’20-HB1951/SB2232 – Daniel/Roberts

Present law generally requires public agencies that are authorized to promulgate administrative rules to hold a public hearing prior to promulgating a rule. There are two exceptions to the requirement that an agency precede its rulemaking with a hearing. The first exception is for emergency rules. The second exception allows an agency to bypass the public hearing if the agency posts the proposed rule on the secretary of state's website and no group of 10 or more affected persons or standing committee of the General Assembly requests a public hearing during a 90-day notice period following the posting.
This bill limits eligibility for an agency to use the second exception to the public hearing requirement to the promulgation of "direct informal rules", which this bill defines as an administrative rule that makes minor, non-substantive modifications to an existing rule or that adds minor non-substantive provisions as part of a new rule, such as clerical updates. This bill further specifies that a rulemaking hearing is required for any rule that:
(1) May affect the rights of persons;
(2) May mandate conduct or impose fees, penalties, or fines; or
(3) A reasonable person might otherwise deem to be significant.
ON MARCH 5, 2020, THE HOUSE ADOPTED AMENDMENT #1 AND PASSED HOUSE BILL 1951, AS AMENDED.
AMENDMENT #1 revises the criteria for the promulgation of a rule as a direct informal rule to be that the rule:
(1) Involves a minor, nonsubstantive modification, including, but not limited to, clerical updates;
(2) Is approved by the joint government operations committee of the house of representatives and the senate pursuant to this amendment. This amendment provides that an agency may petition the joint government operations committee of the house of representatives and the senate to authorize a rule to be a direct informal rule when the agency has given proper notice and held a public hearing, but the rule is withdrawn to make nonsubstantive modifications to the rule prior to the review of the rule by the joint government operations committee;
(3) Repeals a rule; or
(4) Eliminates or reduces a fee.
Present law provides that any agency rule not adopted in compliance with the UAPA is void and of no effect and is not effective against any person or party and may not be invoked by the agency for any purpose. This amendment adds that a person affected or potentially affected by a rule may file suit directly to the chancery court in the county where the person resides to enjoin enforcement of a rule when the rule is not adopted in compliance with the UAPA