Drafting
Committee NCCUSL
ISSUES MEMOS FOR April 2007 meeting
List of issues memos
1. Section 201(h) [(f)] issues memo.
2. Section 201(i) [(g)] issues memo.
3. Section 201(j) issues memo
4. Section 309(b) issues memo.
5. Section 310(d) issues memo.
6. Section 507(d) issues memo.
7. Section 601 issues memo
8. Article 7 Rules Review issues memo
9. Section 801 to 802 issues memo
10. Section 901 issues memo.
1. Section 201(h)[(f)] issues
memo
[Section 201(h)[(f)] (page 14, lines 9 to 11)] Should Section 201(h)[(f)] be deleted in that the agency duties under this section duplicate the duties of publishers?
What follows is a survey of relevant state laws, and responses from members of the ACR listserv to questions related to the question of whether section 201(h)[(f)] should be deleted as duplicative. Thanks to Ken Hanson and John Martinez for this helpful information.
1.
A review of
2.
The requirement duplicates what the
Registrar does here in
Jeff Hague, Registrar of Regulations
Legislative Council, State of
3.
In
Iowa Code section 2B.17(5) designates the official version of the rule and the only version admissible in court.
4.
This
response is quite lengthy because I included the text of a variety of sections
of
For
[See Executive Law, Section 102 Filing and Publication of Codes, Rules and Regulations:
Section 4(b) states:
b. each agency shall make readily available at a designated office or
offices of the agency, for public inspection and copying, the full text
of all codes, rules and regulations adopted by the agency;
Section 149:
§ 149. Format of state register
Section 147(3)
3. The department of state shall publish, quarterly, a special issue
QUESTION:
Also, does your state have any provisions establishing the copy of record? For example, does your state specify which copy of a rule is the legal version? If so, where is it kept and who has possession of it? Is the copy of record electronic or paper? Please provide specific citation to your state law.
RESPONSE:
Executive Law, Section 102, Section 5 states: (Text regarding "copy of record" is bolded)
5. The compilation printed pursuant to paragraph e of subdivision four
of this section shall be known as the "official compilation of codes,
rules
and regulations of the state of
establish the codes, rules and regulations of
the state of
except such as relate solely to the organization or internal management
of a department, board, bureau, authority, commission or other agency of
the state, in force and effect on the first day of January, nineteen
hundred forty-five.
REGARDING RETENTION OF OFFICIAL FILINGS:
Every hard copy Original Official Filing filed with the NYS Department of State (DOS) is subsequently sent to the NYS Archives (SARA) for permanent retention. Every filing receives a unique number for the year filed. Our office maintains the filings for two years. Each January the filings that are two years old are boxed up. The boxes are assigned a number and labeled with the contents and delivered to the Archives. Our office maintains a list that contains the Box number and its contents. The filings then become the property of SARA. When the DOS receives a request for a copy of a filing that resides at SARA, the DOS provides the unique file number and box number to the requestor. The unique number is easily found using our rule tracking application. The requestor contacts the Archives for a copy of the filing. The requestor is charged a fee set by statute. Every rule filed with the DOS since 1945 is at SARA.
Debbie
5.
Do you feel this requirement for filing agencies duplicates the responsibility of the rules publisher? If so, should this provision be retained or deleted?
Yes and no . . . Each agency should be required to make its rules available to the public as a matter of public record, but it need not be "cop[ies of] those portions of the [administrative bulletin and administrative code]"
(see also my answer to next question regarding agency copies), and agencies should always identify copies as "unofficial."
Is there a need for filing agencies to retain copies of rules for the public? What is the practice in your state?
Yes .
. . in
Also, does your state have any provisions establishing the copy of record?
For example, does your state specify which copy of a rule is the legal version? If so, where is it kept and who has possession of it? Is the copy of record electronic or paper? Please provide specific citation to your state law.
Oklahoma's official rules, as defined by statute, are comprised of permanent rules published by the Secretary of State in the Oklahoma Administrative Code (and its annual cumulative supplements) and in semi-monthly issues of the Oklahoma Register that are published between the annual Code/Supplement publications, as well as emergency rules published in the Oklahoma Register. The print and cdrom copies of the Code and Register are "official"; the online Code and Register, as well as any rules published or provided by the issuing agencies in any format, are "unofficial."
Does your state require that the legal copies of rules be retained for a specific period of time? If so, please provide a citation.
In
http://www.odl.state.ok.us/oar/administration/oarc.htm) has the authority to establish retention schedules for all kinds of state records.
Currently, printed and cdrom copies of Code and Register publications are retained permanently, as well as paper copies of the Register filings (with signed attestations) submitted by agencies. In addition, agencies are required to permanently retain their "rulemaking records" [as described in
75 O.S., Section 302(B)].
6.
Do you feel this requirement for filing agencies duplicates
the responsibility of the rules publisher? If so, should this provision
be retained or deleted? Yes the duplicates the
responsibility of the rules publisher. I feel the provision should be
deleted.
Is there a need for filing agencies to retain copies of rules for the public? What is the practice in your state?
Although the practice in
Also, does your state have any provisions establishing the
copy of record? For example, does your state specify which copy of a rule
is the legal version? If so, where is it kept and who has possession of
it? Is the copy of record electronic or paper? Please provide
specific citation to your state law.
The established record is the paper copy filed with the Secretary of
State.
Does your state require that the legal copies of rules be retained for a specific period of time? If so, please provide a citation. Rules are retained forever. Our state law follows:
1-26-7.
Records retained--Copies--Public inspection of current rules. Each agency shall
keep the original records, documents, and instruments required by this chapter.
Agencies shall make copies of all records, documents, and exhibits available to
members of the Legislature upon request. The secretary of state shall keep a
copy of the agency's current rules and the certificates pertaining thereto,
which shall be open to public inspection.
7.
>>Model Act, Section 201 . . .
(f)[g] Each agency shall also make available for public inspection and copying those portions of the [administrative bulletin and administrative code] containing all rules adopted or used by the agency in the discharge of its functions and an index to those rules.
Q: Do you feel this requirement for filing agencies duplicates the responsibility of the rules publisher?
A: The proposed wording is not in conflict with the existing Texas APA. But the Texas APA also includes this statement:
"A state agency may comply with this section
through the actions of another agency, such as the secretary of state, on the
agency's behalf." (
In practice, many agency Internet sites include a link to their rules on the Secretary of State site. Other agencies post recent or pending proposed rules on their own site as well as a link to the Secretary of State. So, yes, there is some duplication. The only worry is that the two versions might differ substantively. While the Texas APA is clear that the copy of record is the one on file with the Secretary of State (Texas Govt. Code sec. 2001.037), members of the public have a reasonable expectation to rely on the accuracy of information they find on a state government web site. So far, this kind of duplication has not led to any tears. My opinion is that the benefit outweighs the risk.
Q: Is the copy of record electronic or paper? Please provide specific citation to your state law.
A: The APA permits paper, microfilm, or an electronic
storage and retrieval system. (
Q: Does your state require that the legal copies of rules be retained for a specific period of time?
A: I was sure the term "permanent" was used in the APA, but in fact no specific period of time is stated. However, the records retention schedule for the Secretary of State does define the rule filings as permanent. The APA does specifically perm destruction of originals if a copy of the information is stored on film or electronic storage.
8.
Here is MSAPA question #4.
The proposed text of the draft MSAPA currently reads:
Section 201 . . .
(f)[g] Each agency shall also make available for public inspection and copying those portions of the [administrative bulletin and administrative code] containing all rules adopted or used by the agency in the discharge of its functions and an index to those rules.
1.Do you feel this requirement for filing agencies duplicates the responsibility of the rules publisher? If so, should this provision be retained or deleted?
UT: The provision requiring an agency to "make available for public inspection and copying" is a duplication, but a very small burden on the agency, especially if it may provide access to an electronic copy. This provision should be retained. However, I believe the provision requiring an agency to index its rules duplicates the responsibility of the rules publisher and should be removed.
2. Is there a need for filing agencies to retain copies of rules for the public? What is the practice in your state?
UT: There is a need. However, the agency should be given some flexibility (paper or electronic). Utah Code Subsection 63-46a-3(1) requires each agency to "maintain a current version of its rules" and "make it available to the public for inspection during its regular business hours."
3. Also, does your state have any provisions establishing the copy of record? For example, does your state specify which copy of a rule is the legal version? If so, where is it kept and who has possession of it? Is the copy of record electronic or paper? Please provide specific citation to your state law.
UT:
4. Does your state require that the legal copies of rules be retained for a specific period of time? If so, please provide a citation.
UT: No. Records retention scheduling is a function that has been delegated to the Division of Archives. Using Archives' process, the Division of Administrative Rules has schedule rule filings submitted to the Division as permanent records. The Division of Administrative Rules retains filings in its office for two years (a period that coincides with the period of time in which a person may "contest any rule on the ground of noncompliance with the procedural requirements"). It then sends filings to the Division of Archives for microfilming. Upon the Division's review and acceptance of the microfilm, the paper copy is destroyed and the microfilm copy becomes the record copy (Agency Records Schedule, Records Series 7192). The copy maintained by an agency has a minimum retention of six years (Archives General Schedule for State Records, Item 1-42).
2. Section 201(i) [(g)] issues memo
Administrative rules editor or publisher
Should the act provide for an administrative rules editor, with the power to
edit, for the publication, compilation, indexing, and public inspection of the
rules or should the act provide for a publisher with limited power to edit?
[Section 201(i) [(g)], page 14, after line
11] Draft language has been added providing for a nonsubstantive power to edit.
A. Alternatives for this issue include:
1) the publisher should not be given any
editing power leaving the content of the rules up to the adopting agency;
2) the publisher should be given non
substantive editing power and should notify the agency of proposed editorial
changes;
3) the publisher should be given broader
editing power than correcting typographical or spelling errors.
B. The statutes below provide for variations
of alternative number 2, with some of the statues providing great detail as to
what types of edits and corrections are proper, and other statues granting the
non substantive power to edit in more general terms. Several statutes use the
term “manifest clerical or typographical errors”
C. The proposed language to be added to the
draft [Section 201(g)] follows the
Fifteen state statutes are listed below that provide for a power to edit rules, or address the issue of the powers of a rules publisher.
Relevant state statutes:
A.R.S. § 41-1011. Publication and distribution of code and register
A. The secretary of state is responsible for the publication and distribution of the code and the register.
B. The secretary of state shall prescribe a uniform numbering system, form and style for all rules filed with and published by that office. The secretary of state shall reject rules if they are not in compliance with the prescribed numbering system, form and style.
C. The secretary of state shall prepare, arrange and correlate all rules and other text as necessary for the publication of the code and the register. The secretary of state may not alter the sense, meaning or effect of any rule but may renumber rules and parts of rules, rearrange rules, change reference numbers to agree with renumbered rules and parts of rules, substitute the proper rule number for "the preceding rule" and similar terms, delete figures if they are merely a repetition of written words, change capitalization for the purpose of uniformity and correct manifest clerical or typographical errors. With the consent of the attorney general the secretary of state may remove from the code a provision of a rule that a court of final appeal declares unconstitutional or otherwise invalid and a rule made by an agency that is abolished if the rule is not transferred to a successor agency.
2.
(II) Each rule adopted, together
with the attorney general's opinion rendered in connection therewith, shall be
filed pursuant to subsection (12) of this section within twenty days thereafter
with the secretary of state for publication in the
[thanks to candy herring for these comments] The Colorado Administrative Procedure Act provides very little guidance as to how the register and code are to be published. It does not address the editorial capabilities of the publisher. The excerpt below is the only reference made regarding the editing of rules.
24-4-103(11)(d)(II)...Upon written request of an agency, the secretary of state shall correct typographical and other nonsubstantive errors appearing in the rules as filed by such agency that occur after final adoption of the rules by the agency during the preparation of such rules for publication in order to conform the published rules with the adopted rules....
We have been operating under the assumption that the publisher should make no changes, including non-substantive ones, unless the agency requests a correction. I believe a more reasonable approach would be to allow at least the correction of typographical and other clerical errors, numbering errors, and citation errors.
3.
§ 1134. Powers and duties of the Registrar in preparation and maintenance of the Register of Regulations.
(a) The Registrar in the course of compiling and maintaining the Register of Regulations shall:
(1) In writing, notify all agencies authorized to make regulations that they are to submit to the Division copies of all proposed regulations as well as all subsequent amendments, repeals, additions or new or proposed regulations as they are proposed and statements of purpose thereof;
(2) Advise agencies as to the form and style of the regulations, as well as, to the extent practicable, the classification thereof into categories of substance, procedure and organization;
(3) Have the authority to make revisions to both proposed and existing regulations that do not alter the sense, meaning or effect of such regulations, including, but not limited to:
a. Renumbering and rearranging sections or parts of sections;
b. Transferring of sections or dividing of sections so as to give to distinct subject matters a separate section number, but without changing the meaning;
c. Inserting or changing the wording of headnotes;
d. Change reference numbers to agree with renumbered regulations or sections thereof;
e. Substituting the proper section or regulation number for the terms "this regulation", "the preceding section" and the like;
f. Striking out figures where they are merely a repetition of written words and vice versa;
g. Changing capitalization for the purpose of uniformity;
h. Correcting of manifest typographical and grammatical errors; and
i. Making any other purely formal or clerical changes in keeping with the purpose of the revision.
(4) Have the authority to promulgate rules and regulations;
(5) Have authority to publish the full text or a summary of proposed, final or emergency regulations; and
(6) Publish the following month all proposed regulations received by the 15th of the month preceding.
(b) The Registrar may include in the
Register of Regulations such other governmental information as the Registrar
deems appropriate. (69
4.
I.C.A. § 2B.1
1. The director of the legislative
services agency shall appoint the Iowa Code editor and the administrative code
editor, subject to the approval of the legislative council, as provided in section
2.42. The Iowa Code
editor and the administrative code editor shall serve at the pleasure of the
director of the legislative services agency.
2.
The
I.C.A. § 2B.5
The administrative code editor
shall:
1.
Cause the
2. Cause the
3.
Cause to be published annually a correct list of state officers and deputies;
members of boards and commissions; justices of the supreme court, judges of the
court of appeals, and judges of the district courts including district
associate judges and judicial magistrates; and members of the general assembly.
The office of the governor shall cooperate in the preparation of the list.
4.
Notify the administrative rules coordinator if a rule is not in proper style or
form.
5. Perform other duties as directed by the director of
the legislative services agency, the legislative council, or the administrative
rules review committee and as provided by law.
2B.13 EDITORIAL POWERS AND DUTIES.
1. [Note:
I deleted subsection 1, which pertains to the
2. The
administrative code editor in preparing the copy for an
edition of the Iowa administrative code or
bulletin shall not alter
the sense, meaning, or effect of any rule, but
may:
a. Correct misspelled
words and grammatical and clerical errors,
including punctuation, and change
capitalization, spelling, and
punctuation for purposes of uniformity and
consistency.
b. Correct references to
rules or sections which are cited
erroneously or have been repealed, amended, or
renumbered.
c. Correct names of
agencies, officers, or other entities when
there appears to be no doubt as to the proper
method of making the
correction.
d. Transfer, divide, or
combine rules or parts of rules and add
or amend catchwords to rules and subrules.
e. Change words that
designate one gender to reflect both genders
when the provisions apply to both genders.
f. Perform any other
editorial tasks required or authorized by
section 17A.6.
5.
K.S.A. Section 77-435. Editing of rules and regulations by secretary of state.
In publishing the material in the
Kansas administrative regulations and latest supplements thereto, the secretary
of state shall not alter the sense, meaning or effect of any rule and
regulation but may correct manifest orthographical, clerical or typographical
errors and may edit the rules and regulations in the following manner:
(a) By inserting the correct references in lieu of any
internal cross-references to session laws or other outdated statutory
references or outdated references to other rules and regulations sections.
(b) By changing descriptive-subject-word headings of
sections, subsections or subparts of a rule and regulation in order to briefly
and clearly indicate the subject matter of such sections.
(c) Wherever a board, commission, commissioner,
department or other agency or officer of the state government has been
abolished by statute and the powers, duties and jurisdiction thereof
transferred to some other board, commission, commissioner, department or other
agency or officer now in existence, the secretary of state may edit the rules
and regulations affected thereby by striking out the name of the abolished
board, commission, commissioner, department or other agency or officer and
inserting in lieu thereof the name of the proper board, commission,
commissioner, department or other agency or officer.
(d) Where a pronoun of only masculine or only feminine
gender appears a pronoun of the opposite gender may be added, or language may
be changed for the same purpose, so long as the opening limitation of this
section is not violated.
(e) By striking the word "that" wherever it
appears as the first word of any section in the
(f) By correcting doublets.
The secretary of state may submit to the state rules
and regulations board, for the board's approval, any proposed changes made
pursuant to the provisions of this section. No change made pursuant to the
provisions of this section shall effect any change in the substantive meaning
of the rule and regulation section, and any error made by the secretary of
state in editing the rules and regulations as authorized by this section shall
be construed as a clerical error only.
6.
§983. Incorporation of Current Rules and Regulations Procedure
A. In preparing the Louisiana Register or the Louisiana Administrative Code as
provided for in R.S. 49:981, the office of the state register shall not alter
the sense, meaning, or effect of any rule properly promulgated under the
Administrative Procedure Act, but it may:
(1) Renumber and rearrange
sections or parts of sections.
(2) Transfer sections or divide
sections so as to give to distinct subject matters a separate section number,
but without changing the meaning.
(3) Insert or change the wording
of headnotes.
(4) Change reference numbers to
agree with renumbered parts, chapters, or sections.
(5) Substitute the proper section,
chapter, or part number for the terms "this part", "the
preceding section", and the like.
(6) Strike out figures where they
are merely a repetition of written words and vice-versa.
(7) Change capitalization for the
purpose of uniformity.
(8) Correct manifest typographical
and grammatical errors.
(9) Make any other purely formal
or clerical changes in keeping with the purpose of the revision.
B. The Office of the State
Register shall notify the secretary or administrative officer charged with
promulgation of the rule prior to making any proposed revision authorized by
this Section. If no written disapproval of the secretary or administrative
officer, or his designee, of the proposed revision is received by the office of
the state register within seven days after the secretary or administrative
officer receives the notice, the office of the state register shall proceed with
the revision.
1.'Acts 1993, No. 379,
[Thanks to Catherine Brindley for
these comments and citation]
In
5 M.R.S.A. § 8056(10)
10. Minor errors. The
Secretary of State may correct minor, nonsubstantive errors
in spelling and format in proposed or adopted rules if the agency is notified.
8.
MO. ST Section 536.033. Sale of register and code of state regulations, cost, how established--correction of clerical errors authorized
1. Copies or subscription of the
register or code shall be made available to the public by the secretary of
state upon request for a reasonable charge to be established by him, said
charge not to exceed the actual cost of publishing and delivery.
2. All costs of printing and mailing the Missouri
Register and the code of state regulations shall be paid by the office of the
secretary of state from funds appropriated for this purpose and all fees
collected from the sale thereof by the secretary of state shall be deposited to
general revenue.
3. The secretary of state may correct typographical or
spelling errors in the publication of any rule, notice of proposed rulemaking,
or order of rulemaking.
[Thanks to Waylene Hiles for these
comments]
9.
2-4-311.
Publication and arrangement of ARM. (1) The secretary of state shall compile,
index, arrange, rearrange, correct errors or inconsistencies without changing
the meaning, intent, or effect of any rule, and publish in the appropriate
format all rules filed pursuant to this chapter in the ARM. The secretary of
state shall supplement, revise, and publish the ARM or any part of the ARM as
often as the secretary of state considers necessary. The secretary of state may
include editorial notes, cross-references, and other matter that the secretary
of state considers desirable or advantageous. The secretary of state shall
publish supplements to the ARM at the times and in the form that the secretary
of state considers appropriate.
[thanks to jean Branscom for the
statutory citation, and for the following comments: The ability to edit
submitted documents, without making substantive changes, ensures a consistent,
high quality product for the end user. We have a good relationship with
the state agencies and they have come to value the review completed by our
staff. We do make suggestions if we believe the wording is not clear for
the customer, and the agencies determine whether or not a change is warranted.
Otherwise, we generally work with them on changes we identify as needed to meet
the style and format requirements set by our office.
10.
[thanks to Debbie Ritzko for these comments:
3. It shall be the duty of the secretary of state to prepare a master
compilation of all such codes, rules and regulations in such form and
order as he may determine. He shall not, however, change the language of
any existing code, rule or regulation except a title or explanatory
caption; but he shall recommend any such change as he may deem advisable
to the department, board, bureau, officer, authority, commission or
other agency of the state authorized to adopt such code, rule or
regulation. Such master compilation shall include all codes, rules and
regulations except such as relate solely to the organization or internal
management of a department, board, bureau, authority, commission or
other agency of the state, in effect on the first day of January,
nineteen hundred forty-five, and which he shall certify as a true copy
of the master compilation prepared by him.
5......and in case of any
inconsistency arising through omission or otherwise between the official
compilation and such codes, rules and regulations as filed in the office
of the secretary of state, the latter shall prevail.
Agencies may file an Amended Adoption to effect a non-substantial revision. The Amended Adoption MUST be filed with the Department of State prior to the rule's effective date. Since a rule isn't effective until published in the Register (about two weeks after filing) most errors found by DOS staff are found after the effective date while generating a manuscript. Only two or three Amended Adoptions are filed in any given year and in those cases the Amended Adoption is used to delay an effective date.
Discrepancies are found after the agency head has formally adopted and certified that the text is adopted by the head of agency, board, etc.
Discrepancies are also found after the time frame has passed for
utilization of an Amended Adoption. During my 20+ years of experience
with these types of errors, I have found that a more accurate and complete historical record is generated when the rule is printed "as filed" AND notify the rule filer that the rule has a problem so that the rule filer can file a consensus rule making to correct the error.
If rule publishers are allowed to make changes to rules, then a very detailed and specific procedure, (document trail) MUST BE drafted that eliminates any questions regarding the validity of the printed code verses the rule that was filed. I have found a phone call to the agency with a subsequent notation on a filing in question isn't the best practice for a permanent historical record--especially for very high profile rules that are likely to or have been challenged.
Believe me-- we hate to print what we believe are errors in the NYCRR-- but it is difficult, time consuming and sometimes impossible to find all documentation that provides an explanation describing why a rule as published does not match a rule as filed. (especially when many years have gone by and the records with explanations and notations may no
longer exist due to records retention time frames). Institutional
memory starts to fade as one gets older and is eliminated when staff leave.
errors!!) The administrative burden of contacting the agencies along
with follow-up to those contacts and delays to our production while waiting for a response from an agency negatively impacts NYCRR production. A new APA must contain very specific procedures and definitions for amending a rule after it is filed...perhaps an additional rule making form...
11.
NC Stat.
§ 150B‑21.20. Codifier's authority to revise form of rules.
(a) Authority. ‑‑ After consulting with the agency that adopted the rule, the Codifier of Rules may revise the form of a rule submitted for inclusion in the North Carolina Administrative Code within 10 business days after the rule is submitted to do one or more of the following:
(1) Rearrange the order of the rule in the Code or the order of the subsections, subdivisions, or other subparts of the rule.
(2) Provide a catch line or heading for the rule or revise the catch line or heading of the rule.
(3) Reletter or renumber the rule or the subparts of the rule in accordance with a uniform system.
(4) Rearrange definitions and lists.
(5) Make other changes in arrangement or in form that do not change the substance of the rule and are necessary or desirable for a clear and orderly arrangement of the rule.
(6) Omit from the published rule a map, a diagram, an illustration, a chart, or other graphic material, if the Codifier of Rules determines that the Office of Administrative Hearings does not have the capability to publish the material or that publication of the material is not practicable. When the Codifier of Rules omits graphic material from the published rule, the Codifier must insert a reference to the omitted material and information on how to obtain a copy of the omitted material.
(b) Effect. ‑‑ Revision of a rule by the Codifier of Rules under this section does not affect the effective date of the rule or require the agency to readopt or resubmit the rule. When the Codifier of Rules revises the form of a rule, the Codifier of Rules must send the agency that adopted the rule a copy of the revised rule. The revised rule is the official rule, unless the rule was revised under subdivision (a)(6) of this section to omit graphic material. When a rule is revised under that subdivision, the official rule is the published text of the rule plus the graphic material that was not published.
[Thanks to Molly Masich for these comments] Above is the
statutory authority given to the Codifier of Rules in
12.
ORS Section 183.360
[thanks
to Jill Yamaka for these comments and citations]. In
We're used to working within these parameters, and think this is just about the right amount of authority to edit text.
13.
§ 42-35-5 Compilation and publication of rules. – (a) The
secretary of state shall be the codifier of the rules of state agencies. The
secretary of state may assign numbers to any rule in order to develop and
maintain a comprehensive system of codification. The number shall be the
official administrative code number of the rule. Any number so assigned shall
be published in any publication of the
(b) The secretary of state, on or before
(c) In accordance with the provisions of this chapter, the
secretary of state will publish the
(1) Contain a compilation of the full text of each rule and a reference to each order;
(2) Be divided into volumes to permit the sale of separate volumes;
(3) Contain the full text of each rule adopted after its initial publication and a citation by reference to each order adopted after its publication in supplements to the code published not less than monthly and compiled for insertion in the code not less than annually;
(4) Contain an index of the rules and references to rules that are included in the code and each supplement using terms easily understood by the general public;
(5) Be published in loose-leaf form and in any other form
the secretary of state deems appropriate following, to the extent possible, the
subject matter arrangement of the
(6) Be renumbered according to the numbering system devised by the secretary of state.
(7) The secretary of state is not obligated to publish any rule or regulation which has become void.
(d) The secretary of state may approve as acceptable a commercial publication of the code which conforms to all of the provisions of this section. If the secretary of state does not approve of a commercial publication of the code, the secretary of state shall prepare and publish the code, or contract with any person under this section to prepare and publish the code. Any code published by the secretary of state or by any person under a contract let under this section shall include all of the requirements of this section. In addition, the secretary of state shall furnish any volume or issue of the code or supplement to any person who requests the material upon payment of a charge established by the secretary of state, not to exceed the cost of publication and handling.
(2) Upon the request of the secretary of state, the
director of administration shall advertise and accept competitive bids and let
a contract for the compilation and printing of the
[Comments from Karen Wall]
I don't think publishers should be allowed to edit rule text at all because they are not the authors. It would invite the possibility that substantive text may inadvertently be interpreted as non-substantive.
In
14.
1-26A-1. Administrative Rules
published--Authority of Legislative Research Council-- Contents--Publication of
Register--Notice of hearings on rules. The Legislative Research Council shall
publish from time to time, the Administrative Rules of South Dakota, which
shall contain permanent rules of general application promulgated under the
provisions of chapter 1-26. In preparing the text of the rules for publication,
the Legislative Research Council shall make such changes as may be necessary to
correct apparent errors, to correlate and integrate all the rules, to
harmonize, to assign new title and other designations, to eliminate or clarify
obviously obsolete or ambiguous rules and rules declared invalid by the South
Dakota Supreme Court or the United States Supreme Court, and to substitute terms
or phraseology, and names of boards, commissions, and agencies, wherever the
Legislature has expressly or by implication indicated an intention to do so.
The publication may also contain information concerning executive orders,
agreements made pursuant to chapter 1-24, agreements and changes made pursuant
to chapter 1-32, and court rules, of permanent and general application which
are not otherwise generally available to the public. The Legislative Research
Council shall also publish at periodic intervals, the South Dakota Register
which shall contain notices of hearings on proposed rules at least ten days
prior to hearing, notices of rules filed in the secretary of state's office and
other information relating to agency and judicial rules and executive actions.
The Legislative Research Council shall prepare the manuscripts for such publications and supervise their publication.
[Thanks to Jill Wellhouse for these
comments and citations].In South Dakota, our rules "publisher" is not
a private entity but is the same agency (Legislative Research
Council) that reviews and approves all rules before they become
final. LRC does have authority under
15.
Government Code
Section 2002.017
[thanks to Dan Proctor for these
comments and citations]: Non-substantive changes with consent of the filing
agency. The Texas APA says The Secretary of State may adopt rules
to "ensure effective administration" of rule publication,
and specifically mentions "paper size and the format of
documents". It says, "the secretary of state may refuse to accept for
filing and publication a document that does not substantially conform to the
rules." (
The answer to this question may differ where the publisher also has a "reviser" role. The Secretary of State here has no lawyer on staff to advise agencies regarding their rule filings. The Texas Register only enforces format and filing requirements. In practice we probably could get away with making many non-substantive edits, but we resist the temptation. We frequently make needed editorial changes after asking permission. If permission is denied, of course, we have the option to reject the filing.
16.
The Virginia Code Commission has authority to make certain changes and corrections to the Virginia Administrative Code as noted in Section 30-150 of the Code of Virginia:
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+30-150. This language mirrors the Commission's
authority to make changes and corrections to
[thanks
to Jane Chaffin for these comments and citations]. A certain amount of editing
authority is necessary to exercise quality control over the published
administrative code. Changes are
generally made in close consultation with the agencies. In
17.
WI ST App Section
13.93(2m)(b)1.
The revisor of statutes bureau may
do any of the following:
13.93(2m)(b)1. 1.
Renumber any provision of the
13.93(2m)(b)2.
2. Change the title of any rule.
13.93(2m)(b)3.
3. Insert the proper cross-reference wherever "preceding section" or
a similar term is used in the code.
13.93(2m)(b)4.
4. Delete surplus words such as "of this rule", "of this
code", "of the statutes", "hereof" and "immediately
above".
13.93(2m)(b)5.
5. Delete any masculine or feminine pronoun or adjective, except where the rule
clearly applies to only one sex, and, if necessary, replace it with sex-neutral
terminology.
13.93(2m)(b)6.
6. Change any incorrect agency name or address.
13.93(2m)(b)7.
7. Change any incorrect cross-reference to a federal or state statute, rule or
regulation.
13.93(2m)(b)8.
8. Delete "hereby" when it is used in connection with a verb such as
"consents", "grants", "gives" or "declares".
13.93(2m)(b)9.
9. Substitute "deems" for "may deem".
13.93(2m)(b)10.
10. Substitute "may" for a phrase such as "is hereby authorized
to".
13.93(2m)(b)11.
11. Substitute "this state" for "the state of
13.93(2m)(b)12.
12. Change any incorrect form of a word to the correct form.
13.93(2m)(b)13.
13. Insert the
13.93(2m)(b)14.
14. If the application or effect of a rule, by its terms, depends on the time when
the rule takes effect, substitute the actual effective date for a phrase which
means that date, such as "when this rule takes effect", "on the
effective date of this rule" or "after the effective date of this
rule".
13.93(2m)(b)15.
15. Delete obsolete rules promulgated by an agency that no longer exists.
13.93(2m)(b)16.
16. Delete severability provisions.
[ Thanks to
Gary Poulson for the statutory citation.
3. Section 201(j) Guidance
documents issues memo
ACR listerve questions
Here is question #3. (ok, I know it’s a group of questions)
Should the MSAPA use the term “Guidance Documents”?
If so, how should they be defined?
What is their purpose?
What legal weight do they have?
How do they differ from rules?
Are they filed or published?
Responses:
1.
(a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or
(b) adjective or interpretive rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. The interpretation lacks the force of law.
Further,
2-4-308. Adjective or interpretive rule -- statement of implied authority and legal effect. (1) Each adjective or interpretive rule or portion of an adjective or interpretive rule to be adopted under implied rulemaking authority must contain a statement in the historical notations of the rule that the rule is advisory only but may be a correct interpretation of the law. The statement must be placed in the ARM when the rule in question is scheduled for reprinting.
(2) The appropriate administrative rule review committee may file with the secretary of state, for publication with any rule or portion of a rule that it considers to be adjective or interpretive, a statement indicating that it is the opinion of the appropriate administrative rule review committee that the rule or portion of a rule is adjective or interpretive and therefore advisory only. If the committee requests the statement to be published for an adopted rule not scheduled for reprinting in the ARM, the cost of publishing the statement in the ARM must be paid by the committee.
From other responses to this
question, guidance documents in some instances may include the interpretation
of a statute. For
Going with the “independent section” approach, I believe it would be beneficial to attempt to define guidance documents.
Jean Branscum
2.
Following
is
Section 201 Definitions:
14. "Guidance document" means any guideline, memorandum or similar document prepared by an agency that provides general information or guidance to assist regulated parties in complying with any statute, rule or other legal requirement, but shall not include documents that concern only the internal management of the agency or declaratory rulings issued pursuant to section two hundred four of this chapter.
§ 202-e. Guidance documents; availability to public. 1. Not less than once each year, every agency shall submit to the secretary of state for publication in the state register a list of all guidance documents on which the agency currently relies, and provide information on where and how regulated parties and members of the public may inspect and obtain copies of any such document; provided, however, that the department of environmental conservation shall be exempt from the requirements of this subdivision. Unless otherwise provided for by law, an agency may make such documents available as provided in the freedom of information law, and may charge fees pursuant to such law for copies of any such document.
2. The secretary of state may exempt an agency from compliance with the requirements of subdivision one of this section upon a determination that the agency has published on its website the full text of all guidance documents on which it currently relies. The secretary of state shall publish a notice of such determination identifying the website in the state register.
3. Nothing in this section shall be construed as authorizing or requiring the publication of any guidance document where such publication is prohibited or limited by law.
4. Not less than once every five years, every agency shall conduct a process for reviewing and updating all guidance documents on which it currently relies. In conducting such process, the agency shall obtain feedback from regulated parties and members of the public who are directly or indirectly affected by the guidelines.
5. The secretary of state may adopt regulations to implement the provisions of this section.
[Thanks to Debbie Ritzko for this detailed response.]
3.
The Virginia Administrative Law Advisory Committee to the Virginia Code Commission studied the issue of guidance documents in 1996. This study
(http://legis.state.va.us/codecomm/valac/studies/gdreport.htm) resulted in legislation defining "guidance document" and requiring a listing of such documents to be filed and published in the Virginia Register fo Regulations annually. The listing is also posted on the Virginia Register website at http://legis.state.va.us/codecomm/GUIDANCE/guidedoc.htm.
Sections 2.2-4008
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-4008) and 2.2-4103
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-4103) of the Code of Virginia require annual publication in the Virginia Register of guidance document lists from state agencies covered by the Administrative Process Act and the Virginia Register Act. A guidance document is defined as "…any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations..." (see Va. Code sections 2.2-4001
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-4001) and 2.2-4101 (http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-4101)). Agencies are required to maintain a complete, current list of all guidance documents and make the full text of such documents available to the public.
According to the 1996 report, guidance documents are interpretations of rules, regulations and statutes. It further states that "Although these documents do not carry the force of law, guidance materials may indeed affect the public."
[Thanks to Jane D. Chaffin for this detailed response]
Publication requirements for state agency interpretive
rules and policy statements
States that require publishing interpretive and policy statements:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Washington (West's RCWA
34.05.220)
18.
19.
20.
21.
22.
23.
4. Section 309(b) issues memo
[Fast Track Rules]
Direct Final Rulemaking
Direct final rulemaking has been recommended by the
Administrative Conference of the
Law Review 1 (1995)]. Direct final rulemaking works as described below (Comments by Larry Craddock) If this approach were adopted in place of the current language of Section 309(b) [fast track rule], the concurrence of the governor, attorney general or legislative committees would not be required.
Comments by Larry Craddock
While researching another issue, I
came across a discussion of "direct final rulemaking" which is an
idea that makes a good deal of sense to me.
It is apparently catching hold in federal rulemaking. It consists of an agency publishing in final
form with a delayed effective date, a rule which the agency believes is
uncontroversial. If the agency receives
adverse comment, or comment suggesting a need for further study or revision,
the rule is pulled down before it becomes effective. The agency then follows standard rule making
procedures. However, if there are no
adverse comments, or comments suggesting need for further study or revision,
the rule goes into effect without further agency action. I think this is an idea worthy of inclusion
in the proposed revised model state APA.
It would cut out the unnecessary paperwork and expense agencies now have
to go through on adoption of even the most uncontroversial rules and would
encourage agencies to use rulemaking more often than they do now. The primary spokesperson advocating this
procedure seems to be Professor Ronald Levin of Washington University School of
Law. Discussions of direct final
rulemaking by Professor Levin appear at http://www.american.edu/rulemaking/panel1_05.pdf and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=164990.
5. Section 310(d) issues memo
Under federal law, legislative rules that are properly adopted
under the federal administrative procedures act [5 U.S.C. Section 553] and that
contain interpretations of the agency governing statute may be given strong
deference under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S.
837 (1984) (reasonable agency interpretations of ambiguous statutory terms
given deference by reviewing court). Agency interpretations that are not
formally adopted in legislative rules including informal agency interpretations
like those contained in guidance documents are at most entitled to weak
deference (based on the power to persuade) under federal administrative law
decisions. Skidmore v. Swift & Co., 323 U.S. 134 (1941) [rulings of
administrator under fair labor standards act], Christenson v.
6. Section 507(d)
issues memo
Section 507(d) issues memo
C. Section 507(d). Should the MSAPA include a petition for rulemaking requirement as a precondition (exhaustion of administrative remedies) for judicial review of rules when the issue raised on judicial review was not raised or considered by the agency in the rulemaking proceeding? (issue exhaustion in rulemaking)
1. California Case law establishes issue exhaustion requirements for judicial review of adjudicative hearings and for judicial review of final environmental impact reports under the California Environmental Quality Act (CEQA). See the two recent case summaries below as to FEIR exhaustion requirements:
Citizens for Open
government v. City of
Western Placer Citizens for an Agricultural and Rural
Environment v.
2. There is no requirement to petition the agency to adopt
or repeal a rule before seeking judicial
review of rulemaking under
(a) Any interested person may
obtain a judicial declaration as to the validity of any regulation or order of
repeal by bringing an action for declaratory relief in the superior court in
accordance with the Code of Civil Procedure. The right to judicial
determination shall not be affected by the failure either to petition or to
seek reconsideration of a petition filed pursuant to Section 11340.7 before the agency promulgating the regulation
or order of repeal. The regulation or order of repeal may be declared to be
invalid for a substantial failure to comply with this chapter, or, in the case
of an emergency regulation or order of repeal, upon the ground that the facts
recited in the finding of emergency prepared pursuant to subdivision (b) of Section 11346.1 do not constitute an emergency within the
provisions of Section 11346.1.
3. Petition to adopt rules
(a) Upon receipt of a petition requesting the
adoption, amendment, or repeal of a regulation pursuant to Article 5
(commencing with Section 11346), a state agency shall notify the petitioner in
writing of the receipt and shall within 30 days deny the petition indicating
why the agency has reached its decision on the merits of the petition in
writing or schedule the matter for public hearing in accordance with the notice
and hearing requirements of that article.
(b) A state agency may grant or deny the petition in
part, and may grant any other relief or take any other action as it may
determine to be warranted by the petition and shall notify the petitioner in
writing of this action.
(c) Any interested person may request a
reconsideration of any part or all of a decision of any agency on any petition
submitted. The request shall be submitted in accordance with Section 11340.6 and include the reason or reasons why an
agency should reconsider its previous decision no later than 60 days after the
date of the decision involved. The agency's reconsideration of any matter
relating to a petition shall be subject to subdivision (a).
(d) Any decision of a state agency denying in whole or
in part or granting in whole or in part a petition requesting the adoption,
amendment, or repeal of a regulation pursuant to Article 5 (commencing with Section 11346) shall be in writing and shall be transmitted
to the Office of Administrative Law for publication in the California
Regulatory Notice Register at the earliest practicable date. The decision shall
identify the agency, the party submitting the petition, the provisions of the
California Code of Regulations requested to be affected, reference to authority
to take the action requested, the reasons supporting the agency determination,
an agency contact person, and the right of interested persons to obtain a copy
of the petition from the agency.
4. Challengers of California agency regulations who seek
judicial review under California Government Code Section 11350(a) are not
required to exhaust administrative remedies by filing a petition with the
agency to commence a rulemaking proceeding. Hillery v. Rushen 720 F.2d 1132 (9th. Cir., 1983); Motion Picture Studio Teachers & Welfare Workers v. Millan 51 Cal.App.4th
1190, 59 Cal.Rptr.2d 608 (Cal.App. 2 Dist.,1996).
7. Section 601 Issues memo
Section 601 issues memo
A. California Government Code provisions related to the California Office of Administrative Hearings
1.
§ 11370.1. Director defined
As used in the Administrative Procedure Act
"director" means the executive officer of the Office of
Administrative Hearings.
2.
§ 11370.2. Office of administrative hearings; existence; director
(a) There is in the
Department of General Services the Office of Administrative Hearings which is
under the direction and control of an executive officer who shall be known as
the director.
(b) The director shall
have the same qualifications as administrative law judges, and shall be
appointed by the Governor subject to the confirmation of the Senate.
(c) Any and all
references in any law to the Office of Administrative Procedure shall be deemed
to be the Office of Administrative Hearings.
3.
§ 11370.3. Administrative law judges and other personnel; appointment; assignment
The director shall appoint and maintain a staff of
full-time, and may appoint pro tempore part-time, administrative law judges
qualified under Section 11502 which is sufficient to fill the needs of the
various state agencies. The director shall also appoint any other technical and
clerical personnel as may be required to perform the duties of the office. The
director shall assign an administrative law judge for any proceeding arising
under Chapter 5 (commencing with Section 11500) and, upon request from any agency, may assign
an administrative law judge to conduct other administrative proceedings not
arising under that chapter and shall assign hearing reporters as required. Any
administrative law judge or other employee so assigned shall be deemed an
employee of the office and not of the agency to which he or she is assigned.
When not engaged in hearing cases, administrative law judges may be assigned by
the director to perform other duties vested in or required of the office,
including those provided for in Section 11370.5.
4.
§ 11370.4. Costs; determination and collection
The total cost to the state of maintaining and
operating the Office of Administrative Hearings shall be determined by, and
collected by the Department of General Services in advance or upon such other
basis as it may determine from the state or other public agencies for which
services are provided by the office.
5.
§ 11370.5. Administrative adjudication; study; recommendations
(a) The office is authorized and
directed to study the subject of administrative adjudication in all its
aspects; to submit its suggestions to the various agencies in the interests of
fairness, uniformity and the expedition of business; and to report its
recommendations to the Governor and Legislature . All departments, agencies,
officers, and employees of the state shall give the office ready access to
their records and full information and reasonable assistance in any matter of
research requiring recourse to them or to data within their knowledge or
control. Nothing in this section authorizes an agency to provide access to
records required by statute to be kept confidential.
(b) The office may adopt rules and regulations to
carry out the functions and duties of the office under the Administrative
Procedure Act. The regulations are subject to Chapter 3.5 (commencing with Section 11340).
6.
§ 11502. Administrative law judges; duties; appointment; qualifications
(a) All hearings of state agencies required to be conducted
under this chapter shall be conducted by administrative law judges on the staff
of the Office of Administrative Hearings. This subdivision applies to a hearing
required to be conducted under this chapter that is conducted under the
informal hearing or emergency decision procedure provided in Chapter 4.5
(commencing with Section 11400).
(b) The Director of the Office of Administrative
Hearings has power to appoint a staff of administrative law judges for the
office as provided in Section 11370.3. Each administrative law judge shall have been
admitted to practice law in this state for at least five years immediately
preceding his or her appointment and shall possess any additional qualifications
established by the State Personnel Board for the particular class of position
involved.
Other
states with central panels and relevant statutes
Article 6 Issue
Office of Administrative Hearings and ALJs
State Statutes
Ariz.
Rev. Stat. Ann. § 41-1092.01 (establishing an office of administrative
hearings)
Colo.
Rev. Stat. § 24-30-1001 (2001) (creating a division of
administrative hearings in department of personnel)
DC ST § 2-1831.02 (establishing an office of administrative
hearings)
Fla.
Stat. Ann. § 120.65 (creating Division of Administrative Hearings
within Department of Management)
Ga.
Code Ann. § 50-13-40 (1998) (creating an independent administrative
hearings agency within the executive branch)
Iowa
Code Ann. § 10A.801 (creating Division of Administrative Hearings)
Kan.
Stat. Ann. § 75-37,121 (creating office of administrative hearings)
La.
Rev. Stat. Ann. § 49:991-997 (creating division of administrative
law)
Md.
Code Ann., State Gov't § 9-1602 (1999) (establishing office of
administrative hearings as independent unit of executive branch)
Mass.
Gen. Laws ch. 7, § 4H (1998) (creating a division of administrative
appeals)
Mich.
Comp. Laws § 445.2001 (2001) (merging Michigan Departments of
Commerce and Labor to create Department of Consumer and Industry Services, and
creating a central panel of ALJs by executive order)
Minn.
Stat. Ann. § 14.48 (creating administrative hearings office headed
by chief ALJ appointed by governor)
Mo.
Ann. Stat. §§ 621.015-.205 (creating an administrative hearing
commission)
N.J.
Stat. Ann. §§ 52:14F-1-:14F-13 (establishing Office of
Administrative Law and its duties)
N.C.
Gen. Stat. § 7A-750 (2001) (creating an independent, quasi-judicial
office of administrative hearings)
N.D.
Cent. Code § 54-57-01 (2001) (establishing and defining office of
administrative hearings)
Or.
Rev. Stat. § 183.605 (2003) (establishing hearing officer panel)
S.C.
Code Ann. § 1-23-500 (creating ALJ division)
S.D.
Codified Laws § 1-26D-1 (establishing an Office of Hearing
Examiners)
Tenn.
Code. Ann. § 4-5-321(a)(2) (1998) (creating the administrative
procedures division)
Tex.
Gov't Code Ann. § 2003.021 (defining state office of administrative
hearings)
Va.
Code Ann. § 2.2- 4024 (establishing that Executive Secretary of
Supreme Court maintains list of hearing officers to be appointed for formal
hearings)
Wash.
Rev. Code Ann. § 34.12.010 (creating an office of administrative
hearings)
Wis.
Stat. Ann. § 227.43 (providing duties of administrator of division
of hearings)
Wyo.
Stat. Ann. § 9-2- 2201 (creating office of administrative hearings
as a separate agency
8. Article 7 rules review memo
Article 7 Rules Review Issues memo
Comments are from the ACR listserv
1.
Jeff Hague, Registrar of Regulations
Legislative Council, State of
[Thanks to Dennis Stevenson for these responses]
2.
DOES YOUR STATE HAVE A FORMAL
(I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
Yes, the formal review process is
outlined in statute (IAPA). A cursory review by the germane joint
subcommittees is done when proposed rules are filed with my office
and the legislative services office. At the beginning of each legislative
session the individual germane committees of the legislature
review all rules that have been submitted for final approval.
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
Formally, this function
is legislative. In practice most agencies perform some
sort of internal review and in some cases the governor's office does
a review but none of these reviews are considered formal nor are they addressed
in statute.
IS IT BEFORE OR AFTER THE FINAL
RULE IS ADOPTED BY THE RULEMAKING AGENCY?
It is after the agency's formal
adoption of a rule. Rules adopted by the agency are called "pending
rules" because they are pending legislative review for final approval. In
DOES IT – THE RULES REVIEW – APPLY
TO A REVIEW OF:
PERMANENT PROPOSED RULES -- Yes
TEMPORARY PROPOSED RULES -- Yes
EMERGENCY PROPOSED RULES --
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES --
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES --
Although the Idaho APA allows the
legislature to "approve, reject, amend or modify" agency
rules by concurrent resolution, they were advised to only approve and
reject (in whole or in part) rules that are before them for review to avoid
a separation of powers challenge. As the Code publisher I can
make most of the changes mentioned here with the exception of
substantive changes to the content.
DOES YOUR REVIEWING ENTITY HAVE THE
AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
Yes. The legislature can reject a
rule before it takes effect.
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: Title 67, Chapter 52,
OTHER GENERIC RULEMAKING STATUTES:
RULEMAKING ADMINISTRATIVE CODES:
ANYTHING ELSE YOU WANT TO ADD:
[Thanks to Kathleen West for these responses]
3.
Responses from
DOES YOUR STATE HAVE A FORMAL (I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
Yes
(Administrative Rules Review Committee) see
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
Legislative:
5 senators and 5 representatives
IS IT BEFORE OR AFTER THE FINAL
RULE IS ADOPTED BY THE RULEMAKING AGENCY?
The
Administrative Rules Review Committee reviews both proposed and adopted rules
and may schedule a special review at any time.
DOES IT – THE RULES REVIEW – APPLY TO A REVIEW OF:
PERMANENT PROPOSED RULES --
TEMPORARY PROPOSED RULES --
EMERGENCY PROPOSED RULES --
There are no temporary rules in
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES --
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES --
The Administrative Code Editor
has the authority, as set out in
The Administrative Rules Review
Committee cannot change a rule.
DOES YOUR REVIEWING ENTITY HAVE THE
AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
Yes. The
Administrative Rules review Committee can delay the effective date for 70 days
or until the end of the next General Assembly.
The General Assembly can nullify a rule.
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA:
OTHER GENERIC RULEMAKING STATUTES:
RULEMAKING ADMINISTRATIVE CODES:
[Thanks to Peggy Coe for these responses]
4.
DOES YOUR STATE HAVE A FORMAL (I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
Yes
IS IT AN EXECUTIVE, LEGISLATIVE, JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
Executive (Governor) and Legislative (House and Senate) - Policy, authority, legal review Office of Administrative Rules (Secretary of State) --- Format, numbering review
IS IT BEFORE OR AFTER THE FINAL RULE IS ADOPTED BY THE RULEMAKING AGENCY?
Before
DOES IT – THE RULES REVIEW – APPLY TO A REVIEW OF:
PERMANENT PROPOSED RULES -- Yes
TEMPORARY PROPOSED RULES -- n/a
EMERGENCY PROPOSED RULES -- Yes (Governor and OAR/SOS only)
DOES YOUR REVIEWING ENTITY (INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES -- Spelling only
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES -- No
DOES YOUR REVIEWING ENTITY HAVE THE AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
Yes . . . Proposed permanent rules must be approved by both the Governor and Legislature, or by joint resolution of the Legislature. Proposed emergency rules must be approved by the Governor. In addition, the SOS's Office of Administrative Rules has the authority to reject any Register filing that does not substantially comply with statutes or the SOS's rules.
PLEASE GIVE ANY STATUTORY OR ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: 75 O.S., Sections 250 et seq. (secifically, Sections
303.1 and 308) . . . http://www.lsb.state.ok.us/
OTHER GENERIC RULEMAKING STATUTES: n/a
RULEMAKING ADMINISTRATIVE
CODES:
[thanks to Jill Wellhouse for these responses]
5.
DOES YOUR STATE HAVE A FORMAL
(I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION? Yes.
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
Legislative.
IS IT BEFORE OR AFTER THE FINAL
RULE IS ADOPTED BY THE RULEMAKING AGENCY?
The final rules are "adopted" by the
state agency, but cannot be filed with the Secretary of State and become
effective until the rules committee has reviewed them. If the committee
does not meet before the deadline for adopting rules has expired, the agency
can proceed with filing the rules. The rules will become effective; however,
they are still subject to a review by the committee. So in these few cases,
the review will actually take place after the rules are adopted, filed, and
become effective.
DOES IT – THE RULES REVIEW – APPLY
TO A REVIEW OF:
PERMANENT PROPOSED RULES -- Yes.
TEMPORARY PROPOSED RULES -- We don't have "temporary" rules.
EMERGENCY PROPOSED RULES -- Yes.
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES --
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES -- The reviewing entity
(which is also the publisher) recommends technical, stylistic,
grammatical, and other non-substantive changes. The reviewing entity does
not make substantive changes.
DOES YOUR REVIEWING ENTITY HAVE THE
AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
Yes.
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: SDCL ch 1-26
OTHER GENERIC RULEMAKING STATUTES: I'm not sure exactly what you are meaning here, but I can
tell you that each agency has it's own statutes that must provide the basis for
the rules is has or is attempting to adopt. If the agency does not have
rule-making authority, it is prohibited from adopting rules...which isn't
always a bad thing!! At any rate, our general rulemaking statutes are
sprinkled throughout our code.
RULEMAKING ADMINISTRATIVE CODES: This would be our APA located in SDCL ch 1-26
[thanks to Dan Proctor for these responses]
6.
DOES YOUR STATE HAVE A FORMAL
(I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
IS IT BEFORE OR AFTER THE
FINAL RULE IS ADOPTED BY THE RULEMAKING AGENCY?
DOES IT - THE RULES REVIEW - APPLY
TO A REVIEW OF:
PERMANENT PROPOSED RULES -- YES
TEMPORARY PROPOSED RULES -- YES
EMERGENCY PROPOSED RULES -- YES
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES -- Secretary of State--yes, with agency's knowledge
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES -- No.
DOES YOUR REVIEWING ENTITY HAVE THE
AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA:
OTHER GENERIC RULEMAKING STATUTES:
N/A
RULEMAKING ADMINISTRATIVE CODES:
ANYTHING ELSE YOU WANT TO ADD:
* The APA provides a procedure for rules to be referred to standing committees for review. In practice, this provision is rarely (if ever) implemented.
** The APA provides for judicial review, but probably not applicable in this context. It describes how a court may render a declaratory judgment to invalidate or remand and rule when an agency is sued in district court.
*** The APA directs agencies to self review their rules every four years to determine if the justification for their adoption is still valid. The goal is to repeal obsolete rules.
[thanks to Ken Hansen for these responses]
7.
1. DOES YOUR STATE HAVE A FORMAL (I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
UT: Yes.
Utah Code Section 63-46a-11 creates an Administrative Rules Review
Committee (ARRC). Additionally, an
executive order dated
2. IS IT AN EXECUTIVE, LEGISLATIVE, JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
UT: Legislative (statutory) and executive (executive order).
3. IS IT BEFORE OR AFTER THE FINAL RULE IS ADOPTED BY THE RULEMAKING AGENCY?
UT: The ARRC has statutory authority to review proposed and effective rules. GOPB reviews proposed rules.
4. DOES IT - THE RULES REVIEW - APPLY TO A REVIEW OF:
PERMANENT PROPOSED RULES -- UT: Yes
TEMPORARY PROPOSED RULES --
UT: N/A,
EMERGENCY PROPOSED RULES -- UT: Yes
5. DOES YOUR REVIEWING ENTITY (INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES -- UT: No
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES -- UT: No
UT: HOWEVER, the ARRC must prepare legislation to reauthorize administrative rules each year. Using that bill, the Legislature may decide to not reauthorize a rule or part of a rule, as it did this year -- see S.B. 122 (2007) at http://le.utah.gov/~2007/htmdoc/sbillhtm/sb0122.htm where the Legislature did not reauthorize Section R277-437-1. This process was crafted in 1989, post-Chadha. The process is codified at Utah Code Section 63-46a-11.5
DOES YOUR REVIEWING ENTITY HAVE THE AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT?
UT: No. However, both the ARRC and GOPB may exercise a good deal of political pressure if they believe something should be changed.
PLEASE GIVE ANY STATUTORY OR ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: UT:
OTHER GENERIC RULEMAKING STATUTES: UT: Utah Code Title 63, Chapter 46a (this is the Utah Administrative Rulemaking Act)
RULEMAKING ADMINISTRATIVE CODES: UT: Not certain what you're looking for here. The citation requiring the creation of the Utah Administrative Code is Utah Code Subsection 63-46a-10(1)(e). The UAC's structure is defined at Section 63-46a-9.6. Judicial notice is required at Section 63-46a-16.
ANYTHING ELSE YOU WANT TO ADD:
UT: A copy of the Utah Administrative Rulemaking Act is available online at http://www.rules.utah.gov/main/index.php?module=Pagesetter&func=viewpub&tid=1&pid=12 . The 1988 Governor's Executive Order is available online at http://www.rules.utah.gov/main/index.php?module=Pagesetter&func=viewpub&tid=1&pid=22 .
[thanks to Gary Poulson for these responses]
8.
DOES YOUR STATE HAVE A FORMAL
(I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION? Yes
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY? Legislative
IS IT BEFORE OR AFTER THE FINAL
RULE IS ADOPTED BY THE RULEMAKING AGENCY?
Both
DOES IT – THE RULES REVIEW – APPLY
TO A REVIEW OF:
PERMANENT PROPOSED RULES -- Yes
TEMPORARY PROPOSED RULES -- NA
EMERGENCY PROPOSED RULES -- Published
emergency rules
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES -- Yes the revisor has authority under s. 13.93 (2m)
(b), Wis. Stats.
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES -- The Legislative committees can stongly
"suggest" substantive changes to the agency to consider during
legislative review of proposed rules. Final rules can only be suspended in
whole or part, not revised
DOES YOUR REVIEWING ENTITY HAVE THE
AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT? Yes
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: Chapter 227,
OTHER GENERIC RULEMAKING STATUTES:
RULEMAKING ADMINISTRATIVE CODES: s.35.93
Wis.Stats.
ANYTHING ELSE YOU WANT TO ADD:
9.
DOES YOUR STATE HAVE A FORMAL
(I.E., STATUTORY OR CONSTITUTIONAL) RULES REVIEW FUNCTION?
Yes, found in 29A-3-10 ( http://www.wvsos.com/adlaw/rulemaking/wvcapa.htm)
Legislative Rule Making Review Committee (LRMRC)
IS IT AN EXECUTIVE, LEGISLATIVE,
JUDICIAL, OR COMBINED FUNCTION OR AGENCY?
Legislative
IS IT BEFORE OR AFTER THE FINAL
RULE IS ADOPTED BY THE RULEMAKING AGENCY?
Before for Legislative rules
DOES IT – THE RULES REVIEW – APPLY
TO A REVIEW OF:
PERMANENT PROPOSED RULES -- We
have 3 types of permanent rules, Legislative, Procedural &
Interpretive. Only Legislative go through LRMRC .
TEMPORARY PROPOSED RULES --
No temporary rules
EMERGENCY PROPOSED RULES -- Emergency rules are approved by the Secretary of State. An emergency rule may be effective for a total of 15 months. This is the condition of a Legislative rule only, and cannot be filed without a companion Legislative rule with it.
DOES YOUR REVIEWING ENTITY
(INCLUDING THE CODE PUBLISHER) HAVE THE AUTHORITY TO MAKE OR REQUIRE:
TECHNICAL, STYLISTIC, GRAMMATICAL, NON-SUBSTANTIVE CHANGES --
SUBSTANTIVE CHANGES TO THE CONTENT OF THE RULES --
LRMRC may ask for all of the above
changes. If changes are accepted, the Agency files a
"Modified" rule, which is then submitted to the entire
Legislature. It is given both a House and Senate bill number and sent to
at least one committee, sometimes 2 committees & sometimes 3 committees.
The rules always end up in the Judiciary Committee. There the rules are
"bundled" together, (such as all Environmental rules will be bundled
together) and then passed. The Legislature may approve the rule as
submitted to them, they may make significant changes or they may disapprove the
rule altogether. After the rules bill passes, the Governor signs, the
Agency final files the rule & establishes an effective date (unless
mandated by the rules bill).
DOES YOUR REVIEWING ENTITY HAVE THE AUTHORITY TO PREVENT A RULE FROM TAKING EFFECT? The code says:
(c) After reviewing the legislative rule, the committee
shall recommend that the Legislature:
(1) Authorize the promulgation of the legislative rule; or
(2) Authorize the promulgation of part of the legislative rule; or
(3) Authorize the promulgation of the legislative rule with certain amendments;
or
(4) Recommend that the proposed rule be withdrawn.
The committee shall file notice of its action in the state register and with
the agency proposing the rule: Provided, That when the committee makes
the recommendations of subdivision (2), (3) or (4) of this subsection, the
notice shall contain a statement of the reasons for such recommendation.
PLEASE GIVE ANY STATUTORY OR
ADMINISTRATIVE CODE REFERENCES TO YOUR:
APA: http://www.wvsos.com/adlaw/rulemaking/wvcapa.htm
OTHER GENERIC RULEMAKING STATUTES:
RULEMAKING ADMINISTRATIVE CODES:
9. Section 801 to
802 issues memo
1.
A. California Government Code Section 11340.1
(a) The Legislature therefore
declares that it is in the public interest to establish an Office of
Administrative Law which shall be charged with the orderly review of adopted
regulations. It is the intent of the Legislature that the purpose of such
review shall be to reduce the number of administrative regulations and to
improve the quality of those regulations which are adopted. It is the intent of
the Legislature that agencies shall actively seek to reduce the unnecessary
regulatory burden on private individuals and entities by substituting
performance standards for prescriptive standards wherever performance standards
can be reasonably expected to be as effective and less burdensome, and that
this substitution shall be considered during the course of the agency
rulemaking process. It is the intent of the Legislature that neither the Office
of Administrative Law nor the court should substitute its judgment for that of
the rulemaking agency as expressed in the substantive content of adopted
regulations. It is the intent of the Legislature that while the Office of
Administrative Law will be part of the executive branch of state government,
that the office work closely with, and upon request report directly to, the
Legislature in order to accomplish regulatory reform in California.
(b) It is the intent of the Legislature that the
California Code of Regulations made available on the Internet by the office
pursuant to Section 11344 include complete authority and reference
citations and history notes.
B. California Government Code
Section 11344
§ 11344. Code of regulations; publication; internet; updating
The office shall do all of the following:
(a) Provide for the official compilation, printing,
and publication of adoption, amendment, or repeal of regulations, which shall
be known as the California Code of Regulations. On and after
(b) Provide for the compilation, printing, and
publication of weekly updates of the California Code of Regulations. This
publication shall be known as the California Code of Regulations Supplement and
shall contain amendments to the code.
(c) Provide for the publication dates and manner and
form in which regulations shall be printed and distributed and ensure that
regulations are available in printed form at the earliest practicable date
after filing with the Secretary of State.
(d) Ensure that each regulation is printed together
with a reference to the statutory authority pursuant to which it was enacted
and the specific statute or other provision of law which the regulation is implementing,
interpreting, or making specific.
B. California Government Code Section 11340.85
C. California Government Code
Section 11340.85
§ 11340.85. Electronic communications
(a) As used in this section,
"electronic communication" includes electronic transmission of
written or graphical material by electronic mail, facsimile, or other means,
but does not include voice communication.
(b) Notwithstanding any other provision of this
chapter that refers to mailing or sending, or to oral or written communication:
(1) An agency may
permit and encourage use of electronic communication, but may not require use
of electronic communication.
(2) An agency may
publish or distribute a document required by this chapter or by a regulation
implementing this chapter by means of electronic communication, but shall not
make that the exclusive means by which the document is published or
distributed.
(3) A notice required
or authorized by this chapter or by a regulation implementing this chapter may
be delivered to a person by means of electronic communication if the person has
expressly indicated a willingness to receive the notice by means of electronic
communication.
(4) A comment regarding
a regulation may be delivered to an agency by means of electronic communication.
(5) A petition
regarding a regulation may be delivered to an agency by means of electronic
communication if the agency has expressly indicated a willingness to receive a
petition by means of electronic communication.
(c) An agency that maintains an Internet Web site or
other similar forum for the electronic publication or distribution of written
material shall publish on that Web site or other forum information regarding a
proposed regulation or regulatory repeal or amendment, that includes, but is not
limited to, the following:
(1) Any public notice
required by this chapter or by a regulation implementing this chapter.
(2) The initial
statement of reasons prepared pursuant to subdivision (b) of Section 11346.2.
(3)
The final statement of reasons prepared pursuant to subdivision (a) of Section 11346.9.
(4) Notice of a
decision not to proceed prepared pursuant to Section 11347.
(5) The text of a
proposed action or instructions on how to obtain a copy of the text.
(6) A statement of any
decision made by the office regarding a proposed action.
(7) The date a
rulemaking action is filed with the Secretary of State.
(8) The effective date
of a rulemaking action.
(9)
A statement to the effect that a business or person submitting a comment
regarding a proposed action has the right to request a copy of the final
statement of reasons.
(10) The text of a
proposed emergency adoption, amendment, or repeal of a regulation pursuant to Section 11346.1 and the date it was submitted to the office
for review and filing.
(d) A document that is
required to be posted pursuant to subdivision (c) shall be posted within a
reasonable time after issuance of the document, and shall remain posted until
at least 15 days after (1) the rulemaking action is filed with the Secretary of
State, or (2) notice of a decision not to proceed is published pursuant to Section 11347. Publication under subdivision (c) supplements
any other required form of publication or distribution. Failure to comply with
this section is not grounds for disapproval of a proposed regulation.
Subdivision (c) does not require an agency to establish or maintain a Web site
or other forum for the electronic publication or distribution of written
material.
(e)
Nothing in this section precludes the office from requiring that the material
submitted to the office for publication in the California Code of Regulations
or the California Regulatory Notice Register be submitted in electronic form.
(f)
This section is intended to make the regulatory process more user-friendly and
to improve communication between interested parties and the regulatory
agencies.
CREDIT(S)
(Added by Stats.2000, c. 1060 (A.B.1822), § 4. Amended by Stats.2001, c. 59 (S.B.561), § 2; Stats.2002, c. 389 (A.B.1857), § 2; Stats.2006, c. 713 (A.B.1302), § 1.)
LAW REVISION COMMISSION COMMENTS
2000 Addition
Section 11340.85 is new. Subdivision (b) authorizes
the use of electronic communications in adopting a regulation under this
chapter.
Subdivision (c) requires electronic publication of
certain rulemaking documents by an agency that maintains a website or similar
electronic communication forum. Provisions requiring a "public
notice" as defined in paragraph (1) include Sections 11346.4 (notice of
proposed action), 11346.8(a) (notice of hearing), and 11346.8(b) (notice of
continuance or postponement of hearing), and Section 44 of Title 1 of the California Code of Regulations
(notice of changes to proposed regulation).
Use of electronic communications pursuant to this
section supplements other required forms of publication or distribution. See
subdivisions (b)(2) & (d). See also Section 11342(b) ("office"
means Office of Administrative Law). [30 Cal.L.Rev.Comm.Reports 725 (2000)].
…….
2.
V.A.M.S.
1. For the purpose of providing the services described
in this section, each agency shall have the following responsibilities and
powers:
(1) To submit to the
state library electronically each publication created by the agency in a manner
consistent with the state's enterprise architecture;
(2) To determine the
format used to publish;
(3) For those publications which the agency determines shall be printed and published
in paper, to supply the number of copies for participating libraries as
determined by the secretary of state;
(4) To assign a
designee as a contact for the state publications access program and forward this
information to the secretary of state annually.
2. For the purpose of providing the
services described in this section, the secretary of state shall have the
following responsibilities:
(1) The secretary, through the state
library, shall provide a secure electronic repository of state publications. Access to the state publications in the repository shall be provided
through multiple methods of access, including the statewide online library
catalog and a publicly accessible electronic network;
(2) The secretary shall
create, in administrative rule, the criteria for selection of
participating libraries and the responsibilities incumbent upon those libraries
in serving the citizens of Missouri;
(3) The secretary shall
set by administrative rule the electronic formats acceptable for submission of
publications to the electronic repository;
(4) The secretary may
issue and promulgate rules to enforce, implement and effectuate the powers and duties
established in sections 181.100 to 181.130.
3. For the purpose of providing the services described
in this section, the state library shall have the following responsibilities,
all to be performed in a manner consistent with e-government:
(1) The state library
shall administer the electronic repository of state publications for access by the citizens of Missouri, and receive and
distribute publications in other formats, which will be housed and made available
to the public by the participating libraries;
(2) The state library
shall ensure the organization and classification of state publications regardless of formats and the distribution of materials in
additional formats to participating libraries;
(3) The state library
shall publish regularly a list of all publications of the agencies, regardless of
format.
4. For the purpose of providing the services described
in this section, the participating libraries shall have the following
responsibilities:
(1) To ensure citizens
who come to the library will be able to access publications
electronically;
(2) To maintain paper
copies of those state publications that agencies publish
in paper that are designated by the secretary of state to be included in the
Missouri state publications access program;
(3) To maintain a
collection of older state publications published by the agencies in paper and
designated by the secretary of state to be included in the Missouri state publications access
10. Section 901
issues memo
II. [Section 901] Should the MSAPA effective date language include authority for agencies to adopt interim regulations to govern adjudicative proceedings under the Act?
See Section 901 issues memo].
III. The
A.
(a) This chapter is operative on
(b) This chapter is applicable to an adjudicative
proceeding commenced on or after
(c) This chapter is not applicable to an adjudicative
proceeding commenced before
CREDIT(S)
(Added by Stats.1995, c. 938 (S.B.523), § 21, operative July 1, 1997.)
LAW REVISION COMMISSION COMMENTS
1995 Addition
Section 11400.10 provides a deferred operative date to
enable state agencies to make any necessary preparations for operation under
this chapter. [25 Cal.L.Rev.Comm. Reports 55 (1995) ]
B. California Government Code Section 11400.20 Adoption
of Regulations
(a) Before, on, or after
(b) Except as provided in Section 11351:
(1) Interim regulations need not comply with Article 5
(commencing with Section 11346) or Article 6 (commencing with Section 11349) of Chapter 3.5, but are governed by Chapter 3.5 (commencing with
Section 11340) in all other respects.
(2) Interim regulations expire on
(3) Permanent regulations are subject to all the
provisions of Chapter 3.5 (commencing with Section 11340), except that if by December 31, 1998, an
agency has submitted the regulations for review by the Office of Administrative
Law, the regulations are not subject to review for necessity under Section 11349.1 or 11350.
CREDIT(S)
(Added by Stats.1995, c. 938 (S.B.523), § 21, operative July 1. 1997.
Amended by Stats.1996, c. 390 (S.B.794), § 5, eff. Aug. 19, 1996,
operative
LAW REVISION COMMISSION COMMENTS
1995 Addition
Subdivision (a) of Section 11400.20 makes clear that
an agency may act to adopt regulations under this division after enactment but
before the division becomes operative. This will enable the agency to have any
necessary regulations in place on the operative date. It should be noted that
revisions of regulations that merely conform to the new law may be adopted by
simplified procedures under the rulemaking provisions of the Administrative
Procedure Act pursuant to 1 California Code of Regulations Section 100.
Under subdivision (b), an agency may adopt interim
procedural regulations without the normal notice and hearing and Office of
Administrative Law review processes of the Administrative Procedure Act.
However, this does not excuse compliance with the other provisions of the
Administrative Procedure Act, including but not limited to the requirements
that (1) regulations be consistent and not in conflict with statute and
reasonably necessary to effectuate the purpose of the statute (Section
11342.2), (2) regulations be filed and published (Sections 11343-11344.9), and
(3) regulations are subject to judicial review (Section 11350). Compliance with
these provisions is not required for agencies exempted by statute. See Section
11351.
Interim regulations are only valid through
Subdivision (b)(3) makes clear that permanent
regulations governing administrative adjudication are subject to normal
rulemaking procedures, other than review for necessity under Sect tion 11349.1
(Office of Administrative Law) or 11350 (declaratory relief) in the case of
permanent regulations promulgated during the transitional period. [25
Cal.L.Rev.Comm. Reports 55 (1995) ]