§ 9.201. General requirements.
Section 206 of the act (45 P. S. § 1206) requires that an administrative regulation or change indicate the statutory or other authority under which it is promulgated. Accordingly, a section in a document subject to codification shall include, or shall be covered by, a complete citation of the rulemaking authority under which the provisions of the section are issued, including the following:
(1) General rulemaking authority delegated by The Administrative Code or other similar general statute.
(2) Specific rulemaking authority, if any, delegated by statute.
(3) Executive delegations, if any, necessary to link the statutory authority to the issuing agency.
Notes of Decisions If an agency cites the correct statutory authority in its notice of proposed rulemaking but cites an incorrect statutory authority in adopting those rules, the correct statutory authority is not carried over to the adoption, and the rules are invalid and of no force or effect. Commonwealth v. Bodamer, 397 A.2d 871, 872 (Pa. Cmwlth. 1979).
Where the statute authorizing the promulgation of a regulation is repealed, the regulation is not binding, as regulations may not exceed the scope of their authorizing statute. Reese v. Pennsylvanians for Union Reform, 173 A.3d 11143, 1156 (Pa. 2017); Smith v. Firemens Insurance Company of Newark, New Jersey, 404 Pa. Superior Ct. 93, 96-97, 590 A.2d 24, 26 (1991).
A regulation is interpretive, rather than legislative, if the agency is without statutory authority or fails to follow the required procedure. Slippery Rock Area v. Unemployment Comp., 983 A.2d 1231, 1237 (Pa. 2009).
An agency cannot confer authority upon itself by regulation. Any power exercised by an agency must be conferred by the General Assembly in express terms. Sunrise Energy, LLC v. FirstEnergy Corp., 148 A.3d 894 (Pa. Cmwlth. 2016).
Without an amendment to statutory authority, an agency cannot re-enact a legislative regulation to override an appellate court decision. Lerch v. Unemployment Compensation Board of Review, 180 A.3d 545 (Pa. Cmwlth. 2018).
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