§ 1.4. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Act—The act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § § 1102, 1201—1208 and 1602); and 45 Pa.C.S. Chapters 5, 7 and 9, known as the Commonwealth Documents Law.
Adjudication—An order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a party to the proceeding in which the adjudication is made.
Administrative Code or AC—The Administrative Code of 1929 (71 P. S. § § 51—732).
Administrative regulation—A regulation except a proclamation, executive order, executive directive or other similar document promulgated by the Governor, and including a regulation which may be promulgated by an agency only with the approval of the Governor.
Agency—The Governor or a department, departmental administrative board or commission, officer, independent board or commission, authority or other agency of this Commonwealth now in existence or hereafter created, but not including the Senate or House of Representatives of this Commonwealth or a court, political subdivision, municipal or other local authority, or an officer or agency of a court, political subdivision or local authority.
Agency text—The text of a document as issued, prescribed or promulgated by the issuing, prescribing or promulgating agency.
Bulletin or Pa.B.—The Pennsylvania Bulletin established by the act.
Bureau—The Legislative Reference Bureau.
Code or Pa. Code—The Pennsylvania Code established by the Commonwealth Documents Law.
Copy—The term includes an electronic or printed version.
Department—The Department of General Services.
Document—A proclamation, executive order, executive directive or similar instrument promulgated by the Governor, and an order, regulation, rule, statement of policy, adjudication, certificate, license, permit, notice or similar instrument issued, prescribed or promulgated by or under the authority of the Commonwealth. The term also includes a home rule charter heretofore or hereafter adopted by electors of this Commonwealth.
Gubernatorial regulation—A regulation which is not an administrative regulation.
Guideline—A document, other than an adjudication, interpretation or regulation, which announces the policy an agency intends to implement in future rulemakings, adjudications or which will otherwise guide the agency in the exercise of administrative discretion. The document may not amend, repeal or suspend a published regulation or otherwise effectively circumscribe administrative choice, but shall establish a framework within which an agency exercises administrative discretion. If authorized by statute, the documents may be incorporated into or published as regulations. The term includes, but is not limited to:(i) Plans for agency operation and administration which establish important policies to be utilized in the future exercise of administrative discretion.
(ii) General policies and plans for the award and administration of discretionary grants of public monies.
(iii) Announcements of principles and standards to be applied in future adjudications.
Interpretation—A statement of policy, other than a guideline, which is issued by an agency without reliance upon express or implied rulemaking authority, or which is issued by an agency which does not have express or implied rulemaking authority with regard to the matters covered by the document. The document may not amend, repeal or suspend a published regulation. If it is unclear whether an agency intended to rely upon rulemaking authority in adopting a document, a document with substantial impact upon the public shall be classified as a regulation, rather than an interpretation. The term includes, but is not limited to:(i) Explanations or interpretations of agency regulations.
(ii) Procedures governing applications, awards and administration of discretionary grants of public monies.
(iii) Generalized rulings announcing an interpretation of law or regulation to be applied in future adjudications or other administrative actions.
(iv) Explanations or interpretations of statutes or regulations over which the agency does not possess rulemaking authority.
Issue—To prescribe or promulgate.
Joint Committee or JCD—The Joint Committee on Documents created by the act.
Official text—The text of a document issued, prescribed or promulgated by an agency as published by authority of the act which has become in the manner provided by the act the only valid and enforceable text of the document.
Regulation—A rule or regulation or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of a statute administered by or relating to the agency, or prescribing the practice or procedure before the agency.
Statement of policy—A document, except an adjudication or 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 a part thereof. The term includes a document interpreting or implementing a statute enforced or administered by an agency. The term includes, but is not limited to, guidelines and interpretations.
Source The provisions of this § 1.4 amended through November 28, 1986, effective November 29, 1986, 16 Pa.B. 4648; amended May 27, 2011, effective May 28, 2011, 41 Pa.B. 2686. Immediately preceding text appears at serial pages (302757) to (302758) and (346905) to (346906).
Notes of Decisions Construction
A regulation that is at variance with a statute is ineffective to change the statute’s meaning. Geisinger Health System v. Bureau of Workers’ Compensation Fee Review Hearing Office, 138 A.3d 133 (2016).
A defined term is to be applied unless a different meaning can be ascribed to the word or phrase because of its context. Geisinger Health System v. Bureau of Workers’ Compensation Fee Review Hearing Office, 138 A.3d 133 (2016).
An agency’s interpretation of its governing statute and enforcement of a broad statutory directive in not rulemaking. DEP v. Cumberland Coal Resources, 102 A.3d 962 (2014).
Unlike regulations, statements of policy do not have the force of law. Dechert LLP v. Commonwealth, 922 A.2d 87, N.6 (Pa. Cmwlth. 2007).
A determination as to whether a particular statement of policy is an unpromulgated regulation is a question of law. Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 141 (Pa. Cmwlth. 2006).
It is well settled law that an agency’s substantive regulations, when properly enacted under the Commonwealth Documents Law, have the force and effect of law and enjoy a general presumption of reasonableness. Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 141 (Pa. Cmwlth. 2006).
An agency’s characterization of its own rule as a statement of policy is not dispositive on the issue of whether an agency pronouncement is a statement of policy or a regulation. Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 146 (Pa. Cmwlth. 2006).
A ‘‘statement of policy’’ is an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications. Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 141 (Pa. Cmwlth. 2006).
A ‘‘statement of policy’’ is defined as a governmental agency’s statutory interpretation which a court may accept or reject depending upon how accurately the agency’s interpretation reflects the meaning of the statute. Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 147 (Pa. Cmwlth. 2006).
When the court reviews an administrative agency’s interpretation of its own regulations, it must follow a two step analysis: first, the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation, and second, the regulations must be consistent with the statute under which they were promulgated. Popowsky v. Pennsylvania Public Utility Commission, 910 A.2d 38, 52 (Pa. 2006).
Legislative rulemaking is an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body, and is valid and is as binding upon a court as a statute if it is within the granted power, issued under proper procedure, and reasonable. Popowsky v. Pennsylvania Public Utility Commission, 910 A.2d 38, 53 (Pa. 2006).
In determining whether a power has been delegated by the legislature, the Supreme Court is not limited to the letter of the law, but must look to the purpose of the statute and its reasonable effect. Eagle Environmental II, L. P. v. Department of Environmental Protection, 884 A.2d 867, 877 (Pa. 2005).
There is a strong presumption that acts of the General Assembly are constitutional, and Supreme Court will not declare such acts unconstitutional unless they clearly, palpably and plainly violate the constitution. Eagle Environmental II, L. P. v. Department of Environmental Protection, 884 A.2d 867, 880 (Pa. 2005).
In promulgating a regulation to implement a statutory provision, an agency is not bound by a prior court decision interpreting that statutory provision. A regulation must be followed even if prior case law supports a narrower interpretation. Popowsky v. Pennsylvania Public Utility Commission, 853 A.2d 1097, 1106 (Pa. Cmwlth. 2004); appeal granted 868 A.2d 454 (Pa. 2005); affirmed 910 A.2d 38 (Pa. 2006).
Since the Secretary’s budget instructions did not impose standards upon school districts but simply reflected the Secretary’s interpretation of a statute, they are not regulations. Central Dauphin School District v. Department of Education, 608 A.2d 576 (Pa. Cmwlth. 1992).
A statement of policy is not a regulation if it allows adjustment for individual circumstances through adjudication on a case-by-case basis and discretion in application of the statement of policy is allowed. Prudential Property and Casualty Insurance Company v. Insurance Department, 595 A.2d 649 (Pa. Cmwlth. 1991).
Because the Department of Environmental Resources’ standard conditions met the ‘‘binding norm test,’’ the conditions were regulations and not statements of policy which may only be applied after they have been promulgated after notice and comment. The Department was, therefore, without authority to impose such conditions on the issuance and reissuance of mining permits. Department of Environmental Resources v. Rushton, 591 A.2d 1168 (Pa. Cmwlth. 1991); appeal denied 600 A.2d 541 (Pa. 1991).
An interpretation established through interpretive letter may be changed by a new interpretive letter. Cash America Net of Nevada, LLC v. Com., 978 A.2d 1028, 1033 (Pa. Cmwlth. 2009).
In order to replace the statutory rulemaking procedure applicable to Statewide agencies under the Commonwealth Documents Law (CDL), a statute must expressly do so under 45 Pa.C.S. § 508. Moreover, section 508 applies to the Consolidated CDL and Unconsolidated CDL. Therefore, the ‘‘notwithstanding any other provision of law’’ language in Act 94 of 2004 does not exempt the Philadelphia Parking Authority from the statutory rulemaking procedures under the CDL because it is ambiguous. Germantown Cab Co. v. Philadelphia Parking Auth., 36 A.3d 105, 116-20 (Pa. 2012).
Statement of Policy
Directive that establishes procedures to be used when responding to requests for information from the Department of Corrections (DOC) is a statement of policy, not a regulation that is subject to the requirements of the Commonwealth Documents Law; statement was not promulgated by DOC under statutory authority in the administration of any statute and does not establish a standard of conduct that has the force of law. Richardson v. Beard, 942 A.2d 911, 914 (Pa. Cmwlth. 2008).
A general statement of policy is neither a rule nor a precedent but is merely an announcement to the public of the policy that an agency intends to implement in future rulemakings or adjudications, citing Pennsylvania Human Relations Commission v. Nomstown Area School District, 374 A.2d 671, 679 (1977), Cash America Net of Nevada, LLC v. Com., 978 A.2d 1028, 1033 (Pa. Cmwlth. 2009).
A binding norm means that an agency is bound by a statement of policy until the agency repeals it, and if the statement of policy is binding on the agency, it is a regulation. A regulation is binding on an agency and a statement of policy is not. Borough of Bedford v. Com., Dept. of Environmental Protection, 972 A.2d 53 (Pa. Cmwlth. 2014).
A statement of policy expresses at most an agency’s interpretation of law, as that law is expressed in a statute or a regulation, and, accordingly, a person may be charged with a violation of a statute or regulation, but not with a violation of a statement of policy. Borough of Bedford v. Com., Dept. of Environmental Protection, 972 A.2d 53 (Pa. Cmwlth. 2014).
Cross References This section cited in 4 Pa. Code § 1.61 (relating to force and effect); and 51 Pa. Code § 51.1 (relating to general provisions).
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