In this blog series so far, we have talked a lot about the various aspects of the legislative process. In this article we will focus on the regulation process. When the legislature passes legislation, it is the executive branch agencies and departments that implement the new laws. The implementation of new laws is carried out through regulations that are instituted by the various agencies and departments. Some advocates rarely work with the regulation process, and others deal solely with regulations. Either way, it is important to understand how new laws take effect and the regulation process is a huge component to that.
In Connecticut, the regulation making process is governed by Chapter 54 of the General Statutes. Each regulation must be posted and available for public comment at the agency, reviewed by the Attorney General, and ultimately passed by the Regulations Review Committee. If at any point in the approval process a body takes no action, there is a statutory timeframe in which the body is deemed to have approved the regulation. In an effort to make the regulation process more transparent agencies are now required to post a notice of its intended action on the eRegulations System. The notice shall include (A) a specified public comment period of not less than thirty days, (B) a description sufficiently detailed so as to apprise persons likely to be affected of the issues and subjects involved in the proposed regulation, (C) a statement of the purposes for which the regulation is proposed, (D) a reference to the statutory authority for the proposed regulation, (E) when, where and how interested persons may obtain a copy of the small business impact and regulatory flexibility analysis required pursuant to section 4-168a, and (F) when, where and how interested persons may present their views on the proposed regulation. The agency shall prepare a fiscal note, including an estimate of the cost or revenue impact on the state or any municipality of the state, and on small businesses in the state, including an estimate of the number of small businesses subject to the proposed regulation.
The agency shall hold a public hearing on the proposed regulation if requested by fifteen persons, and if notice of the request is received by the agency not later than fourteen days after the date of posting of the notice by the agency on the eRegulations System. The agency shall consider fully all written and oral submissions respecting the proposed regulation, and revise the fiscal note in accordance with the provisions of subdivision (6) of subsection (a) of this section to indicate any changes made in the proposed regulation. On and after the certification date, each agency shall post the proposed regulation and all documents prepared by the agency pursuant to this subsection and subsection (a) of this section on the eRegulations System. Even if a public hearing is not held, the public still may submit written comments that will be posted on the eRegulations System.
When the General Assembly requires an agency to adopt regulations, the agency, not later than five months after the effective date of the public act or by the time specified in the public act, shall post on the eRegulations System notice of its intent to adopt regulations. The agency shall submit the required regulations to the standing legislative committee called “Regulation Review”. As provided in subsection (b) of section 4-170, the agency must submit to the committee not later than one hundred eighty days after posting the notice of its intent to adopt regulations, or electronically submit a statement of its reasons for failure to do so to the committee.
The Attorney General must approve the proposed regulation based on the legal sufficiency before the Regulation Review Committee can take action. Once the Attorney General has approved or provided no comments, after thirty days the regulation will progress for review by the Regulation Review Committee. The Committee is bipartisan with eight House members and four Senate members. The Regulation Review committee has the authority to hold hearings, approve, disapprove, or reject without prejudice any proposed regulations. If the Committee fails to take any action the regulation is deemed approved sixty five days after its submission.
The Regulations Review Committee can vote to disapprove the regulation, which prevents the agency from implementing any part of the proposal. If the proposal was required to implement a federally subsidized program, the General Assembly shall be required to vote on sustaining the rejection. There have been cases where a department has tried to revise and resubmit disapproved regulations, but the General Assembly has voted the second set of regulations should be treated as the first set was. The Committee may also reject a regulation without prejudice, in whole or in part. If a regulation was rejected without prejudice the regulation may be resubmitted to the Committee in the same manner as the initial submission. The Committee shall review the regulation no later than thirty-five days after submission, if no action is taken the regulation is deemed approved.
The Statutes do allow for agencies to pass emergency regulations if adoption of a regulation upon fewer than thirty days’ notice is required due to an imminent peril to the public health, safety or welfare. The emergency regulations must then go through the typical approval process, but maybe implemented while the approval process is ongoing.
Recently the General Assembly began to require agencies to review existing regulations. The agency shall work with the committee of cognizance to develop a timeline for review. The review shall consider how to reduce the existing regulations, which regulations are obsolete, any regulations inconsistent with the general statutes or federal law, and regulations that are no longer effective.
Fun Fact: The Regulation Review Committee is the only one of its kind amongst state legislatures in all fifty states! Furthermore, its constitutionality has been called into question as it is quite obviously a breach of the separation of powers between the executive and legislative branches of government. Many believe that the implementation of laws passed by the legislature is a responsibility vested solely in the executive branch. Connecticut’s Regulation Review Committee has skirted controversy by maintaining its strict bipartisan nature, and avoiding politicizing any measure that is before its body.