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PRINTER'S NO. 1694
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1395
Session of
2019
INTRODUCED BY ECKER, GROVE, HERSHEY, ZIMMERMAN, ROTHMAN,
B. MILLER, SAYLOR, KLUNK AND MOUL, MAY 2, 2019
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MAY 2, 2019
AN ACT
Amending Title 71 (State Government) of the Pennsylvania
Consolidated Statutes, providing for regulatory review;
making a related repeal; and making an editorial change.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The heading of Part V of Title 71 of the
Pennsylvania Consolidated Statutes is amended to read:
PART V
BOARDS, COMMISSIONS AND OFFICES
Section 2. Title 71 is amended by adding chapters to read:
CHAPTER 42
PRELIMINARY PROVISIONS
(Reserved)
CHAPTER 43
REGULATORY REVIEW
Sec.
4301. Short title of chapter.
4302. Legislative intent.
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4303. Definitions.
4304. Composition of commission, membership, compensation,
vacancies and removal.
4305. Proposed regulations and procedures for review.
4306. Final-form and final-omitted regulations and procedures
for review.
4307. Criteria for review of regulations.
4308. Regulatory review and promulgation.
4309. Procedures for disapproval of final-form and final-
omitted regulations and emergency-certified
regulations.
4310. Procedures for subsequent review of disapproved final-
form or final-omitted regulations.
4311. Classification of documents.
4312. Changes in final-form and final-omitted regulations.
4313. Existing regulations.
4314. Commission staff.
4315. Subpoena power.
4316. Regulations, annual reports, hearings and advisory group
meetings.
4317. Clearinghouse.
4318. Gubernatorial review.
§ 4301. Short title of chapter.
This chapter shall be known and may be cited as the
Regulatory Review Act.
§ 4302. Legislative intent.
(a) Declaration.--The General Assembly has enacted a large
number of statutes and has conferred on boards, commissions,
departments and agencies within the executive branch of
government the authority to adopt rules and regulations to
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implement those statutes. The General Assembly has found that
this delegation of its authority has resulted in regulations
being promulgated without undergoing effective review concerning
cost benefits, duplication, inflationary impact and conformity
to legislative intent. The General Assembly finds that it must
establish a procedure for oversight and review of regulations
adopted under this delegation of legislative power in order to
curtail excessive regulation and to require the executive branch
to justify its exercise of the authority to regulate before
imposing hidden costs upon the economy of this Commonwealth. It
is the intent of this chapter to establish a method for ongoing
and effective legislative review and oversight in order to
foster executive branch accountability; to provide for primary
review by a commission with sufficient authority, expertise,
independence and time to perform that function, to provide
ultimate review of regulations by the General Assembly and to
assist the Governor, the Attorney General and the General
Assembly in their supervisory and oversight functions. To the
greatest extent possible, this chapter is intended to encourage
the resolution of objections to a regulation and the reaching of
a consensus among the commission, the standing committees,
interested parties and the agency.
(b) Findings.--This chapter is intended to improve State
rulemaking by creating procedures to analyze the availability of
more flexible regulatory approaches for small businesses in
accordance with the following findings:
(1) A vibrant and growing small business sector is
critical to creating jobs in a dynamic economy.
(2) Small businesses bear a disproportionate share of
regulatory costs and burdens.
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(3) Fundamental changes that are needed in the
regulatory and enforcement culture of agencies to make them
more responsive to small business can be made without
compromising the statutory missions of the agencies.
(4) When adopting regulations to protect the health,
safety and economic welfare of the Commonwealth, agencies
should seek to achieve statutory goals as effectively and
efficiently as possible without imposing unnecessary burdens
on small business.
(5) Uniform regulatory and reporting requirements can
impose unnecessary and disproportionately burdensome demands,
including legal, accounting and consulting costs, upon small
businesses with limited resources.
(6) The failure to recognize differences in the scale
and resources of regulated businesses can adversely affect
competition in the marketplace, discourage innovation and
restrict improvements in productivity.
(7) Unnecessary regulations create entry barriers in
many industries and discourage potential entrepreneurs from
introducing beneficial products and processes.
(8) The practice of treating all regulated businesses
similarly may lead to inefficient use of regulatory agency
resources, enforcement problems and, in some cases, to
actions inconsistent with the legislative intent of health,
safety, environmental and economic welfare legislation.
(9) Alternative regulatory approaches that do not
conflict with the stated objective of applicable statutes may
be available to minimize the significant economic impact of
rules on small businesses.
(10) The process by which State regulations are
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developed and adopted should be reformed to require agencies
to solicit the ideas and comments of small businesses, to
examine the impact of proposed and existing rules on the
businesses and to review the continued need for existing
rules.
(c) No cause of action.--This chapter is not intended to
create a right or benefit, substantive or procedural,
enforceable at law by a person against another person or against
the Commonwealth, its agencies or its officers.
§ 4303. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Acceptable data." Empirical, replicable and testable data
as evidenced in supporting documentation, statistics, reports,
studies or research.
"Agency." A department, departmental administrative board or
commission, independent board or commission, agency or other
authority of this Commonwealth now existing or hereafter
created. The term shall not include the Senate or the House of
Representatives, the Pennsylvania Fish and Boat Commission, the
Pennsylvania Game Commission or any court, political subdivision
or municipal or local authority of this Commonwealth.
"Commission." The Independent Regulatory Review Commission.
"Committee." A standing committee of the Senate or the House
of Representatives designated by the President pro tempore of
the Senate for the Senate or by the Speaker of the House of
Representatives for the House of Representatives. The
designation shall prescribe the jurisdiction of each standing
committee over the various State agencies for purposes of this
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chapter. The designation shall be transmitted to the Legislative
Reference Bureau for publication in the Pennsylvania Bulletin.
"Commonwealth Attorneys Act." The act of October 15, 1980
(P.L.950, No.164), known as the Commonwealth Attorneys Act.
"Commonwealth Documents Law." The act of July 31, 1968
(P.L.769, No.240), referred to as the Commonwealth Documents
Law.
"Family." A parent, spouse, child, brother or sister.
"Final-form regulation." A regulation previously published
as a proposed regulation under the Commonwealth Documents Law
which an agency submits to the commission and the committees
following the close of the public comment period.
"Final-omitted regulation." A regulation which an agency
submits to the commission and the committees for which the
agency has omitted notice of proposed rulemaking under section
204 of the Commonwealth Documents Law.
"Promulgate." To publish an order adopting a final-form or
final-omitted regulation in accordance with the the Commonwealth
Documents Law.
"Proposed regulation." A document intended for promulgation
as a regulation which an agency submits to the commission and
the committees and for which the agency gives notice of proposed
rulemaking and holds a public comment period under the
Commonwealth Documents Law.
"Regulation." Any rule or regulation, or order in the nature
of a rule or regulation, promulgated by an agency under
statutory authority in the administration of any statute
administered by or relating to the agency or amending, revising
or otherwise altering the terms and provisions of an existing
regulation, or prescribing the practice or procedure before the
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agency. The term shall also include actions of the Pennsylvania
Liquor Control Board which have an effect on the discount rate
for retail licensees. The term shall not include a proclamation,
executive order, directive or similar document issued by the
Governor, but shall include a regulation which may be
promulgated by an agency, only with the approval of the
Governor.
"Small business." As defined in accordance with the size
standards described by the United States Small Business
Administration's Small Business Size Regulations under 13 CFR
Ch. 1 Part 121 (relating to Small Business Size Regulations) or
its successor regulation.
"Withdrawal." Removal of a proposed, final-form or final-
omitted regulation by an agency from the review process so that
the commission and the committees are prevented from taking
further action on the regulation.
§ 4304. Composition of commission, membership, compensation,
vacancies and removal.
(a) Composition.--The Independent Regulatory Review
Commission shall consist of five members to be known as
commissioners. One commissioner shall be appointed by the
Governor to serve at the Governor's pleasure, one by the
President pro tempore of the Senate, one by the Minority Leader
of the Senate, one by the Speaker of the House of
Representatives and one by the Minority Leader of the House of
Representatives. A member of the General Assembly or any other
officer or employee of State government may not serve as a
commissioner but a commissioner may serve on advisory boards and
commissions or on other boards and commissions that do not
promulgate any rules and regulations that may come before the
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commission for review under this chapter.
(b) Term.--Each appointment under subsection (a), except for
the Governor's appointment, shall be for a term of three years.
(c) Vacancy.--An appointment to fill a vacancy for the
remainder of the unexpired term shall be made in the same manner
as set forth in subsection (a). On the expiration of a
commissioner's term of office, the commissioner shall continue
to hold office until a successor is appointed.
(d) Compensation.--The commissioner who is elected to serve
as the chairperson under subsection (h) shall receive $300 per
day as compensation for services rendered to the commission.
Each of the other commissioners shall receive $250 per day as
compensation for services rendered to the commission. A
commissioner shall also be entitled to reimbursement for travel
and other necessary expenses incurred as a result of official
duties. The expenses incurred by a commissioner, or by an
employee of the commission, shall be paid on the presentation of
itemized vouchers for incurred expenses, subject to the approval
of the commission.
(e) Removal.--Except as authorized under subsection (f) or
(i) and except for the Governor's appointee who shall serve at
the Governor's pleasure, a commissioner may not be removed
during the commissioner's term of office. The Governor may, with
the approval of two-thirds of the members of the Senate, upon
clear and convincing evidence of misfeasance or malfeasance in
office or neglect of duty, remove a commissioner prior to the
expiration of the commissioner's term. The Governor shall
provide the commissioner to be removed with a detailed written
statement of the reasons for removal.
(f) Suspension of commissioner.--A commissioner formally
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charged before a court of record with the commission of a felony
or with a misdemeanor under 18 Pa.C.S. Pt. II Art. E (relating
to offenses against public administration) shall immediately be
suspended as a commissioner until the charge is dismissed or a
verdict of acquittal is announced. If a commissioner pleads
guilty or nolo contendere or is found guilty of the offense, or
receives probation without verdict, disposition in lieu of trial
or an Accelerated Rehabilitative Disposition for felony or
misdemeanor charges in this Commonwealth or in any other
jurisdiction, that commissioner shall immediately be removed
from the commission upon announcement of the verdict or
disposition by the court or upon the court's acceptance of a
plea of guilty or nolo contendere.
(g) Commissioner conflict.--A commissioner may not
participate in deliberations regarding any regulation that
significantly affects the operation or activities of any
organization, except a nonprofit organization certified under
section 501(c)(3) of the Internal Revenue Code of 1986 (Public
Law 99-514, 26 U.S.C. § 501(c)(3)), in which the commissioner,
or any member of the commissioner's family, owns shares of stock
in excess of 5% of the total issue of the stock, has an
ownership interest in excess of 5% of the total ownership or
serves as an officer, director, trustee, partner or employee.
Within 90 days of appointment, and annually thereafter, each
commissioner shall disclose all business affiliations and
financial interests. The disclosure statement shall be filed
with the executive director of the commission and the State
Ethics Commission and shall be available for public inspection
during business hours of the commission. Each commissioner's
disclosure statement shall remain on file as long as the
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commissioner remains on the commission. If a commissioner has or
may have a conflict of interest or feels another commissioner
has or may have a conflict of interest in deliberating on a
regulation, the commissioner shall, prior to the vote on the
regulation, disclose the conflict or potential conflict. The
commissioner may request a ruling from the chairperson of the
commission on the question of whether the conflict or potential
conflict disqualifies the commissioner from voting on the
regulation. A commissioner may challenge the ruling of the
chairperson, and, in that case, the question shall be resolved
by majority vote of the commission. The chairperson or a
majority of the commissioners may request the State Ethics
Commission to provide advice regarding conflicts of interest,
and the advice, when given, shall be binding upon the
commission. A commissioner commits a misdemeanor of the second
degree by knowingly and intentionally violating the provisions
of this subsection. The commission or its employees when acting
in good faith on an opinion issued to a commissioner by the
chairperson or the State Ethics Commission shall not be subject
to criminal or civil penalties levied under the act of October
4, 1978 (P.L.883, No.170), referred to as the Public Official
and Employee Ethics Law, for acting on a State Ethics Commission
opinion, provided that the material facts are as stated in the
request for an opinion. In addition to the requirements of this
chapter, a commissioner shall be subject to the Public Official
and Employee Ethics Law.
(h) Chairperson.--The commission shall elect a chairperson,
who shall serve for a term of two years and until a successor is
elected. The chairperson shall preside at meetings of the
commission and shall execute documents relating to the formal
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actions of the commission.
(i) Commission meetings.--The commission shall meet before
the period for the commission's review of regulations under this
chapter expires and at other times as necessary to conduct the
business of the commission and ensure an expeditious and orderly
review of regulations under this chapter. Meetings shall be held
at times and places set by the chairperson. A meeting may be
scheduled by the commission on the provision of at least 10
days' notice to all affected agencies and committees. A
commissioner who does not attend three consecutive meetings
without cause may be removed as a commissioner by the authority
appointing the commissioner.
(j) Quorum required.--For purposes of conducting official
business, a quorum consists of a majority of the commissioners.
A commissioner must be physically present to be counted toward
the quorum. If the commission is unable to conduct business for
lack of a quorum, the deadline for the commission to take action
on a regulation in accordance with this chapter shall be
postponed for 30 days or until the next meeting at which a
quorum is in attendance, whichever occurs first.
§ 4305. Proposed regulations and procedures for review.
(a) Agency submission.--On the same date that an agency
submits a proposed regulation to the Legislative Reference
Bureau for publication of notice of proposed rulemaking in the
Pennsylvania Bulletin as required by the Commonwealth Documents
Law, the agency shall submit to the commission and the
committees a copy of the proposed regulation and a regulatory
analysis form which includes the following:
(1) The title of the agency and the names, office
addresses and telephone numbers of the agency officials
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responsible for responding to questions regarding the
regulation or for receiving comments relating to the
regulation.
(2) A specific citation to the Federal or State
statutory or regulatory authority or the decision of a
Federal or State court under which the agency is proposing
the regulation, which the regulation is designed to implement
or which may mandate or affect compliance with the
regulation.
(3) A concise and, when possible, nontechnical
explanation of the proposed regulation.
(4) A statement of the need for the regulation.
(5) Estimates of the direct and indirect costs to the
Commonwealth, to its political subdivisions and to the
private sector. Insofar as the proposed regulation relates to
costs to the Commonwealth, the agency may submit in lieu of
its own statement the fiscal note prepared by the Office of
the Budget under section 612 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
(6) A statement of legal, accounting or consulting
procedures and additional reporting, recordkeeping or other
paperwork, including copies of forms or reports, that will be
required for implementation of the regulation and an
explanation of measures which have been taken to minimize
these requirements.
(7) The following notifications and dates:
(i) A schedule for review of the proposed
regulation, including the date by which the agency must
receive comments.
(ii) The date or dates on which public hearings will
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be held.
(iii) The expected date of promulgation of the
proposed regulation as a final-form regulation.
(iv) The expected effective date of the final-form
regulation.
(v) The date by which compliance with the final-form
regulation will be required.
(vi) The date by which required permits, licenses or
other approvals must be obtained.
(8) An identification of the types of persons, small
businesses, businesses and organizations that would be
affected by the regulation.
(9) An identification of the financial, economic and
social impact of the regulation on individuals, small
businesses, business and labor communities and other public
and private organizations and, when practicable, an
evaluation of the benefits expected as a result of the
regulation.
(10) An economic impact statement for a proposed
regulation that may have an adverse impact on small
businesses that includes the following:
(i) An identification and estimate of the number of
small businesses subject to the proposed regulation.
(ii) The projected reporting, recordkeeping and
other administrative costs required for compliance with
the proposed regulation, including the type of
professional skills necessary for preparation of the
report or record.
(iii) A statement of the probable effect on impacted
small businesses.
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(iv) A description of any less intrusive or less
costly alternative methods of achieving the purpose of
the proposed regulation.
(11) A description of any special provisions that have
been developed to meet the particular needs of affected
groups and persons, including minorities, the elderly, small
businesses and farmers.
(12) A description of any alternative regulatory
provisions which have been considered and rejected and a
statement that the least burdensome acceptable alternative
has been selected.
(13) A regulatory flexibility analysis in which the
agency shall, where consistent with health, safety,
environmental and economic welfare, consider utilizing
regulatory methods that will accomplish the objectives of
applicable statutes while minimizing adverse impact on small
businesses. The agency shall consider, without limitation,
each of the following methods of reducing the impact of the
proposed regulation on small businesses:
(i) the establishment of less stringent compliance
or reporting requirements for small businesses;
(ii) the establishment of less stringent schedules
or deadlines for compliance or reporting requirements for
small businesses;
(iii) the consolidation or simplification of
compliance or reporting requirements for small
businesses;
(iv) the establishment of performance standards for
small businesses to replace design or operational
standards required in the proposed regulation; and
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(v) the exemption of small businesses from all or
any part of the requirements contained in the proposed
regulation.
(14) A description of the plan developed for evaluating
the continuing effectiveness of the regulation after the
regulation's implementation.
(15) A description of any data that a regulation is
based on with a detailed explanation of how the data was
obtained and why the data is acceptable data. An agency
advocating that any data is acceptable data shall have the
burden of proving that the data is acceptable.
(b) Possibility for alternative information in Notice of
Proposed Rulemaking.--The requirements of subsection (a) shall
not diminish the requirements of section 201 of the Commonwealth
Documents Law, but the information required by this section may
be included in the notice of proposed rulemaking published in
the Pennsylvania Bulletin in lieu of the information required by
section 201(2) and (3) of the Commonwealth Documents Law. The
agency shall hold a public comment period which shall commence
with the publication of the notice of proposed rulemaking and
shall continue for not less than 30 days unless section 203(1)
or (2) of the Commonwealth Documents Law applies.
(c) Submission of copies of comments and reports.--From the
date of submission of the proposed regulation, the agency shall
submit to the commission and the committees, within five
business days of receipt, a copy of comments which the agency
receives relating to the proposed regulation. The agency shall
also, upon request, submit to the commission and the committees
copies of reports from advisory groups and other documents
received from or disseminated to the public relating to the
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proposed regulation and public notices or announcements relating
to solicitation of public comments or meetings which the agency
held or will hold relating to the proposed regulation.
(d) Committee submission of comments, recommendations and
objections.--The committees may, at any time prior to the
submittal of the regulation in final form, convey to the agency
and the commission the committee's comments, recommendations and
objections to the proposed regulation and a copy of any staff
reports deemed pertinent. The comments, recommendations and
objections may refer to the criteria in section 4307 (relating
to criteria for review of regulations) .
(e) Agency action guidelines.--An agency may not submit a
proposed regulation to the committees for review during the
period from the end of the legislative session in an even-
numbered year to the date by which both committees have been
designated in the next succeeding legislative session, but an
agency may submit a proposed regulation and the material
required under subsection (a) to the commission and the
Legislative Reference Bureau during this period in accordance
with subsection (a). The public comment period shall commence
with the publication of the notice of proposed rulemaking and
end on the date designated by the agency under subsection (b).
The agency shall submit the proposed regulation and required
material to the committees no later than the second Monday after
the date that both committee designations have been published in
the Pennsylvania Bulletin. If the agency does not deliver the
proposed regulation and all material required under this section
in the time prescribed in this subsection, the agency shall be
deemed to have withdrawn the proposed regulation.
(f) Commission conveyance of recommendation or objection.--
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The commission may, within 30 days after the close of the public
comment period, convey to the agency and committees any
comments, recommendations and objections to the proposed
regulation. Each comment, recommendation and objection shall
specify the regulatory review criterion set forth in section
4307 which the proposed regulation has not met. If the
commission does not comment on, make recommendations regarding
or object to any portion of the proposed regulation within the
time provided in this subsection, the commission shall be deemed
to have approved that portion of the proposed regulation.
Disapproval of the final-form regulation by the commission shall
relate only to:
(1) comments, recommendations and objections raised by
the commission to the proposed regulation;
(2) changes that the agency made to the proposed
regulation; or
(3) recommendations, comments or objections that a
committee conveyed to the agency or the commission.
(g) Commission submission of comment to agency.--The
commission shall provide comments to the agency if the required
submissions under subsection (a)(8), (9), (10) and (13)
demonstrate an adverse impact on small businesses.
§ 4306. Final-form and final-omitted regulations and procedures
for review.
(a) Agency review of comments.--The agency shall review and
consider public comments and the comments of the committees and
commission under this section. Within five business days of
receipt of a public comment, the agency shall notify the
commentator of the agency's address and telephone number where
the commentator may submit a request for the information
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concerning the final-form regulation under subsection (b). On
completion of the agency's review of comments, the agency shall
submit to the commission and the committees a copy of its
response to the comments received, the names and addresses of
commentators who have requested additional information relating
to the final-form regulation and the text of the final-form
regulation which the agency intends to adopt. If an agency does
not submit or withdraws and does not resubmit the final-form
regulation within two years of the close of the public comment
period but still desires to promulgate the final-form
regulation, the agency shall republish the regulation as a
proposed regulation with a new public comment period in
accordance with the Commonwealth Documents Law. If the agency is
prevented from delivering its final-form regulation to the
commission and the committees within the time period provided
for in this subsection because of the adjournment sine die or
expiration of the legislative session in an even-numbered year,
the agency shall deliver its final-form regulation in accordance
with subsection (e).
(b) Agency submission of notice and copy of final-form
regulation.--On the same date that the agency submits the
material required in subsection (a) to the commission and the
committees, the agency shall send a notice of submission and a
copy of the text of the final-form regulation or a copy of all
changes to the proposed regulation which are incorporated into
the final-form regulation to each commentator who requested this
information under subsection (a). The agency shall not be
responsible for notifying each party whose name appears on
petitions or membership lists who did not present individual
comments on the regulation.
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(c) Agency submission of final-omitted regulations to
commission.--The agency shall submit final-omitted regulations
to the commission and the committees for review under this
section on the same date that the agency submits the regulations
to the Attorney General for review under section 204(b) of the
Commonwealth Attorneys Act. The requirements of section 4305
(relating to proposed regulations and procedures for review),
except for the requirements for holding a public comment period
and for notifying commentators, are applicable to final-omitted
regulations. If the agency makes revisions under subsection (f),
the agency shall deliver copies of the revisions to the Attorney
General on the same date that the agency delivers the revisions
to the commission and the committees.
(d) Commission timeline for action.--The commission may have
until its next scheduled meeting which occurs no less than 30
days after receipt of the final-form or final-omitted regulation
to approve or disapprove the final-form or final-omitted
regulation. The commission shall notify the agency and the
committees of its approval or disapproval. If the commission
does not disapprove the final-form for final-omitted regulation
within the time allotted in this subsection, the commission
shall be deemed to have approved the final-form or final-omitted
regulation.
(e) Agency deadline for delivery of final-form or final-
omitted regulation.--An agency may not deliver a final-form or
final-omitted regulation to the commission and the committees
after the adjournment sine die or expiration of the legislative
session in an even-numbered year. The agency may not deliver the
final-form or final-omitted regulation until the fourth Monday
in January of the next year. On that date, the agency shall
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resubmit the final-form or final-omitted regulation and required
material to the committees and the commission. If either
committee has not been designated by the fourth Monday in
January, the agency may not deliver the final-form or final-
omitted regulation and required material to the committees and
the commission until both committees are designated.
(f) Changes to final-form or final-omitted regulations
prohibited after submission.--Except as provided in this
subsection, the agency may not make any changes to a final-form
or final-omitted regulation after the agency submits the final-
form or final-omitted regulation to the commission and the
committees. The following shall apply:
(1) Prior to the expiration of the date on which either
of the committees takes action on the final-form or final-
omitted regulation, under subsection (i) or (j) or the
expiration of the commission's review period prescribed in
subsection (d), whichever occurs first, the agency may,
unless the commission shall object, toll the time for the
commission's and the committees' review of the final-form or
final-omitted regulation in order to allow time for the
agency to consider revisions to the final-form or final-
omitted regulation recommended by the commission or a
committee.
(2) Tolling under paragraph (1) may last for up to 30
days. If within 30 days the agency does not submit revisions
to the committees and the commission or does not notify the
commission and the committees in writing that it will not
submit revisions but wishes the commission and the committees
to resume their review, the agency shall be deemed to have
withdrawn the final-form or final-omitted regulation.
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(3) The committees shall have the remainder of the 20-
day review period or 10 days from the date of receipt of the
revised final-form or final-omitted regulation or written
notification under paragraph (2), whichever is longer, to
take action under subsection (i) or (j), and the commission
may have until its next scheduled meeting which occurs after
the expiration of the committee review period but not less
than 15 days after receipt of the revised final-form or
final-omitted regulation or written notification under
paragraph (2) to review the final-form or final-omitted
regulation. If the commission does not disapprove the final-
form or final-omitted regulation or a committee does not
notify the commission and the agency that it has disapproved
the regulation or that it intends to review the regulation
under subsection (i), within the respective time periods, the
regulation shall be deemed approved.
(4) The agency may not toll the time for review of any
final-form or final-omitted regulation more than one time.
(5) The agency may not submit revisions or notification
that the regulation will not be revised after the adjournment
sine die or the expiration of the legislative session in an
even-numbered year. If the committees and the commission are
prevented from completing their review under this subsection
because of the adjournment sine die or the expiration of the
legislative session in an even-numbered year, the agency
shall resubmit the final-form or final-omitted regulation and
review shall proceed in accordance within subsection (j).
(g) Acceptance of public comment timeline.--The commission
shall accept public comments only up to 48 hours prior to the
commission's public meeting unless the comments are submitted at
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the request of the commission. The commission shall receive
comments from the agency or members of the General Assembly
until the commission acts on the regulation. The commission
shall transmit comments received during the 48-hour period prior
to the commission's public meeting to the agency and the
committees on receipt. The commission shall accept additional
public comments only after the public meeting has been called to
order.
(h) Timeline for committee action.--A committee shall have
at least 20 days from receipt of the information required under
subsection (a) or receipt of the information required under
subsection (c) to take action under subsection (i). If the
committees are prevented from completing their 20-day review
because of the adjournment sine die or expiration of the
legislative session in an even-numbered year, the committee's
review of the final-form or final-omitted regulation shall
automatically be suspended until the fourth Monday in January of
the next year. On that date, the agency shall resubmit the
final-form or final-omitted regulation and required material to
the committees and the commission. If either committee has not
been designated by the fourth Monday in January, the agency may
not deliver the final-form or final-omitted regulation and
required material to the commission and the committees until
both committees have been designated. If the agency does not
deliver the final-form or final-omitted regulation and required
material to the commission and the committees by the second
Monday after the date by which both committee designations have
been published in the Pennsylvania Bulletin, the agency shall be
deemed to have withdrawn the regulation. In computing the
remaining time for committee review, the number of days in which
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the committees have had the final-form or the final-omitted
regulation under review as of the adjournment sine die or
expiration of the prior session shall be subtracted from the 20-
day committee review period, but the committee review period in
the next succeeding legislative session shall not be less than
10 days. The commission shall not act on a regulation until the
committee review period has expired. This section shall not
apply to emergency-certified regulations adopted under the
provisions of section 4309(c) (relating to procedures for
disapproval of final-form and final-omitted regulations and
emergency-certified regulations) .
(i) Committee notification of commission and agency of
approval or disapproval of final-form or final-omitted
regulations.--At any time during the commission's review period
up to 24 hours prior to the opening of the commission's public
meeting, a committee may notify the commission and the agency
that it has approved or disapproved a final-form or final-
omitted regulation or that it intends to review the regulation.
If the commission approves a regulation and a committee has not
notified the commission and the agency that it has disapproved
the regulation or that it intends to review the regulation, the
agency may promulgate the regulation. If the commission approves
a regulation and a committee has notified the commission and the
agency that it has disapproved the regulation or that it intends
to review the regulation, the agency may not promulgate the
regulation for 14 days after the committee has received the
commission's approval order. During this 14-day period, the
committee may take action on the regulation under section
4310 (e) (relating to procedures for subsequent review of
disapproved final-form or final-omitted regulations) . If at the
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expiration of the 14-day period the committee has not taken
action on the regulation under section 4310(e) , the agency may
promulgate the regulation.
(j) Suspension of review.--If the committees are prevented
from completing their 14-day review because of adjournment sine
die or expiration of the legislative session in an even-numbered
year, their review of the final-form or final-omitted regulation
shall automatically be suspended until the fourth Monday in
January of the next year. On that date, the agency shall
resubmit the final-form or final-omitted regulation and required
material to the committees and the commission. If either
committee has not been designated by the fourth Monday in
January, the agency may not deliver the final-form or final-
omitted regulation and required material to the committees and
the commission until both committees are designated. If the
agency does not deliver the final-form or final-omitted
regulation and required material to the commission and the
committees by the second Monday after the date by which both
committee designations have been published in the Pennsylvania
Bulletin, the agency shall be deemed to have withdrawn the
final-form or final-omitted regulation. In determining the
remaining time for committee review, the number of days in which
the committees have had the final-form or the final-omitted
regulation under review as of the adjournment sine die or
expiration of the prior session shall be subtracted from the 14-
day committee review period, but the committee review period in
the next succeeding legislative session shall not be less than
10 days. An agency may not submit a final-form or final-omitted
regulation to the commission or the committees for review during
the period from the adjournment sine die or expiration of the
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legislative session of an even-numbered year to the date by
which both committees have been designated in the next
succeeding legislative session. This subsection shall not apply
to emergency-certified regulations adopted under the provisions
of section 4309(c).
(k) Commission disapproval of regulation.--If the commission
disapproves a final-form or final-omitted regulation, the
commission, the committees and the agency will proceed in
accordance with section 4309.
(l) Comments to become public record.--The commission shall
note and shall make a part of the public record all comments
that the commission receives relating to a regulation and shall
retain the comments for four years after the promulgation of the
regulation.
(m) Promulgation only on completion of agency review.--
Except for emergency-certified regulations adopted under section
4309(c), an agency may not promulgate a regulation until
completion of the review provided for in this chapter.
§ 4307. Criteria for review of regulations.
(a) Public interest determination.--The commission, in
determining whether a proposed, final-form, final-omitted or
existing regulation is in the public interest, or an agency, in
determining whether an existing regulation is in the public
interest, shall first determine whether the agency has the
statutory authority to promulgate the regulation and whether the
regulation conforms to the intention of the General Assembly in
the enactment of the statute that the regulation is based on. In
making its determination, the commission or agency shall
consider written comments submitted by the committees and
current members of the General Assembly, pertinent opinions of
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courts of this Commonwealth and formal opinions of the Attorney
General.
(b) Public interest factors.--On a finding that the
regulation is consistent with the statutory authority of the
agency and with the intention of the General Assembly in the
enactment of the statute on which the regulation is based, the
commission shall consider the following in determining whether
the regulation is in the public interest:
(1) Economic or fiscal impacts of the regulation,
including the following:
(i) Direct and indirect costs to the Commonwealth,
to its political subdivisions and to the private sector.
(ii) Adverse effects on prices of goods and
services, productivity or competition.
(iii) The nature of required reports, forms or other
paperwork and the estimated cost of their preparation by
individuals, businesses and organizations in the public
and private sectors.
(iv) The nature and estimated cost of legal,
consulting or accounting services which the public or
private sector may incur.
(v) The impact on the public interest of exempting
or setting lesser standards of compliance for individuals
or small businesses when it is lawful, desirable and
feasible to do so.
(2) The protection of the public health, safety and
welfare and the effect on this Commonwealth's natural
resources.
(3) The clarity, feasibility and reasonableness of the
regulation to be determined by considering the following:
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(i) Possible conflict with or duplication of
statutes or existing regulations.
(ii) Clarity and lack of ambiguity.
(iii) Need for the regulation.
(iv) Reasonableness of requirements, implementation
procedures and timetables for compliance by the public
and private sectors.
(v) Whether acceptable data is the basis of the
regulation.
(4) Whether the regulation represents a policy decision
of such a substantial nature that it requires legislative
review.
(5) Comments, objections or recommendations of a
committee.
(6) Compliance with the provisions of this chapter or
the regulations of the commission in promulgating the
regulation.
(7) Whether the regulation is supported by acceptable
data.
(8) Whether a less costly or less intrusive alternative
method of achieving the goal of the regulation has been
considered for regulations impacting small business.
§ 4308. Regulatory review and promulgation.
(a) Agency adherence to promulgation and review
principles.--All agencies should adhere to the following
principles:
(1) Regulations should address a compelling public
interest.
(2) Costs of regulations should not outweigh their
benefits.
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(3) Regulations should be written in clear, concise and,
when possible, nontechnical language.
(4) Regulations should address definable public health,
safety or environmental risks.
(5) Where Federal regulations exist, Pennsylvania's
regulations should not exceed Federal standards unless
required by State law.
(6) Compliance should be the goal of all regulations.
(7) Where viable nonregulatory alternatives exist, they
should be preferred over regulations.
(8) Regulations should be drafted and promulgated with
early and meaningful input from the regulated community.
(9) Regulations should not hamper Pennsylvania's ability
to compete effectively with other states.
(10) All agency heads should be held directly
accountable for regulations promulgated by their respective
agencies.
(b) Evaluation of existing regulations.--The following shall
apply to the evaluation of existing regulations:
(1) Existing regulations shall be reviewed by agencies
for consistency with the principles under subsection (a). A
regulation that is inconsistent with these principles shall
be considered for amendment or repeal.
(2) An agency head shall have the flexibility to
construct a program that reviews the agency's existing
regulations to assure consistency with the principles under
subsection (a). The following shall apply:
(i) A plan and schedule for review of existing
regulations shall be submitted to the Governor's Policy
Office within six months of the effective date of this
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subsection.
(ii) All review programs shall commence within one
year of the effective date of this subsection.
(3) Regulations proposed for repeal regarding an agency
shall be submitted, along with a repeal analysis form, to the
General Counsel, the Secretary of the Budget, the Governor's
Policy Office, the standing committees with jurisdiction over
the agency and the Independent Fiscal Office. The analysis
shall state all of the following:
(i) The name of the agency.
(ii) The name of a contact person at the agency.
(iii) A short title of the regulation.
(iv) An explanation of the regulation.
(v) A justification for the proposed repeal of the
regulation.
(vi) A proposed schedule for repeal of the
regulation, noting public comment periods.
(vii) Any costs or savings associated with the
repeal of the regulation.
(4) If a statute prohibits the repeal of a regulation
that the agency deems to be inconsistent with the principles
under subsection (a), the agency head shall submit to the
General Counsel, the Governor's Policy Office, the Secretary
of Legislative Affairs and the standing committees with
jurisdiction over the agency the specific citation for the
statute that prohibits the repeal and the citation for a
regulation that is determined to be inconsistent with the
principles, the nature of and reason for the inconsistency
and a recommendation for legislative action, if appropriate.
(c) Drafting guidelines.--The following shall apply:
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(1) Before drafting a regulation, an agency, where
practical, shall undertake extensive public outreach to those
who are likely to be affected by the regulation. Creating
advisory committees, using regulatory negotiation and
developing other creative procedures shall be encouraged as
means to solicit the public's input during the regulatory
development process.
(2) Persons to be affected by the regulation shall
continue to be consulted during the drafting process. When
appropriate, members of the regulated community shall be
involved with the formulation of language, the development of
standards and other areas in which the regulated community
has an interest or can provide insight.
(3) During the regulation development and drafting
process, an agency shall advise and consult with the
Governor's Policy Office, the Office of General Counsel, the
Budget Office and the standing committees with jurisdiction
over the agency whenever the agency determines that
involvement would hasten the review process.
(4) Each agency shall develop its own policies regarding
public involvement tailored best to meet the needs of the
agency and the regulated community.
(5) Within six months of the effective date of this
section, an agency shall submit to the Governor's Policy
Office the agency's internal guidelines for drafting public
outreach.
(d) Gubernatorial review.--The following shall apply to the
review by the Governor's Office:
(1) Prior to submitting a proposed rulemaking, an agency
head shall evaluate each regulation and attest to the fact
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that the regulation addresses a compelling public need that
can be best remedied by the promulgation of the regulation.
(2) An agency head shall submit a written regulatory
analysis to the General Counsel, the Secretary of the Budget,
the Governor's Policy Office and the standing committees with
jurisdiction over the agency. The analysis shall state all of
the following:
(i) The name of the agency.
(ii) The name of a contact person at the agency.
(iii) A short title for the regulation and a
citation from the Pennsylvania Code.
(iv) Whether the regulation is a proposed, final-
form or final-omitted rulemaking.
(v) A brief, clear and, if possible, nontechnical
explanation of the regulation.
(vi) The statutory authority or mandate for the
regulation.
(vii) The compelling public need that justifies the
regulation.
(viii) The public health, safety or environmental
risks associated with nonregulation.
(ix) Individuals, groups or entities that are likely
to benefit from the regulation.
(x) Individuals, groups or entities that will be
required to comply with the regulation.
(xi) The outreach conducted by the agency with the
regulated community prior to submission of the
regulation.
(xii) An estimate of the costs or savings associated
with compliance and implementation.
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(xiii) A cost-benefit analysis of the regulation.
(xiv) Nonregulatory alternatives considered and the
reasons for their dismissal.
(xv) Alternative regulatory schemes considered and
the reasons for their dismissal.
(xvi) A statement of the compelling Pennsylvania
interest if the regulation exceeds Federal standards.
(xvii) Any requirements that would place
Pennsylvania at a competitive disadvantage compared to
other states.
(xviii) An intra-agency review schedule for the
regulation.
(3) Each regulation submitted for review shall contain a
brief preamble, written in clear and concise language, which
shall describe in nontechnical terms the following:
(i) The compelling public need that the regulation
is designed to address.
(ii) The legal and practical requirements of the
regulation.
(4) The following shall apply:
(i) The regulatory analysis, along with the preamble
and draft regulation, shall be reviewed by the Office of
General Counsel for form, language and legal authority.
The Office of General Counsel shall also consider whether
the proposed regulation exceeds Federal standards.
(ii) The Governor's Policy Office shall review the
request to determine that public interest is compelling,
that no viable alternative to the regulation exists and
that the costs of the regulation reasonably relate to the
benefits.
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(iii) The Governor's Budget Office shall evaluate
the cost analysis prepared by the agency and prepare a
fiscal note for the regulation.
(5) An agency may not proceed with a proposed, final-
form or final-omitted regulation until the General Counsel,
the Secretary of the Budget and the Governor's Policy Office
have informed the agency that the regulation is consistent
with the regulatory principles and overall policies of the
Governor's Office. Review by the General Counsel, the
Secretary of the Budget and the Governor's Policy Office
shall be conducted in a fair and timely manner.
(e) Nonregulatory document guidelines.--The following shall
apply to nonregulatory documents:
(1) Nonregulatory public documents such as internal
guidelines, policy statements, guidance manuals, decisions,
rules and other written materials that provide directives,
guidance or other relevant compliance-related information to
the public shall be cataloged by each agency.
(2) The cataloged titles of the documents under
paragraph (1), along with an agency contact and phone number,
shall be transmitted to the Legislative Reference Bureau for
publication in the Pennsylvania Bulletin within six months of
the effective date of this subsection. Each year thereafter,
each agency shall update its list and transmit notice to the
Legislative Reference Bureau for publication in the
Pennsylvania Bulletin on the first Saturday in August.
(f) Regulatory petition process and agency procedures.--To
further the goal of greater public participation in the
regulatory process, individuals, groups and businesses shall be
encouraged to use the regulatory petition process outlined in 1
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