Legislative Rule-Making Process

Three Different Processes Higher Education 29A-3A-1 et seq State Board of Education 29A-3B-1 et seq All other state agencies 29A-3-1 et seq

Four Different Types of Rules Legislative Procedural Interpretive Emergency

Legislative Rule Every rule which, when promulgated after or pursuant to authorization of the Legislature, has (1) the force of law, or (2) supplies a basis for the imposition of civil or criminal liability, or (3) grants or denies a specific benefit or is determinative on any issue affecting private rights, privileges or interests

Procedural Rule A rule which fixes rules of procedure, practice or evidence for dealings with or proceedings before an agency, including forms prescribed by the agency

Interpretive Rule A rule intended by an agency to provide information or guidance to the public regarding the agency’s interpretations, policy or opinions upon the law enforced or administered by it which is not intended to be determinative of any issue affecting private rights, privileges, or interests

Emergency Rule Emergency exists when the promulgation of a rule is necessary for the immediate preservation of the public peace, health, safety or welfare or is necessary to comply with a time limitation established in code or by a federal statute or regulation or to prevent substantial harm to the public interest If Legislature declares an emergency

Initial Steps Determine authority to promulgate –General authority in 18B-1-6 for Commission and Council –Specific authority in other sections 18B-1B-4 Commission 18B-2B-6 Council Other specific statutes such as 18B-10-1 for tuition and fee rules

Determine Need Agency Need Statutory Requirement Constituent Need

Initial Drafting Staff draft Submission for internal comment Redraft Rinse and repeat Preparation of agenda item with completed draft rule Submission to Commission or Council for approval to file for public comment

Initial Filing Proposed rule filed with Secretary of State and LOCEA Fiscal note to be included Amendments to a present rule must be shown by underlining and strike-thrus Comment or hearing dates must be noted with filing

Public Comments or Hearing Comment or hearing date filed in the State Register not less than 30 days before deadline for submission of written comments nor more than 60 days before deadline Comments received are public records that must be open and retained for at least 5 years

Adoption of Final Rules Procedural and interpretive rules must be final adopted within 6 months of close of public comment or are deemed withdrawn Comments received, responses to them and amendments made because of comments must be noted and explained when final filing with secretary of State Rules effective 30 days from filing or on date noted in rule---whichever is later

Legislative Rules Procedure same but final adoption is only deemed as submission to Legislature for approval to promulgate Must submit 15 copies to LOCEA with new and old language delineated and summary of contents, fiscal note, and circumstances requiring rule

LOCEA Review LOCEA to determine whether rule is within statutory authority, proper and necessary After review, LOCEA to recommend to Full Legislature whether Commission or Council may: –Promulgate rule –Promulgate part of rule –Promulgate rule with certain amendments –Withdraw rule

Legislature No later than 40 days before 60 th day of session LOCEA to submit to clerks of respective houses its recommendations Bill prepared authorizing promulgation of rule Bill introduced and referred to appropriate legislative committees and then adopted or rejected by both houses and signed by Governor

Legislative Approval After legislative approval, Commission or Council to file final rule with Secretary of State within 60 days of effective date of Act Rule effective 30 days after filing in State Register, or later date established in Act, but not to exceed 90 days

Emergency Legislative Rule Public hearing or comment not necessary if emergency found Can be immediately filed in State Register, together with a statement of facts and circumstances constituting the emergency, and become effective immediately 15 copies to be filed with LOCEA LOCEA requires some emergency rules to get its prior approval

Remaining Effective Emergency rule can only remain effective for maximum of 15 months Expires if agency does not file a notice of public hearing within 60 days of filing or not filed with LOCEA within 180 days Emergency rule may be amended but the amendment does not extend these timelines

Expires An emergency rule can also expire if a Circuit Court rules that an emergency does not exist, or The Secretary of State rules it is not an emergency The Legislature authorizes a legislative rule on that subject which is then promulgated The Legislature disapproves of the emergency rule