Regular Session 2019-2020 House Bill 1426 P.N. 1947

PRINTER'S NO. 1947

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1426

Session of

2019

INTRODUCED BY KEEFER, RYAN, ROTHMAN, MILLARD, BERNSTINE, GROVE,

PYLE, JONES, ZIMMERMAN, GLEIM AND GILLEN, JUNE 3, 2019

REFERRED TO COMMITTEE ON STATE GOVERNMENT, JUNE 3, 2019

AN ACT

Amending Title 2 (Administrative Law and Procedure) of the

Pennsylvania Consolidated Statutes, consolidating provisions

on administrative procedure and rulemaking; and making

related repeals.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

Pennsylvania Consolidated Statutes are amended to read:

§ 103. [Administrative Agency Law.

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

5 (relating to practice and procedure of Commonwealth agencies)

and Subchapter A of Chapter 7 (relating to judicial review of

Commonwealth agency action) shall be known and may be cited as

the "Administrative Agency Law."

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

reference to the Administrative Agency Law for procedures

relating to the promulgation of administrative regulations, such

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

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

Documents Law."] Short title of title.

This title shall be known and may be cited as the

Administrative Procedure Code.

[§ 104. Commonwealth Documents Law (Reserved).

§ 105. Local Agency Law.

The provisions of Subchapter B of Chapter 5 (relating to

practice and procedure of local agencies) and Subchapter B of

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

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

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

CHAPTER 3

PROMULGATION OF REGULATIONS

[(Reserved)]

Subchapter

A. Commonwealth Documents Law

B. Legal Review

C. Fiscal Review

D. Independent Regulatory Review Commission

SUBCHAPTER A

COMMONWEALTH DOCUMENTS LAW

Sec.

301. Scope of subchapter.

302. Definitions.

303. Notice of proposed rulemaking.

304. Adoption of regulations.

305. Effective date of regulations.

306. Omission of notice of proposed rulemaking.

307. Approval as to legality.

308. Format of regulations and other documents.

309. Deposit of agency text of regulations required.

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310. Unfiled regulations invalid.

§ 301. Scope of subchapter.

This subchapter relates to the filing of documents for

publication in the Pennsylvania Bulletin and codification in the

Pennsylvania Code.

§ 302. Definitions.

The following words and phrases when used in this subchapter

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

context clearly indicates otherwise:

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

or ruling by an agency affecting personal or property rights,

privileges, immunities, duties, liabilities or obligations of

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

adjudication is made.

"Administrative regulation." Any regulation except a

proclamation, executive order, executive directive or other

similar document promulgated by the Governor. The term includes

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

approval of the Governor.

"Agency." The Governor or any department, departmental

administrative board or commission, officer, independent board

or commission, authority or other agency of this Commonwealth.

The term does not include any of the following:

(1) The Senate.

(2) The House of Representatives.

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

agency of a court.

(4) A political subdivision, municipal authority or

other local authority. This paragraph includes an officer or

agency of a political subdivision or local authority.

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

or promulgated by the issuing, prescribing or promulgating

agency.

"Bureau." The Legislative Reference Bureau. The powers

conferred under this subchapter upon the bureau shall be

exercised by the Director of the Legislative Reference Bureau

or, in the director's absence, by the assistant director.

"Department." The Department of General Services of the

Commonwealth.

"Document." Any proclamation, executive order, executive

directive or similar instrument promulgated by the Governor and

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

adjudication, certificate, license, permit, notice or similar

instrument issued, prescribed or promulgated by or under the

authority of this Commonwealth. The term includes a home rule

charter adopted by the electors of any part of this

Commonwealth.

"Joint committee." The Joint Committee on Documents.

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

or promulgated by an agency as published by authority of this

subchapter which has become in the manner provided under this

subchapter the only valid and enforceable text of such document.

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

of a rule or regulation:

(1) promulgated by an agency under statutory authority

in the administration of a statute administered by or

relating to the agency; or

(2) prescribing the practice or procedure before the

agency.

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

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a regulation, promulgated by an agency which sets forth

substantive or procedural personal or property rights,

privileges, immunities, duties, liabilities or obligations of

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

document interpreting or implementing a statute enforced or

administered by the agency.

§ 303. Notice of proposed rulemaking.

Except as provided under section 306 (relating to omission of

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

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

contents of Pennsylvania Bulletin), public notice of its

intention to promulgate, amend or repeal any administrative

regulation. Notice includes:

(1) The text of the proposed administrative regulation,

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

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

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

the presently effective text.

(2) A statement of the statutory or other authority

under which the administrative regulation or change in it is

proposed to be promulgated.

(3) A brief explanation of the proposed administrative

regulation or change in it.

(4) A request for written comment by any interested

person concerning the proposed administrative regulation or

change in it.

(5) Any other statement required by law.

§ 304. Adoption of regulations.

Before taking action upon any administrative regulation or

change in it, the agency shall review and consider written

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comments submitted under section 303 (relating to notice of

proposed rulemaking) and may hold public hearings as

appropriate. If the statute or other authority under which a

regulation is proposed to be promulgated, amended or repealed

requires the holding of public hearings or establishes other

procedures in addition to those prescribed under this

subchapter, the agency shall hold public hearings or comply with

such other procedures as are not inconsistent with the

provisions of this subchapter. The agency text of any

administrative regulation or change in it as finally adopted may

contain modifications to the proposed text as published under

section 303 which do not enlarge the text's original purpose,

but modifications which enlarge the original purpose of a

proposal as published under section 303 shall be republished

under section 303 prior to final adoption by the agency.

§ 305. Effective date of regulations.

Except as otherwise provided by regulations promulgated by

the joint committee, the effective date specified in any

administrative regulation or change in it subject to the

provisions of sections 303 (relating to notice of proposed

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

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

rulemaking has been given unless one of the following paragraphs

applies:

(1) The administrative regulation:

(i) grants or recognizes exemption or relieves

restriction; or

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

administrative regulation.

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

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the finding and the reasons for the finding in the order

adopting the administrative regulation or change in it, that

the deferral of the effective date of the administrative

regulation or change in it beyond the date specified in the

order is impracticable or contrary to the public interest.

§ 306. Omission of notice of proposed rulemaking.

Except as otherwise provided by regulations promulgated by

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

specified under sections 303 (relating to notice of proposed

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

of the following paragraphs apply:

(1) The administrative regulation or change in it

relates to:

(i) military affairs;

(ii) agency organization, management or personnel;

(iii) agency procedure or practice;

(iv) Commonwealth property, loans, grants, benefits

or contracts; or

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

Assembly or administrative regulation.

(2) All persons subject to the administrative regulation

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

personally served with notice of the proposed promulgation,

amendment or repeal or otherwise have actual notice in

accordance with law.

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

the finding and a brief statement of the reasons for the

finding in the order adopting the administrative regulation

or change in it, that the procedures specified under sections

303 and 304 are in the circumstances impracticable,

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unnecessary or contrary to the public interest.

§ 307. Approval as to legality.

(a) Requirement.--Administrative regulations and changes

shall be approved as to legality by the Attorney General before

they are deposited with the bureau under section 309 (relating

to deposit of agency text of regulations required).

(b) Appeal.--

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

an administrative regulation or change in it promulgated by

an agency which is by law independent of the policy

supervision and control of the Governor, and the agency or a

party before the agency supporting the regulation or change

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

agency or party may appeal from the determination to

Commonwealth Court.

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

may direct the Attorney General to approve the parts of the

administrative regulation or change in it ruled illegal which

the court finds to be legal.

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

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

of judicial review at the instance of the agency or a

supporting party.

the right of a person adversely affected by a regulation or

change in it to obtain a determination of the validity thereof

in any appropriate proceeding.

§ 308. Format of regulations and other documents.

The agency text of all regulations and other documents

required or authorized to be deposited with the bureau under

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this subchapter shall be prepared in the form and format

prescribed by regulations promulgated by the joint committee.

The regulations shall require that every administrative

regulation or change in it indicate expressly the statutory or

other authority under which it is promulgated.

§ 309. Deposit of agency text of regulations required.

The agency text of all administrative and other regulations

and changes to the regulations, certified by the executive

officer, chairperson or secretary of the agency, shall be

deposited with the bureau in the manner required under 45

Pa.C.S. § 722(a) (relating to deposit of documents required).

§ 310. Unfiled regulations invalid.

An administrative regulation or change in it promulgated

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

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

(relating to deposit of documents required).

SUBCHAPTER B

LEGAL REVIEW

Sec.

311. Definitions.

312. General Counsel.

313. Attorney General.

§ 311. Definitions.

The following words and phrases when used in this subchapter

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

context clearly indicates otherwise:

"Commonwealth agency." Any executive agency or independent

agency.

"Executive agency." The Governor and the departments,

boards, commissions, authorities and other officers and agencies

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of the Commonwealth government. The term does not include any

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

the General Assembly and its officers and agencies or any

independent agency.

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

Department of the Auditor General, including the Board of

Claims; the Treasury Department; the Pennsylvania Public Utility

Commission; the Pennsylvania Fish and Boat Commission; the

Pennsylvania Game Commission; the Pennsylvania Historical and

Museum Commission; the State Civil Service Commission; the

Pennsylvania Turnpike Commission; the Milk Marketing Board; the

Pennsylvania Liquor Control Board; the Pennsylvania Human

Relations Commission; the Pennsylvania Labor Relations Board;

the Pennsylvania Securities Commission; the State Tax

Equalization Board; the Pennsylvania Higher Education Assistance

Agency; the Pennsylvania Commission on Crime and Delinquency;

and the State Ethics Commission.

§ 312. General Counsel.

The General Counsel shall review and approve for form and

legality all proposed regulations of executive agencies before

they are deposited with the Legislative Reference Bureau as

required under section 309 (relating to deposit of agency text

of regulations required).

§ 313. Attorney General.

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

review for form and legality all proposed regulations of

Commonwealth agencies before they are deposited with the

Legislative Reference Bureau as required under section 309

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

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

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determines that a regulation is in improper form, not

statutorily authorized or unconstitutional, within 30 days after

submission, the Attorney General shall notify in writing the

agency affected, the Office of General Counsel and the General

Assembly through the offices of the Secretary of the Senate and

the Chief Clerk of the House of Representatives of the reasons

for the determination.

(1) The Commonwealth agency may revise a regulation to

meet the objections of the Attorney General and submit the

revised version for review.

(2) If the Commonwealth agency disagrees with the

objection, it may promulgate the regulation with or without

revisions and shall publish with it a copy of the Attorney

General's objections.

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

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

for review with Commonwealth Court in the manner provided for

appeals from final orders of government agencies under 42

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

agencies) and may include in the petition a request for a stay

or supersedeas of the implementation of the regulation which,

upon a proper showing, shall be granted.

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

the Attorney General and the Attorney General has not approved

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

regulation shall be deemed to have been approved.

SUBCHAPTER C

FISCAL REVIEW

Sec.

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321. Definitions.

322. Fiscal notes.

§ 321. Definitions.

The following words and phrases when used in this subchapter

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

context clearly indicates otherwise:

"Office." The Office of the Budget.

"Secretary." The Secretary of the Budget.

§ 322. Fiscal notes.

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

regulatory actions and administrative procedures of the

administrative departments, boards, commissions or authorities

receiving money from the Treasury Department. The fiscal note

shall state whether the proposed action or procedure causes a

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

Commonwealth or its political subdivisions.

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

procedure which requires a fiscal note shall be published in the

Pennsylvania Bulletin. The fiscal note shall be published in the

Pennsylvania Bulletin at the same time the proposed change is

advertised.

information:

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

appropriation providing for expenditures under the action or

procedure shall be made.

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

implemented.

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

the five succeeding fiscal years.

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(4) The fiscal history of the program for which

expenditures are to be made.

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

its implementation.

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

each of the five succeeding fiscal years.

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

Act or other appropriation act out of which expenditures or

losses of Commonwealth funds shall occur as a result of the

action or procedures.

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

reasons therefor.

SUBCHAPTER D

INDEPENDENT REGULATORY REVIEW COMMISSION

Sec.

331. Scope of subchapter.

332. Legislative declarations.

333. Definitions.

334. Composition of commission; membership; compensation;

vacancies; removal.

335. Proposed regulations; procedures for review.

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

procedures for review.

335.2. Criteria for review of regulations.

336. Procedures for disapproval of final-form regulations and

final-omitted regulations; emergency-certified

regulations.

337. Procedures for subsequent review of disapproved final-form

regulations or final-omitted regulations.

337.1. Classification of documents.

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

regulations.

338.1. Existing regulations.

339. Commission staff.

340. Subpoena power.

341. Regulations; annual reports; hearings and advisory group

meetings.

342. Clearinghouse.

342.1. Gubernatorial review.

§ 331. Scope of subchapter.

This subchapter relates to regulatory review.

§ 332. Legislative declarations.

(a) Findings.--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

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 Pennsylvania.

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

(1) Establish a method for ongoing and effective

legislative review and oversight in order to foster executive

branch accountability and to provide for primary review by a

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commission with sufficient authority, expertise, independence

and time to perform that function.

(2) Provide ultimate review of regulations by the

General Assembly.

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

General Assembly in their supervisory and oversight

functions.

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

resolution of objections to a regulation and the reaching of

a consensus among the commission, the committees, interested

parties and the agency.

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.

(3) Fundamental changes that are needed in the

regulatory and enforcement culture of agencies to make them

more responsive to small businesses 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 businesses.

(5) Uniform regulatory and reporting requirements can

impose unnecessary and disproportionately burdensome demands,

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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 which 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

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 such

businesses and to review the continued need for existing

rules.

(d) Right or benefit.--This subchapter 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.

§ 333. Definitions.

The following words and phrases when used in this subchapter

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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." Any department, departmental administrative board

or commission, independent board or commission, agency or other

authority of this Commonwealth. 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.

"Commission." The Independent Regulatory Review Commission.

"Committee." A standing committee of the Senate designated

by the President pro tempore of the Senate or a standing

committee of the House of Representatives as designated by the

Speaker of the House of Representatives. The designation shall

prescribe the jurisdiction of each standing committee over the

various State agencies for purposes of this subchapter. The

designation shall be transmitted to the Legislative Reference

Bureau for publication in the Pennsylvania Bulletin.

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

"Final-form regulation." A regulation previously published

as a proposed regulation under Subchapter A (relating to

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

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

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

regulation or final-omitted regulation in accordance with

Subchapter A.

"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 Subchapter A.

"Regulation."

(1) The term shall include:

(i) 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 agency.

(ii) Actions of the Pennsylvania Liquor Control

Board which have an effect on the discount rate for

retail licensees.

(iii) Notwithstanding paragraph (2), a regulation

which may be promulgated by an agency, only with the

approval of the Governor.

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

order, directive or similar document issued by 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 Pt. 121 (relating to Small Business Size Regulations).

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

regulation or final-omitted regulation by an agency from the

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review process so that the commission and the committees are

prevented from taking further action on the regulation.

§ 334. Composition of commission; membership; compensation;

vacancies; removal.

(a) Composition.--The 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

Speaker of the House of Representatives, one by the Minority

Leader of the Senate 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 which do not

promulgate any rules and regulations which may come before the

commission for review under this subchapter.

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

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

of three years.

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

as set forth under subsection (a). Upon 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 in accordance with subsection (g) 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

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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 the expenses. The

vouchers shall be subject to the approval of the commission.

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

(h) 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 reason for removal.

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

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

misdemeanor under 18 Pa.C.S. Pt. II A rt. 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, the

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.

(f.1) Financial interest.--

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(1) A commissioner may not participate in deliberations

regarding any regulation which significantly affects the

operation or activities of any organization 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. For the purposes of this paragraph, an

organization shall not include 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 holds a nonsalaried position.

(2) 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 commissioner remains on the

commission.

(3) 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.

(4) The commissioner may request a ruling from the

chairperson of the commission upon the question of whether

the conflict or potential conflict disqualifies the

commissioner from voting on the regulation. A commissioner

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

challenged, the question shall be resolved by majority vote

of the commission.

(5) The chairperson or a majority of the commissioners

may request the State Ethics Commission to provide advice

regarding conflicts of interest. If advice is given by the

State Ethics Commission, it shall be binding upon the

commission.

(6) A commissioner commits a misdemeanor of the second

degree by knowingly and intentionally violating the

provisions of this subsection.

(7) 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 65

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

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

stated in the request for an opinion.

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

a commissioner shall be subject to 65 Pa.C.S. Ch. 11.

(g) 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

actions of the commission.

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

for its review of regulations under this subchapter expires and

at other times as necessary to transact the business of the

commission and ensure an expeditious and orderly review of

regulations under this subchapter. Meetings shall be held at

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

scheduled by the commission upon the provision of at least 10

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

commissioner who does not attend three consecutive meetings

without cause may be removed as a commissioner by the authority

appointing the commissioner.

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

quorum consists of three 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 subchapter shall be postponed for 30

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

attendance, whichever occurs first.

§ 335. Proposed regulations; procedures for review.

(a) General rule.--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 under Subchapter A (relating to

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

responsible for responding to questions regarding the

regulation or for receiving comments relating to the

regulation.

(1.1) 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

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the regulation, which the regulation is designed to implement

or which may mandate or affect compliance with the

regulation.

(2) A concise and, when possible, nontechnical

explanation of the proposed regulation.

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

(4) 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 Subchapter C (relating to fiscal review).

(5) A statement of legal, accounting or consulting

procedures and additional reporting, recordkeeping or other

paperwork, including copies of forms or reports, which will

be required for implementation of the regulation and an

explanation of measures which have been taken to minimize

these requirements.

(6) (Reserved).

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

including the date by which the agency must receive comments,

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

expected date of promulgation of the proposed regulation as a

final-form regulation, the expected effective date of the

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

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

required permits, licenses or other approvals must be

obtained.

(8) (Reserved).

(9) An identification of the types of persons, small

20190HB1426PN1947 - 24 -

businesses, businesses and organizations which would be

affected by the regulation.

(10) 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.

(10.1) For any proposed regulation that may have an

adverse impact on small businesses, an economic impact

statement that includes the following:

(i) An identification and estimate of the number of

the 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.

(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 which 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

20190HB1426PN1947 - 25 -

has been selected.

(12.1) A regulatory flexibility analysis in which the

agency shall, if 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

(v) the exemption of small businesses from all or

any part of the requirements contained in the proposed

regulation.

(13) A description of the plan developed for evaluating

the continuing effectiveness of the regulation after its

implementation.

(14) A description of any data upon which a regulation

is based 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

20190HB1426PN1947 - 26 -

burden of proving that the data is acceptable.

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

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

diminish the requirements of section 303 (relating to notice

of proposed rulemaking), but the information required under

this section may be included in the Notice of Proposed

Rulemaking published in the Pennsylvania Bulletin in lieu of

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

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

shall commence with the publication of the Notice of Proposed

Rulemaking in the Pennsylvania Bulletin and shall continue

for not less than 30 days unless section 305(1) or (2)

(relating to effective date of regulations) applies.

provided.--

(1) 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.

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

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

the agency and the commission their comments, recommendations

20190HB1426PN1947 - 27 -

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 under section 335.2

(relating to criteria for review of regulations).

(e) (Reserved).

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

(1) 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).

(2) 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).

(3) The agency shall submit the proposed regulation and

required material to the committees no later than the second

Monday after the date by which both committee designations

have been published in the Pennsylvania Bulletin.

(4) If the agency does not deliver the proposed

regulation and all material required under this section in

the time prescribed under this subsection, the agency shall

be deemed to have withdrawn the proposed regulation.

(g) Commission response.--

(1) 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

20190HB1426PN1947 - 28 -

the proposed regulation. The comments, recommendations and

objections shall specify the regulatory review criteria

stated under section 335.2 which the proposed regulation has

not met.

(2) The following apply:

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

recommendations regarding or object to any portion of the

proposed regulation within the time provided under this

subsection, the commission shall be deemed to have

approved that portion of the proposed regulation.

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

commission shall relate only to comments, recommendations

and objections raised by the commission to the proposed

regulation to changes which the agency made to the

proposed regulation or to recommendations, comments or

objections which a committee conveyed to the agency or

the commission.

(h) Comments.--The commission shall provide comments to the

agency if the required submissions under subsection (a)(9),

(10), (10.1) and (12.1) demonstrate an adverse impact on small

businesses.

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

procedures for review.

(a) Duties of agency.--

(1) The agency shall review and consider public comments

and the comments of the committees and commission under this

section.

(2) 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

20190HB1426PN1947 - 29 -

may submit a request for the information concerning the

final-form regulation under subsection (b).

(3) Upon 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.

(4) 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 Subchapter A

(relating to Commonwealth documents law).

(5) If the agency is prevented from delivering its

final-form regulation to the commission and the committees

within the time period provided for under 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 (f).

(b) Notice of submission to commentators.--

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

material required under 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

20190HB1426PN1947 - 30 -

commentator who requested this information under subsection

(a).

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

whose name appears on petitions or membership lists who did

not present individual comments on the regulation.

(1) 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 for review under section 313 (relating to

Attorney General). The requirements of section 335 (relating

to proposed regulations; procedures for review), except for

the requirements for holding a public comment period and for

notifying commentators, are applicable to final-omitted

regulations.

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

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) (Reserved).

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

its next scheduled meeting which occurs no less than 30 days

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

regulation to approve or disapprove the final-form regulation 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 regulation or

final-omitted regulation within the time allotted under this

subsection, the commission shall be deemed to have approved the

final-form regulation or final-omitted regulation.

20190HB1426PN1947 - 31 -

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

regulation 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 regulation or final-omitted regulation

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

date, the agency shall resubmit the final-form regulation 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 regulation or final-omitted regulation and required

material to the committees and the commission until both

committees are designated.

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

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

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

regulation or final-omitted regulation to the commission and the

committees. The following apply:

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

of the committees takes action on the final-form regulation

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

or the expiration of the commission's review period

prescribed under subsection (e), 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 regulation or final-omitted regulation in order to allow

time for the agency to consider revisions to the final-form

regulation or final-omitted regulation recommended by the

commission or a committee.

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

20190HB1426PN1947 - 32 -

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 regulation or final-omitted

regulation.

(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 regulation or final-omitted regulation or

written notification under paragraph (2), whichever is

longer, to take action under subsection (j.2) or (j.3), 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 regulation or final-omitted regulation or

written notification under paragraph (2) to review the final-

form regulation or final-omitted regulation. If the

commission does not disapprove the final-form regulation 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 (j.2), 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 regulation 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

20190HB1426PN1947 - 33 -

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 regulation or final-omitted

regulation and review shall proceed in accordance within

subsection (j.3).

(h) (Reserved).

(i) (Reserved).

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

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

unless the comments are submitted at 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 upon receipt.

The commission shall accept additional public comments only

after the public meeting has been called to order.

(j.1) Time for 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 (j.2). 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, their review of the final-form regulation

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 regulation or

final-omitted regulation and required material to the committees

20190HB1426PN1947 - 34 -