How the GCAs will move through the regulatory review process

The regulatory review process is a complex, two-part collection of activities that begins once the promulgating state agency gives initial approval. Most education regulations are created by the State Board of Education.

The process for adopting a final regulation in the commonwealth is governed by four separate statutes – the Administrative Code, the Commonwealth Attorneys Act, the Commonwealth Documents Law and the Regulatory Review Act.

All agencies under the jurisdiction of the governor are required by law to submit their proposed regulations to the Governor’s Office of General Counsel for a review of form and legality before the proposed regulations are published in the Pennsylvania Bulletin, the official gazette of the commonwealth. The Office of Attorney General also reviews most agency regulations for form and legality. After a regulation has been reviewed by these two offices and published as proposed rulemaking in the Pennsylvania Bulletin, the Independent Regulatory Review Commission and the appropriate standing committees in both the House and Senate become involved in the review process.

The duties of IRRC

The Regulatory Review Act of 1982 established both the regulatory review process and the Independent Regulatory Review Commission. IRRC reviews proposed and final regulations from Pennsylvania state agencies for consistency with the criteria contained in the Regulatory Review Act.

The “first and foremost” duties of the commission are to determine whether the agency has the statutory authority to promulgate the regulation, whether the regulation is consistent with the intent of the General Assembly and whether the regulation is in the public interest. The commission is required to consider comments from members of the General Assembly and relevant opinions from Pennsylvania’s courts in developing its view on these criteria.

The six remaining criteria IRRC must consider include: 1) economic or fiscal impact of a regulation on state and local governments and the private sector; 2) the protection of the public health, safety and welfare; 3) the clarity, feasibility and reasonableness of the regulation; 4) whether the regulation represents a policy decision of such a substantial nature that it requires a legislative review; 5) comments, objections or recommendations of a committee; and 6) compliance with the provisions of the Regulatory Review Act.

Proposed rulemaking: The first stage

Most regulations may not be adopted by an agency without the agency having first published notice of its intent to promulgate, amend or repeal any rule or regulation. This notice appears in the Pennsylvania Bulletin as a “Notice of Proposed Rulemaking.”

A formal public comment period begins at this time, typically for 30 days. However, the comment period may be shorter or longer depending upon individual circumstances. For complex rulemakings or those with far-reaching impact, an agency may conduct public hearings to elicit additional public input.

When an agency submits a Notice of Proposed Rulemaking for initial publication in the Pennsylvania Bulletin, the Regulatory Review Act requires the agency also to submit the proposed regulation to the IRRC and the designated standing committees of the General Assembly.

The Regulatory Review Act grants IRRC 30 days after the close of the public comment period to review a proposed regulation. Committees in the House and Senate may provide comments to IRRC and the agency at any time prior to the final stage of rulemaking. These groups may express comments, recommendations and objections about the rulemaking to the proposing agency.

However, it is important to remember that neither IRRC nor the committees have the authority to amend a regulation. They may submit recommendations for change during the first stage of the review process; in the final stage, they may only vote to approve or disapprove the regulation as submitted in its entirety.

The Regulatory Review Act requires the agency to consider the comments it receives. At that point, the agency also has an opportunity to amend its proposal to address issues of concern. The agency must take another vote on its proposal and resubmit the regulation to IRRC and the committees as “final form.”

Your opportunity to comment

During the proposed rulemaking stage, the public is encouraged to provide comment to those policymakers who will be considering the proposal – the promulgating agency, the standing committees of the Senate and House and IRRC.

Comments should be made during the public comment period specified when the proposal is published in the weekly Pennsylvania Bulletin and is posted at www.pabulletin.com. This accomplishes several things. First, it gives the committees and the IRRC the opportunity to review public comment before they make their own comments and recommendations for change to the agency. It also is an opportunity for you to state your position and suggested changes to the agency directly.

Your comment will be part of the public record and must be forwarded by the agency to the standing committees and the commission. The agency must provide a written response to your comment in its submittal of the final regulation.

IRRC accepts written comments on regulations by first-class mail, fax or e-mail. E-mailed comments should be addressed to irrc@irrc.state.pa.us. The commission’s mailing address is: 333 Market St., 14th Floor, Harrisburg, PA 17101. The fax number is (717) 783-2664.

Final-form rulemaking: the second stage

The final stage begins when a final-form regulation is delivered on the same date to IRRC and the committees. That submission is accompanied by a report on the comments received and explains revisions, if any, to the regulation that were made by the agency.

The regulation must be submitted in final form within two years from the close of the public comment period. If the proposing agency does not do so, the regulation is deemed withdrawn and the rulemaking ends.

 After final submission, IRRC must meet to approve or disapprove the proposed regulation. The commission cannot vote for at least 20 days in order for the committees to have an opportunity to review the regulation. The commission may have until its next meeting, which occurs no less than 30 days after receipt of the regulation, to take action. If the commission takes no action, or there is a tie vote, the regulation is deemed approved.

In addition, the committees also must vote on the proposed rule at any time up to 24 hours before the IRRC meeting. A committee can approve, disapprove or notify IRRC and the agency of its intent to review the regulation. If the committee does not act during the 14-day review period, the agency may proceed with the regulation.

During the 14-day review period, the committee can report out a concurrent resolution disapproving the regulation. The concurrent resolution then would have to be approved by both the full Senate and House and signed by the governor in order to permanently bar the regulation from becoming effective. If the governor vetoes the resolution, and the Senate and House override the veto, then the regulation is barred permanently.

If IRRC approves the regulation, the rule is submitted to the Office of Attorney General for a last review for form and legality and then published in the Pennsylvania Bulletin. The new regulation becomes effective on the date of publication.

If IRRC disapproves a regulation, the agency has three options: 1) it may revise the regulation and resubmit it for reconsideration within 40 days of receipt of the disapproval order; 2) it may resubmit the regulation, without revision; or 3) it may withdraw the proposal.

A regulation is formally adopted when it is published in the Pennsylvania Bulletin. Subsequently, the new rule will be added to the Pennsylvania Code.

The length of time involved for a regulation to go from creation to being finally effective varies: it can be as short as approximately 90 days or longer than two years. These timeframes are minimum and maximum periods, which do not include how long it takes an agency to initially create a regulation.

When concensus cannot be reached

The basic rule is that a final-form regulation cannot be amended after it is submitted to IRRC and the committees. However, in instances where it appears that additional work is necessary before a consensus for approval can be attained, the Regulatory Review Act provides some flexibility for the agency to reconsider the comments and recommendations received and make changes. Remaining concerns and questions can be addressed and a final-form regulation can be further modified using these options.

Tolling the time for review – The process allows for a procedure called “tolling the time for review” that is sometimes used before the final stage is complete. Tolling allows an agency to request a 30-day “hold” in the process to make changes to a final regulation after it has been submitted to IRRC and committees. The agency may make only those changes recommended by IRRC and/or committees. Tolling may only occur prior to the expiration of the standing committees’ 20-day review period. Review of the regulation will resume when the agency delivers to IRRC and the committees, within the 30-day tolling period, either the revised regulation or written notification that the regulation will not be revised. If the agency does not meet this 30-day deadline, the regulation is deemed withdrawn.

The option to toll the time for review is limited. First, the opportunity to toll the review period exists only until either one of the committees act or IRRC’s review period expires, whichever occurs first. This ensures that both committees and IRRC act on the exact same version of the regulation. Second, tolling allows the agency to consider only those revisions recommended by IRRC or a committee. Third, tolling is permitted only if IRRC does not object. If the commission objects, the review of the regulation continues and tolling cannot occur. The final review period can be tolled only once.

Withdrawing the regulation – A second option to an agency is to voluntarily withdraw the regulation to address related concerns. An agency may notify the committees and IRRC that it is withdrawing a regulation before IRRC’s public meeting or at any time in the review process. Final-form regulations may be submitted again at a later date as long as it is within two years of the close of the public comment period, and the agency again must provide each person who requested notice with a copy of the regulation or a summary of the changes made.

The withdrawl of a regulation is at the discretion of the agency. In addition, the reason or purpose of the withdrawl is in the hands of the agency. It may want to re-examine the regulation. The withdrawl may serve the same purpose as the tolling and provide extra time for the agency to consider revisions.