DEPARTMENT OF TRANSPORTATION [67 PA. CODE CH. 491] Administrative Practice and Procedure [35 Pa.B. 2309] The Department of Transportation, Office of Chief Counsel, under the authority in 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law), proposes to amend Chapter 491 (relating to administrative practice and procedure) to read as set forth in Annex A.
Purpose of this Chapter
The purpose of Chapter 491 is to supplement 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) (General Rules). In accordance with 1 Pa. Code § 31.1(c) (relating to scope), Chapter 491 supersedes any inconsistent provisions in the General Rules in proceedings before the Department.
Purpose of this Rulemaking
The purpose of this proposed rulemaking is to clarify the separation of the adjudicatory and adversarial functions performed by Department attorneys and officials in the conduct of administrative hearings. The proposed rulemaking also clarifies that the Secretary of Transportation has discretion to direct that an administrative record be certified to the Secretary for decision without the preparation of a proposed report. The proposed rulemaking also clarifies that proposed orders of any appropriate type are to be forwarded to the Secretary with the record when exceptions to a proposed report are filed.
Persons and Entities Affected
This proposed rulemaking will affect all Department personnel involved in matters brought to administrative hearing as well as any persons, and their counsel, who have occasion to request administrative review of a Department determination.
Fiscal Impact
The proposed rulemaking will not result in any increased costs to individuals, local governments or to the Commonwealth. The proposed rulemaking will not require the development of additional reports or result in other additional paperwork.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 5, 2005, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Transportation Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
Sunset Date
The Department is not establishing a sunset date for these regulations, as these regulations are needed to administer provisions under 2 Pa.C.S. §§ 501--508 and 701--704. The Department, however, will continue to closely monitor these regulations for their effectiveness.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Andrew H. Cline, Deputy Chief Counsel, Office of Chief Counsel, 9th Floor, Commonwealth Keystone Building, 400 North Street, Harrisburg, PA 17120 within 30 days of publication of this notice in the Pennsylvania Bulletin.
Contact Person
The contact person for this proposed rulemaking is Stephen F. J. Martin, Regulatory Counsel, Office of Chief Counsel, 9th Floor, Commonwealth Keystone Building, 400 North Street, Harrisburg, PA 17120, (717) 787 5079.
ALLEN D. BIEHLER, P. E.,
SecretaryFiscal Note: 18-401. No fiscal impact; (8) recommends adoption.
Annex A TITLE 67. TRANSPORTATION PART I. DEPARTMENT OF TRANSPORTATION Subpart B. NONVEHICLE CODE PROVISIONS ARTICLE V. GENERAL PROCEDURES CHAPTER 491. ADMINISTRATIVE PRACTICE AND PROCEDURE § 491.2a. [Separation of adjudicatory function from representation of the Department] (Reserved).
[(a) Separation of adjudicatory function. The adjudicatory function performed in accordance with this chapter and the General Rules will be separated from the function of representing the Department in administrative hearing matters. This chapter prescribes that an administrative hearing officer will preside over any hearing and, if exceptions are filed by any party, the decision ultimately is made by the Secretary. The Department's Chief Counsel advises the Secretary in his adjudicatory capacity.
(b) Ex parte discussions. Under no circumstances may any Department attorney representing the Department in an administrative hearing matter, or any Department employee involved in such a matter, discuss the case ex parte with the Administrative Hearing Officer, the Chief Counsel or the Secretary.
(c) Prohibited discussions with employees. The Administrative Hearing Officer, the Chief Counsel and the Secretary may not discuss with, or exercise any supervisory responsibility over, any employee with respect to an administrative hearing matter with which that employee is involved.
(d) Designation by Chief Counsel and Secretary. If it becomes necessary for the Chief Counsel or the Secretary to become involved on behalf of the Department in any administrative hearing matter, they are prohibited from participating in the adjudication of the case and shall designate appropriate individuals to exercise their adjudicatory functions.]
§ 491.2b. Separation of adjudicatory and adversarial functions.
(a) Adjudicatory function and officials. The adjudicatory function in proceedings under this chapter and the General Rules shall be performed by the Secretary, or a designee, and Department hearing officers as may be appointed by the Secretary. The Secretary's review of the actions of subordinate officers, including the proposed reports of Department hearing officers, will be de novo. The Department's Chief Counsel, or a designee, will serve as legal counsel to the Secretary in the performance of the Secretary's adjudicatory function.
(b) Due process. The adjudicatory function in a proceeding will be performed in a manner that is fair, impartial and separated from any adversarial function in the proceeding.
(c) Restrictions on activities and communications. The following restrictions will be observed in proceedings under this chapter and the General Rules:
(1) A person who has been significantly involved in a matter prior to the initiation of a proceeding may not perform adjudicatory functions with respect to that matter.
(2) Adjudicatory officials may not exercise substantive supervisory responsibility over Department staff or staff counsel with respect to a matter before them.
(3) Ex parte communications between Department staff or staff counsel and adjudicatory officials that may create an appearance of impropriety in a matter shall be avoided.
(d) Supplementation. This section supplements 1 Pa. Code § 35.188 (relating to restrictions on duties and activities).
§ 491.11 Proposed report.
(a) General. Following the hearing and the timely submission of any posthearing filings, the Department hearing officer, unless directed by the Secretary to certify the record without a proposed report, will prepare and file a proposed report with the docket clerk.
* * * * * § 491.12 Exceptions.
* * * * * (c) Record. When timely exceptions are filed, the docket clerk will forward the following to the Secretary:
* * * * * (4) [A] Any proposed [order] orders to grant or deny the exceptions[, that is prepared for the Secretary's signature] submitted by the parties.
* * * * * [Pa.B. Doc. No. 05-709. Filed for public inspection April 15, 2005, 9:00 a.m.]
