As in many states, Pennsylvania requires all regulations to be reviewed and approved prior to becoming effective. Among other things, agencies seeking to promulgate regulations have to comply with the following in a notice requesting public comment:
- The statutory, decisional, or regulatory authority that the regulation results from and a statement of the need for the regulation.
- Estimates of the direct and indirect costs of the regulation to the Commonwealth, local governments, and the private sector (including stakeholders and consumers).
- Procedures developed to meet the needs of affected groups and persons, including minorities, the elderly, small businesses, and farmers.
- A description of alternate regulatory provisions that have been considered and rejected, and a statement that the least burdensome acceptable alternative has been selected.
- A plan for evaluating the continuing effectiveness of the regulation.
The regulation must be submitted to the Independent Regulatory Review Commission (IRRC) and the House and Senate committees. The IRRC then provides written comments and questions to the agency on the regulations. The legislation required the IRRC to consider the following in evaluating the regulation:
- The economic or fiscal impact.
- The protection of the public health, welfare, and safety.
- The clarity, feasibility, and reasonableness of the regulation.
- Whether the regulation implements a policy that requires legislative review.
The IRRC decision to disapprove can be appealed to the legislature and the governor.
Enter the Pennsylvania Fair Data Act
With the signing of the Fair Data Act on July 7, 2011, a new category to the items that the IRRC is required to consider has been created: Acceptable Data. Acceptable data is defined as empirical, replicable, and testable data as evidenced in supporting documentation, statistics, reports, studies, or research.
It requires an agency submitting a regulation to state any data upon which the regulation is based, describe how it was obtained and why it is acceptable. It places the burden on the agency to prove the data are acceptable. The IRRC is required to determine whether acceptable data are the basis of the regulation and whether the regulation is supported by acceptable data.
While this change does not eliminate the possibility of the passage of laws that have no rational foundation, it makes it harder to pass the kinds of regulations that use false and unscientific beliefs to restrict the activities of others. It also gives us a tool to use in legislative battles – if data used to support regulations has to be valid and science-based, shouldn’t laws follow the same prescription?The real promise of the Fair Data Act is in its future impact in our fight for rational laws.