SENATE FILE 2116

BY  BARTZ, SMITH, BEHN, FEENSTRA, KAPUCIAN, HAMERLINCK, DIX, WHITVER, CHELGREN, ANDERSON, SEYMOUR, GREINER, SORENSON, ERNST, BACON, BOETTGER, HAHN, KETTERING, and ZAUN

(COMPANION TO LSB 5137HH BY PETTENGILL)

A BILL FOR

An Act relating to the review of administrative rules and the rulemaking process.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 7.17, Code 2011, is amended to read as follows:
   7.17  Office of administrative rules coordinator.
   1.  The governor shall establish the office of the administrative rules coordinator, and appoint its staff, which shall be a part of the governor’s office.
   2.  The administrative rules coordinator shall receive all notices and rules adopted pursuant to chapter 17A and provide the governor with an opportunity to review and object to any rule as provided in chapter 17A.
   3.
  a.  The administrative rules coordinator shall create a citizens’ committee, consisting of regulators, stakeholders, members of the public, and legislators, to advise the administrative rules coordinator on rulemaking issues.
   b.  The members of the committee shall not be paid a per diem but shall be reimbursed for travel expenses.
    Sec. 2.  Section 17A.4, subsection 1, paragraph b, Code 2011, is amended to read as follows:
   b.
  (1)  Afford all interested persons not less than twenty days to submit data, views, or arguments in writing, including in an electronic format. If timely requested in writing by twenty-five interested persons, by a governmental subdivision, by the administrative rules review committee, by an agency, or by an association having not less than twenty-five members, the agency must give interested persons an opportunity to make oral presentation.
   (2)  To the extent practicable, the agency shall provide an opportunity to make these oral presentations using the Iowa communications network or other electronic means and provide public access at multiple sites throughout the state. If a request is received from twenty-five interested persons residing in the same city or county, the agency shall provide an opportunity for oral presentation in that city or county.
   (3)  The opportunity for oral presentation must be held at least twenty days after publication of the notice of its time and place in the Iowa administrative bulletin. The agency shall consider fully all written and oral submissions respecting the proposed rule. Within one hundred eighty days following either the notice published according to the provisions of paragraph “a” or within one hundred eighty days after the last date of the oral presentations on the proposed rule, whichever is later, the agency shall adopt a rule pursuant to the rulemaking proceeding or shall terminate the proceeding by publishing notice of termination in the Iowa administrative bulletin.
    Sec. 3.  Section 17A.4, subsection 2, Code 2011, is amended to read as follows:
   2.  An agency shall include in a preamble to each rule it adopts a brief explanation of the principal reasons for its action
 
pursuant to section 17A.5 a concise statement of the principal reasons for and against the rule adopted, incorporating in the statement the reasons for overruling considerations urged against the rule and, if applicable, a brief explanation of the principal reasons for its failure to provide in that
 
the rule for the waiver of the rule in specified situations if no such waiver provision is included in the rule. This explanatory requirement does not apply when the agency adopts a rule that only defines the meaning of a provision of law if the agency does not possess delegated authority to bind the courts to any extent with its definition. In addition, if requested to do so by an interested person, either prior to adoption or within thirty days thereafter, the agency shall issue a concise statement of the principal reasons for and against the rule adopted, incorporating therein the reasons for overruling considerations urged against the rule. This concise statement shall be issued either at the time of the adoption of the rule or within thirty-five days after the agency receives the request.
    Sec. 4.  NEW SECTION.  17A.4B  Job impact statement.
   1.
  a.  “Benefit” means the reasonably identifiable and quantifiable positive effect or outcome that is expected to result from implementation of a rule. 
   b.  “Cost” means reasonably identifiable, significant, direct or indirect, economic impact that is expected to result from implementation of and compliance with a rule. 
   c.  “Cost-benefit analysis” means regulatory analysis to provide the public with transparency regarding the cost-effectiveness of a rule, including the economic costs and the effectiveness weighed by the agency in adopting the rule. “Cost-benefit analysis” includes a comparison of the probable costs and benefits of a rule to the probable costs and benefits of less intrusive or less expensive methods that exist for achieving the purpose of the rule. 
   d.  “Jobs” means private sector employment including self-employment and areas for potential for employment growth. 
   e.  “Jobs impact statement” means a statement that does all of the following:
   (1)  Identifies the objective of a rule and the applicable section of the statute that provides specific legal authority for the agency to adopt the rule.
   (2)  Identifies and describes the cost that the agency anticipates state agencies, local governments, the public, and the regulated entities, including regulated businesses and self-employed individuals, will incur due to the implementation of and complying with a rule.
   (3)  Determines whether a rule would have a positive or negative impact on private sector jobs and employment opportunities in Iowa.
   (4)  Describes and quantifies the nature of the impact a rule will have on private sector jobs and employment opportunities including the categories of jobs and employment opportunities that are affected by the rule, and the number of jobs or potential job opportunities and the regions of the state affected by the rule.
   (5)  Identifies, where possible, the additional costs to employers per employee due to implementation of and complying with a rule.
   (6)  Includes other relevant analysis requested by the administrative rules coordinator.
   2.  Prior to implementation of a rule, an agency shall take steps to minimize the adverse impact on jobs and the development of new employment opportunities due to implementation of the rule.
   3.  An agency shall provide a jobs impact statement to the administrative rules coordinator prior to publication of a notice of intended action or the publication of a rule without notice.
   4.  The jobs impact statement shall be published as part of the preamble to the notice of rulemaking in the Iowa administrative bulletin, unless the administrative rules coordinator determines that publication of the entire jobs impact statement would be unnecessary or impractical.
   5.  An agency shall accept comments and information from stakeholders prior to final preparation of the jobs impact statement. Any concerned private sector employer or self-employed individual, potential employer, potential small business, or member of the public may submit information relating to a jobs impact statement upon a request for information or prior to publication of a notice of intended action by an agency.
   6.  If a jobs impact statement is revised after a notice of intended action is published, the revised jobs impact statement shall be published as part of the preamble to the adopted version of the rule, unless the administrative rules coordinator determines that publication of the entire jobs impact statement would be unnecessary or impractical.
   7.  The analysis in the jobs impact statement shall give particular weight to jobs in production sectors of the economy which includes the manufacturing and agricultural sectors of the economy and include analysis, where applicable, of the impact of the rule on expansion of existing businesses or facilities.
   8.  The administrative rules coordinator may waive the jobs impact statement requirement for rules proposed on an emergency basis or if unnecessary or impractical. 
   9.  By July 1, 2013, and every five years thereafter, an agency shall prepare a comprehensive jobs impact statement for all of the agency’s rules. An agency shall transmit each five-year comprehensive jobs impact statement to the administrative rules coordinator, the administrative rules review committee, and the administrative code editor. The administrative code editor shall publish the statement, or a summary, in the Iowa administrative bulletin.
    Sec. 5.  NEW SECTION.  17A.4C  Negotiated rulemaking.
   1.  An agency shall create a negotiated rulemaking group if required by statute. An agency may, on its own motion or upon request, create a negotiated rulemaking group if the agency determines that a negotiated rulemaking group can adequately represent the interests that will be significantly affected by a draft rule proposal and that it is feasible and appropriate in the particular rulemaking. Notice of the creation of a negotiated rulemaking group shall be published in the Iowa administrative bulletin. Upon establishing a negotiated rulemaking group, the agency shall also specify a time frame for group deliberations.
   2.  Unless otherwise provided by statute, the agency shall appoint a sufficient number of members to the group so that a fair cross section of interests and opinions regarding the draft rule proposal is represented. One person shall be appointed to represent the agency. The group shall select its own chairperson and adopt its rules of procedure. All meetings of the group shall be open to the public. A majority of the membership constitutes a quorum. Members shall not receive any per diem payment but shall be reimbursed for all necessary expenses. Any vacancy shall be filled in the same manner as the initial appointment.
   3.  Prior to the publication of a notice of intended action, the group shall consider the terms or substance of the rule proposed by the agency and shall attempt to reach a consensus on the advisability of adopting the draft rule proposal.
   4.  If a group reaches a consensus on a draft rule proposal, the group shall transmit to the agency a report containing the consensus on the draft rule proposal. If the group does not reach a consensus on a draft rule proposal within the specified time frame, the group shall transmit to the agency a report stating that inability to reach a consensus and specifying any areas in which the group reached a consensus. The group may include in a report any other information, recommendations, or materials that the group considers appropriate. Any group member may include as an addendum to the report additional information, recommendations, or materials. A report issued under this subsection shall not be considered final agency action for purposes of judicial review.
   5.  Unless otherwise provided by statute, following consideration of a draft rule proposal by a negotiated rulemaking group, the agency may commence rulemaking as provided in section 17A.4. The group is automatically abolished upon the agency’s adoption of the rule pursuant to the provisions of section 17A.5.
    Sec. 6.  NEW SECTION.  17A.6A  Rulemaking internet site.
   1.  Subject to the direction of the administrative rules coordinator, each agency shall make available to the public a uniform, searchable, and user-friendly rules database, published on an internet site.
   2.  An agency’s rulemaking internet site shall also make available to the public all of the following:
   a.  A brief summary of the rulemaking process, including a description of any opportunity for public participation in the process.
   b.  Process forms for filing comments or complaints concerning proposed or adopted rules.
   c.  Process forms and instructions for filing a request for the creation of a negotiated rulemaking group, a petition for rulemaking, a petition for a declaratory order, or a request for a waiver of an administrative rule.
   d.  Any other material prescribed by the administrative rules coordinator.
   3.  To the extent practicable, the administrative rules coordinator shall create a uniform format for rulemaking internet sites.
    Sec. 7.  Section 17A.7, subsection 2, Code 2011, is amended by striking the subsection and inserting in lieu thereof the following:
   2.  Over a five-year period of time, an agency shall conduct an ongoing and comprehensive review of all of the agency’s rules. The goal of the review is the identification and elimination of all rules of the agency that are outdated, redundant, overbroad, ineffective, unnecessary, or otherwise undesirable. An agency shall commence its review by developing a plan of review in consultation with major stakeholders and constituent groups. As part of its review, an agency shall review existing policy and interpretive statements or similar documents to determine whether it would be necessary or appropriate to adopt these statements or documents as rules.
   a.  An agency shall establish its five-year plan for review of its rules and publish the plan in the Iowa administrative bulletin.
   b.  An agency’s plan for review shall do all of the following:
   (1)  Contain a schedule that lists when the review of each rule or rule group will occur.
   (2)  State the method by which the agency will analyze the rule under review regarding the considerations listed in paragraph “c”.
   (3)  Provide a means for public participation in the review process and specify how interested persons may participate in the review.
   (4)  Identify instances where the agency may require an exception to the review requirements.
   (5)  Provide a process for ongoing review of rules after the initial five-year review period has expired.
   c.  An agency shall analyze its rules under review by considering all of the following:
   (1)  The need for the rule.
   (2)  The clarity of the rule.
   (3)  The intent and legal authority for the rule.
   (4)  The qualitative and quantitative benefits and costs of the rule.
   (5)  The fairness of the rule.
   d.  When an agency completes its five-year review of its rules, the agency shall provide a summary of the results to the administrative rules coordinator and the administrative rules review committee.
    Sec. 8.  Section 17A.23, Code 2011, is amended to read as follows:
   17A.23  Construction
 
—— delegation of authority.
   1.  Except as expressly provided otherwise by this chapter or by another statute referring to this chapter by name, the rights created and the requirements imposed by this chapter shall be in addition to those created or imposed by every other statute in existence on July 1, 1975, or enacted after that date. If any other statute in existence on July 1, 1975, or enacted after that date diminishes a right conferred upon a person by this chapter or diminishes a requirement imposed upon an agency by this chapter, this chapter shall take precedence unless the other statute expressly provides that it shall take precedence over all or some specified portion of this named
 
cited chapter.
   2.  This chapter shall be construed broadly to effectuate its purposes. This chapter shall also be construed to apply to all agencies not expressly exempted by this chapter or by another statute specifically referring to this chapter by name
 
citation; and except as to proceedings in process on July 1, 1975, this chapter shall be construed to apply to all covered agency proceedings and all agency action not expressly exempted by this chapter or by another statute specifically referring to this chapter by name
 
citation.
   3.  An agency shall have only that authority or discretion delegated to or conferred upon the agency by law and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency.

Unless otherwise specifically provided in statute, a grant of rulemaking authority shall be construed narrowly.
    Sec. 9.  NEW SECTION.  17A.24  Rule implementation of federal statute, regulation, or policy.
   1.  Except as otherwise explicitly authorized by state law, an agency charged with the implementation of a federal statute, regulation, or policy shall not implement the federal statute, regulation, or policy in a manner that exceeds the specific requirements of the federal statute, regulation, or policy.
   2.  Any portion of an agency rule or policy that implements a federal statute, regulation, or policy and that exceeds the specific requirements of the federal statute, regulation, or policy is automatically superceded by the specific requirements of that federal statute, regulation, or policy.
    Sec. 10.  ENVIRONMENTAL REGULATION STUDY.
   1.  The legislative council, in consultation with the department of natural resources, shall establish a study to analyze the projected financial effects of current and proposed United States environmental protection agency regulations and Iowa department of natural resources rules on Iowa cities over a ten-year period.
   2.  The study should include an analysis of projected financial costs of such regulations and rules on a hypothetical small Iowa community, medium-sized Iowa community, and large Iowa community.
   3.  The study shall be concluded by June 30, 2013, and a report shall be provided to the members of the general assembly and to the governor.
EXPLANATION
   This bill relates to the review of administrative rules and the rulemaking process.
   CITIZENS’ ADVISORY COMMITTEE. The bill requires that the administrative rules coordinator create a citizens’ committee, to advise the administrative rules coordinator on rulemaking issues. The members of the committee shall not be paid a per diem but shall be reimbursed for travel expenses.
   RULEMAKING HEARINGS THROUGHOUT STATE. The bill requires administrative agencies, when feasible, to hold rulemaking hearings in varied locations throughout the state via the Iowa communications network and provides that a hearing must be held in a particular city or county when 25 interested persons from that city or county make the request.
   PRINCIPAL REASONS FOR AND AGAINST RULE. The bill requires that every adopted rule must be accompanied by a concise statement of the principal reasons for and against the rule adopted. Under current law such a statement is only provided on request.
   JOBS IMPACT STATEMENTS. The bill requires that every proposed rule under a notice of intended action contain a jobs impact statement which outlines the objective and statutory authority of the rule and analyzes and sets out in detail the impact of the proposed rule on state agencies, local governments, the public, and the regulated entities, including regulated businesses and self-employed individuals affected by the rule. The statement must also determine whether a proposed rule would have a positive or negative impact on private sector jobs and employment opportunities.
   Commencing July 1, 2013, and every five years thereafter, each agency shall prepare a jobs impact statement for all of the agency rules. The statement will be published in the Iowa administrative bulletin.
   As part of this requirement, an agency is required to takes steps to minimize the adverse impact on jobs and the development of new employment opportunities before proposing a rule.
   The administrative rules coordinator may waive the jobs impact statement requirement for emergency-filed rules or if unnecessary or impractical.
   NEGOTIATED RULEMAKING GROUPS. If required by statute, this bill requires an agency to create an ad hoc negotiated rulemaking group to review draft rule proposals prior to commencing a rulemaking proceeding. Where a statute does not require this review, the bill allows an agency to create such a review group. Members are appointed by the agency and the composition must adequately represent a fair balance of the interests affected by the rule. Once such a group is created, the agency may only commence rulemaking after the group has considered the draft rule proposal in question. This provision is based on similar provisions found in the federal Administrative Procedures Act.
   USER-FRIENDLY INTERNET SITES. The bill requires each agency to make available to the public a uniform, searchable, and user-friendly rules database, published on an internet site, subject to the direction of the administrative rules coordinator. Each agency’s internet site must contain specified information relating to the agency’s rules and available procedures for public participation.
   FIVE-YEAR CYCLE OF AGENCY REVIEW OF RULES. The bill requires that each state agency review all of its administrative rules on a five-year cycle. The plan for this review must be developed in consultation with stakeholders and constituent groups. The goal of the review is the identification and elimination of all rules of the agency that are outdated, redundant, overbroad, ineffective, unnecessary, or otherwise undesirable.
   NARROW CONSTRUCTION OF RULES. The bill also establishes a new rule of statutory construction: Unless otherwise specifically provided in statute, any grant of rulemaking authority shall be construed narrowly.
   FEDERAL LAW IMPLEMENTATION. The bill also provides that state implementation of a federal statute, regulation, or policy by a state agency shall not exceed the specific requirements of the federal statute, regulation, or policy, except as specifically allowed by state law. Any portion of a state rule or policy that implements a federal statute, regulation, or policy and that exceeds the specific requirements of the federal statute, regulation, or policy is automatically superceded by the specific requirements of that federal statute, regulation, or policy.
   ENVIRONMENTAL RULES STUDY. The bill provides that the legislative council, in consultation with the department of natural resources, shall establish a study to analyze the projected financial effects of current and proposed United States environmental protection agency regulations and Iowa department of natural resources rules on Iowa cities over a 10-year period. The report of the study must be completed by June 30, 2013.