Regulating Regulations

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During the gubernatorial campaign, Governor Patrick promised that if he were reelected, he would borrow some ideas from Charlie Baker. One particular idea that he should consider adopting is Baker’s proposed review and reform of regulatory procedures.

When Congress and state legislatures enact laws, they authorize certain agencies to fill in gaps in the legislation by issuing regulations that clarify and expand on various legislative provisions. For instance, in Massachusetts, agencies have issued regulations ranging from rules regarding the manufacture of ice cream to procedures governing the licensure of optometrists. (Regulations are available on the state’s website organized by topic.) Lawmakers authorize agencies to issue regulations for several reasons: Agency staffers have greater expertise in a given area than lawmakers do. Legislators simply do not have enough time to parse through all of the details that regulations are intended to cover. Laws are generally easier to pass when they contain fewer particulars, and so delegating rulemaking authority to agencies allows legislators to enact laws that might not be passed if they contained all of the details of the eventual regulations. (As this last explanation suggests, concerns have been raised on the national level about the constitutionality of legislators’ delegation to agencies, but the Supreme Court has essentially put such arguments to rest.)

In Massachusetts, the state’s Administrative Procedures Act governs the promulgation of agency regulations. The APA requires that an agency hold a public hearing prior to the adoption (or amendment or repeal) of a regulation if a violation of the regulation is punishable by fine or imprisonment, if a public hearing is required by a particular law, or if a public hearing is required as a matter of constitutional right. If a public hearing is not required, then the agency must give public notice of the regulation at least 21 days prior to its proposed action and provide an opportunity for public comment. Agencies must file proposed regulations with the secretary of state, along with a citation of the law under which the regulation has been issued and statements regarding its fiscal effect and impact on small businesses.  The secretary of state is responsible for publishing newly issued regulations.

This rulemaking process has been insufficient to prevent regulations from imposing undue burdens on the public (and perhaps in some cases, from going beyond the scope of their enabling legislation). Therefore, I would encourage Governor Patrick to take a closer look at this issue. A few questions with which I would begin include:

-Does the secretary of state have the authority to prevent a regulation from becoming effective if he thinks that it is problematic in some way—for instance, because the impact statements raise concerns? If not, does anyone review or evaluate these impact statements?

-How is the governor/executive branch involved in reviewing regulations? Could this level of review be improved upon?

-Is there sufficient legislative oversight of regulations? Currently, the Joint Committee on State Administration and Regulatory Oversight is responsible for, among other things, matters relating to state regulations. However, I imagine that the committee would get involved only if a regulation were particularly problematic and attracted a great deal of public outcry. Instead, the governor and legislature ought to consider putting in place a more systematic process for legislative review of agency regulations. For instance, in Connecticut, a standing joint committee must approve all proposed regulations before they go into effect. After reviewing a regulation, the committee may elect to approve, disapprove, or reject it without prejudice. If the committee disapproves a regulation, the promulgating agency may not implement it unless the legislature as a whole reverses the committee’s disapproval.