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S1448................................................by JUDICIARY AND RULES
ADMINISTRATIVE RULES - Amends existing law relating to the Administrative
Procedure Act to define a term; to revise a definition; to remove language
relating to amendment or modification of a pending rule by concurrent
resolution; to remove language relating to amendment or modification of a
temporary rule by concurrent resolution; to add language providing for
rejection of a rule in whole or in part; and to remove language relating to
amendment or modification of a rule by concurrent resolution.
02/28 Senate intro - 1st rdg - to printing
02/29 Rpt prt - to St Aff
03/05 Rpt out - rec d/p - to 2nd rdg
03/06 2nd rdg - to 3rd rdg
03/07 3rd rdg - PASSED - 32-0-3
AYES -- Andreason, Bair, Bastian, Bilyeu, Burkett, Cameron, Coiner,
Corder, Darrington, Davis, Fulcher, Geddes, Goedde, Hammond,
Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little, Lodge,
Malepeai(Sagness), McGee, McKague, McKenzie, Pearce, Richardson,
Schroeder, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Broadsword, Gannon, Siddoway
Floor Sponsor - Stegner
Title apvd - to House
03/10 House intro - 1st rdg - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1448 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE ADMINISTRATIVE PROCEDURE ACT; AMENDING SECTION 67-5201, IDAHO 3 CODE, TO DEFINE A TERM, TO REVISE A DEFINITION AND TO MAKE TECHNICAL COR- 4 RECTIONS; AMENDING SECTION 67-5224, IDAHO CODE, TO REMOVE LANGUAGE RELAT- 5 ING TO AMENDMENT OR MODIFICATION OF A PENDING RULE BY CONCURRENT RESOLU- 6 TION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 67-5226, IDAHO 7 CODE, TO REMOVE LANGUAGE RELATING TO AMENDMENT OR MODIFICATION OF A TEMPO- 8 RARY RULE BY CONCURRENT RESOLUTION AND TO MAKE TECHNICAL CORRECTIONS; 9 AMENDING SECTION 67-5250, IDAHO CODE, TO REMOVE A DEFINITION; AND AMENDING 10 SECTION 67-5291, IDAHO CODE, TO ADD LANGUAGE PROVIDING FOR REJECTION OF A 11 RULE IN WHOLE OR IN PART AND TO REMOVE LANGUAGE RELATING TO AMENDMENT OR 12 MODIFICATION OF A RULE BY CONCURRENT RESOLUTION. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 67-5201, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 67-5201. DEFINITIONS. As used in thisactchapter: 17 (1) "Administrative code" means the Idaho administrative code established 18 in this chapter. 19 (2) "Agency" means each state board, commission, department or officer 20 authorized by law to make rules or to determine contested cases, but does not 21 include the legislative or judicial branches, executive officers listed in 22 section 1, article IV, of the constitution of the state of Idaho in the exer- 23 cise of powers derived directly and exclusively from the constitution, the 24 state militia or the state board of correction. 25 (3) "Agency action" means: 26 (a)tThe whole or part of a rule or order; 27 (b)tThe failure to issue a rule or order; or 28 (c)aAn agency's performance of, or failure to perform, any duty placed 29 on it by law. 30 (4) "Agency head" means an individual or body of individuals in whom the 31 ultimate legal authority of the agency is vested by any provision of law. 32 (5) "Bulletin" means the Idaho administrative bulletin established in 33 this chapter. 34 (6) "Contested case" means a proceeding which results in the issuance of 35 an order. 36 (7) "Coordinator" means the administrative rules coordinator prescribed 37 in section 67-5202, Idaho Code. 38 (8) "Document" means any executive order, notice, rule or statement of 39 policy of an agency. 40 (9) "Final rule" means a rule that has been adopted by an agency under 41 the regular rulemaking process and is in effect. 42 (10) "Guidance document" means a record developed by an agency that 43 informs the general public of an agency's current approach to, or opinion of, 2 1 law, including interpretations and general statements of policy that describe 2 the agency's exercise of discretionary functions. "Guidance document" also 3 means all written documents, other than rules, orders and predecisional mate- 4 rials that are intended to guide agency actions affecting the rights or inter- 5 ests of persons outside the agency and shall include memoranda, manuals, pol- 6 icy statements, interpretation of law or rules and other materials that are of 7 general applicability, whether prepared by the agency alone or jointly with 8 other persons. A "guidance document" does not have the force or effect of law 9 or other precedential authority. 10 (11) "License" means the whole or part of any agency permit, certificate, 11 approval, registration, charter,or similar form of authorization required by 12 law, but does not include a license required solely for revenue purposes. 13 (112) "Official text" means the text of a document issued, prescribed, or 14 promulgated by an agency in accordance with this chapter, and is the only 15 legally enforceable text of such document. Judicial notice shall be taken of 16 all documents issued, prescribed,or promulgated in accordance with this chap- 17 ter. 18 (123) "Order" means an agency action of particular applicability that 19 determines the legal rights, duties, privileges, immunities,or other legal 20 interests of one (1) or more specific persons. 21 (134) "Party" means each person or agency named or admitted as a party, or 22 properly seeking and entitled as of right to be admitted as a party. 23 (145) "Pending rule" means a rule that has been adopted by an agency under 24 the regular rulemaking process and remains subject to legislative review. 25 (156) "Person" means any individual, partnership, corporation, associa- 26 tion, governmental subdivision or agency, or public or private organization or 27 entity of any character. 28 (167) "Proposed rule" means a rule published in the bulletin as provided 29 in section 67-5221, Idaho Code. 30 (178) "Provision of law" means the whole or a part of the state or federal 31 constitution, or of any state or federal: 32 (a)sStatute; or 33 (b)rRule or decision of court. 34 (189) "Publish" means to bring before the public by publication in the 35 bulletin or administrative code, or as otherwise specifically provided by law. 36 (1920) "Rule" means the whole or a part of an agency statement of general 37 applicability that has been promulgated in compliance with the provisions of 38 this chapter and that implements, interprets,or prescribes: 39 (a)lLaw or policy; or 40 (b)tThe procedure or practice requirements of an agency and: 41 (i) Has wide coverage; 42 (ii) Is applied generally and uniformly; 43 (iii) Operates only in future cases, except when: 44 1. The rule is to apply retroactively; or 45 2. The rule is a temporary rule; 46 (iv) Prescribes legal standards or directives not otherwise provided 47 by enabling statutes; 48 (v) Expresses agency policy not previously expressed; and 49 (vi) Is an interpretation of law and general policy. 50 (c) The term includes the amendment, repeal,or suspension of an existing 51 rule, but does not include: 52 (i)sStatements concerning only the internal management or internal 53 personnel policies of an agency and not affecting private rights of 54 the public or procedures available to the public; or 55 (ii)dDeclaratory rulings issued pursuant to section 67-5232, Idaho 3 1 Code; or 2 (iii)iIntra-agency memoranda; or 3 (iv)aAny written statements given by an agency which pertain to an 4 interpretation of a rule or to the documentation of compliance with a 5 rule. 6 (201) "Rulemaking" means the process for formulation, adoption, amendment 7 or repeal of a rule. 8 (212) "Standard" means a manual, guideline, criterion, specification, 9 requirement, measurement or other authoritative principle providing a model 10 or pattern in comparison with which the correctness or appropriateness of 11 specified actions, practices or procedures may be determined. 12 (223) "Submitted for review" means that a rule has been provided to the 13 legislature for review at a regular or special legislative session as provided 14 in section 67-5291, Idaho Code. 15 (234) "Temporary rule" means a rule authorized by the governor to become 16 effective before it has been submitted to the legislature for review and which 17 expires by its own terms or by operation of law no later than the conclusion 18 of the next succeeding regular legislative session unless extended or replaced 19 by a final rule as provided in section 67-5226, Idaho Code. 20 SECTION 2. That Section 67-5224, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 67-5224. PENDING RULE -- FINAL RULE -- EFFECTIVE DATE. (1) Prior to the 23 adoption, amendment, or repeal of a rule, the agency shall consider fully all 24 written and oral submissions respecting the proposed rule. 25 (2) Subject to the provisions of subsection (3) of this section, the 26 agency shall publish the text of a pending rule and a notice of adoption of 27 the pending rule in the bulletin. The notice of adoption of the pending rule 28 shall consist of a concise explanatory statement containing: 29 (a)rReasons for adopting the rule; 30 (b)aA statement of any change between the text of the proposed rule and 31 the text of the pending rule with an explanation of the reasons for any 32 changes; 33 (c)tThe date on which the pending rule will become final and effective, 34 as provided in subsection (5) of this section, and a statement that the 35 pending rule may be rejected, amended or modifiedby concurrent resolution 36 of the legislature; 37 (d)aAn identification of any portion of the pending rule imposing or 38 increasing a fee or charge and a statement that this portion of the rule 39 shall not become final and effective unless affirmatively approved by con- 40 current resolution of the legislature; 41 (e)tThe specific statutory authority for the rulemaking including a 42 citation to the specific section of the Idaho Code that has occasioned the 43 rulemaking, or the federal statute or regulation if that is the basis of 44 authority or requirement for the rulemaking; and 45 (f)aA specific description, if applicable, of any negative fiscal impact 46 on the state general fund greater than ten thousand dollars ($10,000) dur- 47 ing the fiscal year when the pending rule will become effective; provided 48 however, that notwithstanding section 67-5231, Idaho Code, the absence or 49 accuracy of a fiscal impact statement provided pursuant to this subsection 50 shall not affect the validity or the enforceability of the rule. 51 (3) With the permission of the coordinator, the agency need not publish 52 in full the text of the pending rule if no significant changes have been made 53 from the text of the proposed rule as published in the bulletin, but the 4 1 notice of adoption of the pending rule must cite the volume of the bulletin 2 where the text is available and note all changes that have been made. 3 (4) An agency shall not publish a pending rule until at least seven (7) 4 days after the close of all public comment. 5 (5) (a) Except as set forth in sections 67-5226 and 67-5228, Idaho Code, 6 a pending rule shall become final and effective upon the conclusion of the 7 legislative session at which the rule was submitted to the legislature for 8 review, or as provided in the rule, but no pending rule adopted by an 9 agency shall become final and effective before the conclusion of the regu- 10 lar or special legislative session at which the rule was submitted for 11 review. A rule which is final and effective may be applied retroactively, 12 as provided in the rule. 13 (b) When the legislature approves, amends or modifiesa pending rule pur- 14 suant to section 67-5291, Idaho Code, the rule shall become final and 15 effective upon adoption of the concurrent resolution or such other date 16 specified in the concurrent resolution. 17 (c) Except as set forth in sections 67-5226 and 67-5228, Idaho Code, no 18 pending rule or portion thereof imposing a fee or charge of any kind shall 19 become final and effective until it has been approved, amended or modified20 by concurrent resolution. 21 (6) Each agency shall provide the administrative rules coordinator with a 22 description of any pending rule or portion thereof imposing a new fee or 23 charge or increasing an existing fee or charge, along with a citation of the 24 specific statute authorizing the imposition or increase of the fee or charge. 25 The administrative rules coordinator shall provide the legislature with a com- 26 pilation of the descriptions provided by the agencies. 27 (7) At the conclusion of the legislative session or as soon thereafter as 28 is practicable, the coordinator shall publish the date upon which the legisla- 29 ture adjourned sine die and rules became effective and a list of final rules 30 becoming effective on a different date, as provided in section 67-5224(5), 31 Idaho Code, and temporary rules remaining in effect as provided in section 32 67-5226(3), Idaho Code. 33 SECTION 3. That Section 67-5226, Idaho Code, be, and the same is hereby 34 amended to read as follows: 35 67-5226. TEMPORARY RULES. (1) If the governor finds that: 36 (a)pProtection of the public health, safety, or welfare; or 37 (b)cCompliance with deadlines in amendments to governing law or federal 38 programs; or 39 (c)cConferring a benefit; 40 requires a rule to become effective before it has been submitted to the legis- 41 lature for review the agency may proceed with such notice as is practicable 42 and adopt a temporary rule, except as otherwise provided in section 43 67-5229(1)(d), Idaho Code. The agency may make the temporary rule immediately 44 effective. The agency shall incorporate the required finding and a concise 45 statement of its supporting reasons in each rule adopted in reliance upon the 46 provisions of this subsection. 47 (2) A rule adopted pursuant to subsection (1) of this section which 48 imposes a fee or charge may become effective under this section before it has 49 been approved, amended or modifiedby concurrent resolution only if the gover- 50 nor finds that the fee or charge is necessary to avoid immediate danger which 51 justifies the imposition of the fee or charge. 52 (3) In no case shall a rule adopted pursuant to this section remain in 53 effect beyond the conclusion of the next succeeding regular session of the 5 1 legislature unless the rule is approved, amended or modifiedby concurrent 2 resolution, in which case the rule may remain in effect until the time speci- 3 fied in the resolution or until the rule has been replaced by a final rule 4 which has become effective as provided in section 67-5224(5), Idaho Code. 5 (4) Temporary rules shall be published in the first available issue of 6 the bulletin. 7 (5) Temporary rules are not subject to the requirements of section 8 67-5223, Idaho Code, provided that the agency adopting the temporary rule 9 sends to the director of legislative services a copy of the temporary rule at 10 the same time the agency sends the temporary rule to the office of the admin- 11 istrative rules coordinator for publication in the bulletin. 12 (6) Concurrently with the promulgation of a rule under this section, or 13 as soon as reasonably possible thereafter, an agency shall commence the pro- 14 mulgation of a proposed rule in accordance with the rulemaking requirements of 15 this chapter, unless the temporary rule adopted by the agency will expire by 16 its own terms or by operation of law before the proposed rule could become 17 final. 18 SECTION 4. That Section 67-5250, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 67-5250. INDEXING OF PRECEDENTIAL AGENCY ORDERS -- INDEXING OF AGENCY 21 GUIDANCE DOCUMENTS. (1) Unless otherwise prohibited by any provision of law, 22 each agency shall index all written final orders that the agency intends to 23 rely upon as precedent. The index and the orders shall be available for public 24 inspection and copying at cost in the main office and each regional or dis- 25 trict office of the agency. The orders shall be indexed by name and subject. 26 A written final order may not be relied on as precedent by an agency to 27 the detriment of any person until it has been made available for public 28 inspection and indexed in the manner described in this subsection. 29 (2) Unless otherwise prohibited by any provision of law, each agency 30 shall index by subject all agency guidance documents. The index and the guid- 31 ance documents shall be available for public inspection and copying at cost in 32 the main office and each regional or district office of the agency.As used in33this section, "agency guidance" means all written documents, other than rules,34orders, and pre-decisional material, that are intended to guide agency actions35affecting the rights or interests of persons outside the agency. "Agency guid-36ance" shall include memoranda, manuals, policy statements, interpretations of37law or rules, and other material that are of general applicability, whether38prepared by the agency alone or jointly with other persons.The indexing of a 39 guidance document does not give that document the force and effect of law or 40 other precedential authority. 41 SECTION 5. That Section 67-5291, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 67-5291. LEGISLATIVE REVIEW OF RULES. The standing committees of the leg- 44 islature may review temporary, pending and final rules which have been pub- 45 lished in the bulletin or in the administrative code. If reviewed, the stand- 46 ing committee which reviewed the rules shall report to the membership of the 47 body its findings and recommendations concerning its review of the rules. If 48 ordered by the presiding officer, the report of the committee shall be printed 49 in the journal. A concurrent resolution may be adopted approving the rule, or 50 rejecting, amending or modifyingthe rule, in whole or in part, where it is 51 determined that the rule violates the legislative intent of the statute under 6 1 which the rule was made, or where it is determined that any rule previously 2 promulgated and reviewed by the legislature shall be deemed to violate the 3 legislative intent of the statute under which the rule was made. The 4 rejection, amendment or modificationof a rule by the legislature via concur- 5 rent resolution shall prevent the agency's intended action from remaining in 6 effect beyond the date of the legislative action. It shall be the responsibil- 7 ity of the secretary of state to immediately notify the affected agency of the 8 filing and effective date of any concurrent resolution enacted to approve,9amend, modify,or reject an agency rule and to transmit a copy of the concur- 10 rent resolution to the director of the agency for promulgation. The agency 11 shall be responsible for implementing legislative intent as expressed in the 12 concurrent resolution, including, as appropriate, the reinstatement of the 13 prior rule, if any, in the case of legislative rejection of a new rule, or the14incorporation of any legislative amendments to a new rule.If a rule has been15amended or modified by the legislature, the agency shall republish the rule in16accordance with the provisions of chapter 52, title 67, Idaho Code, reflect-17ing the action taken by the legislature and the effective date thereof.If a 18 rule has been rejected by the legislature, the agency shall publish notice of 19 such rejection in the bulletin. Except as provided in section 67-5226, Idaho 20 Code, with respect to temporary rules, every rule promulgated within the 21 authority conferred by law, and in accordance with the provisions of chapter 22 52, title 67, Idaho Code, and made effective pursuant to section 67-5224(5), 23 Idaho Code, shall remain in full force and effect until the same is rejected,24amended or modifiedby concurrent resolution, or until it expires as provided 25 in section 67-5292, Idaho Code, or by its own terms.
STATEMENT OF PURPOSE
RS 17960C1
This legislation amends the Idaho Administrative Procedures
Act in 3 ways: (1) it provides an expanded definition of "guidance"
as developed by state agencies; (2) it amends the act to conform to
an Idaho Supreme Court definition of a "rule," and (3) it conforms
legislative actions concerning rules review by deleting the ability
of the Legislature to amend or modify rules to conform to another
Idaho Supreme Court case.
FISCAL NOTE
There is no impact to the General Fund.
Contact
Name: Roy Eiguren, Eiguren Public Law & Policy
Phone: 859-1896
Pat Barclay, Executive Director
Idaho Council on Industry & the Environment
Phone: 336-8508
STATEMENT OF PURPOSE/FISCAL NOTE S 1448