2008 Legislation
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SENATE BILL NO. 1448<br /> – 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

Bill Text




                                                                       
  ]]]]              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,

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  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

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  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 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

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  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

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  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
 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 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

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  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 / Fiscal Impact



                       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