2000 Legislation
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SENATE BILL NO. 1301, As Amended – Admin rules, incorporatn by refernc

SENATE BILL NO. 1301, As Amended

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Daily Data Tracking History



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not adopt a temporary rule incorporating by reference repealed rules of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

Bill Text


 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.

Amendment


 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 / Fiscal Impact


                      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