Basic Requirements For Promulgating an Agency Rule

Most people aren’t aware of the many different laws which agencies and other bodies in the government propose and pass on a daily basis. This is not because there are not procedures by which these laws can be examined but because people just don’t know about them. Informational resources such as LegalZoom often include relevant information, but you have to decide to be informed about them. It is much easier to stop a rule before it is fully passed and promulgated than it is to reverse it. Here are some of the basic elements in promulgating a rule. If you can demonstrate that an agency has failed to follow this process, then the rule will be void.

Preparation for the Rule

In most cases, the state’s Congress must pass a statute which authorizes the rule. Then within 60 days, the agency in charge must begin the process of preparing it. To do this, they must publish a notice of intent to adopt a particular rule 30 days before it is to be adopted. If the rule has an impact of over $500,000, then the agency must present it to the Rules Oversight Committee or its analogous branch.

Initial Publication

The full text of the rule, including any annotations or other relevant information, must be published in the state register and in the newspaper. It must include the statement that this rule is to be turned into law within a certain period of time and that there will be a public hearing on the rule. This notice must be given at least 21 days before the public hearing is convened.

The Hearing and Its Impact

At the hearing, all members of the public are allowed to come in and give their comments. The agency must consider all written and oral comments. They must then respond to these comments in recorded writings so that it is clear that the public have had their say and their concerns were considered.

After this, the agency may begin to revise the rule. However, the final version of the rule cannot substantively change from the proposed rule that was published unless those changes are found to be the logical outgrowth from the comments that the public gave them.

Final Review Processes

After this is completed, it is submitted to the Attorney General. The Attorney General has 45 days to review the rule. He will analyze it for form and legality. If he does nothing over that period though, then it is presumed approved.

After this, it goes on to the governor. He has 15 days to review it. After the Governor comes the Secretary of State. The Secretary of State only looks to see if it is in acceptable form, and he has 3 business days to complete this. If at any time the agency chooses, it can recall the rule before filing it with the Secretary of State. This entire process from start to finish must be completed within a year of the initial notice of intent’s publication.

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