MSAPA
Drafting Committee
Analysis of
timing issue related to section 305 regulatory analysis
Memo
prepared for June telephone conference call.
June 1, 2008
Professor
Gregory Ogden, Reporter
Section 305
Section 305 provides for a regulatory analysis
which contains:
(1) a description of any person or class of persons
that would be affected by the rule, and the cost and benefit to that person or
class of persons;
(2) an estimate of the probable impact of the rule
upon affected persons;
(3) a comparison of the probable costs and benefits of
the rule to the probable costs and benefits of inaction; and
(4) a determination of whether there are less costly
or less intrusive methods for achieving the purpose of the rule.
When does a
regulatory analysis prepared by an agency in rulemaking have to be
completed: before the notice of the text
of proposed rules is published by the agency, or at some later point of time,
such as when the final rule is adopted?
If you know
the statutory citation for this provision in your state's law, please provide
it.
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A preliminary summary accompanies the proposed rule or final rule.
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Regarding the Proposed Rulemaking Form for whether the regulatory analysis is prepared
before the notice is published or at some later point in time, see our
Preamble. "Preamble" means:
(a) For any rule making
subject to this chapter, a statement accompanying the rule that
includes:
(i) Reference to the
specific statutory authority for the rule.
(ii) The name and address
of agency personnel with whom persons may communicate regarding the rule.
(iii) An explanation of
the rule, including the agency's reasons for initiating the rule making.
(iv) A reference to any
study relevant to the rule that the agency reviewed and either proposes to rely
on in its evaluation of or justification for the rule or proposes not to rely
on in its evaluation of or justification for the rule, where the public may
obtain or review each study, all data underlying each study and any analysis of
each study and other supporting material.
(v) The economic,
small business and consumer impact summary, or in the case of a proposed
rule, a preliminary summary and a solicitation of input on the accuracy of the
summary….A.R.S. §
41-1001 (14)(v) http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/41/01001.htm&Title=41&DocType=ARS
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Re Final Rulemaking Form (also see our Preamble)
(d) For a final rule, except an emergency rule, the preamble also shall
include, in addition to the information set forth in subdivision (a), [so
also accompanying the rule] the following information:
(i) A list of all
previous notices appearing in the register addressing the final rule.
(ii) A
description of the changes between the proposed rules, including supplemental
notices and final rules.
(iii) A
summary of the comments made regarding the rule and the agency response to
them.
(iv) A
summary of the council's action on the rule.
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(v) A statement of the
rule's effective date.
A.R.S. § 41-1055. Economic, small business and consumer impact statement
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/41/01055.htm&Title=41&DocType=ARS
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An interesting side note: If rules affect or
"impact" small businesses
A.R.S. § 41-1035. Rules affecting
small businesses; reduction of rule impact
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/41/01035.htm&Title=41&DocType=ARS
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In California, prior
to submitting proposed regulations to OAL for review, a state agency must consider
the proposal's impact on business, and assess the potential creation or
elimination of jobs, businesses etc. (Government Code section 11346.3).
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State agencies
are required to publish Notice to kick off the rulemaking process, and that
Notice must include an estimate of the costs or savings impact on any state
agency, local agency, school district, or federal funding source. (Government
Code section 11346.5.) This information is contained in a Fiscal Impact
Statement form provided by the Department of Finance. The FIS form used in
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The
o
(a) State agencies proposing to adopt, amend, or repeal
any administrative regulation shall assess the potential for adverse economic
impact on California business enterprises and individuals, avoiding the
imposition of unnecessary or unreasonable regulations or reporting,
recordkeeping, or compliance requirements. For purposes of this subdivision,
assessing the potential for adverse economic impact shall require agencies,
when proposing to adopt, amend, or repeal a regulation, to adhere to the
following requirements, to the extent that these requirements do not conflict
with other state or federal laws:
o
(1) The proposed adoption,
amendment, or repeal of a regulation shall be based on adequate information
concerning the need for, and consequences of, proposed governmental action.
o
(2) The state agency, prior
to submitting a proposal to adopt, amend, or repeal a regulation to the
office, shall consider the proposal's impact on business, with consideration of
industries affected including the ability of California businesses to compete
with businesses in other states. For purposes of evaluating the impact on the
ability of
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A regulatory
analysis, if requested, must be made available to the public five days before
the public rulemaking hearing.
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The statutory
citation is C.R.S. 24-4-103(4.5).
http://www.sos.state.co.us/pubs/bingo_raffles/admin_procedures_act.pdf
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In
o
"§ 10405.
Transmission of rule to General Assembly standing committees; comments. The
agency prescribing such rule shall transmit such rule to, and obtain the
comments, if any, of, the appropriate standing committees of the General
Assembly with oversight responsibilities for legislation affecting that agency
with respect to the impact on individuals and/or small businesses resulting
from implementation of such rules. (64
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That being said,
agencies in
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The citation is
29 Del.C.
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In Idaho, the
Division of Financial Management, a division of the Governor's Office, requires
that a Proposed/Temporary Administrative Rules Form (
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For the most part
the
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During the
legislative session the germane committees review and approve agency rules and
any concerns that have been raised during the joint germane subcommittee review
are addressed by the germane committee during the formal review for final
adoption. These review provisions are
outlined in 67-5291, Idaho Code.
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In
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The regulatory
analysis has to be completed at the time the proposed rule, amendment or
rescission is being filed for publication.
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These regulatory
analysis documents are published in the Missouri Register with the rule text
and a notice seeking public comment or hearing. Once comments are received and
analyzed if the agency determines to make any change to the proposed rule text
that would change the original estimated impact by more than 10%, for public or
private entities, the agency has to prepare and file revised fiscal notes with
their order of rulemaking for publication
in the Missouri Register.
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In New Hampshire
the relevant document is called a "fiscal impact statement" (FIS),
although it does not actually weigh costs and benefits but must state them,
including the cost or benefit of the proposed rule to the state, its citizens,
political subdivisons, or independently owned businesses. An FIS is required for all regular rulemaking
(generally resulting in 8-year rules), and some interim rulemaking (180-day
rules).
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The FIS must be
obtained by an agency from the Office of Legislative Budget Assistant, based on
information that the agency provides, before notice is published. The agency must then file the FIS with the
proposed rule as part of its rulemaking notice, which is then published in the
Rulemaking Register by our office, the Office of Legislative Services (OLS). The Register is also viewable on the web site
of OLS.
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See NHRSA
541-A:5, NHRSA 541-A:6, I(i), and NHRSA 541-A:9, I(a) for regular rulemaking,
and RSA 541-A:19, I and II for interim rulemaking.
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In regular
rulemaking, if the proposed rule changes as a result of the public comment and
hearing process, the agency must obtain an amended FIS , which is then filed as
part of the final proposal but is not published again. Instead, this final proposal is subject to
review by our rules oversight committee, the Joint Legislative Committee on
Administrative Rules (JLCAR). The JLCAR
may object to a final proposal on several grounds, one of which is that there
is a substantial economic impact not recognized in the FIS (or amended FIS).
See RSA 541-A:5, VI, RSA 541-A:12, II(d), and RSA 541-A:13, IV(d).
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Interim rules do
not have a public comment and hearing process, except for a legislative hearing
before the JLCAR. But the JLCAR's
approval is required for an interim rule to be approved, and an inadequate FIS
(if an FIS is required) may prevent that.
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In
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N.J.S.A.
52:14B-4(a)(2) and 16 through 24 and Governor's Executive Order No. 4 (2002).
See also N.J.A.C. 1:30-5.1.
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For most rules,
the regulatory impact statement (RIS), regulatory flexibility analysis for
small businesses and local governments (RFA), rural area flexibility analysis
(RAFA), and job impact statement (JIS) must be completed at the time the
rule is submitted to the Governor's Office of Regulatory Reform (GORR) for
pre-approval prior to the publication in the New York State Register. For rules which do not require pre-approval
by GORR, these statements would first appear at the time they are published with
a notice of proposed rule making or emergency adoption in the State Register.
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Statutory
citation:
RIS: State
Administrative Procedure Act (SAPA) section 202-a
RFA: SAPA section
202-b
RAFA: SAPA section
202-bb
JIS: SAPA section
201-a
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Prior to
publication of notice of text of
proposed rules
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NCGS 150B-21.4
Office of State Budget
Manual:
http://www.osbm.state.nc.us/osbm/RegulatoryAnalysis.html
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The way I read
th[is] statute is that the regulatory analysis must be completed before the
proposed text of new rules are published.
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The Wake
forest article states at 699: The analysis of the proposed rule must be done and approved by OSBM prior to publication of the text
of the proposed rule in notice and comment proceedings. [FN24] §
150B-21.4(b1) (1995).
o
b1) Substantial Economic Impact. -- As used in this
subsection, the term "substantial economic impact" means an aggregate
financial impact on all persons affected of at least three million dollars
($3,000,000) in a 12-month period.
o
Before an agency publishes in the North
Carolina Register the proposed text of a permanent rule change that would have
a substantial economic impact and that is not identical to a federal regulation
that the agency is required to adopt, the agency must obtain a fiscal note for
the proposed rule change from the Office of State Budget and Management or
prepare a fiscal note for the proposed rule change and have the note approved
by that Office.
o
If an agency requests the Office of State
Budget and Management to prepare a fiscal note for a proposed rule change, that
Office must prepare the note within 90 days after receiving a written request
for the note.
o
If the Office of State Budget and Management fails to
prepare a fiscal note within this time period, the agency proposing the rule
change may prepare a fiscal note. A fiscal note prepared in
this circumstance does not require approval of the Office of State Budget and
Management.
o
If an agency prepares the required fiscal
note, the agency must submit the note to the Office of State Budget and
Management for review.
o
The Office of State Budget and Management
must review the fiscal note within 14 days after it is submitted and either
approve the note or inform the agency in writing of the reasons why it does not
approve the fiscal note. After addressing these reasons, the agency may submit
the revised fiscal note to that Office for its review.
o
If an agency is not sure whether a proposed rule change
would have a substantial economic impact, the agency may ask the Office of
State Budget and Management to determine whether the proposed rule change has a
substantial economic impact.
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In
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75 O.S., Sections
303(D) and 253(B)(2) (see links below)
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=436030
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=93494
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The analysis
(Fiscal Impact Statement) is to be filed with the Notice of Proposed
Rulemaking, prior to publishing.
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The statutory
citation for this is Oregon Revised Statutes (ORS) 183.335(2)(a)(E)-(G).
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In
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http://legis.state.sd.us/statutes/DisplayStatute.aspx?Statute=1-26-4&Type=Statute
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http://legis.state.sd.us/statutes/DisplayStatute.aspx?Statute=1-26-2.1&Type=Statute
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The analysis must
be included when proposed rule is filed for publication.
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Also, relevant is
§2006.002. ADOPTION OF RULES WITH ADVERSE ECONOMIC EFFECT. This section applies
to the notice of a proposed rule that may have adverse consequences for small
or micro businesses, and requires a detailed regulatory flexibility analysis
that includes the agency's consideration of alternative methods of achieving
the purpose of the proposed rule.
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http://tlo2.tlc.state.tx.us/statutes/gv.toc.htm
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In
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Unless the
proposed rules are being promulgated through the fast-track rulemaking process,
the Department of Planning and Budget, in coordination with the promulgating
agency, must complete the report within 45 days. If the proposed rules are being promulgated
through the fast-track rulemaking process, then the report must be completed
within 30 days.
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Here is a link to
Code of Virginia section § 2.2-4007.04:
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-4007.04