Post by melody on Feb 5, 2015 20:08:43 GMT -5
House State Government Committee
2/4/15, 10:00 a.m., B31 Main Capitol
By Kimberly Hess, PLS
The committee held an informational meeting with a presentation of the Independent Regulatory Review Commission (IRRC) regarding the regulatory review process.
David Sumner, executive director of IRRC, said the regulatory review process consists generally of two steps: proposed regulations and final form regulations. He said the regulations go to standing committees in each stage for the committee’s consideration, noting that the State Government Committee was particularly active last session including action to change a proposed increase in the lobbyist registration fee. He said every regulation goes to committee, based on the purview of the committees and explained the State Government Committee generally receives regulations from the Department of General Services, Department of State, and other state commissions including IRRC. He noted IRRC expects to promulgate a regulation later this year. Sumner told members they can follow regulations that do not come to their committees by subscribing to updates via IRRC’s website.
Sumner provided a brief history of IRRC, which was established in 1982 in reaction to state agencies issuing regulations for which they did not have authority. He said the legislature created the agency so that it could have oversight of the regulatory process. He said IRRC consists of five commissioners one each appointed by the four caucus leaders and the governor.
Fiona Wilmarth, director of regulatory review at IRRC, provided an overview of the proposed rulemaking stage. She stated IRRC can only consider regulations based on the following specific criteria provided for in statute:
• Whether the agency has statutory authority to implement the regulation
• Whether the regulation is consistent with legislative intent
• Economic and fiscal impact on the public and private sector
• Protection of the public health, safety, and welfare
• Clarity, feasibility, and reasonableness of the regulation
• Whether the regulation is a policy decision requiring legislative review
• Comments, objections or recommendations of a committee
• Compliance with the Regulatory Review Act and IRRC regulations
• Whether the regulation is supported by acceptable data
• Small business analysis and impact
Reviewing the proposed timeline, Wilmarth said after a proposed regulation is published the public has a minimum of 30 days to comment, after which IRRC has 30 days to file comments. The standing committees may comment at any time until final regulations delivered but she said IRRC appreciates receiving the comments before IRRC’s deadline so the commission can consider the comments when drafting its comments. She said the standing committee can also hold hearings, meet with the promulgating agency, meet with IRRC, or meet with affected parties. A committee can choose to submit formal comments. After all the proposed comment periods close, the promulgating agency is require to review the comments and decide whether to make revisions; the agency must explain its choice if it decides not to make revisions. An agency has up to two years to submit the final regulation.
Leslie Lewis Johnson, Esq., chief counsel, provided an overview of the final form stage and pointed out to members that the committees are not bound to the same criteria as IRRC when considering a regulation. She said the committees can comment on anything, at any time until 24 hours before IRRC’s public meeting. She said IRRC must meet no less than 30 days after receiving a final regulation, and typically meets about 45 days after receipt. During the final form stage, the committee has the option to hold hearings, to meet with promulgating agency, meet with IRRC, or meet with affected parties. Johnson emphasize that IRRC staff are always available to members. A committee has the option to vote on a final form regulation, or it is “deemed approved” if the committee takes no formal action. Additionally, a committee can choose to notify IRRC of its intent to review the regulation, which triggers a 14-day review period. The agency cannot take any action on the regulation while the review is underway, or if the committee decides to bar a regulation through the concurrent resolution process. Johnson concluded by encouraging legislative input, especially from the sponsor of legislation that lead to the need for the regulation. She also noted that individual can submit comments, contact agency or IRRC during proposed or final stages, ask for disapproval of the final regulation, or present their views at IRRC’s public meeting.
Faber remarked on the importance of the interaction with the House and Senate committees to the process. He also noted his longstanding involvement with IRRC, dating from the creation of the commission when he was chief clerk of the Senate.
Rep. Truitt asked if the legislature has ever barred a regulation. Sumner said the legislature has attempted to bar a regulation three times that he is aware of, most recently in 2011 regarding a Public Utility Commission (PUC) regulation, but has never been successful. He remarked on the difficulty in successfully barring a regulation, because it goes to the governor for approval and one would presume he would not agree to bar a regulation of his own agencies. He pointed out, however, that IRRC does receive regulations from independent agencies, as well.
Rep. McCarter asked about the size of IRRC’s staff complement. Sumner said IRRC has ten employees, down from a peak of 18. He said ten is the “right size.” The staff includes himself (who is also a lawyer), chief counsel, director of regulatory review, four regulatory analysts, a comptroller, and support staff. He said staff has a wide range of experience, noting some have worked in the agencies.
Rep. McCarter asked about legislation that was debated last session that would have given IRRC regulatory review oversight of the Game and Fish and Boat Commission regarding endangered species. He asked how that would have been handled. Sumner indicated it would have been handled like any other regulations. He said IRRC’s staff are generalists that review a wide variety of regulations. Faber agreed and said legislative insight can be valuable because a committee may have more expertise than IRRC on a given issue. Rep. McCarter asked if IRRC pays outside experts. Sumner said IRRC has never had the occasion or need for an outside expert and reiterated that IRRC relies heavily on the agency, regulated community, and the public. He noted that IRRC will state in its comments if it is not satisfied with the answers it gets from the agency. Faber said he looks to staff and other experts for assistance when reviewing a regulation he is unfamiliar with. Rep. McCarter referred back to the proposed legislation, which he said would have given IRRC the final say, and asked if that would be a change for IRRC. Faber replied it would clearly be a change in IRRC’s operating process. Sumner pointed out that the concurrent resolution process can bar a regulation, but cannot change a regulation. Nor, he said, can IRRC change a regulation. “It is an all or none process,” he said.
Rep. DeLissio asked about the process to review an existing regulation. Sumner explained any one can asked IRRC to review a regulation that has been in place for at least three years to determine if it is still in the public interest. He confirmed IRRC has handled a number of those requests over the years. He could not say how the three-year timeframe was determined, but speculated that it was decided to be an adequate time period to determine if a regulation is working. Regarding IRRC’s review of an existing regulation, Sumner explained the commission would notify the promulgating agency if the regulation is determined to no longer be in the public interest, but it would be up to the agency to act on the recommendation; IRRC cannot repeal the regulation itself. Rep. DeLissio asked where she could find a list of those requests, to which Sumner said he will follow up with her.
Following up, Rep. Dush asked if those recommendations would be submitted to the standing committees as well. Sumner indicated they would be. Rep. Dush then asked if the commission has the ability to squash a regulation. Sumner reiterated that IRRC can only review regulations on the basis of the statutory criteria. Faber recalled a regulation considered by the commission last year which was initially disapproved because the commission determined that the language would not work, but it was subsequently revised by the agency and approved by the commission. Lastly, Rep. Dush asked if the governor could veto a concurrent resolution to bar a regulation. Faber confirmed this is correct.
Rep. Acosta remarked on ongoing discussions at the State Board of Education about education requirements and asked if there has been any discussion between school districts and IRRC in regards to the regulation of a funding formula. Sumner indicated those discussions have not taken place, explaining that IRRC can only address proposed or final form regulations; anything done through a working group or statute cannot be touched by IRRC.
Rep. Roae asked about the obligation of an agency to address a recommendation of IRRC that an existing regulation is no longer in the public interest. Sumner expressed his hope that the agency would take the recommendation seriously, but confirmed there is no enforcement.
Rep. Waters asked which agencies tend to submit the most regulations. Sumner said the state licensing boards account for most of the regulations but the Gaming Control Board is also quite active. He remarked that some agencies go years between promulgating regulations. Rep. Waters said the legislature has passed legislation dealing dealing with regulations in the health field and said it seemed like it was a long time before it went forward.
Rep. McCarter asked if IRRC is subject to the Sunshine Law, which Sumner confirmed. Referring back to the proposed legislation regarding the Game Commission, Rep. McCarter asked if all the endangered species would be addressed as a bloc or one by one. Sumner noted the typical IRRC agenda has four to seven items, thus it would be very difficult to address them one by one. Faber added that IRRC’s consideration would be dictated by the form that the agency brings forward; if it is a list of 120 different species in one regulation, it would be dealt with as a regulation, but if they are individual regulations they will be dealt with individually.
Chairman Metcalfe quipped that after all the questions on the issue, the committee needs to make sure the bill is done so the species can be looked at.
Rep. Roae asked how many agencies are subject to IRRC review. Sumner replied “virtually every agency in Pennsylvania,” except the legislature, courts, Game Commission, and Fish and Boat Commission. Rep. Roae questioned if it is correct that if the Department of Environmental Protection (DEP) offered a regulation regarding endangered species it would be subject to IRRC review, but the same regulation from the Game Commission would not be subject to IRRC review. Faber confirmed this is correct, but reiterated that IRRC would be responsible for ensuring DEP had the authority to promulgate such a regulation.
Rep. Dush asked if IRRC resumes its review after the 30-day period if the standing committee has further comment. Sumner said IRRC’s comments are due 30 days after the close of the public comment period and IRRC looks at all comments submitted. Wilmarth added that comments submitted after IRRC issues its comments but before the final form is issued would be reviewed. She said it is most helpful, however, if the standing committees issue their comments before IRRC.
Rep. Gabler asked if the standing committees have a role when an existing regulation has been reviewed at the request of a person. Sumner pointed out that often such requests come from the legislature based on requests from constituents and said the individual member would be involved, but not the entire committee. Rep. Gabler asked if the legislature would have the authority to bring up a resolution barring the regulation. Sumner said the legislature only has standing when the regulation is in the proposed or final states, otherwise a statutory change would be needed. Sumner pointed out that the legislature has enacted statutes that directed the repeal of specific regulations. Faber pointed out that the agency would have to go through the IRRC process to repeal its own regulations.
2/4/15, 10:00 a.m., B31 Main Capitol
By Kimberly Hess, PLS
The committee held an informational meeting with a presentation of the Independent Regulatory Review Commission (IRRC) regarding the regulatory review process.
David Sumner, executive director of IRRC, said the regulatory review process consists generally of two steps: proposed regulations and final form regulations. He said the regulations go to standing committees in each stage for the committee’s consideration, noting that the State Government Committee was particularly active last session including action to change a proposed increase in the lobbyist registration fee. He said every regulation goes to committee, based on the purview of the committees and explained the State Government Committee generally receives regulations from the Department of General Services, Department of State, and other state commissions including IRRC. He noted IRRC expects to promulgate a regulation later this year. Sumner told members they can follow regulations that do not come to their committees by subscribing to updates via IRRC’s website.
Sumner provided a brief history of IRRC, which was established in 1982 in reaction to state agencies issuing regulations for which they did not have authority. He said the legislature created the agency so that it could have oversight of the regulatory process. He said IRRC consists of five commissioners one each appointed by the four caucus leaders and the governor.
Fiona Wilmarth, director of regulatory review at IRRC, provided an overview of the proposed rulemaking stage. She stated IRRC can only consider regulations based on the following specific criteria provided for in statute:
• Whether the agency has statutory authority to implement the regulation
• Whether the regulation is consistent with legislative intent
• Economic and fiscal impact on the public and private sector
• Protection of the public health, safety, and welfare
• Clarity, feasibility, and reasonableness of the regulation
• Whether the regulation is a policy decision requiring legislative review
• Comments, objections or recommendations of a committee
• Compliance with the Regulatory Review Act and IRRC regulations
• Whether the regulation is supported by acceptable data
• Small business analysis and impact
Reviewing the proposed timeline, Wilmarth said after a proposed regulation is published the public has a minimum of 30 days to comment, after which IRRC has 30 days to file comments. The standing committees may comment at any time until final regulations delivered but she said IRRC appreciates receiving the comments before IRRC’s deadline so the commission can consider the comments when drafting its comments. She said the standing committee can also hold hearings, meet with the promulgating agency, meet with IRRC, or meet with affected parties. A committee can choose to submit formal comments. After all the proposed comment periods close, the promulgating agency is require to review the comments and decide whether to make revisions; the agency must explain its choice if it decides not to make revisions. An agency has up to two years to submit the final regulation.
Leslie Lewis Johnson, Esq., chief counsel, provided an overview of the final form stage and pointed out to members that the committees are not bound to the same criteria as IRRC when considering a regulation. She said the committees can comment on anything, at any time until 24 hours before IRRC’s public meeting. She said IRRC must meet no less than 30 days after receiving a final regulation, and typically meets about 45 days after receipt. During the final form stage, the committee has the option to hold hearings, to meet with promulgating agency, meet with IRRC, or meet with affected parties. Johnson emphasize that IRRC staff are always available to members. A committee has the option to vote on a final form regulation, or it is “deemed approved” if the committee takes no formal action. Additionally, a committee can choose to notify IRRC of its intent to review the regulation, which triggers a 14-day review period. The agency cannot take any action on the regulation while the review is underway, or if the committee decides to bar a regulation through the concurrent resolution process. Johnson concluded by encouraging legislative input, especially from the sponsor of legislation that lead to the need for the regulation. She also noted that individual can submit comments, contact agency or IRRC during proposed or final stages, ask for disapproval of the final regulation, or present their views at IRRC’s public meeting.
Faber remarked on the importance of the interaction with the House and Senate committees to the process. He also noted his longstanding involvement with IRRC, dating from the creation of the commission when he was chief clerk of the Senate.
Rep. Truitt asked if the legislature has ever barred a regulation. Sumner said the legislature has attempted to bar a regulation three times that he is aware of, most recently in 2011 regarding a Public Utility Commission (PUC) regulation, but has never been successful. He remarked on the difficulty in successfully barring a regulation, because it goes to the governor for approval and one would presume he would not agree to bar a regulation of his own agencies. He pointed out, however, that IRRC does receive regulations from independent agencies, as well.
Rep. McCarter asked about the size of IRRC’s staff complement. Sumner said IRRC has ten employees, down from a peak of 18. He said ten is the “right size.” The staff includes himself (who is also a lawyer), chief counsel, director of regulatory review, four regulatory analysts, a comptroller, and support staff. He said staff has a wide range of experience, noting some have worked in the agencies.
Rep. McCarter asked about legislation that was debated last session that would have given IRRC regulatory review oversight of the Game and Fish and Boat Commission regarding endangered species. He asked how that would have been handled. Sumner indicated it would have been handled like any other regulations. He said IRRC’s staff are generalists that review a wide variety of regulations. Faber agreed and said legislative insight can be valuable because a committee may have more expertise than IRRC on a given issue. Rep. McCarter asked if IRRC pays outside experts. Sumner said IRRC has never had the occasion or need for an outside expert and reiterated that IRRC relies heavily on the agency, regulated community, and the public. He noted that IRRC will state in its comments if it is not satisfied with the answers it gets from the agency. Faber said he looks to staff and other experts for assistance when reviewing a regulation he is unfamiliar with. Rep. McCarter referred back to the proposed legislation, which he said would have given IRRC the final say, and asked if that would be a change for IRRC. Faber replied it would clearly be a change in IRRC’s operating process. Sumner pointed out that the concurrent resolution process can bar a regulation, but cannot change a regulation. Nor, he said, can IRRC change a regulation. “It is an all or none process,” he said.
Rep. DeLissio asked about the process to review an existing regulation. Sumner explained any one can asked IRRC to review a regulation that has been in place for at least three years to determine if it is still in the public interest. He confirmed IRRC has handled a number of those requests over the years. He could not say how the three-year timeframe was determined, but speculated that it was decided to be an adequate time period to determine if a regulation is working. Regarding IRRC’s review of an existing regulation, Sumner explained the commission would notify the promulgating agency if the regulation is determined to no longer be in the public interest, but it would be up to the agency to act on the recommendation; IRRC cannot repeal the regulation itself. Rep. DeLissio asked where she could find a list of those requests, to which Sumner said he will follow up with her.
Following up, Rep. Dush asked if those recommendations would be submitted to the standing committees as well. Sumner indicated they would be. Rep. Dush then asked if the commission has the ability to squash a regulation. Sumner reiterated that IRRC can only review regulations on the basis of the statutory criteria. Faber recalled a regulation considered by the commission last year which was initially disapproved because the commission determined that the language would not work, but it was subsequently revised by the agency and approved by the commission. Lastly, Rep. Dush asked if the governor could veto a concurrent resolution to bar a regulation. Faber confirmed this is correct.
Rep. Acosta remarked on ongoing discussions at the State Board of Education about education requirements and asked if there has been any discussion between school districts and IRRC in regards to the regulation of a funding formula. Sumner indicated those discussions have not taken place, explaining that IRRC can only address proposed or final form regulations; anything done through a working group or statute cannot be touched by IRRC.
Rep. Roae asked about the obligation of an agency to address a recommendation of IRRC that an existing regulation is no longer in the public interest. Sumner expressed his hope that the agency would take the recommendation seriously, but confirmed there is no enforcement.
Rep. Waters asked which agencies tend to submit the most regulations. Sumner said the state licensing boards account for most of the regulations but the Gaming Control Board is also quite active. He remarked that some agencies go years between promulgating regulations. Rep. Waters said the legislature has passed legislation dealing dealing with regulations in the health field and said it seemed like it was a long time before it went forward.
Rep. McCarter asked if IRRC is subject to the Sunshine Law, which Sumner confirmed. Referring back to the proposed legislation regarding the Game Commission, Rep. McCarter asked if all the endangered species would be addressed as a bloc or one by one. Sumner noted the typical IRRC agenda has four to seven items, thus it would be very difficult to address them one by one. Faber added that IRRC’s consideration would be dictated by the form that the agency brings forward; if it is a list of 120 different species in one regulation, it would be dealt with as a regulation, but if they are individual regulations they will be dealt with individually.
Chairman Metcalfe quipped that after all the questions on the issue, the committee needs to make sure the bill is done so the species can be looked at.
Rep. Roae asked how many agencies are subject to IRRC review. Sumner replied “virtually every agency in Pennsylvania,” except the legislature, courts, Game Commission, and Fish and Boat Commission. Rep. Roae questioned if it is correct that if the Department of Environmental Protection (DEP) offered a regulation regarding endangered species it would be subject to IRRC review, but the same regulation from the Game Commission would not be subject to IRRC review. Faber confirmed this is correct, but reiterated that IRRC would be responsible for ensuring DEP had the authority to promulgate such a regulation.
Rep. Dush asked if IRRC resumes its review after the 30-day period if the standing committee has further comment. Sumner said IRRC’s comments are due 30 days after the close of the public comment period and IRRC looks at all comments submitted. Wilmarth added that comments submitted after IRRC issues its comments but before the final form is issued would be reviewed. She said it is most helpful, however, if the standing committees issue their comments before IRRC.
Rep. Gabler asked if the standing committees have a role when an existing regulation has been reviewed at the request of a person. Sumner pointed out that often such requests come from the legislature based on requests from constituents and said the individual member would be involved, but not the entire committee. Rep. Gabler asked if the legislature would have the authority to bring up a resolution barring the regulation. Sumner said the legislature only has standing when the regulation is in the proposed or final states, otherwise a statutory change would be needed. Sumner pointed out that the legislature has enacted statutes that directed the repeal of specific regulations. Faber pointed out that the agency would have to go through the IRRC process to repeal its own regulations.