Gubernatorial review.

7

§ 331.  Scope of subchapter.

8

This subchapter relates to regulatory review.

9

§ 332.  Legislative declarations.

10

(a)  Findings.--The General Assembly has enacted a large

11

number of statutes and has conferred on boards, commissions,

12

departments and agencies within the executive branch of

13

government the authority to adopt rules and regulations to

14

implement those statutes. The General Assembly has found that

15

this delegation of its authority has resulted in regulations

16

being promulgated without undergoing effective review concerning

17

cost benefits, duplication, inflationary impact and conformity

18

to legislative intent. The General Assembly finds that it must

19

establish a procedure for oversight and review of regulations

20

adopted under this delegation of legislative power in order to

21

curtail excessive regulation and to require the executive branch

22

to justify its exercise of the authority to regulate before

23

imposing hidden costs upon the economy of Pennsylvania.

24

(b)  Intent.--It is the intent of this subchapter to:

25

(1)  Establish a method for ongoing and effective

26

legislative review and oversight in order to foster executive

27

branch accountability and to provide for primary review by a

28

commission with sufficient authority, expertise, independence

29

and time to perform that function.

30

(2)  Provide ultimate review of regulations by the

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1

General Assembly.

2

(3)  Assist the Governor, the Attorney General and the

3

General Assembly in their supervisory and oversight

4

functions.

5

(4)  Encourage, to the greatest extent possible, the

6

resolution of objections to a regulation and the reaching of

7

a consensus among the commission, the standing committees,

8

interested parties and the agency.

9

(c)  Right or benefit.--This subchapter is not intended to

10

create a right or benefit, substantive or procedural,

11

enforceable at law by a person against another person or against

12

the Commonwealth, its agencies or its officers.

13

§ 333.  Definitions.

14

The following words and phrases when used in this subchapter

15

shall have the meanings given to them in this section unless the

16

context clearly indicates otherwise:

17

"Agency."  Any department, departmental administrative board

18

or commission, independent board or commission, agency or other

19

authority of this Commonwealth. The term shall not include the

20

Senate or the House of Representatives, the Pennsylvania Fish

21

and Boat Commission, the Pennsylvania Game Commission or any

22

court, political subdivision, municipal or local authority.

23

"Commission."  The Independent Regulatory Review Commission.

24

"Committee."  A standing committee of the Senate or the House

25

of Representatives designated by the President pro tempore of

26

the Senate for the Senate or by the Speaker of the House of

27

Representatives for the House. The designation shall prescribe

28

the jurisdiction of each standing committee over the various

29

State agencies for purposes of this subchapter. The designation

30

shall be transmitted to the Legislative Reference Bureau for

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1

publication in the Pennsylvania Bulletin.

2

"Family."  A parent, spouse, child, brother or sister.

3

"Final-form regulation."  A regulation previously published

4

as a proposed regulation under Subchapter A (relating to

5

commonwealth documents law), which an agency submits to the

6

commission and the committees following the close of the public

7

comment period.

8

"Final-omitted regulation."  A regulation which an agency

9

submits to the commission and the committees for which the

10

agency has omitted notice of proposed rulemaking under section

11

306 (relating to omission of notice of proposed rulemaking).

12

"Promulgate."  To publish an order adopting a final-form or

13

final-omitted regulation in accordance with Subchapter A

14

(relating to commonwealth documents law).

15

"Proposed regulation."  A document intended for promulgation

16

as a regulation which an agency submits to the commission and

17

the committees and for which the agency gives notice of proposed

18

rulemaking and holds a public comment period under Subchapter A

19

(relating to commonwealth documents law).

20

"Regulation."

21

(1)  The term shall include:

22

(i)  Any rule or regulation or order in the nature of

23

a rule or regulation promulgated by an agency under

24

statutory authority in the administration of any statute

25

administered by or relating to the agency or amending,

26

revising or otherwise altering the terms and provisions

27

of an existing regulation, or prescribing the practice or

28

procedure before the agency.

29

(ii)  Actions of the Pennsylvania Liquor Control

30

Board which have an effect on the discount rate for

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1

retail licensees.

2

(iii)  Notwithstanding paragraph (2), a regulation

3

which may be promulgated by an agency, only with the

4

approval of the Governor.

5

(2)  The term shall not include a proclamation, executive

6

order, directive or similar document issued by the Governor.

7

"Withdrawal."  Removal of a proposed, final-form or final-

8

omitted regulation by an agency from the review process so that

9

the commission and the committees are prevented from taking

10

further action on the regulation.

11

§ 334.  Composition of commission; membership; compensation;

12

vacancies; removal.

13

(a)  Composition.--The commission shall consist of five

14

members to be known as commissioners. One commissioner shall be

15

appointed by the Governor to serve at the Governor's pleasure,

16

one by the President pro tempore of the Senate, one by the

17

Speaker of the House of Representatives, one by the Minority

18

Leader of the Senate and one by the Minority Leader of the House

19

of Representatives. A member of the General Assembly or any

20

other officer or employee of State government may not serve as a

21

commissioner, but a commissioner may serve on advisory boards

22

and commissions or on other boards and commissions which do not

23

promulgate any rules and regulations which may come before the

24

commission for review under this subchapter.

25

(b)  Term.--Each appointment provided for under subsection

26

(a), except for the Governor's appointment, shall be for a term

27

of three years.

28

(c)  Vacancy.--An appointment to fill a vacancy for the

29

remainder of the unexpired term shall be made in the same manner

30

as set forth under subsection (a). Upon the expiration of a

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1

commissioner's term of office, the commissioner shall continue

2

to hold office until a successor is appointed.

3

(d)  Compensation.--The commissioner who is elected to serve

4

as the chairperson in accordance with subsection (g) shall

5

receive $300 per day as compensation for services rendered to

6

the commission. Each of the other commissioners shall receive

7

$250 per day as compensation for services rendered to the

8

commission. A commissioner shall also be entitled to

9

reimbursement for travel and other necessary expenses incurred

10

as a result of official duties. The expenses incurred by a

11

commissioner or by an employee of the commission shall be paid

12

on the presentation of itemized vouchers for the expenses. The

13

vouchers shall be subject to the approval of the commission.

14

(e)  Removal.--Except as authorized under subsection (f) or

15

(h) and except for the Governor's appointee who shall serve at

16

the Governor's pleasure, a commissioner may not be removed

17

during the commissioner's term of office. The Governor may, with

18

the approval of two-thirds of the members of the Senate, upon

19

clear and convincing evidence of misfeasance or malfeasance in

20

office or neglect of duty, remove a commissioner prior to the

21

expiration of the commissioner's term. The Governor shall

22

provide the commissioner to be removed with a detailed written

23

statement of the reasons for removal.

24

(f)  Suspension.--A commissioner formally charged before a

25

court of record with the commission of a felony or with a

26

misdemeanor under 18 Pa.C.S. Pt. II Art. E (relating to offenses

27

against public administration) shall immediately be suspended as

28

a commissioner until the charge is dismissed or a verdict of

29

acquittal is announced. If a commissioner pleads guilty or nolo

30

contendere or is found guilty of the offense, or receives

- 18 -

 


1

probation without verdict, disposition in lieu of trial or an

2

accelerated rehabilitative disposition for felony or misdemeanor

3

charges in this Commonwealth or in any other jurisdiction, the

4

commissioner shall immediately be removed from the commission

5

upon announcement of the verdict or disposition by the court or

6

upon the court's acceptance of a plea of guilty or nolo

7

contendere.

8

(f.1)  Financial interest.--

9

(1)  A commissioner may not participate in deliberations

10

regarding any regulation which significantly affects the

11

operation or activities of any organization in which the

12

commissioner or any member of the commissioner's family owns

13

shares of stock in excess of 5% of the total issue of the

14

stock, has an ownership interest in excess of 5% of the total

15

ownership or serves as an officer, director, trustee, partner

16

or employee. For the purposes of this paragraph, an

17

organization shall not include a nonprofit organization

18

certified under section 501(c)(3) of the Internal Revenue

19

Code of 1986 (Public Law 99-514, 26 U.S.C. § 501(c)(3)) in

20

which the commissioner holds a nonsalaried position.

21

(2)  Within 90 days of appointment, and annually

22

thereafter, each commissioner shall disclose all business

23

affiliations and financial interests. The disclosure

24

statement shall be filed with the executive director of the

25

commission and the State Ethics Commission and shall be

26

available for public inspection during business hours of the

27

commission. Each commissioner's disclosure statement shall

28

remain on file as long as the commissioner remains on the

29

commission.

30

(3)  If a commissioner has or may have a conflict of

- 19 -

 


1

interest or feels another commissioner has or may have a

2

conflict of interest in deliberating on a regulation, the

3

commissioner shall, prior to the vote on the regulation,

4

disclose the conflict or potential conflict.

5

(4)  The commissioner may request a ruling from the

6

chairperson of the commission upon the question of whether

7

the conflict or potential conflict disqualifies the

8

commissioner from voting on the regulation. A commissioner

9

may challenge the ruling of the chairperson. If a ruling is

10

challenged, the question shall be resolved by majority vote

11

of the commission.

12

(5)  The chairperson or a majority of the commissioners

13

may request the State Ethics Commission to provide advice

14

regarding conflicts of interest. If advice is given by the

15

State Ethics Commission, it shall be binding upon the

16

commission.

17

(6)  A commissioner commits a misdemeanor of the second

18

degree by knowingly and intentionally violating the

19

provisions of this subsection.

20

(7)  The commission or its employees when acting in good

21

faith on an opinion issued to a commissioner by the

22

chairperson or the State Ethics Commission shall not be

23

subject to criminal or civil penalties levied under 65

24

Pa.C.S. Ch. 11 (relating to ethics standards and financial

25

disclosure) for so acting, if the material facts are as

26

stated in the request for an opinion.

27

(8)  In addition to the requirements of this subchapter,

28

a commissioner shall be subject to the act of October 4, 1978

29

(P.L.883, No.170), referred to as the Public Official and

30

Employee Ethics Law.

- 20 -

 


1

(g)  Chairperson.--The commission shall elect a chairperson,

2

who shall serve for a term of two years and until a successor is

3

elected. The chairperson shall preside at meetings of the

4

commission and shall execute documents relating to the formal

5

actions of the commission.

6

(h)  Meetings.--The commission shall meet before the period

7

for its review of regulations under this subchapter expires and

8

at other times as necessary to transact the business of the

9

commission and ensure an expeditious and orderly review of

10

regulations under this subchapter. Meetings shall be held at

11

times and places set by the chairperson. A meeting may be

12

scheduled by the commission upon the provision of at least ten

13

days' notice to all affected agencies and the committees. A

14

commissioner who does not attend three consecutive meetings

15

without cause may be removed as a commissioner by the authority

16

appointing the commissioner.

17

(i)  Quorum.--For purposes of conducting official business, a

18

quorum consists of three commissioners. A commissioner must be

19

physically present to be counted toward the quorum. If the

20

commission is unable to conduct business for lack of a quorum,

21

the deadline for the commission to take action on a regulation

22

in accordance with this subchapter shall be postponed for 30

23

days or until the next meeting at which a quorum is in

24

attendance, whichever occurs first.

25

§ 335.  Proposed regulations; procedures for review.

26

(a)  General rule.--On the same date that an agency submits a

27

proposed regulation to the Legislative Reference Bureau for

28

publication of notice of proposed rulemaking in the Pennsylvania

29

Bulletin as required under Subchapter A (relating to

30

commonwealth documents law), the agency shall submit to the

- 21 -

 


1

commission and the committees a copy of the proposed regulation

2

and a regulatory analysis form which includes the following:

3

(1)  The title of the agency and the names, office

4

addresses and telephone numbers of the agency officials

5

responsible for responding to questions regarding the

6

regulation or for receiving comments relating to the

7

regulation.

8

(1.1)  A specific citation to the Federal or State

9

statutory or regulatory authority or the decision of a

10

Federal or State court under which the agency is proposing

11

the regulation, which the regulation is designed to implement

12

or which may mandate or affect compliance with the

13

regulation.

14

(2)  A concise and, when possible, nontechnical

15

explanation of the proposed regulation.

16

(3)  A statement of the need for the regulation.

17

(4)  Estimates of the direct and indirect costs to the

18

Commonwealth, to its political subdivisions and to the

19

private sector. Insofar as the proposed regulation relates to

20

costs to the Commonwealth, the agency may submit in lieu of

21

its own statement the fiscal note prepared by the Office of

22

the Budget under Subchapter C (relating to fiscal review).

23

(5)  A statement of legal, accounting or consulting

24

procedures and additional reporting, recordkeeping or other

25

paperwork, including copies of forms or reports, which will

26

be required for implementation of the regulation and an

27

explanation of measures which have been taken to minimize

28

these requirements.

29

(6)  (Reserved).

30

(7)  A schedule for review of the proposed regulation,

- 22 -

 


1

including the date by which the agency must receive comments,

2

the date or dates on which public hearings will be held, the

3

expected date of promulgation of the proposed regulation as a

4

final-form regulation, the expected effective date of the

5

final-form regulation, the date by which compliance with the

6

final-form regulation will be required and the date by which

7

required permits, licenses or other approvals must be

8

obtained.

9

(8)  (Reserved).

10

(9)  An identification of the types of persons,

11

businesses and organizations which would be affected by the

12

regulation.

13

(10)  An identification of the financial, economic and

14

social impact of the regulation on individuals, business and

15

labor communities and other public and private organizations

16

and, when practicable, an evaluation of the benefits expected

17

as a result of the regulation.

18

(11)  A description of any special provisions which have

19

been developed to meet the particular needs of affected

20

groups and persons, including minorities, the elderly, small

21

businesses and farmers.

22

(12)  A description of any alternative regulatory

23

provisions which have been considered and rejected and a

24

statement that the least burdensome acceptable alternative

25

has been selected.

26

(13)  A description of the plan developed for evaluating

27

the continuing effectiveness of the regulation after its

28

implementation.

29

(b)  Publication of information and public comment period.--

30

(1)  The requirements of subsection (a) shall not

- 23 -

 


1

diminish the requirements of section 303 (relating to notice

2

of proposed rulemaking), but the information required under

3

this section may be included in the Notice of Proposed

4

Rulemaking published in the Pennsylvania Bulletin in lieu of

5

the information required under section 303(2) and (3).

6

(2)  The agency shall hold a public comment period which

7

shall commence with the publication of the notice of proposed

8

rulemaking and shall continue for not less than 30 days

9

unless section 305(1) or (2) (relating to effective date of

10

regulations) applies.

11

(c)  Copy of comments, reports and other documents to be

12

provided.--

13

(1)  From the date of submission of the proposed

14

regulation, the agency shall submit to the commission and the

15

committees, within five business days of receipt, a copy of

16

comments which the agency receives relating to the proposed

17

regulation.

18

(2)  The agency shall also, upon request, submit to the

19

commission and the committees copies of reports from advisory

20

groups and other documents received from or disseminated to

21

the public relating to the proposed regulation and public

22

notices or announcements relating to solicitation of public

23

comments or meetings which the agency held or will hold

24

relating to the proposed regulation.

25

(d)  Committee response.--The committees may, at any time

26

prior to the submittal of the regulation in final-form, convey

27

to the agency and the commission their comments, recommendations

28

and objections to the proposed regulation and a copy of any

29

staff reports deemed pertinent. The comments, recommendations

30

and objections may refer to the criteria under section 335.2

- 24 -

 


1

(relating to criteria for review of regulations).

2

(e)  (Reserved).

3

(f)  Time for submitting proposed regulation to committees.--

4

(1)  An agency may not submit a proposed regulation to

5

the committees for review during the period from the end of

6

the legislative session in an even-numbered year to the date

7

by which both committees have been designated in the next

8

succeeding legislative session, but an agency may submit a

9

proposed regulation and the material required under

10

subsection (a) to the commission and the Legislative

11

Reference Bureau during this period in accordance with

12

subsection (a).

13

(2)  The public comment period shall commence with the

14

publication of the notice of proposed rulemaking and end on

15

the date designated by the agency under subsection (b).

16

(3)  The agency shall submit the proposed regulation and

17

required material to the committees no later than the second

18

Monday after the date by which both committee designations

19

have been published in the Pennsylvania Bulletin.

20

(4)  If the agency does not deliver the proposed

21

regulation and all material required under this section in

22

the time prescribed under this subsection, the agency shall

23

be deemed to have withdrawn the proposed regulation.

24

(g)  Commission response.--

25

(1)  The commission may, within 30 days after the close

26

of the public comment period, convey to the agency and

27

committees any comments, recommendations and objections to

28

the proposed regulation. The comments, recommendations and

29

objections shall specify the regulatory review criterion

30

stated under section 335.2 which the proposed regulation has

- 25 -

 


1

not met.

2

(2)  The following apply:

3

(i)  If the commission does not comment on, make

4

recommendations regarding or object to any portion of the

5

proposed regulation within the time provided under this

6

subsection, the commission shall be deemed to have

7

approved that portion of the proposed regulation.

8

(ii)  Disapproval of the final-form regulation by the

9

commission shall relate only to comments, recommendations

10

and objections raised by the commission to the proposed

11

regulation to changes which the agency made to the

12

proposed regulation or to recommendations, comments or

13

objections which a committee conveyed to the agency or

14

the commission.

15

§ 335.1.  Final-form regulations and final-omitted regulations;

16

procedures for review.

17

(a)  Duties of agency.--

18

(1)  The agency shall review and consider public comments

19

and the comments of the committees and commission under this

20

section.

21

(2)  Within five business days of receipt of a public

22

comment, the agency shall notify the commentator of the

23

agency's address and telephone number where the commentator

24

may submit a request for the information concerning the

25

final-form regulation under subsection (b).

26

(3)  Upon completion of the agency's review of comments,

27

the agency shall submit to the commission and the committees

28

a copy of its response to the comments received, the names

29

and addresses of commentators who have requested additional

30

information relating to the final-form regulation and the

- 26 -

 


1

text of the final-form regulation which the agency intends to

2

adopt.

3

(4)  If an agency does not submit or withdraws and does

4

not resubmit the final-form regulation within two years of

5

the close of the public comment period but still desires to

6

promulgate the final-form regulation, the agency shall

7

republish the regulation as a proposed regulation with a new

8

public comment period in accordance with Subchapter A

9

(relating to commonwealth documents law).

10

(5)  If the agency is prevented from delivering its

11

final-form regulation to the commission and the committees

12

within the time period provided for under this subsection

13

because of the adjournment sine die or expiration of the

14

legislative session in an even-numbered year, the agency

15

shall deliver its final-form regulation in accordance with

16

subsection (f).

17

(b)  Notice of submission to commentators.--

18

(1)  On the same date that the agency submits the

19

material required under subsection (a) to the commission and

20

the committees, the agency shall send a notice of submission

21

and a copy of the text of the final-form regulation or a copy

22

of all changes to the proposed regulation which are

23

incorporated into the final-form regulation to each

24

commentator who requested this information under subsection

25

(a).

26

(2)  The agency is not required to notify each party

27

whose name appears on petitions or membership lists who did

28

not present individual comments on the regulation.

29

(c)  Time period for filing.--

30

(1)  The agency shall submit final-omitted regulations to

- 27 -

 


1

the commission and the committees for review under this

2

section on the same date that the agency submits the

3

regulations for review under section 313 (relating to

4

Attorney General). The requirements of section 335 (relating

5

to proposed regulations; procedures for review), except for

6

the requirements for holding a public comment period and for

7

notifying commentators, are applicable to final-omitted

8

regulations.

9

(2)  If the agency makes revisions under subsection (g),

10

the agency shall deliver copies of the revisions to the

11

Attorney General on the same date that the agency delivers

12

the revisions to the commission and the committees.

13

(d)  (Reserved).

14

(e)  Approval and disapproval.--The commission may have until

15

its next scheduled meeting which occurs no less than 30 days

16

after receipt of the final-form or final-omitted regulation to

17

approve or disapprove the final-form or final-omitted

18

regulation. The commission shall notify the agency and the

19

committees of its approval or disapproval. If the commission

20

does not disapprove the final-form or final-omitted regulation

21

within the time allotted under this subsection, the commission

22

shall be deemed to have approved the final-form or final-omitted

23

regulation.

24

(f)  Delivery.--An agency may not deliver a final-form or

25

final-omitted regulation to the commission and the committees

26

after the adjournment sine die or expiration of the legislative

27

session in an even-numbered year. The agency may not deliver the

28

final-form or final-omitted regulation until the fourth Monday

29

in January of the next year. On that date, the agency shall

30

resubmit the final-form or final-omitted regulation and required

- 28 -

 


1

material to the committees and the commission. If either

2

committee has not been designated by the fourth Monday in

3

January, the agency may not deliver the final-form or final-

4

omitted regulation and required material to the committees and

5

the commission until both committees are designated.

6

(g)  Changes.--Except as provided under this subsection, the

7

agency may not make any changes to a final-form or final-omitted

8

regulation after the agency submits the final-form or final-

9

omitted regulation to the commission and the committees.

10

(1)  Prior to the expiration of the date on which either

11

of the committees takes action on the final-form or final-

12

omitted regulation, under subsection (j.2) or (j.3) or the

13

expiration of the commission's review period prescribed under 

14

subsection (e), whichever occurs first, the agency may,

15

unless the commission shall object, toll the time for the

16

commission's and the committees' review of the final-form or

17

final-omitted regulation in order to allow time for the

18

agency to consider revisions to the final-form or final-

19

omitted regulation recommended by the commission or a

20

committee.

21

(2)  Tolling under paragraph (1) may last for up to 30

22

days. If within 30 days the agency does not submit revisions

23

to the committees and the commission or does not notify the

24

commission and the committees in writing that it will not

25

submit revisions but wishes the commission and the committees

26

to resume their review, the agency shall be deemed to have

27

withdrawn the final-form or final-omitted regulation.

28

(3)  The committees shall have the remainder of the 20-

29

day review period or ten days from the date of receipt of the

30

revised final-form or final-omitted regulation or written

- 29 -

 


1

notification under paragraph (2), whichever is longer, to

2

take action under subsection (j.2) or (j.3), and the

3

commission may have until its next scheduled meeting which

4

occurs after the expiration of the committee review period,

5

but not less than 15 days after receipt of the revised final-

6

form or final-omitted regulation or written notification

7

under paragraph (2) to review the final-form or final-omitted

8

regulation. If the commission does not disapprove the final-

9

form or final-omitted regulation or a committee does not

10

notify the commission and the agency that it has disapproved

11

the regulation or that it intends to review the regulation

12

under subsection (j.2), within the respective time periods,

13

the regulation shall be deemed approved.

14

(4)  The agency may not toll the time for review of any

15

final-form or final-omitted regulation more than one time.

16

(5)  The agency may not submit revisions or notification

17

that the regulation will not be revised after the adjournment

18

sine die or the expiration of the legislative session in an

19

even-numbered year. If the committees and the commission are

20

prevented from completing their review under this subsection

21

because of the adjournment sine die or the expiration of the

22

legislative session in an even-numbered year, the agency

23

shall resubmit the final-form or final-omitted regulation and

24

review shall proceed in accordance within subsection (j.3).

25

(h)  (Reserved).

26

(i)  (Reserved).

27

(j)  Comments.--The commission shall accept public comments

28

only up to 48 hours prior to the commission's public meeting

29

unless the comments are submitted at the request of the

30

commission. The commission shall receive comments from the

- 30 -

 


1

agency or members of the General Assembly until the commission

2

acts on the regulation. The commission shall transmit comments

3

received during the 48-hour period prior to the commission's

4

public meeting to the agency and the committees upon receipt.

5

The commission shall accept additional public comments only

6

after the public meeting has been called to order.

7

(j.1)  Time for action.--A committee shall have at least 20

8

days from receipt of the information required under subsection

9

(a) or receipt of the information required under subsection (c)

10

to take action under subsection (j.2). If the committees are

11

prevented from completing their 20-day review because of the

12

adjournment sine die or expiration of the legislative session in

13

an even-numbered year, their review of the final-form or final-

14

omitted regulation shall automatically be suspended until the

15

fourth Monday in January of the next year. On that date, the

16

agency shall resubmit the final-form or final-omitted regulation

17

and required material to the committees and the commission.

18

(1)  If either committee has not been designated by the

19

fourth Monday in January, the agency may not deliver the

20

final-form or final-omitted regulation and required material

21

to the commission and the committees until both committees

22

have been designated.

23

(2)  If the agency does not deliver the final-form or

24

final-omitted regulation and required material to the

25

commission and the committees by the second Monday after the

26

date by which both committee designations have been published

27

in the Pennsylvania Bulletin, the agency shall be deemed to

28

have withdrawn the regulation.

29

(3)  In computing the remaining time for committee

30

review, the number of days in which the committees have had

- 31 -

 


1

the final-form or the final-omitted regulation under review

2

as of the adjournment sine die or expiration of the prior

3

session shall be subtracted from the 20-day committee review

4

period, but the committee review period in the next

5

succeeding legislative session shall not be less than ten

6

days.

7

(4)  The commission shall not act on a regulation until

8

the committee review period has expired. This section shall

9

not apply to emergency-certified regulations adopted under

10

the provisions of section 336(d) (relating to procedures for

11

disapproval of final-form and final-omitted regulations;

12

emergency-certified regulations).

13

(j.2)  Notification of approval and disapproval.--At any time

14

during the commission's review period up to 24 hours prior to

15

the opening of the commission's public meeting, a committee may

16

notify the commission and the agency that it has approved or

17

disapproved a final-form or final-omitted regulation or that it

18

intends to review the regulation. If the commission approves a

19

regulation and a committee has not notified the commission and

20

the agency that it has disapproved the regulation or that it

21

intends to review the regulation, the agency may promulgate the

22

regulation. If the commission approves a regulation and a

23

committee has notified the commission and the agency that it has

24

disapproved the regulation or that it intends to review the

25

regulation, the agency may not promulgate the regulation for 14

26

days after the committee has received the commission's approval

27

order. During this 14-day period, the committee may take action

28

on the regulation under section 337(d) (relating to procedures

29

for subsequent review of disapproved final-form or final-omitted

30

regulations). If at the expiration of the 14-day period the

- 32 -

 


1

committee has not taken action on the regulation under section

2

337(d), the agency may promulgate the regulation.

3

(j.3)  Automatic suspension of 14-day review.--If the

4

committees are prevented from completing their 14-day review

5

because of adjournment sine die or expiration of the legislative

6

session in an even-numbered year, their review of the final-form

7

or final-omitted regulation shall automatically be suspended

8

until the fourth Monday in January of the next year. On that

9

date, the agency shall resubmit the final-form or final-omitted

10

regulation and required material to the committees and the

11

commission.

12

(1)  If either committee has not been designated by the

13

fourth Monday in January, the agency may not deliver the

14

final-form or final-omitted regulation and required material

15

to the committees and the commission until both committees

16

are designated.

17

(2)  If the agency does not deliver the final-form or

18

final-omitted regulation and required material to the

19

commission and the committees by the second Monday after the

20

date by which both committee designations have been published

21

in the Pennsylvania Bulletin, the agency shall be deemed to

22

have withdrawn the final-form or final-omitted regulation.

23

(3)  In determining the remaining time for committee

24

review, the number of days in which the committees have had

25

the final-form or the final-omitted regulation under review

26

as of the adjournment sine die or expiration of the prior

27

session shall be subtracted from the 14-day committee review

28

period, but the committee review period in the next

29

succeeding legislative session shall not be less than ten

30

days.

- 33 -

 


1

(4)  An agency may not submit a final-form or final-

2

omitted regulation to the commission or the committees for

3

review during the period from the adjournment sine die or

4

expiration of the legislative session of an even-numbered

5

year to the date by which both committees have been

6

designated in the next succeeding legislative session.

7

(5)  This subsection shall not apply to emergency-

8

certified regulations adopted under the provisions of section

9

336(d).

10

(j.4)  Disapproval.--If the commission disapproves a final-

11

form or final-omitted regulation, the commission, the committees

12

and the agency will proceed in accordance with section 336. 

13

(k)  Comment retention.--The commission shall note and shall

14

make a part of the public record all comments which it receives

15

relating to a regulation and shall retain the comments for four

16

years after the promulgation of the regulation.

17

(l)  Regulations.--Except for emergency-certified regulations

18

adopted under section 336(d), an agency may not promulgate a

19

regulation until completion of the review provided for under 

20

this subchapter.

21

§ 335.2.  Criteria for review of regulations.

22

(a)  Preliminary criteria.--In determining whether a

23

proposed, final-form, final-omitted or existing regulation is in

24

the public interest, the commission shall, first and foremost,

25

determine whether the agency has the statutory authority to

26

promulgate the regulation and whether the regulation conforms to

27

the intention of the General Assembly in the enactment of the

28

statute upon which the regulation is based. In making its

29

determination, the commission shall consider written comments

30

submitted by the committees and current members of the General

- 34 -

 


1

Assembly, pertinent opinions of Pennsylvania's courts and formal

2

opinions of the Attorney General.

3

(b)  General criteria.--Upon a finding that the regulation is

4

consistent with the statutory authority of the agency and with

5

the intention of the General Assembly in the enactment of the

6

statute upon which the regulation is based, the commission shall

7

consider the following in determining whether the regulation is

8

in the public interest:

9

(1)  Economic or fiscal impacts of the regulation, which

10

include the following:

11

(i)  Direct and indirect costs to the Commonwealth,

12

to its political subdivisions and to the private sector.

13

(ii)  Adverse effects on prices of goods and

14

services, productivity or competition.

15

(iii)  The nature of required reports, forms or other

16

paperwork and the estimated cost of their preparation by

17

individuals, businesses and organizations in the public

18

and private sectors.

19

(iv)  The nature and estimated cost of legal,

20

consulting or accounting services which the public or

21

private sector may incur.

22

(v)  The impact on the public interest of exempting

23

or setting lesser standards of compliance for individuals

24

or small businesses when it is lawful, desirable and

25

feasible to do so.

26

(2)  The protection of the public health, safety and

27

welfare and the effect on this Commonwealth's natural

28

resources.

29

(3)  The clarity, feasibility and reasonableness of the

30

regulation to be determined by considering the following:

- 35 -

 


1

(i)  Possible conflict with or duplication of

2

statutes or existing regulations.

3

(ii)  Clarity and lack of ambiguity.

4

(iii)  Need for the regulation.

5

(iv)  Reasonableness of requirements, implementation

6

procedures and timetables for compliance by the public

7

and private sectors.

8

(4)  Whether the regulation represents a policy decision

9

of such a substantial nature that it requires legislative

10

review.

11

(5)  Comments, objections or recommendations of a

12

committee.

13

(6)  Compliance with the provisions of this subchapter or

14

the regulations of the commission in promulgating the

15

regulation.

16

§ 336.  Procedures for disapproval of final-form and final-

17

omitted regulations; emergency-certified regulations.

18

(a)  Order.--If the commission disapproves a final-form or

19

final-omitted regulation, the commission shall deliver its

20

disapproval order to the Legislative Reference Bureau, the

21

committees and the agency. The commission shall notify

22

commentators who have requested additional information under

23

section 335.1(a) (relating to final-form regulations and final-

24

omitted regulations; procedures for review) of the commission's

25

vote to disapprove. The disapproval order shall specify the

26

regulatory review criteria which the final-form or final-omitted

27

regulation has not met. The agency shall review the commission's

28

order and proceed under section 337(a) (relating to procedures

29

for subsequent review of disapproved final-form or final-omitted

30

regulations).

- 36 -

 


1

(b)  Effect.--The commission's order disapproving a final-

2

form or final-omitted regulation shall bar the agency from

3

promulgating that regulation pending subsequent review under

4

section 337.

5

(c)  (Reserved).

6

(d)  Prohibition.--

7

(1)  The commission may not issue an order barring an

8

agency from promulgating a final-form or final-omitted

9

regulation if the Attorney General certifies that the final-

10

form or final-omitted regulation is required under the decree

11

of any court or to implement the provisions of a statute of

12

the United States or regulations issued thereunder by a

13

Federal agency or if the Governor certifies that the final-

14

form or final-omitted regulation is required to meet an

15

emergency which includes conditions which may threaten the

16

public health, safety or welfare, cause a budget deficit or

17

create the need for supplemental or deficiency appropriations

18

of greater than $1,000,000. In those cases, the final-form or

19

final-omitted regulation may take effect on the date of

20

publication or on a later date specified in the order

21

adopting the final-form or final-omitted regulation.

22

(2)  The commission and the committees shall review the

23

final-form or final-omitted regulation under the procedures

24

provided for under this subchapter. If the final-form or

25

final-omitted regulation is disapproved under those

26

procedures, that regulation shall be rescinded after 120 days

27

or upon final disapproval, whichever occurs later.

28

§ 337.  Procedures for subsequent review of disapproved final-

29

form or final-omitted regulations.

30

(a)  General procedures.--An agency may select one of the

- 37 -

 


1

following options for proceeding with a regulation which has

2

been disapproved by the commission:

3

(1)  To proceed further with the final-form or final-

4

omitted regulation under subsection (b).

5

(2)  To proceed further with the final-form or final-

6

omitted regulation under subsection (c).

7

(3)  To withdraw the final-form or final-omitted

8

regulation.

9

(b)  Report.--

10

(1)  If the agency decides to adopt the final-form or

11

final-omitted regulation without revisions or further

12

modifications, the agency shall submit a report to the

13

committees and the commission within 40 days of the agency's

14

receipt of the commission's disapproval order. The agency's

15

report shall contain the final-form or final-omitted

16

regulation, the commission's disapproval order and the

17

agency's response and recommendations regarding the final-

18

form or final-omitted regulation.

19

(2)  If the committees are prevented from receiving the

20

report because of adjournment sine die or expiration of the

21

legislative session in an even-numbered year, the agency

22

shall submit its report to the commission and the committees

23

on the fourth Monday in January of the next year. If either

24

committee has not been designated by the fourth Monday in

25

January, the agency may not deliver the report to the

26

committees and the commission until both committees are

27

designated, but the agency shall deliver its report to the

28

commission and the committees no later than the second Monday

29

after the date by which both committee designations have been

30

published in the Pennsylvania Bulletin.

- 38 -

 


1

(3)  If the agency does not deliver the report to the

2

committees and the commission in the time prescribed under

3

this subsection, the agency shall be deemed to have withdrawn

4

the final-form or final-omitted regulation.

5

(c)  Modifications before report.--

6

(1)  If the agency decides to revise or modify the final-

7

form or final-omitted regulation in order to respond to

8

objections raised by the commission and adopt that regulation

9

with revisions or modifications, the agency shall submit a

10

report to the committees and the commission within 40 days of

11

the agency's receipt of the commission's disapproval order.

12

The agency's report shall contain the revised final-form or

13

final-omitted regulation, the findings of the commission and

14

the agency's response and recommendations regarding the

15

revised final-form or final-omitted regulation.

16

(2)  If the committees are prevented from receiving the

17

report because of adjournment sine die or expiration of the

18

legislative session in an even-numbered year, the agency

19

shall submit the report to the commission and the committees

20

on the fourth Monday in January of the next year. If either

21

committee has not been designated by the fourth Monday in

22

January, the agency may not deliver the report to the

23

committees and the commission until both committees are

24

designated, but the agency shall deliver its report to the

25

commission and the committees no later than the second Monday

26

after the date by which both committee designations have been

27

published in the Pennsylvania Bulletin.

28

(3)  If the agency does not deliver its report to the

29

commission and the committees in the time prescribed in this

30

subsection, the agency shall be deemed to have withdrawn the

- 39 -

 


1

final-form or final-omitted regulation.

2

(c.1)  Approval or disapproval order.--The commission may

3

have until its next scheduled meeting, which occurs no less than

4

15 days from receipt of the agency's report, to approve or

5

disapprove the agency's report. The commission shall deliver its

6

approval or disapproval order to the committees for

7

consideration by the General Assembly under subsection (d).

8

(1)  If the commission is prevented from delivering its

9

order to the committees within the time period provided for

10

under this subsection because of the adjournment sine die or

11

expiration of the legislative session in an even-numbered

12

year, the commission shall deliver its order on the fourth

13

Monday of January of the next year.

14

(2)  If either committee has not been designated by the

15

fourth Monday in January, the commission may not deliver its

16

order to the committees until both committees are designated,

17

but the commission shall deliver its order no later than the

18

second Monday after the date by which both committee

19

designations have been published in the Pennsylvania

20

Bulletin.

21

(3)  If the commission does not deliver its order

22

disapproving the agency's report and revised final-form or

23

final-omitted regulation in the time prescribed under this

24

subsection, the commission shall be deemed to have approved

25

the agency's report and the revised final-form or final-

26

omitted regulation.

27

(d)  Legislative presentation by concurrent resolution.--Upon

28

receipt of the commission's order under subsection (c.1) or at

29

the expiration of the commission's review period if the

30

commission does not act on the regulation or does not deliver

- 40 -

 


1

its order under subsection (c.1), one or both of the committees

2

may, within 14 calendar days, report to the Senate or House of

3

Representatives a concurrent resolution and notify the agency.

4

During the 14-calendar-day period, the agency may not promulgate

5

the final-form or final-omitted regulation.

6

(1)  If, by the expiration of the 14-calendar-day period,

7

neither committee reports a concurrent resolution, the

8

committees shall be deemed to have approved the final-form or

9

final-omitted regulation, and the agency may promulgate that

10

regulation.

11

(2)  If either committee reports a concurrent resolution

12

before the expiration of the 14-day period, the Senate and

13

the House of Representatives shall each have 30 calendar days

14

or ten legislative days, whichever is longer, from the date

15

on which the concurrent resolution has been reported, to

16

adopt the concurrent resolution.

17

(3)  If the General Assembly adopts the concurrent

18

resolution by majority vote in both the Senate and the House

19

of Representatives, the concurrent resolution shall be

20

presented to the Governor in accordance with section 9 of

21

Article III of the Constitution of Pennsylvania.

22

(4)  If the Governor does not return the concurrent

23

resolution to the General Assembly within ten calendar days

24

after it is presented, the Governor shall be deemed to have

25

approved the concurrent resolution.

26

(5)  If the Governor vetoes the concurrent resolution,

27

the General Assembly may override that veto by a two-thirds

28

vote in each house. The Senate and the House of

29

Representatives shall each have 30 calendar days or ten

30

legislative days, whichever is longer, to override the veto.

- 41 -

 


1

(6)  If the General Assembly does not adopt the

2

concurrent resolution or override the veto in the time

3

prescribed under this subsection, it shall be deemed to have

4

approved the final-form or final-omitted regulation.

5

(7)  Notice as to any final disposition of a concurrent

6

resolution considered in accordance with this section shall

7

be published in the Pennsylvania Bulletin.

8

(8)  If the General Assembly adopts the concurrent

9

resolution and the Governor approves or is deemed to have

10

approved the concurrent resolution or if the General Assembly

11

overrides the Governor's veto of the concurrent resolution,

12

the agency shall be barred from promulgating the final-form

13

or final-omitted regulation. The bar on promulgation of the

14

final-form or final-omitted regulation shall continue until

15

that regulation has been approved or deemed approved in

16

accordance with this subsection.

17

(9)  If the General Assembly does not adopt the

18

concurrent resolution or if the Governor vetoes the

19

concurrent resolution and the General Assembly does not

20

override the Governor's veto, the agency may promulgate the

21

final-form or final-omitted regulation. The General Assembly

22

may, at its discretion, adopt a concurrent resolution

23

disapproving the final-form or final-omitted regulation to

24

indicate the intent of the General Assembly but permit the

25

agency to promulgate that regulation.

26

§ 337.1.  Classification of documents.

27

If the commission or a committee finds that a published or

28

unpublished document should be promulgated as a regulation, the

29

commission or committee may present the matter to the Joint

30

Committee on Documents. The Joint Committee on Documents shall

- 42 -

 


1

determine whether the document should be promulgated as a

2

regulation and may order an agency either to promulgate the

3

document as a regulation within 180 days or to desist from the

4

use of the document in the business of the agency.

5

§ 338.  Changes in final-form and final-omitted regulations.

6

(a)  General rule.--Except as provided in subsection (b), an

7

agency may not make changes to a final-form or final-omitted

8

regulation after that regulation has been approved or has been

9

deemed approved by the committees or the commission under this

10

subchapter.

11

(b)  Exception.--Subsection (a) shall not apply to changes

12

made at the direction of the Office of Attorney General under

13

its review under section 313 (relating to Attorney General).

14

§ 338.1.  Existing regulations.

15

The commission, on its motion or at the request of any person

16

or member of the General Assembly, may review an existing

17

regulation which has been in effect for at least three years. If

18

a committee of the Senate or the House of Representatives

19

requests a review of an existing regulation, the commission

20

shall perform the review and shall assign it high priority. The

21

commission may submit recommendations to an agency recommending

22

changes in existing regulations if it finds the existing

23

regulations to be contrary to the public interest under the

24

criteria established under section 335.2 (relating to criteria

25

for review of regulations). The commission may also make

26

recommendations to the General Assembly and the Governor for

27

statutory changes if the commission finds that any existing

28

regulation may be contrary to the public interest.

29

§ 339.  Commission staff.

30

(a)  Executive director and other employees.--The commission

- 43 -

 


1

shall appoint and fix the compensation of a full-time executive

2

director, who shall be responsible for the general supervision

3

of all the affairs of the commission and for performing any

4

administrative function or duty which the commission may

5

delegate to the executive director. The commission shall appoint

6

and fix the compensation of such other employees as the

7

commission may find necessary for the proper operation of the

8

commission.

9

(b)  Chief counsel.--The commission shall appoint and fix the

10

compensation of a full-time chief counsel, who shall not be

11

subject to the supervision of the Attorney General or the

12

General Counsel. The chief counsel shall supervise, coordinate

13

and administer the legal services provided to the commission.

14

§ 340.  Subpoena power.

15

The commission has the authority to issue subpoenas for the

16

purpose of requiring the attendance of persons and the

17

production of documents relating to any function which the

18

commission or its staff is authorized to perform under this

19

subchapter. The chairperson or the executive director may sign a

20

subpoena. The subpoena may be served in any manner authorized

21

under the laws of this Commonwealth. The commission is

22

authorized to apply to the Commonwealth Court to enforce its

23

subpoenas.

24

§ 341.  Regulations; annual reports; hearings and advisory group

25

meetings.

26

(a)  Regulations.--

27

(1)  The commission, in the performance of its functions

28

under this subchapter, has the power to promulgate and

29

enforce regulations necessary to carry out the purposes of

30

this subchapter.

- 44 -

 


1

(2)  Regulations must be promulgated in accordance with

2

the procedures established under Subchapter A (relating to

3

commonwealth documents law).

4

(3)  The regulations shall provide for the commission's

5

notification of filings of final-form and final-omitted

6

regulations to parties likely to be affected by the final-

7

form and final-omitted regulations through publication of a

8

notice in the Pennsylvania Bulletin.

9

(4)  Prior to the regulations taking effect, the

10

requirements of this subchapter must be satisfied. For the

11

purposes of reviewing the regulations of the commission and

12

otherwise satisfying the requirements of this subchapter, the

13

Joint Committee on Documents shall exercise the rights and

14

perform the functions of the commission and the commission

15

shall exercise the rights and perform the functions of an

16

agency under this subchapter.

17

(b)  Annual report.--By April 1, the commission shall file an

18

annual report of its activities for the prior calendar year with

19

the Governor, the Secretary of the Senate and the Chief Clerk of

20

the House of Representatives.

21

(c)  Hearings.--The commission may hold public hearings on

22

any matter before the commission and may meet with advisory

23

groups regarding matters before the commission.

24

§ 342.  Clearinghouse.

25

The commission shall act as a clearinghouse for complaints,

26

comments and other input from members of the General Assembly

27

and from the public regarding existing, proposed, final-form and

28

final-omitted regulations. The commission shall maintain

29

accurate records regarding complaints and comments it receives

30

and shall maintain such records by departmental and subject

- 45 -

 


1

matter categories for four years after the date of receipt by

2

the commission. When the commission files its annual report as

3

provided under section 341 (relating to regulations; annual

4

reports; hearings and advisory group meetings), the commission

5

shall include within it a summary of public complaint and

6

comment along with any recommendations the commission may offer

7

for statutory change.

8

§ 342.1.  Gubernatorial review.

9

The Governor may institute procedures for the review and

10

approval of regulations promulgated by executive agencies prior

11

to their submittal for review under this subchapter, including

12

the establishment of a task force or committee, by executive

13

order. The Governor may also establish procedures for the

14

effective coordination of the review of regulations under

15

Subchapters B (relating to legal review) and C (relating to

16

fiscal review) and section 2203-A of the act of April 9, 1929

17

(P.L.177, No.175), known as The Administrative Code of 1929.

18

Section 3.  Repeals are as follows:

19

(1)  The General Assembly declares as follows:

20

(i)  The repeal under paragraph (2)(ii) is necessary

21

to effectuate the addition of 2 Pa.C.S. Ch. 3 Subch. A.

22

(ii)  The repeal under paragraph (2)(iii) is

23

necessary to effectuate the addition of 2 Pa.C.S. Ch. 3

24

Subch. B.

25

(iii)  The repeal under paragraph (2)(i) is necessary

26

to effectuate the addition of 2 Pa.C.S. Ch. 3 Subch. C.

27

(iv)  The repeal under paragraph (2)(iv) is necessary

28

to effectuate the addition of 2 Pa.C.S. Ch. 3 Subch. D.

29

(2)  The following acts and parts of acts are repealed:

30

(i)  Section 612 of the act of April 9, 1929

- 46 -

 


1

(P.L.177, No.175), known as The Administrative Code of

2

1929.

3

(ii)  The act of July 31, 1968 (P.L.769, No.240),

4

referred to as the Commonwealth Documents Law.

5

(iii)  Sections 204(b) and 301(10) of the act of

6

October 15, 1980 (P.L.950, No.164), known as the

7

Commonwealth Attorneys Act.

8

(iv)  The act of June 25, 1982 (P.L.633, No.181),

9

known as the Regulatory Review Act.

10

Section 4.  Continuation is as follows:

11

(1)  The addition of 2 Pa.C.S. Ch. 3 Subch. A is a

12

continuation of the act of July 31, 1968 (P.L.769, No.240),

13

referred to as the Commonwealth Documents Law. The following

14

apply:

15

(i)  Except as otherwise provided in 2 Pa.C.S. Ch. 3

16

Subch. A, all activities initiated under the Commonwealth

17

Documents Law shall continue and remain in full force and

18

effect and may be completed under 2 Pa.C.S. Ch. 3 Subch.

19

A. Orders, regulations, rules and decisions which were

20

made under the Commonwealth Documents Law and which are

21

in effect on the effective date of section 3(2)(ii) of

22

this act shall remain in full force and effect until

23

revoked, vacated or modified under 2 Pa.C.S. Ch. 3 Subch.

24

A. Contracts, obligations and collective bargaining

25

agreements entered into under the Commonwealth Documents

26

Law are not affected nor impaired by the repeal of the

27

Commonwealth Documents Law.

28

(ii)  Except as set forth in subparagraph (iii), any

29

difference in language between 2 Pa.C.S. Ch. 3 Subch. A

30

and the Commonwealth Documents Law is intended only to

- 47 -

 


1

conform to the style of the Pennsylvania Consolidated

2

Statutes and is not intended to change or affect the

3

legislative intent, judicial construction or

4

administration and implementation of the Commonwealth

5

Documents Law.

6

(iii)  (Reserved).

7

(2)  The addition of 2 Pa.C.S. Ch. 3 Subch. B is a

8

continuation of sections 204(b) and 301(10) of the act of

9

October 15, 1980 (P.L.950, No.164), known as the Commonwealth

10

Attorneys Act. The following apply:

11

(i)  Except as otherwise provided in 2 Pa.C.S. Ch. 3

12

Subch. B, all activities initiated under sections 204(b)

13

and 301(10) of the Commonwealth Attorneys Act shall

14

continue and remain in full force and effect and may be

15

completed under 2 Pa.C.S. Ch. 3 Subch. B. Orders,

16

regulations, rules and decisions which were made under

17

sections 204(b) and 301(10) of the Commonwealth Attorneys

18

Act and which are in effect on the effective date of

19

section 3(2)(iii) of this act shall remain in full force

20

and effect until revoked, vacated or modified under 2

21

Pa.C.S. Ch. 3 Subch. B. Contracts, obligations and

22

collective bargaining agreements entered into under

23

sections 204(b) and 301(10) of the Commonwealth Attorneys

24

Act are not affected nor impaired by the repeal of

25

sections 204(b) and 301(10) of the Commonwealth Attorneys

26

Act.

27

(ii)  Except as set forth in subparagraph (iii), any

28

difference in language between 2 Pa.C.S. Ch. 3 Subch. B

29

and sections 204(b) and 301(10) of the Commonwealth

30

Attorneys Act is intended only to conform to the style of

- 48 -

 


1

the Pennsylvania Consolidated Statutes and is not

2

intended to change or affect the legislative intent,

3

judicial construction or administration and

4

implementation of sections 204(b) and 301(10) of the

5

Commonwealth Attorneys Act.

6

(iii)  Subparagraph (ii) does not apply to the

7

addition of 2 Pa.C.S. § 311.

8

(3)  The addition of 2 Pa.C.S. Ch. 3 Subch. C is a

9

continuation of section 612 of the act of April 9, 1929

10

(P.L.177, No.175), known as The Administrative Code of 1929.

11

The following apply:

12

(i)  Except as otherwise provided in 2 Pa.C.S. Ch. 3

13

Subch. C, all activities initiated under section 612 of

14

The Administrative Code of 1929 shall continue and remain

15

in full force and effect and may be completed under 2

16

Pa.C.S. Ch. 3 Subch. C. Orders, regulations, rules and

17

decisions which were made under section 612 of The

18

Administrative Code of 1929 and which are in effect on

19

the effective date of section 3(2)(i) of this act shall

20

remain in full force and effect until revoked, vacated or

21

modified under 2 Pa.C.S. Ch. 3 Subch. C. Contracts,

22

obligations and collective bargaining agreements entered

23

into under section 612 of The Administrative Code of 1929

24

are not affected nor impaired by the repeal of section

25

612 of The Administrative Code of 1929.

26

(ii)  Except as set forth in subparagraph (iii), any

27

difference in language between 2 Pa.C.S. Ch. 3 Subch. C

28

and section 612 of The Administrative Code of 1929 is

29

intended only to conform to the style of the Pennsylvania

30

Consolidated Statutes and is not intended to change or

- 49 -

 


1

affect the legislative intent, judicial construction or

2

administration and implementation of section 612 of The

3

Administrative Code of 1929.

4

(iii)  Subparagraph (ii) does not apply to the

5

addition of 2 Pa.C.S. § 321.

6

(4)  The addition of 2 Pa.C.S. Ch. 3 Subch. D is a

7

continuation of the act of June 25, 1982 (P.L.633, No.181),

8

known as the Regulatory Review Act. The following apply:

9

(i)  Except as otherwise provided in 2 Pa.C.S. Ch. 3

10

Subch. D, all activities initiated under the Regulatory

11

Review Act shall continue and remain in full force and

12

effect and may be completed under 2 Pa.C.S. Ch. 3 Subch.

13

D. Orders, regulations, rules and decisions which were

14

made under the Regulatory Review Act and which are in

15

effect on the effective date of section 3(iv) of this act

16

shall remain in full force and effect until revoked,

17

vacated or modified under 2 Pa.C.S. Ch. 3 Subch. D.

18

Contracts, obligations and collective bargaining

19

agreements entered into under the Regulatory Review Act

20

are not affected nor impaired by the repeal of the

21

Regulatory Review Act.

22

(ii)  Except as set forth in subparagraph (iii), any

23

difference in language between 2 Pa.C.S. Ch. 3 Subch. D

24

and the Regulatory Review Act is intended only to conform

25

to the style of the Pennsylvania Consolidated Statutes

26

and is not intended to change or affect the legislative

27

intent, judicial construction or administration and

28

implementation of the Regulatory Review Act.

29

(iii)  (Reserved).

30

Section 5.  This act shall take effect in 60 days.

- 50 -