Print Friendly SENATE BILL NO. 1448
– Agency rules, guidance document
SENATE BILL NO. 1448
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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 - 2008
IN 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 this act chapter:
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,
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 (1 12) "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-
18 (1 23) "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 (1 34) "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 (1 45) "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 (1 56) "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 (1 67) "Proposed rule" means a rule published in the bulletin as provided
29 in section 67-5221, Idaho Code.
30 (1 78) "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 (1 89) "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
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
6 (2 01) "Rulemaking" means the process for formulation, adoption, amendment
7 or repeal of a rule.
8 (2 12) "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 (2 23) "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 (2 34) "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
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 modified by 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
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 modifies a 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 modified
20 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 modified by 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
1 legislature unless the rule is approved , amended or modified by 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
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 in
33 this section, "agency guidance" means all written documents, other than rules,
34 orders, and pre-decisional material, that are intended to guide agency actions
35 affecting the rights or interests of persons outside the agency. "Agency guid-
36 ance" shall include memoranda, manuals, policy statements, interpretations of
37 law or rules, and other material that are of general applicability, whether
38 prepared 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 modifying the rule, in whole or in part, where it is
51 determined that the rule violates the legislative intent of the statute under
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 modification of 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 ,
9 amend, 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 the
14 incorporation of any legislative amendments to a new rule. If a rule has been
15 amended or modified by the legislature, the agency shall republish the rule in
16 accordance with the provisions of chapter 52, title 67, Idaho Code, reflect-
17 ing 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 ,
24 amended or modified by concurrent resolution, or until it expires as provided
25 in section 67-5292, Idaho Code, or by its own terms.
STATEMENT OF PURPOSE
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.
There is no impact to the General Fund.
Name: Roy Eiguren, Eiguren Public Law & Policy
Pat Barclay, Executive Director
Idaho Council on Industry & the Environment
STATEMENT OF PURPOSE/FISCAL NOTE S 1448