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S1301aa....................................................by STATE AFFAIRS
ADMINISTRATIVE RULES - Amends existing law to specify material which may be
incorporated by reference in agency rules; to provide that an agency may
not adopt a temporary rule incorporating by reference repealed rules of
that agency without legislative approval; to require that incorporated
material be identified with specificity; to provide for public access to
incorporated material; to provide for legislative review of incorporated
material; to provide the effect of the incorporated material; and to add a
definition of "standard."
01/25 Senate intro - 1st rdg - to printing
01/26 Rpt prt - to St Aff
02/01 Rpt out - rec d/p - to 2nd rdg
02/02 2nd rdg - to 3rd rdg
02/04 To 14th Ord
02/11 Rpt out amen - to engros
02/14 Rpt engros - 1st rdg - to 2nd rdg as amen
02/15 2nd rdg - to 3rd rdg as amen
02/18 3rd rdg as amen - PASSED - 34-0-1
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Noh,
Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner,
Stennett, Thorne, Wheeler, Whitworth, Williams
NAYS--None
Absent and excused--Branch
Floor Sponsor - Keough
Title apvd - to House
02/21 House intro - 1st rdg as amen - to St Aff
03/20 Rpt out - rec d/p - to 2nd rdg as amen
03/21 2nd rdg - to 3rd rdg as amen
03/30 3rd rdg as amen - PASSED - 62-0-8
AYES -- Alltus, Barraclough, Barrett, Bieter, Black, Boe, Bruneel,
Callister, Campbell, Chase, Cheirrett, Clark, Cuddy, Deal, Denney,
Ellsworth, Field(13), Field(20), Gagner, Gould, Hadley, Hammond,
Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet, Jones(Jones),
Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Linford, Loertscher,
Mader, Marley, McKague, Montgomery, Mortensen, Moss, Moyle, Pearce,
Pischner, Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali,
Schaefer, Sellman, Shepherd, Smith, Smylie, Stoicheff, Stone, Tilman,
Trail, Wood, Zimmermann
NAYS -- None
Absent and excused -- Bell, Crow, Geddes, Meyer, Stevenson, Taylor,
Wheeler, Mr Speaker
Floor Sponsor - Sellman
Title apvd - to Senate
03/31 To enrol
04/03 Rpt enrol - Pres signed - Sp signed
04/04 To Governor
04/05 Governor signed
Session Law Chapter 203
Effective: 07/01/00
S1301
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1301, As Amended
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO THE ADMINISTRATIVE PROCEDURE ACT; AMENDING SECTION 67-5229, IDAHO
3 CODE, TO SPECIFY THE MATERIAL WHICH MAY BE INCORPORATED BY REFERENCE IN
4 AGENCY RULES, TO PROVIDE THAT AN AGENCY MAY NOT ADOPT A TEMPORARY RULE
5 INCORPORATING BY REFERENCE REPEALED RULES OF THAT AGENCY WITHOUT LEGISLA-
6 TIVE APPROVAL, TO REQUIRE THAT INCORPORATED MATERIAL BE IDENTIFIED WITH
7 SPECIFICITY, TO PROVIDE FOR PUBLIC ACCESS TO INCORPORATED MATERIAL, TO
8 PROVIDE FOR LEGISLATIVE REVIEW OF THE INCORPORATED MATERIAL AND TO PROVIDE
9 THE EFFECT OF THE INCORPORATED MATERIAL; AMENDING SECTION 67-5226, IDAHO
10 CODE, TO CROSS REFERENCE THE EXCEPTION TO THE ADOPTION OF TEMPORARY RULES
11 PROVIDED IN SECTION 67-5229, IDAHO CODE; AMENDING SECTION 67-5201, IDAHO
12 CODE, TO ADD A DEFINITION AND TO MAKE A TECHNICAL CORRECTION; AND PROVID-
13 ING AN EFFECTIVE DATE.
14 Be It Enacted by the Legislature of the State of Idaho:
15 SECTION 1. That Section 67-5229, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 67-5229. INCORPORATION BY REFERENCE. (1) If the incorporation of its text
18 in the agency rules would be unduly cumbersome, expensive, or otherwise inex-
19 pedient aAn agency may incorporate by reference in its rules and without
20 republication of the incorporated material in full, all or any part of:
21 (a) Aa code, standard or rule which has been adopted by an agency of the
22 state or of the United States;
23 (b) or A code, standard or rule adopted by any nationally recognized
24 organization or association, if the incorporation of its text in the
25 agency rules would be unduly cumbersome, expensive, or otherwise inexpedi-
26 ent;
27 (c) A code or standard adopted by Idaho statute or authorized by Idaho
28 statute for adoption by rule; or
29 (d) A final rule of a state agency; provided however, that a state agency
30 shall not adopt a temporary rule incorporating by reference a rule of that
31 agency that is being or has been repealed unless the rule providing for
32 the incorporation has been reviewed and approved by the legislature.
33 (2) The agency shall, as part of the rulemaking:
34 (a) nNote where copies of the incorporated material may be obtained or
35 electronically accessed; and
36 (b) iIf otherwise unavailable, provide one (1) copy of the incorporated
37 material to the state Idaho supreme court law library. and to the coordi-
38 nator.
39 (23) The incorporated material shall be identified with specificity and
40 shall include the date when the code, standard or rule was published, approved
41 or became effective. If the agency subsequently wishes to incorporate adopt
42 amendments to previously incorporated material, it shall comply with the rule-
43 making procedures of this chapter.
2
1 (4) Unless prohibited by other provisions of law, the incorporated mate-
2 rial is subject to legislative review in accordance with the provisions of
3 section 67-5291, Idaho Code, and shall have the same force and effect as a
4 rule.
5 SECTION 2. That Section 67-5226, Idaho Code, be, and the same is hereby
6 amended to read as follows:
7 67-5226. TEMPORARY RULES. (1) If the governor finds that:
8 (a) protection of the public health, safety, or welfare; or
9 (b) compliance with deadlines in amendments to governing law or federal
10 programs; or
11 (c) conferring a benefit;
12 requires a rule to become effective before it has been submitted to the legis-
13 lature for review the agency may proceed with such notice as is practicable
14 and adopt a temporary rule, except as otherwise provided in section
15 67-5229(1)(d), Idaho Code. The agency may make the temporary rule immediately
16 effective. The agency shall incorporate the required finding and a concise
17 statement of its supporting reasons in each rule adopted in reliance upon the
18 provisions of this subsection.
19 (2) A rule adopted pursuant to subsection (1) of this section which
20 imposes a fee or charge may become effective under this section before it has
21 been approved, amended or modified by concurrent resolution only if the gover-
22 nor finds that the fee or charge is necessary to avoid immediate danger which
23 justifies the imposition of the fee or charge.
24 (3) In no case shall a rule adopted pursuant to this section remain in
25 effect beyond the conclusion of the next succeeding regular session of the
26 legislature unless the rule is approved, amended or modified by concurrent
27 resolution, in which case the rule may remain in effect until the time speci-
28 fied in the resolution or until the rule has been replaced by a final rule
29 which has become effective as provided in section 67-5224(5), Idaho Code.
30 (4) Temporary rules shall be published in the first available issue of
31 the bulletin.
32 (5) Temporary rules are not subject to the requirements of section
33 67-5223, Idaho Code.
34 (6) Concurrently with the promulgation of a rule under this section, or
35 as soon as reasonably possible thereafter, an agency shall commence the pro-
36 mulgation of a proposed rule in accordance with the rulemaking requirements of
37 this chapter, unless the temporary rule adopted by the agency will expire by
38 its own terms or by operation of law before the proposed rule could become
39 final.
40 SECTION 3. That Section 67-5201, Idaho Code, be, and the same is hereby
41 amended to read as follows:
42 67-5201. DEFINITIONS. As used in this act:
43 (1) "Administrative code" means the Idaho administrative code established
44 in this chapter.
45 (2) "Agency" means each state board, commission, department or officer
46 authorized by law to make rules or to determine contested cases, but does not
47 include the legislative or judicial branches, executive officers listed in
48 section 1, article IV, of the constitution of the state of Idaho in the exer-
49 cise of powers derived directly and exclusively from the constitution, the
50 state militia or the state board of correction.
51 (3) "Agency action" means:
3
1 (a) the whole or part of a rule or order;
2 (b) the failure to issue a rule or order; or
3 (c) an agency's performance of, or failure to perform, any duty placed on
4 it by law.
5 (4) "Agency head" means an individual or body of individuals in whom the
6 ultimate legal authority of the agency is vested by any provision of law.
7 (5) "Bulletin" means the Idaho administrative bulletin established in
8 this chapter.
9 (6) "Contested case" means a proceeding which results in the issuance of
10 an order.
11 (7) "Coordinator" means the administrative rules coordinator prescribed
12 in section 67-5202, Idaho Code.
13 (8) "Document" means any executive order, notice, rule or statement of
14 policy of an agency.
15 (9) "Final rule" means a rule that has been adopted by an agency under
16 the regular rulemaking process and is in effect.
17 (10) "License" means the whole or part of any agency permit, certificate,
18 approval, registration, charter, or similar form of authorization required by
19 law, but does not include a license required solely for revenue purposes.
20 (11) "Official text" means the text of a document issued, prescribed, or
21 promulgated by an agency in accordance with this chapter, and is the only
22 legally enforceable text of such document. Judicial notice shall be taken of
23 all documents issued, prescribed, or promulgated in accordance with this chap-
24 ter.
25 (12) "Order" means an agency action of particular applicability that
26 determines the legal rights, duties, privileges, immunities, or other legal
27 interests of one (1) or more specific persons.
28 (13) "Party" means each person or agency named or admitted as a party, or
29 properly seeking and entitled as of right to be admitted as a party.
30 (14) "Pending rule" means a rule that has been adopted by an agency under
31 the regular rulemaking process and remains subject to legislative review.
32 (15) "Person" means any individual, partnership, corporation, association,
33 governmental subdivision or agency, or public or private organization or
34 entity of any character.
35 (16) "Proposed rule" means a rule published in the bulletin as provided in
36 section 67-5221, Idaho Code.
37 (17) "Provision of law" means the whole or a part of the state or federal
38 constitution, or of any state or federal:
39 (a) statute; or
40 (b) rule or decision of court.
41 (18) "Publish" means to bring before the public by publication in the bul-
42 letin or administrative code, or as otherwise specifically provided by law.
43 (19) "Rule" means the whole or a part of an agency statement of general
44 applicability that has been promulgated in compliance with the provisions of
45 this chapter and that implements, interprets, or prescribes:
46 (a) law or policy,; or
47 (b) the procedure or practice requirements of an agency. The term
48 includes the amendment, repeal, or suspension of an existing rule, but
49 does not include:
50 (i) statements concerning only the internal management or internal
51 personnel policies of an agency and not affecting private rights of
52 the public or procedures available to the public; or
53 (ii) declaratory rulings issued pursuant to section 67-5232, Idaho
54 Code; or
55 (iii) intra-agency memoranda; or
4
1 (iv) any written statements given by an agency which pertain to an
2 interpretation of a rule or to the documentation of compliance with
3 a rule.
4 (20) "Rulemaking" means the process for formulation, adoption, amendment
5 or repeal of a rule.
6 (21) "Standard" means a manual, guideline, criterion, specification,
7 requirement, measurement or other authoritative principle providing a model
8 or pattern in comparison with which the correctness or appropriateness of
9 specified actions, practices or procedures may be determined.
10 (22) "Submitted for review" means that a rule has been provided to the
11 legislature for review at a regular or special legislative session as provided
12 in section 67-5291, Idaho Code.
13 (223) "Temporary rule" means a rule authorized by the governor to become
14 effective before it has been submitted to the legislature for review and which
15 expires by its own terms or by operation of law no later than the conclusion
16 of the next succeeding regular legislative session unless extended or replaced
17 by a final rule as provided in section 67-5226, Idaho Code.
18 SECTION 4. This act shall be in full force and effect on and after July
19 1, 2000.
AS1301
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
Moved by Davis
Seconded by Keough
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1301
1 AMENDMENTS TO SECTION 1
2 On page 1 of the printed bill, in line 38, following "(23)" insert: "The
3 incorporated material shall be identified with specificity and shall include
4 the date when the code, standard or rule was published, approved or became
5 effective.", and also in line 38, delete "incorporate" and insert: "incorpo-
6 rate adopt".
7 CORRECTION TO TITLE
8 On page 1, in line 6, following "APPROVAL," insert: "TO REQUIRE THAT
9 INCORPORATED MATERIAL BE IDENTIFIED WITH SPECIFICITY,".
STATEMENT OF PURPOSE
RS 09374CI
This legislation amends the incorporation by reference provision
of the Administrative Procedure Act. The legislation was
formulated by a working group created to consider concerns
expressed during the 1999 Legislature about the incorporation of
documents such as manuals into agency rules. The working group
was comprised of Senator Shawn Keough, Representative Sher
Sellman, agency representatives, members of the governor's
office, the Administrative Rules Coordinator and staff, and
Legislative Services staff. The bill clarifies the material
which is authorized for incorporation by reference in an agency
rule, provides for better public access by requiring the agency
to note where copies of the incorporated material may be obtained
or electronically accessed and further clarifies that incorporated
material is subject to legislative review and has the same force
and effect as a rule. The legislation also adds a definition of
"standard" to the definitions applicable to the APA.
FISCAL NOTE
The legislation will have no fiscal impact.
Contact: Susan Mather
Legislative Services Office
334-4858
STATEMENT OF PURPOSE/FISCAL NOTE S 1301