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House State Government Committee
01/23/13, 9:00 a.m., Room 60, East Wing
By Jason Gottesman, PLS
The House State Government Committee met to hold a public hearing on the review of the standing committee in the Regulatory Review Process.
David Sumner, Executive Director, Independent Regulatory Review Commission (IRRC), began the hearing by noting there will be another members session on February 7 in the Media Center giving an overview of IRRC. Sumner noted the committee was created 30 years ago to provide an independent view of regulations and was created in the face of agencies promulgating regulations that were seen as not in the public interest. He noted all regulations are reviewed by IRRC to see if they fall in line with the Regulatory Review Act and during the meetings, IRRC receives public testimony and also receives public comment prior to the consideration of the regulations. He indicated members of IRRC serve for terms of three years with all members appointed. He also said there is standing committee oversight of IRRC, where standing committees review regulations from agencies under their control.
Sarah Miller, IRRC Communications Manager, explained IRRC is a unique entity from all other state governments, and even the Federal government, in that an independent agency that reviews all regulations as a matter of process. She noted there is a two stage review process, the first being the proposed stage allowing comment for a 30 calendar day period for the public, and an additional 30 days for IRRC to comment. She said standing committee comments are requested as soon as possible. She then noted there is only specific criteria by which IRRC can disapprove a regulation, including it being out of line with legislative intent, objections of the standing committee, and a regulation being outside the statutory authority of the agency. She also said a regulation can be disapproved for lack of clarity, protection of the public welfare, whether legislative review will be required, and whether a regulation complies with the Regulatory Review Act.
Miller continued, noting that last session there were two new criteria to IRRC’s review. She explained in Act 60 of 2011 the agency must provide the standing committee and IRRC the acceptable data supporting the regulation. She also said in Act 76 of 2012, there has to be a determination of whether there is a less restrictive or less costly means of doing what the regulation intends for small businesses. Miller indicated the standing committee has some options at the proposed stage like holding hearings, meeting with the agency and IRRC staff, and meeting with the affected parties. She also said the standing committees can also comment on a proposed regulation.
Miller then discussed what happens for a final form regulation where the final form regulation is submitted to IRRC and the standing committees. She said while an agency is not required to change a regulation, they must respond to all comments and noted if they do not respond, it could be grounds for disapproval. Miller noted IRRC tries to hold two public voting meetings per month on action items and told the committee comments from standing committees are requested to be submitted as soon as possible. She said the standing committee can hold formal hearings on a regulation, approve, or disapprove a regulation. She said if no action is taken, the regulation is deemed approved. Miller also said the standing committee can notify IRRC of its intent to review the regulation after IRRC action. She further explained that a committee’s intent to dispute a regulation would cause a regulation to not be published. She said if IRRC approves a regulation that the standing committee disapproves or takes no action on, the commissioners must take the standing committee’s objections into consideration.
Miller explained IRRC has no authority to bar a regulation and said only the General Assembly can bar a regulation from being published. She said a regulation can only be stopped through concurrent resolution.
Moving on to individual legislator options in the regulatory review process, Miller said they include contacting the agency at the proposed or final form stage, asking IRRC to disapprove a regulation at the final form stage, asking IRRC to approve a regulation at the final form stage, and presenting views at a public meeting.
Rep. Gabler asked about IRRC’s statutory criteria for denying a regulation and asked if an individual legislator comments, that is a comment that can be taken under consideration, but only formal action by the committee can expand the objection into the catch all exception for denial. Sumner said he believes that is true and said IRRC tries to echo individual member’s comments. He said if IRRC does not comment on specific criteria and the committee raises something, it can be taken up just because of the formal committee comment. Miller noted it is important for IRRC and members to be proactive because if no comment is made after a certain time, the regulation cannot be changed or addressed. Rep. Gabler asked about the need for the concurrent resolution. Sumner explained the committee action to approve or disapprove is different from concurrent regulations, which he opined are rare. He said one was moved out of committee last session, with the only one before that in the 1990s.
Rep. O’Brien asked what happens with disapproval. Sumner noted disapproval before a meeting will be taken in to consideration and might result in agency disapproval. Rep. O’Brien asked if committee disapproval stops a regulation. Sumner explained the only way to bar a regulation is by concurrent resolution passed by both chambers. Miller said continued disapproval might result in a revised regulation or a pulled regulation that would require the agency to resubmit the regulation. Rep. O’Brien asked what IRRC’s budget is. Sumner said it is about $1.7 million. Rep. O’Brien expressed displeasure with IRRC and the process.
Rep. Roae asked when an agency proposes a regulation, who has the responsibility of making sure people know about it. He asked if agencies or IRRC proactively seek comment. Sumner said it is IRRC’s hope that agencies reach out to stakeholders. He added IRRC has a stakeholder list and will reach out to those that might be affected by a regulation, just to make sure they are not missed along the way.
Rep. Schlossberg asked what other regulatory review options are handled interdepartmentally or if IRRC is the only option reviewing the regulations. Sumner said IRRC is responsible for the Regulatory Review Act, but noted each regulation must go through the agencies required by the Commonwealth Document Law and Commonwealth Attorney Act. Rep. Schlossberg asked what IRRC does that is different. Sumner stated they provide public comment and additional independent review. Miller explained IRRC was created to provide independent review, which was not in place before IRRC was created.
Rep. Maloney expressed concern that regulations will not have legislative intent since they did not go through the legislative process. He asked how IRRC reviews regulations for constitutionality. Sumner noted every summer the Pennsylvania Bulletin publishes the governor’s regulatory agenda, but said IRRC does rely on people to bring up issues that IRRC may not know of or not have expertise in. Miller also detailed how a lot of authority is given to agencies to promulgate regulations in accordance with an Act. Rep. Maloney asked if keeping things at the policy level is a way around this process. Sumner noted if it should be done in regulation then it should go through the process, with litigation ensuing when this does not occur. He said if something is not done through regulation to give IRRC a head’s up. He also said committee’s have some power in this regard.
Rep. O’Brien asked about legislation to take away IRRC’s power to review education regulations. Sumner said he was not aware of this, but could research it and get back to the committee.
Rep. Moul asked if when it comes to vote for standing committee, if it would be enacted that standing committee should vote on regulations, would it be at the end or beginning of the process. Sumner said the opportunity right now for committee votes is at the final form stage, so adding that power would be logical at the final form stage. Rep. Moul noted there are two sides to every pancake and asked how it is determined which side is in the public interest. Sumner said the balancing is done by the commissioners of IRRC and said this is a difficult judgment to make. Rep. Moul asked if there is one elected official other than the governor that has to sign off on any regulation that is made. Sumner said the Attorney General has to sign off within 30 days.
Chairman Metcalfe asked, in the catch all disapproval, what the percentage of time is that IRRC has taken the committee disapproval into consideration. Miller explained there have been more disapprovals in the last two years than ever before, but noted this might be due to a change in the types and amount of regulations sent to IRRC. She also said the question might require a political answer, which she is not comfortable answering. Chairman Metcalfe noted if more disapproval has been in the last two years, how it can political if the governor has the most appointments. Sumner noted the question might lead to a political answer, not that the disapprovals were political. Chairman Metcalfe noted the legislature needs to have a stronger hand in promulgating regulations to ensure that regulations in furtherance of a piece of legislation do not go too far. He said the Executive Branch has far too much power in promulgating regulations.
House State Government Committee
01/23/13, 9:00 a.m., Room 60, East Wing
By Jason Gottesman, PLS
The House State Government Committee met to hold a public hearing on the review of the standing committee in the Regulatory Review Process.
David Sumner, Executive Director, Independent Regulatory Review Commission (IRRC), began the hearing by noting there will be another members session on February 7 in the Media Center giving an overview of IRRC. Sumner noted the committee was created 30 years ago to provide an independent view of regulations and was created in the face of agencies promulgating regulations that were seen as not in the public interest. He noted all regulations are reviewed by IRRC to see if they fall in line with the Regulatory Review Act and during the meetings, IRRC receives public testimony and also receives public comment prior to the consideration of the regulations. He indicated members of IRRC serve for terms of three years with all members appointed. He also said there is standing committee oversight of IRRC, where standing committees review regulations from agencies under their control.
Sarah Miller, IRRC Communications Manager, explained IRRC is a unique entity from all other state governments, and even the Federal government, in that an independent agency that reviews all regulations as a matter of process. She noted there is a two stage review process, the first being the proposed stage allowing comment for a 30 calendar day period for the public, and an additional 30 days for IRRC to comment. She said standing committee comments are requested as soon as possible. She then noted there is only specific criteria by which IRRC can disapprove a regulation, including it being out of line with legislative intent, objections of the standing committee, and a regulation being outside the statutory authority of the agency. She also said a regulation can be disapproved for lack of clarity, protection of the public welfare, whether legislative review will be required, and whether a regulation complies with the Regulatory Review Act.
Miller continued, noting that last session there were two new criteria to IRRC’s review. She explained in Act 60 of 2011 the agency must provide the standing committee and IRRC the acceptable data supporting the regulation. She also said in Act 76 of 2012, there has to be a determination of whether there is a less restrictive or less costly means of doing what the regulation intends for small businesses. Miller indicated the standing committee has some options at the proposed stage like holding hearings, meeting with the agency and IRRC staff, and meeting with the affected parties. She also said the standing committees can also comment on a proposed regulation.
Miller then discussed what happens for a final form regulation where the final form regulation is submitted to IRRC and the standing committees. She said while an agency is not required to change a regulation, they must respond to all comments and noted if they do not respond, it could be grounds for disapproval. Miller noted IRRC tries to hold two public voting meetings per month on action items and told the committee comments from standing committees are requested to be submitted as soon as possible. She said the standing committee can hold formal hearings on a regulation, approve, or disapprove a regulation. She said if no action is taken, the regulation is deemed approved. Miller also said the standing committee can notify IRRC of its intent to review the regulation after IRRC action. She further explained that a committee’s intent to dispute a regulation would cause a regulation to not be published. She said if IRRC approves a regulation that the standing committee disapproves or takes no action on, the commissioners must take the standing committee’s objections into consideration.
Miller explained IRRC has no authority to bar a regulation and said only the General Assembly can bar a regulation from being published. She said a regulation can only be stopped through concurrent resolution.
Moving on to individual legislator options in the regulatory review process, Miller said they include contacting the agency at the proposed or final form stage, asking IRRC to disapprove a regulation at the final form stage, asking IRRC to approve a regulation at the final form stage, and presenting views at a public meeting.
Rep. Gabler asked about IRRC’s statutory criteria for denying a regulation and asked if an individual legislator comments, that is a comment that can be taken under consideration, but only formal action by the committee can expand the objection into the catch all exception for denial. Sumner said he believes that is true and said IRRC tries to echo individual member’s comments. He said if IRRC does not comment on specific criteria and the committee raises something, it can be taken up just because of the formal committee comment. Miller noted it is important for IRRC and members to be proactive because if no comment is made after a certain time, the regulation cannot be changed or addressed. Rep. Gabler asked about the need for the concurrent resolution. Sumner explained the committee action to approve or disapprove is different from concurrent regulations, which he opined are rare. He said one was moved out of committee last session, with the only one before that in the 1990s.
Rep. O’Brien asked what happens with disapproval. Sumner noted disapproval before a meeting will be taken in to consideration and might result in agency disapproval. Rep. O’Brien asked if committee disapproval stops a regulation. Sumner explained the only way to bar a regulation is by concurrent resolution passed by both chambers. Miller said continued disapproval might result in a revised regulation or a pulled regulation that would require the agency to resubmit the regulation. Rep. O’Brien asked what IRRC’s budget is. Sumner said it is about $1.7 million. Rep. O’Brien expressed displeasure with IRRC and the process.
Rep. Roae asked when an agency proposes a regulation, who has the responsibility of making sure people know about it. He asked if agencies or IRRC proactively seek comment. Sumner said it is IRRC’s hope that agencies reach out to stakeholders. He added IRRC has a stakeholder list and will reach out to those that might be affected by a regulation, just to make sure they are not missed along the way.
Rep. Schlossberg asked what other regulatory review options are handled interdepartmentally or if IRRC is the only option reviewing the regulations. Sumner said IRRC is responsible for the Regulatory Review Act, but noted each regulation must go through the agencies required by the Commonwealth Document Law and Commonwealth Attorney Act. Rep. Schlossberg asked what IRRC does that is different. Sumner stated they provide public comment and additional independent review. Miller explained IRRC was created to provide independent review, which was not in place before IRRC was created.
Rep. Maloney expressed concern that regulations will not have legislative intent since they did not go through the legislative process. He asked how IRRC reviews regulations for constitutionality. Sumner noted every summer the Pennsylvania Bulletin publishes the governor’s regulatory agenda, but said IRRC does rely on people to bring up issues that IRRC may not know of or not have expertise in. Miller also detailed how a lot of authority is given to agencies to promulgate regulations in accordance with an Act. Rep. Maloney asked if keeping things at the policy level is a way around this process. Sumner noted if it should be done in regulation then it should go through the process, with litigation ensuing when this does not occur. He said if something is not done through regulation to give IRRC a head’s up. He also said committee’s have some power in this regard.
Rep. O’Brien asked about legislation to take away IRRC’s power to review education regulations. Sumner said he was not aware of this, but could research it and get back to the committee.
Rep. Moul asked if when it comes to vote for standing committee, if it would be enacted that standing committee should vote on regulations, would it be at the end or beginning of the process. Sumner said the opportunity right now for committee votes is at the final form stage, so adding that power would be logical at the final form stage. Rep. Moul noted there are two sides to every pancake and asked how it is determined which side is in the public interest. Sumner said the balancing is done by the commissioners of IRRC and said this is a difficult judgment to make. Rep. Moul asked if there is one elected official other than the governor that has to sign off on any regulation that is made. Sumner said the Attorney General has to sign off within 30 days.
Chairman Metcalfe asked, in the catch all disapproval, what the percentage of time is that IRRC has taken the committee disapproval into consideration. Miller explained there have been more disapprovals in the last two years than ever before, but noted this might be due to a change in the types and amount of regulations sent to IRRC. She also said the question might require a political answer, which she is not comfortable answering. Chairman Metcalfe noted if more disapproval has been in the last two years, how it can political if the governor has the most appointments. Sumner noted the question might lead to a political answer, not that the disapprovals were political. Chairman Metcalfe noted the legislature needs to have a stronger hand in promulgating regulations to ensure that regulations in furtherance of a piece of legislation do not go too far. He said the Executive Branch has far too much power in promulgating regulations.