PRIOR PRINTER'S NOS. 2284, 2363 PRINTER'S NO. 2394
No. 1554 Session of 2002
INTRODUCED BY WENGER, OCTOBER 7, 2002
AS AMENDED ON THIRD CONSIDERATION, NOVEMBER 19, 2002
AN ACT
1 Amending the act of June 25, 1982 (P.L.633, No.181), entitled,
2 as reenacted, "An act providing for independent oversight and
3 review of regulations, creating an Independent Regulatory
4 Review Commission, providing for its powers and duties and
5 making repeals," further providing for composition of
6 commission, its membership and removal of commission members,
7 for proposed regulations, procedures and criteria for review,
8 and for final-form regulations and final-omitted regulations,
9 procedures and criteria for review; providing for criteria
10 for review of regulations; and further providing for
11 procedures for disapproval of final-form and final-omitted
12 regulations and emergency-certified regulations, for
13 procedures for subsequent review of disapproved final-form or
14 final-omitted regulations and for existing regulations.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Section 4(b) and (h) of the act of June 25, 1982
18 (P.L.633, No.181), known as the Regulatory Review Act, reenacted
19 and amended June 30, 1989 (P.L.73, No.19), are amended to read:
20 Section 4. Composition of commission; membership, compensation;
21 vacancies; removal.
22 * * *
23 (b) Each appointment provided for by [this act] subsection
1 (a), except for the Governor's appointment, shall be for a term
2 of three years. [and such appointments shall be made in the same
3 manner as set forth in subsection (a). From the time of initial
4 appointment to the commission, a commissioner may not serve more
5 than two full terms consecutively. A commissioner appointed to
6 serve the remainder of an unexpired term shall, in addition
7 thereto, be eligible to be appointed to, and to serve, two full
8 terms.]
9 * * *
10 (h) The commission shall meet before the period for its
11 review of regulations under this act expires and at other times
12 as necessary to transact the business of the commission and
13 insure an expeditious and orderly review of regulations under
14 this act. Meetings shall be held at times and places set by the
15 chairperson. A meeting may be [rescheduled] scheduled by the
16 commission upon the provision of at least ten days' notice to
17 all affected agencies and the committees. A commissioner who
18 [fails to] does not attend three consecutive meetings without
19 cause [shall] may be removed as a commissioner by the authority
20 appointing the commissioner.
21 * * *
22 Section 2. Sections 5 and 5.1 of the act, amended or added
23 June 25, 1997 (P.L.252, No.24), are amended to read:
24 Section 5. Proposed regulations; procedures [and criteria] for
25 review.
26 (a) On the same date that an agency submits a proposed
27 regulation to the Legislative Reference Bureau for publication
28 of notice of proposed rulemaking in the Pennsylvania Bulletin as
29 required by the Commonwealth Documents Law, the agency shall
30 submit to the commission and the committees a copy of the
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1 proposed regulation and a regulatory analysis form which
2 includes the following:
3 (1) The title of the agency and the names, office
4 addresses and telephone numbers of the agency officials
5 responsible for responding to questions regarding the
6 regulation or for receiving comments relating to the
7 regulation.
8 (1.1) A specific citation to the Federal or State
9 statutory or regulatory authority or the decision of a
10 Federal or State court under which the agency is proposing
11 the regulation, which the regulation is designed to implement
12 or which may mandate or affect compliance with the
13 regulation.
14 (2) A concise and, when possible, nontechnical
15 explanation of the proposed regulation.
16 (3) A statement of the need for the regulation.
17 (4) Estimates of the direct and indirect costs to the
18 Commonwealth, to its political subdivisions and to the
19 private sector. Insofar as the proposed regulation relates to
20 costs to the Commonwealth, the agency may submit in lieu of
21 its own statement the fiscal note prepared by the Office of
22 the Budget pursuant to section 612 of the act of April 9,
23 1929 (P.L.177, No.175), known as "The Administrative Code of
24 1929."
25 (5) A statement of legal, accounting or consulting
26 procedures and additional reporting, recordkeeping or other
27 paperwork, including copies of forms or reports, which will
28 be required for implementation of the regulation and an
29 explanation of measures which have been taken to minimize
30 these requirements.
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1 (7) A schedule for review of the proposed regulation,
2 including the date by which the agency must receive comments;
3 the date or dates on which public hearings will be held; the
4 expected date of promulgation of the proposed regulation as a
5 final-form regulation; the expected effective date of the
6 final-form regulation; the date by which compliance with the
7 final-form regulation will be required; and the date by which
8 required permits, licenses or other approvals must be
9 obtained.
10 (9) An identification of the types of persons,
11 businesses and organizations which would be affected by the
12 regulation.
13 (10) An identification of the financial, economic and
14 social impact of the regulation on individuals, business and
15 labor communities and other public and private organizations
16 and, when practicable, an evaluation of the benefits expected
17 as a result of the regulation.
18 (11) A description of any special provisions which have
19 been developed to meet the particular needs of affected
20 groups and persons, including minorities, the elderly, small
21 businesses and farmers.
22 (12) A description of any alternative regulatory
23 provisions which have been considered and rejected and a
24 statement that the least burdensome acceptable alternative
25 has been selected.
26 (13) A description of the plan developed for evaluating
27 the continuing effectiveness of the regulation after its
28 implementation.
29 (b) The requirements of subsection (a) shall not diminish
30 the requirements of section 201 of the Commonwealth Documents
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1 Law, but the information required by this section may be
2 included in the Notice of Proposed Rulemaking published in the
3 Pennsylvania Bulletin in lieu of the information required by
4 paragraphs (2) and (3) of section 201 of the Commonwealth
5 Documents Law. The agency shall hold a public comment period
6 which shall commence with the publication of the notice of
7 proposed rulemaking and shall continue for not less than 30 days
8 unless section 203(1) or (2) of the Commonwealth Documents Law
9 applies.
10 (c) From the date of submission of the proposed regulation,
11 the agency shall submit to the commission and the committees,
12 within five business days of receipt, a copy of comments which
13 the agency receives relating to the proposed regulation. The
14 agency shall also, upon request, submit to the commission and
15 the committees copies of reports from advisory groups and other
16 documents received from or disseminated to the public relating
17 to the proposed regulation and public notices or announcements
18 relating to solicitation of public comments or meetings which
19 the agency held or will hold relating to the proposed
20 regulation.
21 (d) The committees may, [within 20 days from the closing
22 date of the public comment period] at any time prior to the
23 submittal of the regulation in final-form, convey to the agency
24 and the commission their comments, recommendations and
25 objections to the proposed regulation and a copy of any staff
26 reports deemed pertinent. The comments, recommendations and
27 objections [shall include the lack of statutory authority of the
28 agency to promulgate the proposed regulation and deviation of
29 the proposed regulation from the intention of the General
30 Assembly in the enactment of the statute upon which the proposed
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1 regulation is based] may refer to the criteria in section 5.2.
2 [(e) If the committees are prevented from completing their
3 20-day review because of the adjournment sine die or expiration
4 of the legislative session in an even-numbered year, their
5 review of the proposed regulation shall automatically be
6 suspended until the fourth Monday in January of the next year.
7 On that date, the agency shall resubmit the proposed regulation
8 and all material required under this section to the committees
9 and the commission. If either committee has not been designated
10 by the fourth Monday in January of the next year, the agency may
11 not deliver the proposed regulation and required material to the
12 committees and the commission until both committees are
13 designated, but the agency shall deliver the proposed regulation
14 and the required material no later than the second Monday after
15 the date by which both committee designations have been
16 published in the Pennsylvania Bulletin. If the agency fails to
17 deliver the proposed regulation in the time prescribed in this
18 subsection, the agency shall be deemed to have withdrawn the
19 proposed regulation. In computing the remaining time for
20 committee review, the number of days in which the committees
21 have had the proposed regulation under review as of the
22 adjournment sine die or expiration of the prior session shall be
23 subtracted from the 20-day committee review period, but the
24 committee review period in the next succeeding legislative
25 session shall not be less than ten days.]
26 (f) An agency may not submit a proposed regulation to the
27 committees for review during the period from the end of the
28 legislative session in an even-numbered year to the date by
29 which both committees have been designated in the next
30 succeeding legislative session, but an agency may submit a
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1 proposed regulation and the material required under subsection
2 (a) to the commission and the Legislative Reference Bureau
3 during this period in accordance with subsection (a). The public
4 comment period shall commence with the publication of the notice
5 of proposed rulemaking and end on the date designated by the
6 agency under subsection (b). The agency shall submit the
7 proposed regulation and required material to the committees [in
8 the time prescribed by subsection (e). If the agency fails to
9 deliver the proposed regulation and required material to the
10 committees in the time prescribed by subsection (e), the agency
11 shall be deemed to have withdrawn the proposed regulation. The
12 committees' 20-day review period shall begin on the date of
13 receipt of the proposed regulation.] no later than the second
14 Monday after the date by which both committee designations have
15 been published in the Pennsylvania Bulletin. If the agency does
16 not deliver the proposed regulation and all material required
17 under this section in the time prescribed in this subsection,
18 the agency shall be deemed to have withdrawn the proposed
19 regulation.
20 (g) The commission [shall] may, within [ten] thirty days
21 after the [expiration of the committee review period pursuant to
22 subsection (d), (e) or (f), notify] close of the public comment
23 period, convey to the agency [of] and committees any comments,
24 recommendations and objections to the proposed regulation. The
25 [notification] comments, recommendations and objections shall
26 specify the regulatory review criterion set forth in section 5.2
27 which the proposed regulation has not met. If the commission
28 [fails to] does not comment on, make recommendations regarding
29 or object to any portion of the proposed regulation within the
30 time provided in this subsection, the commission shall be deemed
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1 to have approved that portion of the proposed regulation.
2 Disapproval of the final-form regulation by the commission shall
3 relate only to comments, recommendations and objections raised
4 by the commission to the proposed regulation; to changes which
5 the agency made to the proposed regulation; or to
6 recommendations, comments or objections which a committee
7 conveyed to the agency or the commission.
8 Section 5.1. Final-form regulations and final-omitted
9 regulations; procedures [and criteria] for
10 review.
11 (a) The agency shall review and consider public comments and
12 the comments of the committees and commission pursuant to this
13 section. Within [seven] five business days of receipt of a
14 public comment, the agency shall[, by first class or electronic
15 mail, whichever is applicable,] notify the commentator of the
16 agency's address and telephone number where the commentator may
17 submit a request for the information concerning the final-form
18 regulation under subsection (b). Upon completion of the agency's
19 review of comments, the agency shall submit to the commission
20 and the committees a copy of its response to the comments
21 received, the names and addresses of commentators who have
22 requested additional information relating to the final-form
23 regulation and the text of the final-form regulation which the
24 agency intends to adopt. If an agency [fails to] does not submit
25 or withdraws and [fails to] does not resubmit the final-form
26 regulation within two years of the close of the public comment
27 period but still desires to promulgate the final-form
28 regulation, the agency shall republish the regulation as a
29 proposed regulation with a new public comment period in
30 accordance with the Commonwealth Documents Law. If the agency is
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1 prevented from delivering its final-form regulation to the
2 commission and the committees within the time period provided
3 for in this subsection because of the adjournment sine die or
4 expiration of the legislative session in an even-numbered year,
5 the agency shall deliver its final-form regulation in accordance
6 with subsection (f).
7 (b) On the same date that the agency submits the material
8 required in subsection (a) to the commission and the committees,
9 the agency shall[, by first class or electronic mail, whichever
10 is applicable,] send a notice of submission and a copy of the
11 text of the final-form regulation or a copy of all changes to
12 the proposed regulation which are incorporated into the final-
13 form regulation to each commentator who requested this
14 information pursuant to subsection (a). The agency is not
15 responsible for notifying each party whose name appears on
16 petitions or membership lists who did not present individual
17 comments on the regulation.
18 (c) The agency shall submit final-omitted regulations to the
19 commission and the committees for review under [subsections (d),
20 (e) and (f)] this section on the same date that the agency
21 submits the regulations to the Attorney General for review as
22 provided in section 204(b) of the Commonwealth Attorneys Act.
23 The requirements of section 5, except for the requirements for
24 holding a public comment period and for notifying commentators,
25 are applicable to final-omitted regulations. If the agency makes
26 revisions pursuant to subsection (g), the agency shall deliver
27 copies of the revisions to the Attorney General on the same date
28 that the agency delivers the revisions to the commission and the
29 committees.
30 [(d) A committee shall, within 20 days from the date of
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1 receipt of the information required under subsection (a) or
2 receipt of the information required under subsection (c),
3 approve or disapprove the final-form or final-omitted
4 regulation. The committee shall notify the commission and the
5 agency of its approval or disapproval. If a committee fails to
6 disapprove a final-form or final-omitted regulation, the
7 committee shall be deemed to have approved that regulation. If
8 the committee disapproves the final-form or final-omitted
9 regulation, the committee shall include with a notification of
10 disapproval a report stating the committee's objections to the
11 final-form or final-omitted regulation and a copy of staff
12 reports which the committee deems pertinent. Objections shall
13 include, but not be limited to, the lack of statutory authority
14 of the agency to promulgate the final-form or final-omitted
15 regulation and deviation of that regulation from the intention
16 of the General Assembly in the enactment of the statute upon
17 which the regulation was based.]
18 (e) The commission [shall, within ten days after the
19 expiration of the committee review period or at] may have until
20 its next [regularly] scheduled meeting[, whichever is later,]
21 which occurs no less than 30 days after receipt of the final-
22 form or final-omitted regulation, to approve or disapprove the
23 final-form or final-omitted regulation. The commission shall
24 notify the agency and the committees of its approval or
25 disapproval. If the commission [fails to] does not disapprove
26 the final-form or final-omitted regulation within the time
27 allotted in this subsection, the commission shall be deemed to
28 have approved the final-form or final-omitted regulation.
29 (f) [If the committees are prevented from completing their
30 20-day review because of] An agency may not deliver a final-form
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1 or final-omitted regulation to the commission and the committees
2 after the adjournment sine die or expiration of the legislative
3 session in an even-numbered year[, their review of the final-
4 form or final-omitted regulation shall automatically be
5 suspended]. The agency may not deliver the final-form or final-
6 omitted regulation until the fourth Monday in January of the
7 next year. On that date, the agency shall resubmit the final-
8 form or final-omitted regulation and required material to the
9 committees and the commission. If either committee has not been
10 designated by the fourth Monday in January, the agency may not
11 deliver the final-form or final-omitted regulation and required
12 material to the committees and the commission until both
13 committees are designated. [If the agency fails to deliver the
14 final-form or final-omitted regulation and required material to
15 the commission and the committees by the second Monday after the
16 date by which both committee designations have been published in
17 the Pennsylvania Bulletin, the agency shall be deemed to have
18 withdrawn the final-form or final-omitted regulation. In
19 computing the remaining time for committee review, the number of
20 days in which the committees have had the final-form or the
21 final-omitted regulation under review as of the adjournment sine
22 die or expiration of the prior session shall be subtracted from
23 the 20-day committee review period, but the committee review
24 period in the next succeeding legislative session shall not be
25 less than ten days. An agency may not submit a final-form or
26 final-omitted regulation to the commission or the committees for
27 review during the period from the adjournment sine die or
28 expiration of the legislative session of an even-numbered year
29 to the date by which both committees have been designated in the
30 next succeeding legislative session. This section shall not
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1 apply to emergency-certified regulations adopted pursuant to the
2 provisions of section 6(d).]
3 (g) Except as provided in this subsection, the agency may
4 not make any changes to a final-form or final-omitted regulation
5 after the agency submits the final-form or final-omitted
6 regulation to the commission and the committees.
7 (1) Prior to the expiration of the [20-day review period
8 of the committees or to the] date on which either of the
9 committees takes action on the final-form or final-omitted
10 regulation[, whichever occurs first], pursuant to subsection
11 (j.2) or (j.3) or the expiration of the commission's review
12 period prescribed in subsection (e), whichever occurs first,
13 the agency may, unless the commission shall object, toll the
14 time for the commission's and the committees' review of the
15 final-form or final-omitted regulation in order to allow time
16 for the agency to consider revisions to the final-form or
17 final-omitted regulation recommended by the commission or a
18 committee.
19 (2) Tolling under paragraph (1) may last for up to 30
20 days. If within 30 days the agency [fails to] does not submit
21 revisions to the committees and the commission or [fails to]
22 does not notify the commission and the committees in writing
23 that it will not submit revisions but wishes the commission
24 and the committees to resume their review, the agency shall
25 be deemed to have withdrawn the final-form or final-omitted
26 regulation.
27 (3) The committees shall have the remainder of the 20-
28 day review period or ten days from the date of receipt of the
29 revised final-form or final-omitted regulation or written
30 notification under paragraph (2), whichever is longer, to
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1 take action pursuant to subsection (j.2) or (j.3) and the
2 commission [shall have ten days after expiration of the
3 committee review period or] may have until its next
4 [regularly] scheduled meeting[, whichever is longer,] which
5 occurs after the expiration of the committee review period
6 but not less than 15 days after receipt of the revised final-
7 form or final-omitted regulation or written notification
8 under paragraph (2) to review the final-form or final-omitted
9 regulation. If the commission [or the committees fail to]
10 does not disapprove the final-form or final-omitted
11 regulation or a committee does not notify the commission and
12 the agency that it has disapproved the regulation or that it
13 intends to review the regulation pursuant to subsection
14 (j.2), within the respective time periods, the regulation
15 shall be deemed approved.
16 (4) The agency may not toll the time for review of any
17 final-form or final-omitted regulation more than one time.
18 (5) The agency may not submit revisions or notification
19 that the regulation will not be revised after the adjournment
20 sine die or the expiration of the legislative session in an
21 even-numbered year. If the committees and the commission are
22 prevented from completing their review pursuant to this
23 subsection because of the adjournment sine die or the
24 expiration of the legislative session in an even-numbered
25 year, the agency shall resubmit the final-form or final-
26 omitted regulation and review shall proceed in accordance
27 within subsection [f] (j.3).
28 [(h) In determining whether to approve or to disapprove a
29 final-form or a final-omitted regulation, the commission shall,
30 first and foremost, determine whether the agency has the
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1 statutory authority to promulgate the final-form or final-
2 omitted regulation and whether that regulation conforms to the
3 intention of the General Assembly in the enactment of the
4 statute upon which the regulation is based. In making its
5 determination, the commission shall consider written comments
6 submitted by the committees and current members of the General
7 Assembly, pertinent opinions of Pennsylvania's courts and formal
8 opinions of the Attorney General.
9 (i) Upon a finding that the final-form or final-omitted
10 regulation is consistent with the statutory authority of the
11 agency and with the intention of the General Assembly in the
12 enactment of the statute upon which the regulation is based, the
13 commission shall consider the following in determining whether
14 the final-form or final-omitted regulation is in the public
15 interest:
16 (1) Economic or fiscal impacts of the final-form or
17 final-omitted regulation, which include the following:
18 (i) Direct and indirect costs to the Commonwealth,
19 to political subdivisions and to the private sector.
20 (ii) Adverse effects on prices of goods and
21 services, productivity or competition.
22 (iii) The nature of required reports, forms or other
23 paperwork and the estimated cost of their preparation by
24 individuals, businesses and organizations in the private
25 and public sectors.
26 (iv) The nature and estimated cost of legal,
27 consulting or accounting services which the private or
28 public sector may incur.
29 (v) The impact on the public interest of exempting,
30 or setting lesser standards of compliance for,
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1 individuals or small businesses when it is lawful,
2 desirable and feasible to do so.
3 (2) The protection of the public health, safety and
4 welfare, and the effect on this Commonwealth's natural
5 resources.
6 (3) The clarity, feasibility and reasonableness of the
7 final-form or final-omitted regulation to be determined by
8 considering the following:
9 (i) Possible conflict with or duplication of
10 statutes or existing regulations.
11 (ii) Clarity and lack of ambiguity.
12 (iii) Need for the regulation.
13 (iv) Reasonableness of requirements, implementation
14 procedures and timetables for compliance by the public
15 and private sectors.
16 (4) Whether the final-form or final-omitted regulation
17 represents a policy decision of such a substantial nature
18 that it requires legislative review.
19 (5) Approval or disapproval by the committees.]
20 (j) The commission shall accept public [or agency] comments
21 only up to 48 hours prior to the commission's public meeting,
22 unless the comments are submitted at the request of the
23 commission. The commission shall receive comments from [a
24 committee or its] the agency or members of the General Assembly
25 until [the public meeting is called to order] the commission
26 acts on the regulation. The commission shall transmit
27 [documents] comments received during the 48-hour period prior to
28 the commission's public meeting to the agency [within 24 hours
29 of] and the committees upon receipt. The commission shall
30 [receive] accept additional public [or agency] comments only
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1 after the public meeting has been called to order.
2 (j.1) A committee shall have at least 20 days from receipt
3 of the information required under subsection (a) or receipt of
4 the information required under subsection (c), to take action
5 pursuant to subsection (j.2). If the committees are prevented
6 from completing their 20-day review because of the adjournment
7 sine die or expiration of the legislative session in an even-
8 numbered year, their review of the final-form or final-omitted
9 regulation shall automatically be suspended until the fourth
10 Monday in January of the next year. On that date, the agency
11 shall resubmit the final-form or final-omitted regulation and
12 required material to the committees and the commission. If
13 either committee has not been designated by the fourth Monday in
14 January, the agency may not deliver the final-form or final-
15 omitted regulation and required material to the commission and
16 the committees until both committees have been designated. If
17 the agency does not deliver the final-form or final-omitted
18 regulation and required material to the commission and the
19 committees by the second Monday after the date by which both
20 committee designations have been published in the Pennsylvania
21 Bulletin, the agency shall be deemed to have withdrawn the
22 regulation. In computing the remaining time for committee
23 review, the number of days in which the committees have had the
24 final-form or the final-omitted regulation under review as of
25 the adjournment sine die or expiration of the prior session
26 shall be subtracted from the 20-day committee review period, but
27 the committee review period in the next succeeding legislative
28 session shall not be less than ten days. The commission shall
29 not act on a regulation until the committee review period has
30 expired. This section shall not apply to emergency-certified
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1 regulations adopted pursuant to the provisions of section 6(d).
2 (j.2) At any time during the commission's review period up
3 to 24 hours prior to the opening of the commission's public
4 meeting, a committee may notify the commission and the agency
5 that it has approved or disapproved a final-form or final-
6 omitted regulation, or that it intends to review the regulation.
7 If the commission approves a regulation, and a committee has not
8 notified the commission and the agency that it has disapproved
9 the regulation or that it intends to review the regulation, the
10 agency may promulgate the regulation. If the commission approves
11 a regulation and a committee has notified the commission and the
12 agency that it has disapproved the regulation or that it intends
13 to review the regulation, the agency may not promulgate the
14 regulation for 14 days after the committee has received the
15 commission's approval order. During this 14-day period, the
16 committee may take action on the regulation pursuant to section
17 7(d). If, at the expiration of the 14-day period, the committee
18 has not taken action on the regulation pursuant to section 7(d),
19 the agency may promulgate the regulation.
20 (j.3) If the committees are prevented from completing their
21 14-day review because of adjournment sine die or expiration of
22 the legislative session in an even-numbered year, their review
23 of the final-form or final-omitted regulation shall
24 automatically be suspended until the fourth Monday in January of
25 the next year. On that date, the agency shall resubmit the
26 final-form or final-omitted regulation and required material to
27 the committees and the commission. If either committee has not
28 been designated by the fourth Monday in January, the agency may
29 not deliver the final-form or final-omitted regulation and
30 required material to the committees and the commission until
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1 both committees are designated. If the agency does not deliver
2 the final-form or final-omitted regulation and required material
3 to the commission and the committees by the second Monday after
4 the date by which both committee designations have been
5 published in the Pennsylvania Bulletin, the agency shall be
6 deemed to have withdrawn the final-form or final-omitted
7 regulation. In determining the remaining time for committee
8 review, the number of days in which the committees have had the
9 final-form or the final-omitted regulation under review as of
10 the adjournment sine die or expiration of the prior session
11 shall be subtracted from the 14-day committee review period, but
12 the committee review period in the next succeeding legislative
13 session shall not be less than ten days. An agency may not
14 submit a final-form or final-omitted regulation to the
15 commission or the committees for review during the period from
16 the adjournment sine die or expiration of the legislative
17 session of an even-numbered year to the date by which both
18 committees have been designated in the next succeeding
19 legislative session. This subsection shall not apply to
20 emergency-certified regulations adopted pursuant to the
21 provisions of section 6(d).
22 (j.4) If the commission disapproves a final-form or final-
23 omitted regulation, the commission, the committees and the
24 agency will proceed in accordance with section 6.
25 (k) The commission shall note and shall make a part of the
26 public record all [documents] comments which it receives
27 relating to a regulation and shall retain the [documents]
28 comments for four years after the promulgation of the
29 regulation.
30 (l) Except for emergency-certified regulations adopted under
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1 section 6(d), an agency may not promulgate a regulation until
2 completion of the review provided for in this act.
3 Section 3. The act is amended by adding a section to read:
4 Section 5.2. Criteria for review of regulations.
5 (a) In determining whether a proposed, final-form, final-
6 omitted or existing regulation is in the public interest, the
7 commission shall, first and foremost, determine whether the
8 agency has the statutory authority to promulgate the regulation
9 and whether the regulation conforms to the intention of the
10 General Assembly in the enactment of the statute upon which the
11 regulation is based. In making its determination, the commission
12 shall consider written comments submitted by the committees and
13 current members of the General Assembly, pertinent opinions of
14 Pennsylvania's courts and formal opinions of the Attorney
15 General.
16 (b) Upon a finding that the regulation is consistent with
17 the statutory authority of the agency and with the intention of
18 the General Assembly in the enactment of the statute upon which
19 the regulation is based, the commission shall consider the
20 following in determining whether the regulation is in the public
21 interest:
22 (1) Economic or fiscal impacts of the regulation, which
23 include the following:
24 (i) Direct and indirect costs to the Commonwealth,
25 to its political subdivisions and to the private sector.
26 (ii) Adverse effects on prices of goods and
27 services, productivity or competition.
28 (iii) The nature of required reports, forms or other
29 paperwork and the estimated cost of their preparation by
30 individuals, businesses and organizations in the public
20020S1554B2394 - 19 -
1 and private sectors.
2 (iv) The nature and estimated cost of legal,
3 consulting or accounting services which the public or
4 private sector may incur.
5 (v) The impact on the public interest of exempting,
6 or setting lesser standards of compliance for,
7 individuals or small businesses when it is lawful,
8 desirable and feasible to do so.
9 (2) The protection of the public health, safety and
10 welfare and the effect on this Commonwealth's natural
11 resources.
12 (3) The clarity, feasibility and reasonableness of the
13 regulation to be determined by considering the following:
14 (i) Possible conflict with or duplication of
15 statutes or existing regulations.
16 (ii) Clarity and lack of ambiguity.
17 (iii) Need for the regulation.
18 (iv) Reasonableness of requirements, implementation
19 procedures and timetables for compliance by the public
20 and private sectors.
21 (4) Whether the regulation represents a policy decision
22 of such a substantial nature that it requires legislative
23 review.
24 (5) Comments, objections or recommendations of a
25 committee.
26 (6) Compliance with the provisions of this act or the
27 regulations of the commission in promulgating the regulation.
28 Section 4. Sections 6, 7 and 8.1 of the act, amended June
29 25, 1997 (P.L.252, No.24), are amended to read:
30 Section 6. Procedures for disapproval of final-form and final-
20020S1554B2394 - 20 -
1 omitted regulations; emergency-certified
2 regulations.
3 (a) [If the committees and the commission do not disapprove
4 a final-form or a final-omitted regulation by the expiration of
5 their respective review periods under section 5.1(d), (e) or
6 (f), the agency may promulgate the final-form or final-omitted
7 regulation.] If the commission disapproves a final-form or
8 final-omitted regulation, the commission shall deliver its
9 disapproval order to the Legislative Reference Bureau, the
10 committees[, commentators who have requested additional
11 information under section 5.1(a)] and the agency. The commission
12 shall notify commentators who have requested additional
13 information under section 5.1(a) of the commission's vote to
14 disapprove. The disapproval order shall specify the regulatory
15 review criteria which the final-form or final-omitted regulation
16 has not met [and shall describe the documents and testimony
17 which the commission relied on in reaching its decision]. The
18 agency shall review the commission's order and proceed pursuant
19 to section 7(a).
20 (b) The commission's order disapproving a final-form or
21 final-omitted regulation shall bar the agency from promulgating
22 that regulation pending subsequent review under section 7.
23 [(c) If a committee has notified the commission of its
24 disapproval of a final-form or final-omitted regulation and the
25 commission approves the final-form or final-omitted regulation,
26 the commission shall, within two business days, deliver its
27 approval order to the committee. If either committee is
28 prevented from receiving the commission's order because of the
29 adjournment sine die or expiration of the legislative session in
30 an even-numbered year, the commission shall deliver its order to
20020S1554B2394 - 21 -
1 the committee or its successor committee on the fourth Monday in
2 January of the next year. If either committee has not been
3 designated by the fourth Monday in January, the commission may
4 not deliver its order to the committees until both committees
5 have been designated, but the commission shall deliver its order
6 no later than the second Monday after the date by which both
7 committee designations have been published in the Pennsylvania
8 Bulletin. The committee shall have 14 days from receipt of the
9 approval order to take action pursuant to section 7(d). During
10 this 14-day period the agency may not promulgate the final-form
11 or final-omitted regulation approved by the commission. If, at
12 the expiration of the 14-day period, the committee fails to act
13 on the final-form or final-omitted regulation pursuant to
14 section 7(d), the agency may promulgate the final-form or final-
15 omitted regulation.]
16 (d) The commission may not issue an order barring an agency
17 from promulgating a final-form or final-omitted regulation if
18 the Attorney General certifies that the final-form or final-
19 omitted regulation is required pursuant to the decree of any
20 court or to implement the provisions of a statute of the United
21 States or regulations issued thereunder by a Federal agency or
22 if the Governor certifies that the final-form or final-omitted
23 regulation is required to meet an emergency which includes
24 conditions which may threaten the public health, safety or
25 welfare; cause a budget deficit; or create the need for
26 supplemental or deficiency appropriations of greater than
27 $1,000,000. In those cases, the final-form or final-omitted
28 regulation may take effect on the date of publication or on a
29 later date specified in the order adopting the final-form or
30 final-omitted regulation. The commission and the committees
20020S1554B2394 - 22 -
1 shall review the final-form or final-omitted regulation pursuant
2 to the procedures provided for in this act. If the final-form or
3 final-omitted regulation is disapproved pursuant to those
4 procedures, that regulation shall be rescinded after 120 days or
5 upon final disapproval, whichever occurs later.
6 Section 7. Procedures for subsequent review of disapproved
7 final-form or final-omitted regulations.
8 (a) [Within seven days after the agency has received an
9 order from the commission disapproving and barring promulgation
10 of a final-form or final-omitted regulation issued pursuant to
11 section 6(a), the agency shall notify the Governor, the
12 committees and the commission of its selection of one of the
13 following options:] An agency may select one of the following
14 options for proceeding with a regulation which has been
15 disapproved by the commission:
16 (1) To proceed further with the final-form or final-omitted
17 regulation pursuant to subsection (b).
18 (2) To proceed further with the final-form or final-omitted
19 regulation pursuant to subsection (c).
20 (3) To withdraw the final-form or final-omitted regulation.
21 [(a.1) If the committees are prevented from receiving the
22 notice required in this section because of the adjournment sine
23 die or expiration of the legislative session in an even-numbered
24 year, the agency shall deliver the notice to the Governor, the
25 commission and the committees on the fourth Monday in January of
26 the next year. If either committee has not been designated by
27 the fourth Monday in January, the agency may not deliver the
28 notice to the commission and the committees until both
29 committees are designated, but the agency shall deliver the
30 notice to the committees and the commission no later than the
20020S1554B2394 - 23 -
1 second Monday after the date by which both committee
2 designations have been published in the Pennsylvania Bulletin.
3 If the agency fails to deliver the notice to the commission and
4 the committees in the time prescribed in this subsection, the
5 agency shall be deemed to have withdrawn that regulation.]
6 (b) If the agency decides to adopt the final-form or final-
7 omitted regulation without revisions or further modifications,
8 the agency shall submit a report to the committees and the
9 commission within 40 days of the agency's receipt of the
10 commission's disapproval order. The agency's report shall
11 contain the final-form or final-omitted regulation, the
12 commission's disapproval order and the agency's response and
13 recommendations regarding the final-form or final-omitted
14 regulation. If the committees are prevented from receiving the
15 report because of adjournment sine die or expiration of the
16 legislative session in an even-numbered year, the agency shall
17 submit its report to the commission and the committees on the
18 fourth Monday in January of the next year. If either committee
19 has not been designated by the fourth Monday in January, the
20 agency may not deliver the report to the committees and the
21 commission until both committees are designated, but the agency
22 shall deliver its report to the commission and the committees no
23 later than the second Monday after the date by which both
24 committee designations have been published in the Pennsylvania
25 Bulletin. If the agency [fails to] does not deliver the report
26 to the committees and the commission in the time prescribed in
27 this subsection, the agency shall be deemed to have withdrawn
28 the final-form or final-omitted regulation. [Upon receipt of the
29 agency's report, the committees may proceed pursuant to
30 subsection (d).]
20020S1554B2394 - 24 -
1 (c) If the agency decides to revise or modify the final-form
2 or final-omitted regulation in order to respond to objections
3 raised by the commission and adopt that regulation with
4 revisions or modifications, the agency shall submit a report to
5 the committees and the commission within 40 days of the agency's
6 receipt of the commission's disapproval order. The agency's
7 report shall contain the revised final-form or final-omitted
8 regulation, the findings of the commission, and the agency's
9 response and recommendations regarding the revised final-form or
10 final-omitted regulation. If the committees are prevented from
11 receiving the report because of adjournment sine die or
12 expiration of the legislative session in an even-numbered year,
13 the agency shall submit the report to the commission and the
14 committees on the fourth Monday in January of the next year. If
15 either committee has not been designated by the fourth Monday in
16 January, the agency may not deliver the report to the committees
17 and the commission until both committees are designated, but the
18 agency shall deliver its report to the commission and the
19 committees no later than the second Monday after the date by
20 which both committee designations have been published in the
21 Pennsylvania Bulletin. If the agency [fails to] does not deliver
22 its report to the commission and the committees in the time
23 prescribed in this subsection, the agency shall be deemed to
24 have withdrawn the final-form or final-omitted regulation. [Upon
25 receipt of the agency's report, a committee shall have ten days
26 to approve or disapprove the report and to notify the commission
27 and the agency of its approval or disapproval. If a committee
28 fails to notify the commission and the agency of its disapproval
29 within ten days, the committee shall be deemed to have approved
30 the agency's report.]
20020S1554B2394 - 25 -
1 (c.1) The commission [shall have seven] may have until its
2 next scheduled meeting which occurs no less than 15 days from
3 [the expiration of the committee's ten-day review period or
4 until its next regularly scheduled meeting, whichever is later,
5 to] receipt of the agency's report, to approve or disapprove the
6 agency's report. [If the commission and the committee approve
7 the agency's report, the agency may promulgate the final-form or
8 final-omitted regulation. If the commission disapproves the
9 agency report, the agency shall be barred from promulgating that
10 regulation until the review provided for in this subsection and
11 in subsection (d) is completed. If a committee disapproves an
12 agency's report and the commission approves it or if the
13 commission disapproves an agency report, the] The commission
14 shall deliver its approval or disapproval order to the
15 committees for consideration by the General Assembly pursuant to
16 subsection (d). If the commission is prevented from delivering
17 its order to the committees within the time period provided for
18 in this subsection because of the adjournment sine die or
19 expiration of the legislative session in an even-numbered year,
20 the commission shall deliver its order on the fourth Monday of
21 January of the next year. If either committee has not been
22 designated by the fourth Monday in January, the commission may
23 not deliver its order to the committees until both committees
24 are designated, but the commission shall deliver its order no
25 later than the second Monday after the date by which both
26 committee designations have been published in the Pennsylvania
27 Bulletin. If the commission [fails to] does not deliver its
28 order disapproving the agency's report and revised final-form or
29 final-omitted regulation in the time prescribed by this
30 subsection, the commission shall be deemed to have approved the
20020S1554B2394 - 26 -
1 agency's report and the revised final-form or final-omitted
2 regulation.
3 (d) Upon receipt of the [report of an agency pursuant to
4 subsection (b), of the agency's report and the] commission's
5 order pursuant to subsection [(c) or of the commission's order
6 pursuant to section 6(c)] (c.1), or at the expiration of the
7 commission's review period if the commission does not act on the
8 regulation or does not deliver its order pursuant to subsection
9 (c.1), one or both of the committees may, within 14 calendar
10 days, report to the House of Representatives or Senate a
11 concurrent resolution and notify the agency. During the 14-
12 calendar-day period, the agency may not promulgate the final-
13 form or final-omitted regulation. If, by the expiration of the
14 14-calendar-day period, neither committee reports a concurrent
15 resolution, the committees shall be deemed to have approved the
16 final-form or final-omitted regulation, and the agency may
17 promulgate that regulation. If either committee reports a
18 concurrent resolution before the expiration of the 14-day
19 period, the Senate and the House of Representatives shall each
20 have 30 calendar days or ten legislative days, whichever is
21 longer, from the date on which the concurrent resolution has
22 been reported, to adopt the concurrent resolution. If the
23 General Assembly adopts the concurrent resolution by majority
24 vote in both the Senate and the House of Representatives, the
25 concurrent resolution shall be presented to the Governor in
26 accordance with section 9 of Article III of the Constitution of
27 Pennsylvania. If the Governor does not return the concurrent
28 resolution to the General Assembly within ten calendar days
29 after it is presented, the Governor shall be deemed to have
30 approved the concurrent resolution. If the Governor vetoes the
20020S1554B2394 - 27 -
1 concurrent resolution, the General Assembly may override that
2 veto by a two-thirds vote in each house. The Senate and the
3 House of Representatives shall each have 30 calendar days or ten
4 legislative days, whichever is longer, to override the veto. If
5 the General Assembly [fails to] does not adopt the concurrent
6 resolution or override the veto in the time prescribed in this
7 subsection, it shall be deemed to have approved the final-form
8 or final-omitted regulation. Notice as to any final disposition
9 of a concurrent resolution considered in accordance with this
10 section shall be published in the Pennsylvania Bulletin. The bar
11 on promulgation of the final-form or final-omitted regulation
12 shall continue until that regulation has been approved or deemed
13 approved in accordance with this subsection. If the General
14 Assembly adopts the concurrent resolution and the Governor
15 approves or is deemed to have approved the concurrent resolution
16 or if the General Assembly overrides the Governor's veto of the
17 concurrent resolution, the agency shall be barred from
18 promulgating the final-form or final-omitted regulation. If the
19 General Assembly [fails to] does not adopt the concurrent
20 resolution or if the Governor vetoes the concurrent resolution
21 and the General Assembly [fails to] does not override the
22 Governor's veto, the agency may promulgate the final-form or
23 final-omitted regulation. The General Assembly may, at its
24 discretion, adopt a concurrent resolution disapproving the
25 final-form or final-omitted regulation to indicate the intent of
26 the General Assembly but permit the agency to promulgate that
27 regulation.
28 Section 8.1. Existing regulations.
29 The commission, on its motion or at the request of any person
30 or member of the General Assembly, may review any existing
20020S1554B2394 - 28 -
1 regulation which has been in effect for at least three years. If
2 a committee of the Senate or the House of Representatives
3 requests a review of an existing regulation, the commission
4 shall perform the review and shall assign it high priority. The
5 commission may submit recommendations to an agency recommending
6 changes in existing regulations if it finds the existing
7 regulations to be contrary to the public interest under the
8 criteria established in [this] section 5.2. The commission may
9 also make recommendations to the General Assembly and the
10 Governor for statutory changes if the commission finds that any
11 existing regulation may be contrary to the public interest.
12 SECTION 5. THIS ACT SHALL APPLY TO PROPOSED, FINAL-FORM AND <--
13 FINAL-OMITTED REGULATIONS WHICH AN AGENCY SUBMITS ON OR AFTER
14 THE EFFECTIVE DATE OF THIS ACT TO THE INDEPENDENT REGULATORY
15 REVIEW COMMISSION AND TO "COMMITTEES" AS DEFINED IN SECTION 3 OF
16 THE ACT.
17 Section 5 6. This act shall take effect in 60 days. <--
J4L02MSP/20020S1554B2394 - 29 -