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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY D. WHITE, PILEGGI, SCHWANK, YUDICHAK, FOLMER, BOSCOLA, ALLOWAY, RAFFERTY, EARLL AND BAKER, JUNE 1, 2012 |
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| REFERRED TO INTERGOVERNMENTAL OPERATIONS, JUNE 1, 2012 |
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| AN ACT |
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1 | Amending the act of May 15, 1933 (P.L.565, No.111), entitled "An |
2 | act relating to the powers and duties of the Department of |
3 | Banking and the Secretary of Banking in exercising |
4 | supervision over, and taking possession of and conducting or |
5 | liquidating the business and property of, corporations, |
6 | associations, and persons receiving deposits or otherwise |
7 | transacting a banking business, corporations acting as |
8 | fiduciaries, and building and loan associations; providing |
9 | for the payment of the expenses of the Department of Banking |
10 | by supervised corporations, associations, or persons, and |
11 | appropriating the Banking Department Fund; authorizing the |
12 | Department of Banking, under certain circumstances, to |
13 | examine corporations, associations, or persons affiliated, or |
14 | having business transactions with supervised corporations, |
15 | associations or persons; authorizing appeals to the Supreme |
16 | Court, and prescribing and limiting the powers and duties of |
17 | certain other courts and their prothonotaries, registers of |
18 | wills, recorders of deeds, and certain State departments, |
19 | commissions, and officers; authorizing certain local public |
20 | officers and State departments to collect fees for services |
21 | rendered under this act; providing penalties; and repealing |
22 | certain acts and parts of acts," amending the title of the |
23 | act; further providing for conflicts of interest and penalty; |
24 | reorganizing the Department of Banking and the Pennsylvania |
25 | Securities Commission; and making related repeals. |
26 | The General Assembly of the Commonwealth of Pennsylvania |
27 | hereby enacts as follows: |
28 | Section 1. The title of the act of May 15, 1933 (P.L.565, |
29 | No.111), known as the Department of Banking Code, is amended to |
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1 | read: |
2 | AN ACT |
3 | Relating to the powers and duties of the Department of Banking |
4 | and Securities and the Secretary of Banking and Securities in |
5 | exercising supervision over, and taking possession of and |
6 | conducting or liquidating the business and property of, |
7 | corporations, associations, and persons receiving deposits or |
8 | otherwise transacting a banking business, corporations acting |
9 | as fiduciaries, and building and loan associations; providing |
10 | for the payment of the expenses of the Department of Banking |
11 | by supervised corporations, associations, or persons, and |
12 | appropriating the Banking Department Fund; authorizing the |
13 | Department of Banking, under certain circumstances, to |
14 | examine corporations, associations, or persons affiliated, or |
15 | having business transactions with supervised corporations, |
16 | associations or persons; authorizing appeals to the Supreme |
17 | Court, and prescribing and limiting the powers and duties of |
18 | certain other courts and their prothonotaries, registers of |
19 | wills, recorders of deeds, and certain State departments, |
20 | commissions, and officers; authorizing certain local public |
21 | officers and State departments to collect fees for services |
22 | rendered under this act; regulating securities; providing |
23 | penalties; and repealing certain acts and parts of acts. |
24 | Section 2. Section 1 of the act is amended to read: |
25 | Section 1. Short title.--This act shall be known, and may be |
26 | cited, as the "Department of Banking and Securities Code." |
27 | Section 3. The definitions of "department," "secretary," |
28 | "licensee" and "institution" in subsection A of section 2 of the |
29 | act, amended December 9, 2002 (P.L.1604, No.209) and June 29, |
30 | 2009 (P.L.46, No.7), are amended and the section is amended by |
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1 | adding definitions to read: |
2 | Section 2. Definitions.--A. The following terms shall be |
3 | construed in this act to have the following meanings, except in |
4 | those instances where the context clearly indicates otherwise: |
5 | "Department." The Department of Banking and Securities of |
6 | this Commonwealth. |
7 | "Secretary." The Secretary of Banking and Securities of this |
8 | Commonwealth, or his duly authorized deputy or representative. |
9 | * * * |
10 | "Licensee." A corporation, person or any other type of |
11 | business entity required to be licensed by, registered with or |
12 | partially exempt from being licensed by the Department of |
13 | Banking and Securities under any law of this Commonwealth |
14 | administered by the Department of Banking and Securities. The |
15 | term does not include a licensee or registrant under the act of |
16 | December 5, 1972 (P.L.1280, No.284), known as the "Pennsylvania |
17 | Securities Act of 1972," unless otherwise provided in this act. |
18 | * * * |
19 | "Institution." A corporation or a person, as defined in this |
20 | section, or other type of business entity, including, but not |
21 | limited to, a mutual holding company, which is or was subject to |
22 | the supervision of the department. The term does not include |
23 | credit unions or licensees unless specifically stated otherwise |
24 | and does not include a licensee or registrant under the act of |
25 | December 5, 1972 (P.L.1280, No.284), known as the "Pennsylvania |
26 | Securities Act of 1972," unless otherwise provided in this act. |
27 | * * * |
28 | "Association." Any mutual or permanent reserve fund stock |
29 | savings association organized under this act and includes also |
30 | any building and loan association or savings and loan |
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1 | association heretofore organized under or by virtue of any other |
2 | act or law of this Commonwealth, as defined in section 102(3) of |
3 | the act of December 14, 1967 (P.L.746, No.345), known as the |
4 | "Savings Association Code of 1967." |
5 | "Commission." The Banking and Securities Commission of the |
6 | department established in section 1121-A(a) of this act. |
7 | "Fund." The Banking Fund redesignated in section 1113-A of |
8 | this act as a continuation of the Banking Department Fund. |
9 | Section 4. The act is amended by adding a section to read: |
10 | Section 17. Act not Applicable to Securities Licensees and |
11 | Registrants.--Unless otherwise expressly provided, this act |
12 | shall not apply to, and shall not affect, the act of act of May |
13 | 5, 1921 (P.L.374, No.176), referred to as the Investment |
14 | Business Licensing Law, the act of December 5, 1972 (P.L.1280, |
15 | No.284), known as the "Pennsylvania Securities Act of 1972," or |
16 | the act of March 3, 1976 (P.L.42, No.19), known as the "Takeover |
17 | Disclosure Law." |
18 | Section 5. Section 303 of the act, amended December 9, 2002 |
19 | (P.L.1604, No.209), is repealed: |
20 | [Section 303. Conflicts of Interest; Penalty.--A. For |
21 | purposes of this section, "institution" shall include a licensee |
22 | or credit union. The term includes credit unions unless |
23 | specifically stated otherwise. |
24 | B. Except as provided in subsection E, neither the |
25 | secretary, nor any officer or employe of the department, nor any |
26 | deputy receiver or employe of the secretary, as receiver, shall |
27 | receive any sum of money or any property as a gift or loan or |
28 | otherwise, directly or indirectly from any institution or from |
29 | any officer, director or employe thereof. This subsection shall |
30 | not apply to loans to employes of the department who function in |
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1 | a clerical or nondecision making capacity with regard to |
2 | institutions, including, but not limited to, clerks, typists and |
3 | stenographers. |
4 | C. Neither the secretary, nor any officer or employe of the |
5 | department, nor any deputy receiver or employe of the secretary, |
6 | as receiver, shall hold any office or position in, have any |
7 | direct or indirect pecuniary interest in, or direct or |
8 | indirectly own shares or securities issued by an institution, |
9 | except that the secretary or any department employe or officer |
10 | may continue to own shares or securities issued by an |
11 | institution other than a credit union which are owned by the |
12 | secretary on the date of his appointment, or by other department |
13 | employes on the date of commencement of employment with the |
14 | department, and all shares or securities distributed by the |
15 | institution and received by any of them on account of the shares |
16 | or securities so owned subject to the penalty provisions of this |
17 | section. All department employes subject to this subsection |
18 | shall provide the department with written notice of his or her |
19 | ownership of any such shares or securities prior to or upon his |
20 | or her commencement of employment with the department. |
21 | Notwithstanding the foregoing, the department may impose terms |
22 | on the employe or officer, including, but not necessarily |
23 | limited to, requiring the employe or officer to place into a |
24 | blind trust, sell or divest of such shares or securities as a |
25 | condition of obtaining or continuing employment with the |
26 | department, provided such sale or divestment is deemed to be |
27 | reasonably necessary under the circumstances, or to recuse |
28 | himself or herself from being involved in any department |
29 | decision that pertains solely to the institution of which he or |
30 | she owns shares or securities. |
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1 | D. In the event of such ownership of shares or securities by |
2 | the secretary, he shall disclose the ownership, amount and date |
3 | of acquisition of such shares or securities in writing to the |
4 | Secretary of the Commonwealth immediately after his appointment |
5 | and shall not during his term of office participate in any |
6 | decision or take any action concerning an institution in which |
7 | he owns such shares or securities other than actions or |
8 | decisions generally applicable to institutions or classes of |
9 | institutions. In the event of disqualification of the secretary |
10 | from participation in any decision or action for such reason, |
11 | all authority vested in him or her by law shall, for the purpose |
12 | of such decision or action, be exercised by the appropriate |
13 | deputy secretary in accordance with their jurisdictional |
14 | responsibilities. |
15 | E. The prohibitions of subsections B and C shall not apply |
16 | to: |
17 | (1) A first lien mortgage loan upon the home of the |
18 | secretary or other employe of the department, or an indirect |
19 | motor vehicle loan originated under the act of June 28, 1947 |
20 | (P.L.1110, No.476), known as the "Motor Vehicle Sales Finance |
21 | Act," in any and all such mortgage loans or indirect motor |
22 | vehicle loans which may be originated by an institution other |
23 | than a credit union, where such loan is granted upon the same |
24 | terms and in the same manner as provided by law for mortgage |
25 | loans or indirect motor vehicle loans granted by such |
26 | institutions. All persons subject to this subsection shall |
27 | provide the department with written notice of any loan |
28 | referenced in this subsection and its terms within thirty days |
29 | of receiving the loan. Notwithstanding the foregoing, the |
30 | department may impose terms on the employe or officer, |
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1 | including, but not necessarily limited to, requiring such person |
2 | to recuse himself or herself from being involved in any |
3 | department decision that pertains solely to the institution from |
4 | which he or she received a loan. |
5 | (2) A deposit account with an institution other than a |
6 | credit union, provided that such account shall not be |
7 | intentionally overdrawn and the secretary, department employe or |
8 | officer does not participate in any vote as a shareholder or |
9 | member of such institution. |
10 | F. A violation of the prohibitions of this section by the |
11 | secretary, an officer or employe of the department, a deputy |
12 | receiver or an employe of the secretary as receiver shall |
13 | constitute sufficient ground for removal from office. In |
14 | addition, any such person who willfully or knowingly commits |
15 | such violation shall be guilty of a misdemeanor and shall, upon |
16 | conviction thereof, be subject to imprisonment for a period not |
17 | exceeding one year, or a fine not exceeding one thousand dollars |
18 | ($1,000.00), or both; and shall be subject to a further fine |
19 | equal to the amount of money or value of the property which such |
20 | individual has directly or indirectly received in violation of |
21 | this section.] |
22 | Section 6. The act is amended by adding an article to read: |
23 | ARTICLE XI-A |
24 | BANKING AND SECURITIES |
25 | SUBARTICLE A |
26 | PRELIMINARY PROVISIONS |
27 | Section 1101-A. Scope. |
28 | This article relates to the regulation of banking and |
29 | securities. |
30 | Section 1102-A. Purpose. |
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1 | The purpose of this article is to consolidate regulation of |
2 | banking and securities under the department. |
3 | SUBARTICLE B |
4 | ADMINISTRATION |
5 | Section 1111-A. Agency. |
6 | The department shall regulate banking and securities. |
7 | Section 1112-A. Continuation. |
8 | (a) Functions.--The department shall assume functions under |
9 | subsection (b). A securities division is established as a |
10 | division of the department to perform the functions transferred |
11 | to the department under subsection (b). The secretary shall |
12 | appoint a deputy secretary to oversee the administration of |
13 | these functions. |
14 | (b) Transfers.--The following functions of the Pennsylvania |
15 | Securities Commission are transferred to the department: |
16 | (1) Administration of the act of May 5, 1921 (P.L.374, |
17 | No.176), referred to as the Investment Business Licensing |
18 | Law. |
19 | (2) Imposition of fees under section 615-A of the act of |
20 | April 9, 1929 (P.L.177, No.175), known as The Administrative |
21 | Code of 1929. |
22 | (3) Administration of the act of December 5, 1972 |
23 | (P.L.1280, No.284), known as the Pennsylvania Securities Act |
24 | of 1972. |
25 | (4) Administration of the act of March 3, 1976 (P.L.42, |
26 | No.19), known as the Takeover Disclosure Law. |
27 | Section 1113-A. Fund. |
28 | (a) Continuation.--The Banking Department Fund is |
29 | redesignated as the Banking Fund. |
30 | (b) Sources.--The sources of the fund are as follows: |
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1 | (1) Money collected or received by the department |
2 | arising from: |
3 | (i) fees, assessments, charges and penalties |
4 | relating to the regulation of associations, credit |
5 | unions, institutions and licensees; |
6 | (ii) the sale by the Department of General Services |
7 | of unserviceable property originally paid for out of the |
8 | fund; and |
9 | (iii) similar sources. |
10 | (2) The sources of the fund shall not include fees, |
11 | assessments, charges and penalties generated from: |
12 | (i) the act of December 5, 1972 (P.L.1280, No.284), |
13 | known as the Pennsylvania Securities Act of 1972; or |
14 | (ii) the act of March 3, 1976 (P.L.42, No.19), known |
15 | as the Takeover Disclosure Law. |
16 | (c) Use.--The fund shall be used by the department to pay |
17 | its expenses, including the following: |
18 | (1) Salaries of the secretary, the deputies, the |
19 | examiners, the other employees of the department and |
20 | attorneys. |
21 | (2) Rental and other expenses for offices, rooms, garage |
22 | space and other accommodations, regardless of the |
23 | municipality in which they are located, occupied by the |
24 | department. This paragraph excludes offices, rooms, garage |
25 | space and accommodations in the Capitol Complex. |
26 | (3) Premiums for workers' compensation insurance |
27 | covering the officers and employees of the department. |
28 | (4) Premiums for surety bonds for officers and employees |
29 | of the department required by law to furnish the bonds. |
30 | (5) Furniture, stationery, materials, supplies and |
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1 | overhead expenses of the department. |
2 | (d) Department of General Services.--Purchases and leases |
3 | under subsection (c) shall be made through the Department of |
4 | General Services, as agent. Contracts of insurance and surety |
5 | bonds under subsection (c) shall be placed through the |
6 | Department of General Services, as agent. |
7 | (e) Restrictions on appropriations.-- |
8 | (1) For fiscal years beginning after June 30, 1995, and |
9 | ending before July 1, 2012, the General Assembly shall |
10 | appropriate funds as it determines to be necessary from the |
11 | fund for use by the department or other Commonwealth |
12 | agencies. |
13 | (2) For fiscal years beginning after June 30, 2012, the |
14 | General Assembly shall appropriate the funds as it determines |
15 | to be necessary from the fund for use only by the department |
16 | and not for any other Commonwealth agency. |
17 | (f) Warrant.--Money in the fund appropriated to the |
18 | department shall be paid out upon warrant of the State Treasurer |
19 | drawn after requested by the secretary. |
20 | (g) Institution Resolution Account.-- |
21 | (1) The Institution Resolution Account is established as |
22 | a restricted account within the fund. |
23 | (2) The sources of the account are as follows: |
24 | (i) An amount determined by the secretary each |
25 | fiscal year based upon economic and regulatory conditions |
26 | from assessments, fees and administrative penalties |
27 | generated from statutes administered by the department |
28 | other than: |
29 | (A) the act of December 5, 1972 (P.L.1280, |
30 | No.284), known as the Pennsylvania Securities Act of |
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1 | 1972; or |
2 | (B) the act of March 3, 1976 (P.L.42, No.19), |
3 | known as the Takeover Disclosure Law. |
4 | (ii) Amounts received from court litigation |
5 | involving the department. |
6 | (3) The secretary may use the money in the account to |
7 | pay for costs associated with any of the following: |
8 | (i) Resolution of an institution or an association, |
9 | under Article X. Money under this subparagraph may be |
10 | used in lieu of paying expenses from the assets of an |
11 | institution or association under section 1006. |
12 | (ii) Seizure and liquidation of a credit union under |
13 | 17 Pa.C.S. § 503 (relating to regulation by department). |
14 | Section 1114-A. Conflicts of interest. |
15 | Appointed officials and employees of the department shall |
16 | only be subject to: |
17 | (1) section 605 of the act of December 5, 1972 |
18 | (P.L.1280, No.284), known as the Pennsylvania Securities Act |
19 | of 1972; and |
20 | (2) statutes, regulations and statements of policy, |
21 | generally governing the ethical conduct of appointed |
22 | officials and State employees in regard to conflicts of |
23 | interest and other ethics issues. |
24 | SUBARTICLE C |
25 | COMMISSION |
26 | Section 1121-A. Organization. |
27 | (a) Establishment.--The Banking and Securities Commission is |
28 | established within the department. |
29 | (b) Composition.--The commission shall consist of the |
30 | following commissioners: |
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1 | (1) The secretary, who may be represented by a designee. |
2 | (2) A designee of the Governor. |
3 | (3) Three individuals appointed by the Governor with the |
4 | advice and consent of a majority of the members of the |
5 | Senate. |
6 | (c) Terms.-- |
7 | (1) The secretary shall serve ex officio. |
8 | (2) A commissioner under subsection (b)(2) or (3) shall |
9 | serve at the pleasure of the Governor and until a successor |
10 | is appointed and qualified. |
11 | (d) Officers.--The Governor shall designate a commissioner |
12 | under subsection (b)(3) as chair. The secretary or the |
13 | secretary's designee shall serve as the vice chair. |
14 | (e) Meetings.--The commission shall convene: |
15 | (1) on a schedule determined by the secretary; but |
16 | (2) at least every three months. |
17 | (f) Quorum.--A majority of serving commissioners constitutes |
18 | a quorum. Action taken at a meeting at which a quorum is present |
19 | shall be the lawful act of the commission for all purposes. |
20 | (g) Compensation and expenses.-- |
21 | (1) A commissioner under subsection (b)(1) or (2) shall |
22 | not receive an additional salary in compensation for |
23 | membership on the commission. |
24 | (2) A commissioner under subsection (b)(3) shall receive |
25 | an annual salary of $36,000, subject to annual cost-of-living |
26 | increases under section 3(e) of the act of September 30, 1983 |
27 | (P.L.160, No.39), known as the Public Official Compensation |
28 | Law. |
29 | (3) All commissioners shall be reimbursed for reasonable |
30 | and necessary expenses incurred in the performance of their |
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1 | duties in accordance with 4 Pa. Code Ch. 40 (relating to |
2 | travel and subsistence). |
3 | Section 1122-A. Powers and duties. |
4 | The commission has the following powers and duties: |
5 | (1) Be the final adjudicator of every administrative |
6 | proceeding which requires the appointment of a hearing |
7 | officer and which is instituted by the department under any |
8 | law administered by the department. An action under this |
9 | paragraph is subject to 2 Pa.C.S. Chs. 5 Subch. A (relating |
10 | to practice and procedure of Commonwealth agencies) and 7 |
11 | Subch. A (relating to judicial review of Commonwealth agency |
12 | action). |
13 | (2) Perform functions authorized by the secretary. |
14 | SUBARTICLE D |
15 | TRANSITIONAL PROVISIONS |
16 | Section 1131-A. Transition and implementation. |
17 | In order to facilitate the reorganization under this article, |
18 | all of the following shall occur: |
19 | (1) Reorganization. The following shall apply: |
20 | (i) The secretary shall review and assess the |
21 | Pennsylvania Securities Commission's organizational |
22 | structure for an October 1, 2012 reorganization under |
23 | this article. This subparagraph includes personnel and |
24 | staffing, budgetary needs and considerations, operations, |
25 | and statutory and regulatory enforcement requirements, |
26 | for the purpose of determining the organizational |
27 | structure and staffing. |
28 | (ii) In accordance with the review and assessment |
29 | under subparagraph (i), by August 31, 2012, the secretary |
30 | shall submit a reorganization plan to carry out the |
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1 | reorganization under this article to the Executive Board |
2 | for approval under section 709(b) and (h) of the act of |
3 | April 9, 1929 (P.L.177, No.175), known as The |
4 | Administrative Code of 1929. |
5 | (iii) If the Executive Board approves the |
6 | reorganization plan under subparagraph (ii), the plan |
7 | shall take effect September 28, 2012. |
8 | (2) Personnel actions. Notwithstanding the |
9 | reorganization plan required under paragraph (1)(iii), after |
10 | June 30, 2012, no member of the Pennsylvania Securities |
11 | Commission or Pennsylvania Securities Commission personnel |
12 | shall hire new staff or promote or terminate existing staff |
13 | without the approval of the secretary. |
14 | (3) Budgeting and procurement. After June 30, 2012, and |
15 | before October 1, 2012, without the approval of the |
16 | secretary, the Pennsylvania Securities Commission may not: |
17 | (i) expend funds, other than for payroll; or |
18 | (ii) procure goods and services. |
19 | SUBARTICLE E |
20 | MISCELLANEOUS PROVISIONS |
21 | Section 1141-A. References. |
22 | In statutes, regulations and orders, a reference to the |
23 | Pennsylvania Securities Commission shall be deemed a reference |
24 | to the department. |
25 | Section 7. Repeals are as follows: |
26 | (1) The General Assembly declares as follows: |
27 | (i) The repeal under paragraph (2)(i) is necessary |
28 | to effectuate the addition of section 1113-A of the act. |
29 | (ii) The repeal under paragraph (2)(ii) is necessary |
30 | to effectuate section 1121-A(g)(2) of the act. |
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1 | (iii) The repeal under paragraph (2)(iii) is |
2 | necessary to effectuate the addition of section 1121-A of |
3 | the act. |
4 | (2) The following acts and parts of acts are repealed: |
5 | (i) Section 1605 of the act of April 9, 1929 |
6 | (P.L.177, No.175), known as The Administrative Code of |
7 | 1929. |
8 | (ii) Section 601.1 of the act of December 5, 1972 |
9 | (P.L.1280, No.284), known as the Pennsylvania Securities |
10 | Act of 1972. |
11 | (iii) As much of the definition of "independent |
12 | agency" in section 102 of the act of October 15, 1980 |
13 | (P.L.950, No.164), known as the Commonwealth Attorneys |
14 | Act, as refers to the Pennsylvania Securities Commission. |
15 | (3) The following parts of acts are repealed insofar as |
16 | they are inconsistent with this act: |
17 | (i) Section 209 of the act of June 7, 1923 (P.L.498, |
18 | No.274), known as The Administrative Code. |
19 | (ii) Sections 206 and Article XXVIII-B of The |
20 | Administrative Code of 1929. |
21 | (iii) Section 601 of the Pennsylvania Securities Act |
22 | of 1972. |
23 | (iv) Section 201 of the Commonwealth Attorneys Act. |
24 | Section 8. Continuation is as follows: |
25 | (1) The addition of section 1112-A(b)(3) of the act |
26 | effectively continues the act of December 5, 1972 (P.L.1280, |
27 | No.284), known as the Pennsylvania Securities Act of 1972. |
28 | The following apply: |
29 | (i) Except as otherwise provided in the act, all |
30 | activities initiated under the Pennsylvania Securities |
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1 | Act of 1972 shall continue and remain in full force and |
2 | effect and may be completed under section 1112-A(b)(3) of |
3 | the act. |
4 | (ii) Resolutions, orders, regulations, rules and |
5 | decisions which were made under the Pennsylvania |
6 | Securities Act of 1972 and which are in effect on October |
7 | 1, 2012, shall remain in full force and effect until |
8 | revoked, vacated or modified under section 1112-A(b)(3) |
9 | of the act. |
10 | (iii) Contracts, obligations and agreements entered |
11 | into under the Pennsylvania Securities Act of 1972 are |
12 | not affected nor impaired by the transfer under section |
13 | 1112-A(b)(3) of the act. |
14 | (2) (Reserved). |
15 | Section 9. This act shall take effect as follows: |
16 | (1) The following provisions shall take effect |
17 | immediately: |
18 | (i) Section 7(1) of this act. |
19 | (ii) Section 8 of this act. |
20 | (iii) This section. |
21 | (2) The addition of Subarticles A and D of Article XI-A |
22 | of the act shall take effect July 1, 2012, or immediately, |
23 | whichever is later. |
24 | (3) The remainder of this act shall take effect October |
25 | 1, 2012. |
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