PA 16-58—sHB 5498

Government Administration and Elections Committee

AN ACT REVISING THE REGULATION REVIEW PROCESS

SUMMARY: This act makes the following changes to the Uniform Administrative Procedure Act (UAPA), which governs the regulation adoption process for state agencies:

1. transfers, from the Regulation Review Committee to state agencies' legislative committees of cognizance, responsibility for conducting periodic reviews of agencies' existing regulations;

2. makes minor changes to certain deadlines and effective periods associated with emergency regulations;

3. adds to the circumstances in which agencies may propose amendments to regulations without prior notice or public comment; and

4. modifies provisions concerning the agencies' (a) posting of notices of proposed regulations on the eRegulations System, (b) delivery of the notices to certain interested parties, and (c) responses to public comments.

The act also makes technical and conforming changes.

EFFECTIVE DATE: Upon passage, except that provisions on (1) notifying persons that request advance notice of proposed regulations are applicable to regulations noticed on or after January 1, 2017; (2) responses to public comment and submission to the attorney general are effective January 1, 2017 and applicable to regulations noticed on or after that date; and (3) emergency regulations and technical amendments, as well as a technical change ( 3), are effective October 1, 2016.

4 — REVIEWS OF EXISTING REGULATIONS

Prior law required the Regulation Review Committee to establish, every five years, a date by which each state agency had to submit to the committee a review of the agency's existing regulations. The committee had to establish the date in consultation with each agency. The act instead requires (1) the agencies' committees of cognizance to establish these dates and conduct these reviews and (2) that these dates be established every seven years, rather than every five. The committees of cognizance must notify the Regulation Review Committee administrator of the dates and any extensions.

The act requires agencies and the committees of cognizance to establish these dates by July 1, 2017. It allows the committees to establish a schedule of dates to review various portions of the regulations upon agreement with an agency's administrative head.

Review Requirements

The act retains existing law's provisions on the review's requirements and makes conforming changes that give the committees of cognizance authority over the review By law, the review must include (1) recommendations for reducing regulations' number and length; (2) determinations on whether they are obsolete, unused, inconsistent with other laws, no longer effective, or the subject of written complaints; and (3) recommendations regarding extraordinary circumstances warranting their waiver. Agencies must submit the review to the committee of cognizance and the Regulation Review Committee's administrator.

Under prior law, the Regulation Review Committee and the committee of cognizance had to conduct a joint public hearing on the agency's review. The act eliminates the requirement that the Regulation Review Committee take part in the hearing. It also extends (1) from 30 days after the agency's submission to 90 days after the submission, the deadline by which the committee of cognizance must hold the hearing and (2) from five days before the hearing to 15 days before the hearing, the deadline by which copies of the review must be made available to the public.

The act also makes conforming changes by eliminating the Regulation Review Committee's role in certain post-hearing procedures. For example, under the act, the committee of cognizance, instead of the Regulation Review Committee (1) may ask an agency to initiate the UAPA's process for amending or repealing an existing regulation when legislative action is not required and (2) must consider any recommendation by the agency requiring legislative action. The committee of cognizance may also conduct its own review of the agency's regulations if the agency did not, in the committee's judgment, conduct a satisfactory review.

1 & 2 — EMERGENCY REGULATIONS

By law, an agency may adopt an emergency regulation either without prior notice and hearing or with an abbreviated notice and hearing process. Under prior law, an emergency regulation was effective for up to 120 days, but the agency could extend this period for up to an additional 60 days by posting a notice on the eRegulations system and notifying the Regulation Review Committee. The act instead makes emergency regulations effective for up to 180 days from the date they are approved and posted online, with no extensions permitted (except as described below).

Under existing law and the act, the Department of Energy and Environmental Protection's (DEEP) emergency regulations on fishery management and marine resources emergencies may be extended for an additional 60 days after the end of the 180-day period. The act requires DEEP to submit requests for these extensions to the Regulation Review Committee at least 15 days before the regulation expires, rather than 10 days before as prior law required. The act also changes, from 10 business days to 15 calendar days, the time that the Regulation Review Committee has to act on a proposed emergency regulation. By law, an emergency regulation is deemed approved if the committee does not act on it within the specified timeframe.

By law, regulations (including emergency regulations) are generally effective when the secretary of the state posts them on the eRegulations system. The act eliminates an exception in prior law that allowed emergency regulations to become effective upon submission to the secretary if the agency found it necessary because of imminent peril to public health, safety, or welfare.

1 — TECHNICAL AMENDMENTS

Under the UAPA, the regulation-adoption process generally requires notice of the proposed regulation and the opportunity for public comment. However, agencies may propose, without prior notice or hearing, (1) technical amendments to regulations when necessary to conform to certain changes (e. g. , a change to the agency's name) or (2) a repeal of a regulation if the authorizing statute is repealed. The act allows an agency to also use this expedited process to (1) amend an existing regulation solely to conform it to amendments to state law, as long as the amendment to the regulation does not involve any agency discretion; (2) update or correct contact information contained in the regulation; or (3) correct spelling, grammar, punctuation, formatting, or typographical errors.

5-9 — NOTICES OF PROPOSED REGULATIONS

Notice to Interested Parties ( 5-6 & 9)

By law, agencies seeking to adopt regulations must post notice of their intent on the eRegulations System at least 30 days before adoption. Prior law required agencies to provide electronic or paper copy notice of the intent to every person that had requested advance notice of their regulation-making proceedings.

The act eliminates this requirement beginning January 1, 2017 and instead requires agencies to mail a paper copy only to persons that request advance notice on or after October 1, 2016. The agency must mail the notice no later than five days after posting it on the eRegulations System. The act also requires that the eRegulations System enable members of the public to request and receive an electronic notification when an agency posts a notice of intent to adopt regulations.

The act requires agencies, by September 1, 2016, to provide the Office of Policy and Management (OPM) with the email or mailing address, as applicable, of each person that has requested notice of regulation-making proceedings. By October 1, 2016, OPM must notify each of these persons that, on and after January 1, 2017, the notice of intent will be provided (1) electronically on the eRegulations System or (2) by mail to any person that submits a written request to the agency. Notices delivered by mail must include instructions on how to subscribe to electronic notifications on the eRegulations System.

Responses to Public Comment and Submission to the Attorney General ( 7-8)

By law, an agency must post on the eRegulations System a notice that states whether the agency has decided to move forward with a proposed regulation. The act eliminates a requirement that the agency send this notice to anyone that submitted written or oral comments on the proposed regulation. It instead requires the agency to distribute to these persons only the agency's response to comments it received. It must send the response electronically to anyone that provided a valid email address and mail a copy to each person that specifically requested a paper copy on or after January 1, 2017.

Under prior law, the agency had to also post on the eRegulations System statements of the principal reasons (1) in support of its intended action and (2) in opposition to its intended action, as urged in written or oral comments on the proposed regulation, and its reasons for rejecting these considerations. The act specifies that the agency must post these statements only if it receives comments on the proposed regulation.

The act also eliminates a requirement that the agency post the final wording of the proposed regulation on the eRegulations System before it submits the regulation to the attorney general for approval. It instead requires the agency to post on the system the version it submits to the attorney general, presumably at the same time as the submission.

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