PROPOSED RULEMAKING
INDEPENDENT REGULATORY REVIEW COMMISSION
[1 PA. CODE CHS. 101, 201, 301, 303, 305, 307, 309, 311, 313 AND 315]
Implementation of the Regulatory Review Act
[29 Pa.B. 980] The Independent Regulatory Review Commission (IRRC) proposes to amend its regulations in 1 Pa. Code by deleting Chapters 101 and 201 in their entirety and by adding Chapters 301, 303, 305, 307, 309, 311 and 315.
These proposed amendments will delete IRRC's regulations promulgated under the Regulatory Review Act as originally enacted, the act of June 25, 1982 (P. L. 633, No. 181). Because the subsequent reenactment and amendments drastically changed the structure of the review process, the existing regulations are largely inapplicable and unenforceable. For this reason, IRRC is deleting them in their entirety rather than amending them.
Embargoed material is covered in these proposed amendments. Therefore, IRRC is also deleting in its entirety the Statement of Policy in Chapter 201 (relating to embargoed material).
Statutory Authority
These amendments are proposed under the authority contained in section 11 of the Regulatory Review Act (act) (71 P. S. § 745.11).
Background
These proposed amendments will implement the act of June 25, 1997 (P. L. 252, No. 24) (Act 24) amendments to the act. These proposed amendments respond to administrative and procedural concerns that have continually surfaced since the previous revision of the act in 1989. The legislative intent of the act and the mission of IRRC remain the same. However, the process has been streamlined and made more flexible, saving both the regulators and the regulated time and money.
The major changes brought about by Act 24 amendments are as follows:
* Define terms that are widely used in the review process to insure their consistent application.
* Eliminate the responsibility of agencies to send copies or summaries of a final-form regulation to all parties who commented on the proposed regulation. Now agencies are only obliged to send this material to commentators who specifically request it.
* Allow the agency to toll the review process to make changes recommended by IRRC or the standing committee of the House or Senate designated to review the agency's regulations (committee).
* Reduce the blackout period from 72 hours to 48 hours.
* Establish uniform procedures for the submittal and review of regulations and reports immediately prior to and after the adjournment sine die of the General Assembly or the expiration of the legislative session in even numbered years.
* Modify the time line for IRRC review of regulations to insure that IRRC has at least 10 days to consider committee comments and action.
* Restrict IRRC from reviewing an existing regulation that has been in effect for less than 3 years.
Purpose
The purpose of this proposal is twofold. First, it will delete obsolete regulations designed to implement the original version of the act that is no longer in effect. Second, it will implement the latest revision to the act.
Summary of Amendments
Chapter 301 (relating to general provisions) sets forth the general provisions relating to IRRC's operation.
* Section 301.1 (relating to definitions) cross references terms defined in the act and defines additional commonly used terms and phrases to insure their consistent application. Terms and phrases defined in this section include: ''blackout period,'' ''deemed approved,'' ''delivery,'' ''embargoed material,'' ''end of legislative session,'' ''existing regulation,'' ''face sheet,'' ''final regulation,'' ''form letters,'' ''LRB,'' ''order,'' ''public meeting,'' ''regulatory analysis form,'' ''regulatory review criteria,'' ''staff review meeting,'' ''Sunshine Act'' and ''transmittal sheet.''
* Section 301.2 (relating to regulation files) implements section 5.1(k) of the act (71 P. S. § 745.5.a(k)), which provides that IRRC shall retain public records on regulations for 4 years after promulgation. This provision: (1) clarifies IRRC's timetable for retaining files of regulations which are withdrawn or deemed withdrawn, or final regulations that have not been promulgated; (2) lists the materials that are retained in the public files; and (3) provides that after IRRC takes final action on a regula-tion, the file will be closed, and only documents addressed to IRRC will be included in a closed file.
* Section 301.3 (relating to determination of date and time of delivery) establishes how IRRC determines and confirms the date and time of delivery of documents.
* Section 301.4 (relating to expiration of time period for delivery) establishes how IRRC will determine when the committee and IRRC review periods expire. Generally, if the allotted time ends on a day when IRRC or committee is closed because of a holiday, weekend or an emergency, the review period is extended to the first business day thereafter.
* Section 301.5 (relating to expiration of committee and Commission review periods) provides that the person receiving a regulation on behalf of a committee or the Attorney General must sign with a full name and not initials. This provision is designed to prevent confusion as to whether a regulation was properly delivered.
* Section 301.6 (relating to signature on transmittal sheet) provides direction to the agency when a regulation is inadvertently delivered to the wrong committee.
* Section 301.7 (relating to delivery of a regulation to the wrong committee) describes the effects of a withdrawal or deemed withdrawal of a regulation.
* Section 301.8 (relating to withdrawal of a regulation) requires an agency to designate a contact person to receive documents transmitted by IRRC.
* Section 301.9 (relating to agency contact person) implements section 11(c) of the act (71 P. S. § 745.11(c)). It establishes when and how IRRC may conduct a public meeting.
Chapter 303 (relating to meetings of the Commission) describes how IRRC meetings will be conducted.
* Section 303.1 (relating to notice of Commission staff review and public meetings; participation; minutes) provides that IRRC will: (1) give notice of and conduct its meetings in accordance with the Sunshine Act (65 P. S. §§ 271--286); and (2) notify an affected agency and committees of a rescheduled meeting, in accordance with section 4(h) of the act (71 P. S. § 745.4(h)).
* Section 303.2 (relating to blackout period) outlines IRRC's handling of documents received during the blackout period.
* Section 303.3 (relating to quorum) implements section 4(i) of the act. It provides that three members of IRRC must be physically present to constitute a quorum. Once a quorum is present, the remaining members of IRRC may participate and vote by teleconference or proxy.
* Section 303.4 (relating to proxy voting) establishes the procedures for proxy voting. It provides that the proxy shall be: (1) in writing, signed by the Commissioner, and addressed to the Chairperson at IRRC's office address; and (2) delivered by first class mail or facsimile, prior to the commencement of the public meeting. The Commissioner must file a separate proxy for each vote. The chairperson or a delegate will present the proxy at the time of the vote on the regulation, and the proxy will be recorded as the Commissioner's vote.
Chapter 305 (relating to delivery of a proposed regulation) implements section 5 of the act (71 P. S. § 745.5). It outlines the procedures for delivery and review of proposed regulations.
* Section 305.1 (relating to delivery of a proposed regulation) provides that an agency shall deliver a proposed regulation on the same date to IRRC, committees and LRB, lists the material which must accompany the regulation, and incorporates the uniform sine die provisions in section 5(f) of the act if delivery is precluded due to the end of the legislative session.
* Section 305.2 (relating to delivery of comments and information by an agency) outlines the agency's responsibility for delivering comments it has received to IRRC and committees.
* Section 305.3 (relating to Commission review period) provides that IRRC has 10 days after the expiration of the committee review period to complete its review of the regulation.
* Section 305.4 (relating to Commission comments on a proposed regulation) outlines the procedure for IRRC delivery and agency receipt of IRRC's comments. It provides that if IRRC has not objected to a provision in the proposed regulation, subsequent disapproval of the final-form regulation may only be based on changes made to the proposed regulation, or recommendations from a committee.
Chapter 307 (relating to procedures for delivery and review of final regulations) implements section 5.1 of the act. It outlines the procedures for delivery of final-form and final-omitted regulations.
* Section 307.1 (relating to two-year period for promulgation) requires an agency to deliver a final-form regulation within 2 years of the close of the public comment period. If an agency does not meet this deadline, the regulation is deemed withdrawn.
* Sections 307.2 and 307.3 (relating to delivery of a final-form regulation; and delivery of a final-omitted regulation) provide for the delivery of final-form regulations, lists the materials which must accompany the regulation, and incorporates uniform sine die provisions in section 5.1(f) of the act, if delivery is precluded due to the end of the legislative session.
* Section 307.4 (relating to tolling the review period) outlines the procedures to be followed by an agency and IRRC if the agency tolls the review period. It also establishes how IRRC calculates the resumption of the review period after the tolled regulation has been delivered.
* Section 307.5 (relating to procedure for tolling) provides that: (1) IRRC has 10 days for review after the expiration of the committee review period; (2) IRRC's review period may be extended if Commission action is precluded due to lack of a quorum; and (3) IRRC will consider all comments received in determining whether a regulation meets the regulatory review criteria.
Chapter 309 (relating to action on regulations) implements section 6 of the act (71 P. S. § 745.6). It outlines the actions IRRC and committees may take on regulations, and the results of specific actions.
* Section 309.1 (relating to Commission and committee action on a final regulation) provides that if IRRC and committees approve or are deemed to have approved a regulation, the agency may proceed with promulgation. This provision also outlines what must occur in order for a regulation to be deemed approved.
* Section 309.2 (relating to Commission approval/committee disapproved of a final regulation) provides that if IRRC approves a regulation, which a committee has disapproved, IRRC must notify the disapproving committee within 2 business days of its approval.
Chapter 311 (relating to procedures for review of disapproved final regulations) outlines the procedures for subsequent review of disapproved final-form and final-omitted regulations.
* Section 311.1 (relating to Commission disapproval of a final regulation) implements section 6(a) and (b) of the act. It provides that IRRC's disapproval order will: (1) specify the review criteria which the regulation failed to meet; (2) be delivered to the LRB, committees and agency; and (3) bar the agency from promulgating the regulation until subsequent IRRC and committee review is completed.
* Section 311.2 (relating to response by an agency to Commission disapproval) implements section 7(a) and (a.1) of the act (71 P. S. § 745.7(a) and (a.1)). It requires the agency to notify IRRC and committees within 7 days whether the agency will withdraw, resubmit without revision or revise a disapproved regulation. This provision cross references section 7(a.1) of the act if the agency is precluded from delivering its notification because of the end of the legislative session.
* Section 311.3 (relating to subsequent review of regulation without revisions or modifications) implements section 7(b) of the act. It provides for: (1) agency delivery of a report to the committees if the agency decides to resubmit a disapproved regulation without revision; (2) materials the report must contain; (3) the time period for committee review of the report; and (4) a cross reference to section 7(d) of the act, which outlines the concurrent resolution process.
* Section 311.4 (relating to delivery of regulation with revisions) implements section 7(c) of the act. It provides for: (1) agency delivery of a report to IRRC and committees if the agency decides to revise and resubmit the regulation; (2) material that the report must contain; (3) the time period for IRRC and committee review of the report; and (4) a cross reference to section 7(d) of the act, which outlines the concurrent resolution process.
Chapter 313 (relating to emergency certified regulations) implements section 6(b) the act. It outlines the procedures for the delivery and review of emergency certified regulations.
* Section 313.1 (relating to general) describes when and how an agency may submit a final-form or final-omitted regulation certified as an emergency by either the Governor or Attorney General.
* Section 313.2 (relating to review of an emergency certified final regulation) establishes that an emergency certified regulation takes effect immediately upon publication in the Pennsylvania Bulletin. If disapproved, the regulation will be rescinded after 120 days or upon final disapproval under section 7(d) of the act, whichever occurs later. This provision also incorporates the statutory and regulatory tolling provisions.
Chapter 315 (relating to existing regulations and unpublished documents) outlines the procedures for review of existing regulations and statements of policy.
* Section 315.1 (relating to review of an existing regulation) implements section 8.1 of the act (71 P. S.§ 745.8a). It provides that: (1) IRRC may review an existing regulation which has been in effect for at least 3 years; (2) if warranted, IRRC will notify the agency of issues raised and request a response; and (3) after a review of all pertinent material, IRRC will issue a report to the agency, committees, Governor and Attorney General setting forth its findings and recommendations.
* Section 315.2 (relating to review of an unpublished document) implements section 7.1 of the act (71 P. S. § 745.7a). It provides that if IRRC finds a published or an unpublished document should be promulgated as a regulation, it may present the matter to the Joint Committee on Documents.
Fiscal Impact and Paperwork Requirements
These proposed amendments do not create a negative fiscal impact or an increased paperwork requirement. In fact, allowance for electronic and facsimile transmission of documents will reduce paperwork.
Contact Person
These proposed amendments are published on IRRC's website at www.irrc.state.pa.us. Written comments, suggestions or objections will be accepted for 45 days after publication of these proposed amendments in the Pennsylvania Bulletin. IRRC invites comments from the General Assembly, executive and independent agencies and all interested parties. Comments and questions may be referred to Mary S. Wyatte, Chief Counsel, Independent Regulatory Review Commission, 333 Market Street, 14th Floor, Harrisburg, PA 17101, (717) 783-5417.
Comments may also be faxed to (717) 783-2664 or e-mailed to irrc@irrc.state.pa.us.
Alternative means of providing public comments and alternative formats of the proposed amendments, such as large print or cassette tape, may be made available to persons with disabilities upon request by calling Kristine M. Shomper at (717) 783-5417.
Regulatory Review
Under sections 5(a) and 11(a) of the act, IRRC submitted a copy of these proposed amendments on February 9, 1999, to the Joint Committee on Documents, the House State Government Committee and Senate Rules and Executive Nominations Committee. In addition to submitting the proposed amendments, IRRC has provided the Joint Committee on Documents and the committees with a copy of a completed Regulatory Analysis Form. A copy of this material is available to the public upon request.
If the Committees have any objection to these proposed amendments, they will notify IRRC by 20 days after the expiration of the public comment period. If the Joint Committee on Documents has any objections, it will notify IRRC by 10 days after the close of the Committees' review period. The notification shall identify any portion of the regulation which does not meet the regulatory review criteria and specify the regulatory review criteria which has not been met by that portion. The Regulatory Review Act specifies detailed procedures for review by the Joint Committee on Documents, Governor and General Assembly prior to promulgation of the regulations.
JOHN R. MCGINLEY, Jr.,
ChairpersonFiscal Note: 70-6. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 1. GENERAL PROVISIONS
PART III. INDEPENDENT REGULATORY REVIEW COMMISSION
CHAPTER 101. [PRACTICE AND PROCEDURE] (Reserved) §§ 101.1--101.11. (Reserved).
CHAPTER 201. [EMBARGOED MATERIAL--STATEMENT OF POLICY] (Reserved) §§ 201.1--201.3. (Reserved).
CHAPTER 301. GENERAL PROVISIONS Sec.
301.1. Definitions. 301.2. Regulation files. 301.3. Determination of date and time of delivery. 301.4. Expiration of time period for delivery. 301.5. Expiration of committee and Commission review periods. 301.6. Signature on transmittal sheet. 301.7. Delivery of a regulation to the wrong committee. 301.8. Withdrawal of a regulation. 301.9. Agency contact person. 301.10. Procedure for public hearings. § 301.1. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Act--The Regulatory Review Act (71 P. S. §§ 745.1--745.15).
Agency--As defined in section 3 of the act (71 P. S. § 745.3).
Blackout period--The 48-hour period immediately preceding the call to order of the staff review meeting.
CDL--Commonwealth Documents Law--As defined in section 3 of the act.
Commission--As defined in section 3 of the act.
Committee--As defined in section 3 of the act.
Commonwealth Attorneys Act--As defined in section 3 of the act.
Commonwealth Documents Law--As defined in section 3 of the act.
Deemed approved--The approval of a regulation by operation of law when the committees or the Commission have not approved or disapproved the regulation by majority vote.
Delivery--
(i) The deposit of regulations, correspondence or other documents with the Commission through postal or other delivery service, hand delivery, electronic mail (e-mail) or facsimile.
(ii) The deposit of orders, comments, correspondence or other documents with agencies, committees or other parties through postal or other delivery service, hand delivery, e-mail or facsimile.
Embargoed material--Documents pertaining to a regulation on the agenda for the Commission's public meeting delivered during the blackout period by any person or entity, except documents from the committee or a member of the committee.
End of legislative session--The adjournment sine die or the expiration of the legislative session in an even-numbered year.
Existing regulation--An enforceable regulation codified in the Pennsylvania Code.
Face sheet--A form accompanying a regulation for filing documents with the LRB, completed in accordance with the regulations of the Joint Committee on Documents. See 1 Pa. Code § 13.12 (relating to requirements as to form and size).
Final regulation--A final-form or final-omitted regulation.
Final-form regulation--As defined in section 3 of the act.
Final-omitted regulation--As defined in section 3 of the act.
Form letters--Letters which contain verbatim text.
LRB--The Legislative Reference Bureau of the Commonwealth.
Order--The statement of the Commission's findings and action on a final regulation, which is not subject to appeal.
Promulgate--As defined in section 3 of the act.
Proposed regulation--As defined in section 3 of the act.
Public meeting--The public session on a scheduled meeting day at which the Commission takes formal action on a regulation.
Regulation--
(i) A rule or regulation, or order in the nature of a rule or regulation, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency or amending, revising or otherwise altering the terms and provisions of an existing regulation, or prescribing the practice and procedure before the agency.
(ii) The term also includes actions of the Liquor Control Board which have an effect on the discount rate for retail licenses.
(iii) The term does not include a proclamation, executive order, directive or similar document issued by the Governor but does include a regulation which may be promulgated by an agency, only with the approval of the Governor.
Regulatory analysis form--The form accompanying a regulation that contains the information required under section 5(a) of the act (71 P. S. § 745.5(a)).
Regulatory review criteria--The criteria delineated in section 5.1(h) and (i) of the act (71 P. S. § 745.5a(h) and (i)).
Staff review meeting--The public session on a scheduled meeting day at which the Commission staff briefs the Commissioners on the regulations scheduled for action at the public meeting.
Sunshine Act--65 P. S. §§ 271--286.
Transmittal sheet--The form accompanying a regulation which lists the regulation number, the title of the regulation, the agency promulgating the regulation, the type of regulation, the date of delivery and the signatures of the persons receiving the regulation on behalf of the committees, the Commission, the Attorney General (for final-omitted regulations) and the LRB.
Withdrawal--As defined in section 3 of the act.
§ 301.2. Regulation files.
(a) The Commission will retain regulation files in accordance with the following schedule:
(1) Promulgated regulations. Four years after the date of promulgation.
(2) Withdrawn or deemed withdrawn regulations. Four years after the date of delivery of the proposed or final-omitted regulation to the Commission.
(3) Final regulations which are not promulgated. Four years after the date of delivery to the Commission.
(b) The files shall include the following materials:
(1) The original regulatory analysis form and the original regulation.
(2) Documents received, including comments, correspondence from the Attorney General, correspondence from the agency, transcripts and manuals.
(3) Subpoenas.
(4) Correspondence from the Commission.
(5) Commission comments.
(6) Commission orders.
(c) After the Commission takes final action on a regulation under sections 6(a) or 7(c) of the act (71 P. S. §§ 745.6(a) and under 745.7(c)), the Commission's regulation file will be closed. Only correspondence and documents addressed to the Commission or directed to the Commission's attention will be added to a closed regulation file.
(d) Upon request, a person may examine or copy the materials contained in the regulation files during the Commission's normal business hours.
(e) The Commission may charge a reasonable fee for copies of material contained in a regulation file.
§ 301.3. Determination of date and time of delivery.
(a) The Commission will determine the date and time of delivery of documents as follows:
(1) E-mail. As indicated on the Commission's computer system.
(2) Fax. As indicated on the transmittal report generated by the Commission's facsimile machine.
(3) Postal or other delivery service. As indicated on the Commission's time and date stamp.
(4) Hand delivery. As indicated on the Commission's time and date stamp.
(b) If the sender requests confirmation of delivery of a hand-carried document, the sender shall include an additional copy of the first page. The Commission will stamp the copy with the date and time of delivery and return it to the sender. If the sender requests confirmation of a document delivered through the postal or another delivery service, the sender shall include an additional copy of the first page and a stamped, self-addressed envelope. The Commission will stamp the additional copy with the date and time of delivery and mail it to the sender.
(c) If the sender requests confirmation of delivery of an e-mailed or faxed document, the Commission will fax or e-mail confirmation of delivery to the sender.
(d) The sender shall have the responsibility to obtain confirmation that a document was delivered prior to the blackout period.
(e) The Commission will stamp the date and time of delivery of a regulation on the transmittal sheet and on the regulatory analysis form.
§ 301.4. Expiration of time period for delivery.
(a) The time period for an agency to deliver a regulation or report to the Commission or a committee will expire on the first business day after the expiration day established in the act or this part if that day is one of the following:
(1) A legal holiday.
(2) Declared a holiday by the Office of Administration.
(3) A day on which Commonwealth offices located in Harrisburg are closed due to emergency circumstances.
(4) A day on which the staff offices of the Senate or House of Representatives are officially closed.
(5) A Saturday or Sunday.
(b) A part-day holiday is considered a normal business day and not a day that would require the extension of a time period for delivery.
§ 301.5. Expiration of committee and Commission review periods.
(a) A committee review period will expire the first business day after the expiration day established under the act or this part if that day is one of the following:
(1) A legal holiday.
(2) Declared a holiday by the Office of Administration.
(3) A day on which Commonwealth offices located in Harrisburg are closed due to emergency circumstances.
(4) A day on which the staff offices of the Senate or House of Representatives are officially closed.
(5) A Saturday or Sunday.
(b) The Commission review period will expire on the first business day after the expiration day established under the act or this part if that day is one of the following:
(1) A legal holiday.
(2) Declared a holiday by the Office of Administration.
(3) A day on which Commonwealth offices located in Harrisburg are closed due to emergency circumstances.
(4) A Saturday or Sunday.
(c) A part-day holiday is considered a normal business day and not a day that would require the extension of a committee or Commission review period.
§ 301.6. Signature on transmittal sheet.
The person receiving a regulation on behalf of a committee chairperson, the Attorney General or the LRB shall sign the transmittal sheet with his full name. The Commission will not accept initials to indicate delivery of a regulation.
§ 301.7. Delivery of a regulation to the wrong committee.
(a) Immediately upon discovery that the agency has delivered a regulation to a committee other than a committee as defined in § 301.1 (relating to definitions), the agency shall deliver the regulation to the designated committee.
(b) The agency shall deliver a regulation to the designated committee in accordance with the following:
(1) A proposed regulation. See § 305.1 (relating to delivery of a proposed regulation).
(2) A final-form regulation. See § 307.2 (relating to delivery of a final-form regulation).
(3) A final-omitted regulation. See § 307.3 (relating to delivery of a final-omitted regulation).
(c) The agency shall deliver the signed transmittal sheet to the Commission on the same date that the agency delivers the regulation to the designated committee.
(d) With the delivery of a proposed regulation to the designated committee, the agency shall include all comments received since the beginning of the public comment period.
(e) The review period of the designated committee will begin as follows:
(1) For proposed regulations, the day after the close of the public comment period or the day after delivery, whichever is later.
(2) For final regulations, the day after delivery.
§ 301.8. Withdrawal of a regulation.
(a) If an agency withdraws or is deemed to have withdrawn a regulation, the Commission and the committees will cease their review of the regulation and will not take further action on the regulation.
(b) If the agency withdraws a proposed regulation, but subsequently desires to proceed with promulgation, the agency shall deliver a new proposed regulation in accordance with § 305.1 (relating to delivery of a proposed regulation).
(c) If the agency withdraws a final-form regulation after delivery to the Commission, but subsequently desires to proceed with promulgation, the agency may deliver a new final-form regulation in accordance with § 307.2 (relating to delivery of a final-form regulation), within 2 years from the close of the public comment period.
(d) If the agency desires to proceed with promulgation of a withdrawn regulation but does not submit a new final-form regulation within 2 years from the close of the public comment period, the agency shall deliver a new proposed regulation.
§ 301.9. Agency contact person.
An agency shall notify the Commission, in writing, of the name, title, address, telephone number and facsimile number of the agency representative designated to receive comments, orders, embargoed material and other documents, which the Commission delivers by facsimile or e-mail to the agency. Delivery is deemed made if sent by facsimile or e-mail to the designated agency representative.
§ 301.10. Procedure for public hearings.
(a) The Commission may schedule public hearings on matters that are related to a proposed, a final or an existing regulation under review.
(b) Notice of a public hearing will be published in accordance with the Sunshine Act. The notice will include the date and time of the public hearing, the subject matter of the public hearing and the address where the public hearing will take place.
(c) The chairperson will designate a hearing officer to preside at the public hearing. The hearing officer will be charged with preserving order during the public hearing. The hearing officer may determine the agenda, the order of commentators and the time allotted to each commentator.
(d) When participating at a public hearing, commentators shall bring 10 written copies of their comments and supporting documents to the Commission.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
