RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[49 PA. CODE CH. 43b]
Practice and Procedure
[51 Pa.B. 7984]
[Saturday, December 25, 2021]The Commissioner of Professional and Occupational Affairs (Commissioner) amends 49 Pa. Code, Chapter 43b, by adding Subchapter D (relating to practice and procedure) pertaining to activities of and formal proceedings before the licensing boards and commissions under the Bureau of Professional and Occupational Affairs (Bureau), to read as set forth in Annex A.
Effective Date
This final-omitted rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
The Commissioner has the power to promulgate regulations specifying the procedural rules to be followed in the conduct of hearings in disciplinary matters before a licensing board or licensing commission under 63 Pa.C.S. § 3105(b) (relating to hearing examiners), regarding regulations.
Background and Purpose
Section 502 of 2 Pa.C.S. (relating to representation) of the Administrative Agency Law, permits, but does not require, a party to be represented when appearing before a Commonwealth agency. Sections 31.1—35.251 of 1 Pa. Code (relating to General Rules of Administrative Practice and Procedure) (GRAPP) apply ''when agencies hold a hearing, unless the agency adopted alternate procedures.'' KC Equities v. Dep't of Publ. Welfare, 95 A.3d 918, 932 (Pa. Cmwlth. 2014). Section 31.21 of GRAPP (relating to appearance in person) authorizes individuals to appear on their own behalf. It also provides that a member of a partnership may represent the partnership, a bona fide officer of a corporation, trust or association may represent the corporation, trust or association, and an officer or employee of another agency or of a political subdivision may represent the agency or political subdivision in presenting any submittal to an agency. However, for adversarial proceedings, GRAPP requires all parties, except for individuals appearing on their own behalf, to be represented by an attorney unless otherwise permitted by the agency in a specific case. See 1 Pa. Code §§ 31.21—31.23 (relating to appearance in person; appearance by attorney; and other representation prohibited at hearings).
This final-omitted rulemaking expressly adopts GRAPP for the activities and proceedings before the licensing boards and commissions under the Bureau, with a limited exception. The Commissioner, in consultation with the various boards and commissions, is providing for non-attorney representation in formal proceedings involving business organizations, such as partnerships, corporations, limited liability companies, trusts and other associations, as well as agencies and political subdivisions. Like other agencies that have promulgated regulations that supersede GRAPP's provisions governing representation of parties in administrative proceedings, the Commissioner is adopting this final-omitted rulemaking to provide more flexibility to those entities who wish to avoid the costs of legal representation. Administrative hearings generally involve questions of fact that do not require complex legal analysis and may not require the legal expertise of an attorney. Hearings before boards and commissions are designed to be brief and informal. Requiring attorney representation in all adversarial hearings involving business entities, agencies or political subdivisions undermines the informal, speedy and low-cost nature of administrative proceedings and may dissuade parties from defending matters against them. The Commissioner believes that allowing non-attorney representation would provide small businesses with a cost-effective alternative for representation at hearings.
Through this final-omitted rulemaking, the Commissioner is joining other Commonwealth agencies that allow representation by non-attorneys in administrative proceedings. For example, the Department of Agriculture under 7 Pa. Code § 131.12 (relating to appearances) allows a partnership to be represented by any of its members and a corporation or association to be represented by any of its officers for adjudicatory proceedings relating to matters within its jurisdiction. The Pennsylvania Labor Relations Board permits entry of appearances by attorneys or other representatives under 34 Pa. Code § 91.2 (relating to appearances); and the State Health Facility Hearing Board under 37 Pa. Code § 197.9 (relating to appearances) permits a member of a partnership to represent the partnership; a bona fide officer of a corporation, trust or association to represent a corporation, trust or association; and an officer or employee of another agency or political subdivision to represent the agency or political subdivision in an appeal or petition before the hearing board.
Omission of Proposed Rulemaking
Under section 204(1)(iii) of the Commonwealth Documents Law (CDL) (45 P.S. § 1204(1)(iii)), the Commissioner is authorized to omit the procedures for a proposed rulemaking in sections 201 and 202 of the CDL (45 P.S. §§ 1201 and 1202) if the administrative regulation or change therein relates to agency procedure or practice. Publication of this proposed rulemaking is unnecessary because the regulations are procedural regulations relating to representation by non-attorneys for partnerships, corporations, limited liability companies, trusts, other associations and agencies and political subdivisions in administrative proceedings before the professional and occupational licensing boards and commissions within the Bureau.
Description of Amendments
§ 43b.301. Applicability of general rules of practice and procedure
Section 43b.301(a) (relating to applicability of general rules of practice and procedure) expressly adopts GRAPP, which governs the practice and procedure before the boards and commissions under the Bureau, except where it is inconsistent with this chapter. Subsection (b) clarifies that subsection (a) supplements 1 Pa. Code § 31.1 (relating to scope of part).
§ 43b.302. Representation in formal proceedings
Section 43b.302(a) (relating to representation in formal proceedings) reiterates the GRAPP rule that an individual may appear on their own behalf or may be represented by an attorney in formal proceedings before the boards and commissions under the Bureau. Subsection (a) permits a partnership, corporation, limited liability company, trust, association, agency or political subdivision to be represented by an attorney in formal proceedings before the boards and commissions under the Bureau or may be represented by a non-attorney as provided in subsection (b). The non-attorneys listed in paragraphs (1) through (5) of subsection (b) are the persons by or under whose authority the powers of a business organization/entity are exercised and under whose direction the activities and affairs of the entity are managed. Paragraph (6) provides that an officer or employee of an agency or political subdivision may represent the agency or political subdivision, provided the rules and policies of that agency or subdivision allow such representation. Subsection (c) makes clear that subsections (a) and (b) supersede GRAPP in 1 Pa. Code §§ 31.21 and 31.23.
Fiscal Impact and Paperwork Requirements
There is no fiscal impact and no paperwork requirements are associated with this final-omitted rulemaking.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P.S. § 745.5a(c)), on November 5, 2021, the Commissioner submitted copies of the final-omitted rulemaking, and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee (SPC/PLC) and the House Professional Licensure Committee (HPLC). On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732-101— 732-506).
Under section 5.1(e) and (j.2) of the Regulatory Review Act (71 P.S. § 745.5a(e) and (j.2)), on December 8, 2021, the final-omitted rulemaking was deemed approved by the SPC/PLC and the HPLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on December 9, 2021, and approved the final-omitted rulemaking.
Additional Information
Individuals who need information about this final-omitted rulemaking may contact the Bureau of Professional and Occupational Affairs, P.O. Box 2649, Harrisburg, PA 17105-2649, RA-BPOA@pa.gov.
Findings
The Commissioner finds that:
(1) Public notice of the Commissioner's intention to promulgate these regulations under the procedures in sections 201 and 202 of the CDL (45 P.S. §§ 1201 and 1202) has been omitted under section 204 of the CDL (45 P.S. § 1204) because publication of proposed rulemaking is unnecessary in that the regulations relate only to agency procedure or practice.
(2) The promulgation of the regulations in the manner provided in this order is necessary and appropriate to effectuate non-attorney representation in formal proceedings before the boards and commissions under the Bureau.
Order
The Commissioner, acting under the authority of 63 Pa.C.S. § 3105(b) orders that:
(a) The regulations at 49 Pa. Code Chapter 43b are amended by adding §§ 43b.301 and 43b.302 read as set forth in Annex A.
(b) The Commissioner shall submit this final-omitted rulemaking to the Office of Chief Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) The Commissioner shall submit this final-omitted rulemaking to IRRC, SPC/PLC and HPLC as required by law.
(d) The Commissioner shall certify this final-omitted rulemaking and deposit it with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
K. KALONJI JOHNSON,
Commissioner(Editor's Note: See 51 Pa.B. 8061 (December 25, 2021), for IRRC's approval order.)
Fiscal Note: 16A-065. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART 1. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
Subchapter D. PRACTICE AND PROCEDURE § 43b.301. Applicability of general rules of practice and procedure.
(a) Under 1 Pa. Code § 31.1 (relating to scope of part), 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) is applicable to the activities of and formal proceedings before the licensing boards and commissions under the Bureau insofar as it is not inconsistent with this chapter.
(b) Subsection (a) supplements 1 Pa. Code § 31.1.
§ 43b.302. Representation in formal proceedings.
(a) General rule. In formal proceedings before the licensing boards and commissions under the Bureau, an individual may appear on their own behalf or may be represented by an attorney as provided under 1 Pa. Code § 31.22 (relating to appearance by attorney). A partnership, corporation, limited liability company, trust, association, agency or political subdivision may be represented in formal proceedings by an attorney as provided by 1 Pa. Code § 31.22 or may be represented in formal proceedings by a non-attorney as provided in subsection (b).
(b) Non-attorney representation authorized. Non-attorney representation of partnerships, corporations, limited liability companies, trusts, associations, agencies or political subdivisions in formal proceedings before the licensing boards and commissions is permitted as follows:
(1) A general partner of a partnership may represent the partnership.
(2) A bona fide officer or director of a for profit or not-for-profit corporation may represent the corporation.
(3) A manager of a manager-managed limited liability company or a member of a member-managed limited liability company may represent the limited liability company.
(4) A trustee of a trust may represent the trust.
(5) A member or other authorized representative of any other type of association may represent the association.
(6) An officer or employee of an agency or political subdivision may represent the agency or political subdivision, provided the rules and policies of that agency or subdivision allow the representation.
(c) Applicability of the General Rules of Administrative Practice and Procedure. Subsections (a) and (b) supersede 1 Pa. Code §§ 31.21 and 31.23 (relating to appearance in person; and other representation prohibited at hearings) regarding representation of partnerships, corporations, limited liability companies, trusts, associations, agencies or political subdivisions in formal proceedings before the licensing boards and commissions under the Bureau.
[Pa.B. Doc. No. 21-2149. Filed for public inspection December 23, 2021, 9:00 a.m.]
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