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
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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.
(c) Other review.--Nothing under this section shall affect
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.
(c) Response by Commonwealth agency.--
(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.
(c) Contents.--The fiscal note shall provide the following
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.
(c) Additional intent.--This subchapter 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.
(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.
(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 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
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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
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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
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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.
(c) Copy of comments, reports and other documents to be
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
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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
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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
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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
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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.
(c) Time period for filing.--
(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.
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(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
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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
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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
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