SENATE FILE 230

BY  McKINLEY

A BILL FOR

An Act amending the Iowa administrative procedure Act as it relates to public participation in the rulemaking process, the adoption and effectiveness of administrative rules, and the delegation of rulemaking authority to administrative agencies.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  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. 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. 2.  Section 17A.4, subsections 2 and 3, Code 2011, are 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 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.
   3.  When an agency for good cause finds that notice and public participation would be unnecessary, impracticable, or contrary to the public interest, the provisions of subsection 1 shall be inapplicable. The agency shall incorporate in each rule issued in reliance upon this provision either the finding and a brief statement of the reasons for the finding, or a statement that the rule is within a very narrowly tailored category of rules whose issuance has previously been exempted from subsection 1 by a special rule relying on this provision and including such a finding and statement of reasons for the entire category.If the administrative rules review committee by a two-thirds vote, the governor, or the attorney general files with the administrative code editor an objection to the adoption of any rule pursuant to this subsection, that rule shall cease to be effective one hundred eighty days after the date the objection was filed. A copy of the objection, properly dated, shall be forwarded to the agency at the time of filing the objection. In any action contesting a rule adopted pursuant to this subsection, the burden of proof shall be on the agency to show that the procedures of subsection 1 were impracticable, unnecessary, or contrary to the public interest and that, if a category of rules was involved, the category was very narrowly tailored.  A rule adopted pursuant to this subsection shall remain in effect for one hundred eighty days, unless a shorter period is specified in the rule.
   Sec. 3.  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 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; 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.
   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, any grant of rulemaking authority shall be construed narrowly.
EXPLANATION
   This bill makes a number of changes to the rulemaking process. 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.
   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.
   The bill also provides that so-called “emergency” rules are in effect for only 180 days.
   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.