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Title 3: Executive
Chapter 025: Administrative Procedure
- Subchapter 001: General Provisions
§ 800. Purpose
The General Assembly intends that:
(1) Agencies maximize the involvement of the public in the development of rules.
(2) Agency inclusion of public participation in the rulemaking process should be consistent.
(3) Agencies write rules so that they are clear and accessible to the public.
(4) When an agency adopts rules, it subjects the rules to thorough regulatory analysis.
(5) The General Assembly should articulate, as clearly as possible, the intent of any legislation that delegates rulemaking authority.
(6) When an agency adopts policy, procedures, or guidance, it shall not do so to supplant or avoid the adoption of rules. (Added 1999, No. 146 (Adj. Sess.), § 2; amended 2017, No. 156 (Adj. Sess.), § 2.)
§ 801. Short title and definitions
(a) This chapter may be cited as the “Vermont Administrative Procedure Act.”
(b) As used in this chapter:
(1) “Agency” means a State board, commission, department, agency, or other entity or officer of State government, other than the Legislature, the courts, the Commander in Chief, and the Military Department, authorized by law to make rules or to determine contested cases.
(2) “Contested case” means a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.
(3) “License” includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law.
(4) “Licensing” includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.
(5) “Party” means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.
(6) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.
(7) “Practice” means a substantive or procedural requirement of an agency, affecting one or more persons who are not employees of the agency, that is used by the agency in the discharge of its powers and duties. The term includes all such requirements, regardless of whether they are stated in writing.
(8) “Procedure” means a practice that has been adopted in writing, either at the election of the agency or as the result of a request under subsection 831(b) of this title. The term includes any practice of any agency that has been adopted in writing, whether or not labeled as a procedure, except for each of the following:
(A) a rule adopted under sections 836-844 of this title;
(B) a written document issued in a contested case that imposes substantive or procedural requirements on the parties to the case;
(C) a statement that concerns only:
(i) the internal management of an agency and does not affect private rights or procedures available to the public;
(ii) the internal management of facilities that are secured for the safety of the public and the individuals residing within them; or
(iii) guidance regarding the safety or security of the staff of an agency or its designated service providers or of individuals being provided services by the agency or such a provider;
(D) an intergovernmental or interagency memorandum, directive, or communication that does not affect private rights or procedures available to the public;
(E) an opinion of the Attorney General; or
(F) a statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections, in settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution, or settlement of cases, if disclosure of the criteria or guidelines would compromise an investigation or the health and safety of an employee or member of the public, enable law violators to avoid detection, facilitate disregard of requirements imposed by law, or give a clearly improper advantage to persons that are in an adverse position to the State.
(9) “Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy and that has been adopted in the manner provided by sections 836-844 of this title.
(10) “Incorporation by reference” means the use of language in the text of a regulation that expressly refers to a document other than the regulation itself.
(11) “Adopting authority” means, for agencies that are attached to the Agencies of Administration, of Commerce and Community Development, of Natural Resources, of Human Services, and of Transportation, or any of their components, the secretaries of those agencies; for agencies attached to other departments or any of their components, the commissioners of those departments; and for other agencies, the chief officer of the agency. However, for the procedural rules of boards with quasi-judicial powers, for the Transportation Board, for the Vermont Veterans’ Memorial Cemetery Advisory Board, and for the Fish and Wildlife Board, the chair or executive secretary of the board shall be the adopting authority. The Secretary of State shall be the adopting authority for the Office of Professional Regulation.
(12) “Small business” means a business employing no more than 20 full-time employees.
(13)(A) “Arbitrary,” when applied to an agency rule or action, means that one or more of the following apply:
(i) There is no factual basis for the decision made by the agency.
(ii) The decision made by the agency is not rationally connected to the factual basis asserted for the decision.
(iii) The decision made by the agency would not make sense to a reasonable person.
(B) The General Assembly intends that this definition be applied in accordance with the Vermont Supreme Court’s application of “arbitrary” in Beyers v. Water Resources Board, 2006 VT 65, and In re Town of Sherburne, 154 Vt. 596 (1990).
(14) “Guidance document” means a written record that has not been adopted in accordance with sections 836-844 of this title and that is issued by an agency to assist the public by providing an agency’s current approach to or interpretation of law or describing how and when an agency will exercise discretionary functions. The term does not include the documents described in subdivisions (8)(A) through (F) of this section.
(15) “Index” means a searchable list of entries that contains subjects and titles with page numbers, hyperlinks, or other connections that link each entry to the text or document to which it refers. (Added 1967, No. 360 (Adj. Sess.), § 1, eff. July 1, 1969; amended 1981, No. 82, § 1; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 56, § 1; 1985, No. 269 (Adj. Sess.), § 4; 1987, No. 76, § 18; 1989, No. 69, § 2, eff. May 27, 1989; 1989, No. 250 (Adj. Sess.), § 88; 2001, No. 149 (Adj. Sess.), § 46, eff. June 27, 2002; 2017, No. 113 (Adj. Sess.), § 3; 2017, No. 156 (Adj. Sess.), § 2.)
§ 802. Repealed. 1981, No. 82, § 7(1).
§ 803. Repealed. 1981, No. 82, § 7(2).
§ 804. Repealed. 1981, No. 82, § 7(3).
§ 805. Repealed. 1981, No. 82, § 7(4).
§ 806. Procedure to request adoption of rules or procedures; guidance documents
(a) A person may submit a written request to an agency asking the agency to adopt, amend, or repeal a procedure or rule. Within 30 days after receiving the request, the agency shall initiate rulemaking proceedings; shall adopt, amend, or repeal the procedure; or shall deny the request, giving its reasons in writing.
(b) A person may submit a written request to an agency asking the agency to adopt a guidance document as a rule or to amend or repeal the guidance document. Within 30 days after receiving the request, the agency shall initiate rulemaking proceedings; shall amend or repeal the guidance document; or shall deny the request, giving its reasons in writing. (Added 1967, No. 360 (Adj. Sess.), § 6, eff. July 1, 1969; amended 1981, No. 82, § 2; 2017, No. 156 (Adj. Sess.), § 2.)
§ 807. Declaratory judgment on validity or applicability of rules
The validity or applicability of a rule may be determined in an action for declaratory judgment in the Washington Superior Court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. (Added 1967, No. 360 (Adj. Sess.), § 7, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3.)
§ 808. Procedure to request declaratory rulings by agencies
Each agency shall provide for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency, and may so provide by procedure or rule. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases. (1967, No. 360 (Adj. Sess.), § 8, eff. July 1, 1969; amended 1981, No. 82, § 3.)
- Subchapter 002: Contested Cases
§ 809. Contested cases; notice; hearing; records
(a) In a contested case, all parties shall be given an opportunity for hearing after reasonable notice.
(b) The notice shall include:
(1) A statement of the time, place, and nature of the hearing.
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held.
(3) A reference to the particular sections of the statutes and rules involved.
(4) A short and plain statement of the matters at issue. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
(c) Opportunity shall be given all parties to respond and present evidence and argument on all issues involved.
(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
(e) The record in a contested case shall include:
(1) all pleadings, motions, intermediate rulings;
(2) all evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections, and rulings thereon;
(5) proposed findings and exceptions; and
(6) any decision, opinion, or report.
(f) Oral proceedings or any part thereof shall be transcribed on request of any party subject to other applicable provisions of law, and upon payment by the requesting party of the reasonable costs thereof.
(g) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
(h) The chair of a board, commission, or panel, a hearing officer appointed by a board, commission, or panel, or a licensed attorney representing a party before a board, commission, or panel may, whether or not specifically authorized in any other provision of law, compel, by subpoena, the attendance and testimony of witnesses and the production of books and records. Sections 809a and 809b of this title shall apply to all subpoenas issued under this subsection. Notwithstanding the provisions of section 816 of this title, this subsection shall apply to the Human Services Board, the Labor Relations Board, and the Employment Security Board.
(i) When a board or commission member who hears all or a substantial part of a case retires from office or completes his or her term before the case is completed, he or she may remain a member of the board or commission for the purpose of deciding and concluding the case. If the member who retires or completes his or her term is a chair, the member may also remain a member for the purpose of certifying questions of law if an appeal is taken, when such is required by law. For this service, the member may be compensated in the manner provided for active members. (Added 1967, No. 360 (Adj. Sess.), § 9, eff. July 1, 1969; amended 1987, No. 104; 2017, No. 156 (Adj. Sess.), § 2.)
§ 809a. Enforcement of subpoenas; compulsion of testimony
(a) This section applies when an agency has issued a subpoena to compel a person to appear and testify or to produce documents or things, if the person:
(1) has failed to appear or has failed to produce the subpoenaed materials, in which case any party or the agency may bring a proceeding to enforce the subpoena; or
(2) has appeared but has refused to take an oath or affirmation authorized by law, or has refused to testify or to answer a question, in which case any party or the agency may bring a proceeding to compel testimony by the person.
(b) A proceeding under this section shall be brought in Superior Court for the county in which the administrative proceeding is or will be held. The court shall consist of the presiding judge, sitting alone, and no jury shall be used. The proceeding shall be commenced by motion, and the motion shall be served in the manner provided for motions in civil actions. No filing fee shall be required. No answer or responsive motion is required, but such papers may be filed. The court shall schedule a hearing on the motion as soon as is reasonably practicable.
(c) In a proceeding to compel testimony, the court may order the respondent to testify and answer questions, and may impose limits on those questions or answers.
(d) In a proceeding to enforce a subpoena, if the petitioner establishes that the subpoena was properly issued, and that the person subpoenaed has failed to appear or to produce documents or things required, the court shall issue an order compelling compliance with the agency subpoena. Otherwise, the court shall vacate or modify the subpoena.
(e) In a proceeding to enforce a subpoena, after giving the respondent an opportunity to present evidence, if the court determines that the subpoena was properly issued, and that failure to comply with the agency’s subpoena was without reasonable excuse, it shall assess a penalty against the respondent, to be paid to the petitioner, in an amount not to exceed $100.00 and shall also award all costs of litigation that the petitioner incurred as a result of the respondent’s noncompliance, including costs of issuing new subpoenas and incurring additional expenses for expert witnesses.
(f) A person who, without reasonable excuse, fails to comply with an order of the court issued under this section may be held to be in contempt of the court. (Added 1983, No. 230 (Adj. Sess.), § 5; amended 2015, No. 97 (Adj. Sess.), § 4.)
§ 809b. Modification of subpoena or discovery order
(a) When an agency has issued a subpoena to compel testimony or the production of documents or things, or has issued a discovery order to a party, an aggrieved person may bring a proceeding to modify or vacate the subpoena or order in the Superior Court for the county in which the petitioner resides or in which the administrative proceeding is or will be held.
(b) The Court shall consist of the presiding judge, and no jury shall be used. The proceeding shall be commenced by motion, which shall be served in the manner provided for motions in civil actions. No answer or responsive motion is required, but such papers may be filed. No filing fee shall be required. The Court shall schedule a hearing on the motion as soon as is reasonably practicable.
(c) After hearing, the Court may issue its order affirming, modifying, or vacating the subpoena or discovery order. (Added 1983, No. 230 (Adj. Sess.), § 5.)
§ 810. Rules of Evidence; official notice
In contested cases:
(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The Rules of Evidence as applied in civil cases in the Superior Courts of this State shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.
(2) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.
(3) A party may conduct cross-examinations required for a full and true disclosure of the facts.
(4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. (Added 1967, No. 360 (Adj. Sess.), § 10, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2023, No. 33, § 10, eff. July 1, 2023.)
§ 811. Examination of evidence by agency
When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section. (Added 1967, No. 360 (Adj. Sess.), § 11, eff. July 1, 1969.)
§ 812. Decisions and orders
(a) A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified forthwith either personally or by mail of any decision or order. A copy of the decision or order shall be delivered or mailed forthwith to each attorney of record and to each party not having an attorney of record. That mailing shall constitute actual knowledge to that person or party.
(b) When a decision or order is approved for issue by a board or commission, the decision or order may be signed by the chair or vice chair on behalf of the issuing board or commission. (Added 1967, No. 360 (Adj. Sess.), § 12, eff. July 1, 1969; amended 1983, No. 190 (Adj. Sess.), § 1, eff. April 27, 1984.)
§ 813. Ex parte consultations
Unless required for the disposition of ex parte matters authorized by law, members or employees of any agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his or her representative, except upon notice and opportunity for all parties to participate. An agency member:
(1) may communicate with other members or employees of the agency; and
(2) may have the aid and advice of one or more personal assistants. (Added 1967, No. 360 (Adj. Sess.), § 13, eff. July 1, 1969.)
§ 814. Licenses
(a) When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases shall apply.
(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.
(c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.
(d) An agency having jurisdiction to conduct proceedings and impose sanctions in connection with conduct of a licensee or former licensee shall not lose jurisdiction if the license is not renewed or is surrendered or otherwise terminated prior to initiation of such proceedings. (Added 1967, No. 360 (Adj. Sess.), § 14, eff. July 1, 1969; amended 1987, No. 229 (Adj. Sess.), § 1; 2001, No. 151 (Adj. Sess.), § 4, eff. June 27, 2002.)
§ 815. Judicial review of contested cases
(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in any contested case may appeal that decision to the Supreme Court, unless some other court is expressly provided by law. However, a preliminary, procedural, or intermediate agency action or ruling is immediately appealable under those rules if review of the final decision would not provide an adequate remedy, and the filing of the appeal does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
(b) If, before the date set for court hearing, application is made to the Court for leave to present additional evidence, and it is shown to the satisfaction of the Court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the Court may order that the additional evidence be taken before the agency upon conditions determined by the Court. The agency may modify its findings and decisions by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
(c) If the final decision of an agency is expressly provided by law to be reviewable in Superior Court or in the Supreme Court, such review shall be commenced by filing a notice of appeal pursuant to V.R.C.P. 74 or V.R.A.P. 13, as appropriate. (Added 1967, No. 360 (Adj. Sess.), § 15, eff. July 1, 1969; amended 1971, No. 185 (Adj. Sess.), § 1, eff. March 29, 1972; 1997, No. 161 (Adj. Sess.), § 2, eff. Jan. 1, 1998.)
§ 816. Exemptions
(a) Sections 809-813 of this title shall not apply to:
(1) Acts, decisions, findings, or determinations by the Human Services Board or the Commissioner for Children and Families or a duly authorized agent, and to procedures or hearings before and by the Board or Commissioner or agent.
(2) Acts, decisions, findings, or determinations by the Employment Security Board or the Commissioner of Labor or his or her, its, or their duly authorized agents and to any and all procedures or hearings before and by him or her or it or his or her or its agents, provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) of this title shall not apply to information made confidential under federal or State law and provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) shall not apply to a determination of a hearing or claims examiner or appeal referee.
(3) Acts, decisions, findings, or determinations by the Department of Labor or the Commissioner of Labor or his or her, its, or their duly authorized agents as to any and all procedures or hearings before and by the Department or Commissioner or his or her or their agents, arising out of or with respect to 21 V.S.A. chapter 5, subchapter 2, and chapters 9 and 11.
(b) Sections 809-814 of this title shall not apply to any and all acts, decisions, findings, or determinations by the Commissioner of Motor Vehicles or his or her duly authorized agents or to any and all procedures or hearings before and by him or her, or his or her agents, provided further that subsection 804(a) of this title shall not apply to decisions of that Commissioner respecting the grant, denial, suspension, or revocation of a license or registration under Title 23.
(c) This chapter shall not be construed to apply to the Commander-in-Chief or any other officer, individual, board, or set of persons in the Military Department of this State. (Added 1967, No. 360 (Adj. Sess.), § 17, eff. July 1, 1969; amended 1981, No. 66, § 5(b), eff. May 1, 1981; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 4; 2013, No. 15, § 7.)
- Subchapter 003: Rulemaking; Procedures; Guidance Documents
§ 817. Legislative Committee on Administrative Rules
(a) There is created a joint legislative committee to be known as the Legislative Committee on Administrative Rules. The Legislative Committee on Administrative Rules shall be composed of eight members of the General Assembly to be appointed for two-year terms ending on February 1 of odd-numbered years as follows: four members of the House of Representatives, appointed by the Speaker of the House, not all from the same party, and four members of the Senate to be appointed by the Senate Committee on Committees, not all from the same party. The Committee shall elect a chair and a vice chair from among its members.
(b) The Committee shall meet as necessary for the prompt discharge of its duties and may use the staff and services of the Office of Legislative Counsel and the Office of Legislative Operations. The Committee shall adopt rules to govern its operation and organization. A quorum of the Committee shall consist of five members. For attendance at a meeting when the General Assembly is not in session, members of the Legislative Committee on Administrative Rules shall be entitled to the same per diem compensation and reimbursement for necessary expenses as provided members of standing committees under 2 V.S.A. § 23.
(c) The Legislative Committee on Administrative Rules may hold public hearings on a proposed or previously adopted rule on its own initiative. The Committee shall give public notice of any hearing at least 10 days in advance and shall notify the agency affected. Any public hearing shall be scheduled at a time and place chosen to afford opportunity for affected persons to present their views. As appropriate, the Legislative Committee on Administrative Rules shall consult with the standing legislative committee having jurisdiction in the area of the rule under review.
(d) In addition to its powers under section 842 of this title concerning rules, the Committee may, in similar manner, conduct public hearings, object, and file objections concerning existing rules. A rule reviewed under this subsection shall remain in effect until amended or repealed.
(e) At any time following its consideration of a final proposal under section 841 of this title, the Committee, by majority vote of the entire Committee, may request that any standing committees of the General Assembly review the issues or questions presented therein that are outside the jurisdiction of the Committee but are within the jurisdiction of the standing committees. On receiving a request for review under this subsection, a standing committee may at its discretion review the issues or questions and act on them. The Committee’s request for review shall not affect the review or review period of a final proposal. (Added 1975, No. 211 (Adj. Sess.), § 1; amended 1979, No. 59, § 12; 1981, No. 82, § 4; 1983, No. 88, § 10, eff. July 3, 1983; 2011, No. 89 (Adj. Sess.), § 2; 2013, No. 161 (Adj. Sess.), § 72; 2019, No. 144 (Adj. Sess.), § 20.)
§ 818. Secretary of State; centralized rule system
(a) The Secretary of State shall establish and maintain a centralized rule system that is open and available to the public. The system shall include all rules in effect or proposed as of July 1, 2019 and all rules proposed and adopted by agencies of the State after that date.
(b) The Secretary shall design the centralized rule system to:
(1) facilitate public notice of and access to the rulemaking process;
(2) provide the public with greater access to current and previous versions of adopted rules; and
(3) promote more efficient and transparent filing by State agencies of rulemaking documents and review by the committees established in this chapter.
(c) At a minimum, the records included in the system shall include all documents submitted to the Secretary of State under this subchapter.
(d) The centralized rule system may be digital, may be available online, and may be designed to support such other functions as the Secretary of State determines are consistent with the goals of this section and section 800 of this title. (Added 2017, No. 156 (Adj. Sess.), § 2, eff. July 1, 2019.)
§ 819. Repealed. 1981, No. 82, § 7(6).
§ 820. Interagency Committee on Administrative Rules
(a) For assistance in the review, evaluation and coordination of programs and activities of State agencies, the development of strategies for maximizing public input, and the promotion of consistent measures among agencies for involving the public in the rulemaking process, subject to the provisions of this chapter, an Interagency Committee on Administrative Rules is created. Members of the Committee shall be appointed by the Governor from the Executive Branch and shall serve at his or her pleasure.
(b) The duties and responsibilities of the Committee shall be those established under this section or those directed by the Governor and shall include review of existing and proposed rules of agencies designated by the Governor for style, consistency with the law, legislative intent, and the policies of the Governor. The Committee shall make reports and recommendations concerning programs and activities of designated agencies subject to this chapter.
(c) After a proposed rule is prefiled with the Committee, the Committee shall work with the agency and prescribe a strategy for maximizing public input on the proposed rule. The Committee shall evaluate the current efforts and practices of agencies for including the public in the development of proposed rules, and shall recommend an appropriate process for maximizing public input, based on the Committee’s evaluation of current agency practices and the importance of public involvement, given the nature of the proposed rule. The Committee shall prescribe a specific strategy regarding the location, time and frequency of public hearings, and advise the agency on specific provisions of 1 V.S.A. chapter 5 and the consequences of failing to adhere to the prescribed strategy. (Added 1975, No. 211 (Adj. Sess.), § 2; amended 1981, No. 82, § 5; 1999, No. 146 (Adj. Sess.), § 3; 2001, No. 149 (Adj. Sess.), § 47, eff. June 27, 2002.)
§§ 821-830. [Reserved.]
§ 831. Required policy statements and rules
(a) Where due process or a statute directs an agency to adopt rules, the agency shall initiate rulemaking and adopt rules in the manner provided by sections 836-844 of this title.
(b) An agency shall adopt a procedure describing an existing practice when so requested by an interested person.
(c) An agency shall initiate rulemaking to adopt as a rule an existing practice or procedure when so requested by 25 or more persons or by the Legislative Committee on Administrative Rules. An agency shall not be required to initiate rulemaking with respect to any practice or procedure, except as provided by this subsection.
(d) An agency required to hold hearings on contested cases as required by section 809 of this title shall adopt rules of procedure in the manner provided in this chapter.
(e) Within 30 days after an agency discovers that the text of a final proposed rule as submitted to the Legislative Committee on Administrative Rules deviates from the text that the agency intended to submit to the Committee, the agency shall initiate rulemaking to correct the rule if the period for final adoption of the rule under subsection 843(c) of this title has elapsed.
(f) Except as provided in subsections (a)-(e) of this section, an agency shall not be required to initiate rulemaking or to adopt a procedure or a rule. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 1; 2001, No. 149 (Adj. Sess.), § 48, eff. June 27, 2002; 2017, No. 156 (Adj. Sess.), § 2.)
§ 832. Exemptions; limitations
(a) No agency shall be required to adopt a procedure or rule:
(1) which may result in the disclosure of information considered by statute to be confidential;
(2) setting forth guidelines to be used by the staff of an agency in the performance of audits, investigations, inspections, in settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution, or settlement of cases, if the disclosure of the statement would:
(A) enable law violators to avoid detection;
(B) facilitate disregard of requirements imposed by law; or
(C) give a clearly improper advantage to persons who are in an adverse position to the state; or
(3) describing the content of an agency budget.
(b) Subsection 831(c) of this title does not require any agency to adopt rules:
(1) establishing specific prices to be charged for particular goods or services sold by an agency;
(2) concerning only the physical servicing, maintenance, or care of agency owned or operated facilities or property;
(3) relating only to the use of a particular facility or property owned, operated, or maintained by the State or any of its subdivisions, if the substance of that rule is adequately indicated by means of signs or signals to persons who use the facility or property;
(4) concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, if adopted by that facility, institution, or hospital.
(c) Subsections 831(b) and (c) of this title do not require the Attorney General to adopt procedures or rules describing the content of opinions or other legal advice given to agencies.
(d) Notwithstanding subsections 831(b) and (c), when an agency receives a request to adopt a procedure or rule, it may elect to issue a declaratory ruling when it has in effect a procedure or rule, as requested, which disposes of the question presented. (Added 1981, No. 82, § 6.)
§§ 832a, 832b. Repealed. 2017, No. 156 (Adj. Sess.), § 2.
§ 833. Style of rules
(a) Rules and procedures shall be written in a clear and coherent manner using words with common and everyday meanings, consistent with the text of the rule or procedure.
(b)(1) When an agency proposes to amend an existing rule, it shall replace terms identified as potentially disrespectful by the study produced in accordance with 2012 Acts and Resolves No. 24, Sec. 1 with respectful language recommended therein or used in the Vermont Statutes Annotated, where appropriate.
(2) All new rules adopted by agencies shall use, to the fullest extent possible, respectful language consistent with the Vermont Statutes Annotated and the respectful language study produced in accordance with 2012 Acts and Resolves No. 24, Sec. 1, where appropriate.
(c) The Secretary of State may issue a guidance document suggesting how agencies may draft rules and procedures in accordance with this section. The guidance document may include suggestions on style, numbering, and drafting the content of the filings required under this subchapter. (Added 1981, No. 82, § 6; amended 2013, No. 96 (Adj. Sess.), § 7; 2017, No. 156 (Adj. Sess.), § 2.)
§ 834. Periodic review of rules and forms
(a) Upon written request to an agency by the Legislative Committee on Administrative Rules, a rule or part of a rule that has not been adopted, readopted or substantially amended during the preceding six years shall expire one year from the date of the request. However, this section does not prevent the agency from adopting the same or a similar rule during that year.
(b) The Secretary of State shall review all forms used by agencies and affecting members of the public and shall make recommendations for their simplification and consolidation. Agencies shall provide the Secretary with information reasonably requested for this purpose. The recommendations shall be sent to the agencies concerned, and to the Chairs of the Legislative Committee on Administrative Rules and of the Interagency Committee on Administrative Rules. (Added 1981, No. 82, § 6.)
§ 835. Procedures and guidance documents
(a) Procedures and guidance documents shall be maintained by the agency in an official current compilation that includes an index. Each addition, change, or deletion to the official compilation shall also be dated, indexed, and recorded. The agency shall publish the compilation and index on its Internet website and make all procedures and guidance documents available to the public. On or after January 1, 2024, an agency shall not rely on a procedure or guidance document or cite it against any party to a proceeding, unless the procedure or guidance document is included in a compilation maintained and published in accordance with this subsection.
(b) A procedure or guidance document shall not have the force of law. However, this subsection shall not apply to a procedure if a statute that specifically enables the procedure states that it has the force of law. This subsection is not intended to affect whether a court or quasi-judicial body gives deference to a procedure or guidance document issued by an agency whose action is before the court or body. (Added 1981, No. 82, § 6; amended 2017, No. 156 (Adj. Sess.), § 2.)
§ 836. Procedure for adoption of rules
(a) Except for emergency rules, rules shall be adopted by taking the following steps:
(1) prefiling, when required;
(2) filing the proposed rule;
(3) publishing the proposed rule;
(4) holding a public hearing and receiving comments;
(5) filing the final proposal;
(6) responding to the Legislative Committee on Administrative Rules when required; and
(7) filing the adopted rule.
(b) During the rulemaking process, the agency proposing the rule shall post on its website information concerning the proposal.
(1) The agency shall post the information on a separate page that is readily accessible from a prominent link on its main web page and that lists proposed rules by title and topic.
(2) For each rulemaking, the posted information shall include:
(A) The proposed rule as filed under section 838 of this title.
(B) The date by which comments may be submitted on the proposed rule and the address for such submission.
(C) The date and location of any public hearing.
(D) Each comment submitted to the agency on the proposed rule. The agency shall redact sensitive personal information from the posted comments. As used in this subdivision (D), “sensitive personal information” means each of the items listed in 9 V.S.A. § 2430(5)(A)(i)-(iv) and does not include the name, affiliation, and contact information of the commenter.
(E) The final proposed rule as filed under section 841 of this title.
(F) Each document submitted by the agency to the Legislative Committee on Administrative Rules.
(3) The agency shall maintain the information required by this subsection on its website until the earliest of the following dates: filing of a final adopted rule under section 843 of this title; withdrawal of the proposed rule; or expiration of the period for final adoption under subsection 843(c) of this title.
(4) If an agency is a board or commission exercising quasi-judicial functions and members of the public can access all of the information required by subdivision (2) of this subsection through the agency’s online case-management system, this information need not also be posted on the agency’s website. Instead, the list of proposed rules on the agency’s website shall include the case number for each proposed rule and instructions for accessing all of the information about the proposed rule in the agency’s online case-management system. (Added 1981, No. 82, § 6; amended 2017, No. 156 (Adj. Sess.), § 2.)
§ 837. Prefiling
Except for emergency rules, a rule shall be prefiled with the Interagency Committee on Administrative Rules 15 days before filing under section 838 of this title. (Added 1981, No. 82, § 6; amended 2001, No. 149 (Adj. Sess.), § 49, eff. June 27, 2002.)
§ 838. Filing of proposed rules
(a) Filing; information. Proposed rules shall be filed with the Secretary of State in a format determined by the Secretary that includes the following information:
(1) The name of the agency and the subject or title of the rule.
(2) An analysis of economic impact.
(3) An analysis of environmental impact.
(4) An explanation of all material incorporated by reference, if any.
(5) The text of the proposed rule.
(6) An annotated text showing changes from existing rules. The annotated text of the rule shall include markings to indicate clearly changed wording from any existing rule.
(7) An explanation of the strategy for maximizing public input on the proposed rule as prescribed by the Interagency Committee on Administrative Rules.
(8) A brief summary of the scientific information upon which the proposed rule is based, to the extent the proposed rule depends on scientific information for its validity. The summary shall refer to the scientific studies on which the proposed rule is based and shall explain the procedure for obtaining such studies from the agency.
(9) A concise summary in plain language explaining the rule and its effect.
(10) The specific statutory authority for the rule, and, if none exists, the general statutory authority for the rule.
(11) An explanation of why the rule is necessary.
(12) An explanation of the people, enterprises, and government entities affected by the rule.
(13) The name, address, and telephone number of an individual in the agency able to answer questions and receive comments on the proposal.
(14) A proposed schedule for completing the requirements of this chapter, including, if there is a hearing scheduled, the date, time, and place of that hearing and a deadline for receiving comments.
(15) Whether the rule contains an exemption from inspection and copying of public records or otherwise contains a Public Records Act exemption by designating information as confidential or limiting its public release and, if so, the asserted statutory authority for the exemption and a brief summary of the reason for the exemption.
(16) A signed and dated statement by the adopting authority approving the contents of the filing.
(b) Economic impact analysis; rules affecting small businesses and school districts.
(1) General requirements. The economic impact analysis shall analyze the anticipated costs and benefits to be expected from adoption of the rule. Specifically, each economic impact analysis shall, for each requirement in the rule:
(A) list each category of people, enterprises, and government entities potentially affected and estimate for each the costs and benefits anticipated; and
(B) compare the economic impact of the rule with the economic impact of other alternatives to the rule, including having no rule on the subject or a rule having separate requirements for small businesses.
(2) Small businesses. When a rule provides for the regulation of a small business, in the economic impact analysis, the agency shall include, when appropriate, a specific and clearly demarcated evaluation of ways by which a small business can reduce the cost and burden of compliance by specifying less numerous, detailed, or frequent reporting requirements or alternative methods of compliance. When an agency determines that such an evaluation is not appropriate, the economic impact statement shall briefly explain the reasons for this determination.
(A) An agency shall also include in this evaluation its consideration of creative, innovative, or flexible methods of compliance with the rule when the agency finds, in writing, that these methods of compliance would not:
(i) significantly reduce the effectiveness of the rule in achieving the objectives or purposes of the statutes being implemented or interpreted; or
(ii) be inconsistent with the language or purpose of statutes that are implemented or interpreted by the rule; or
(iii) increase the risk to the health, safety, or welfare of the public or to the beneficiaries of the regulation or compromise the environmental standards of the State.
(B) This subdivision (2) shall not apply when the regulation is incidental to:
(i) a purchase of goods or services by the State or an agency thereof; or
(ii) the payment for goods or services by the State or an agency thereof for the benefit of a third party.
(3) School districts. If a rule affects or provides for the regulation of public education and public schools, the economic impact analysis shall include a specific and clearly demarcated evaluation of the cost implications to local school districts and school taxpayers and shall clearly state the associated costs. This evaluation also shall include consideration of alternatives to the rule, including having no rule on the subject, that would reduce or ameliorate costs to local school districts while achieving the objectives or purposes of the proposed rule.
(4) Most appropriate method. In addition, each economic impact analysis shall conclude that the rule is the most appropriate method of achieving the regulatory purpose. Only employees of the agency and information either already available to the agency or available at reasonable cost need be used in preparing economic impact analyses.
(c) Environmental impact analysis. The environmental impact analysis shall:
(1) Analyze the anticipated environmental impacts, whether positive or negative, from adoption of the rule. Examples of environmental impacts include the emission of greenhouse gases; the discharge of pollutants to water; and effects on the ability of the environment to provide benefits such as food and fresh water, regulation of climate and water flow, and recreation.
(2) Compare the environmental impact of the rule with the environmental impact of other alternatives to the rule, including having no rule on the subject.
(d) Incorporation by reference.
(1) A rule may incorporate by reference all or any part of a code, standard, or rule that has been adopted by an agency of the United States, this State, or another state or by a nationally recognized organization or association, if:
(A) repeating verbatim the text of the code, standard, or rule in the rule would be unduly cumbersome, expensive, or otherwise inexpedient; and
(B) the reference in the rule fully identifies the incorporated code, standard, or rule by citation, date, and place where copies are available.
(2) Materials incorporated by reference shall be readily available to the public. As used in this subsection, “readily available” means that all of the following apply:
(A) Each filing states where copies of the incorporated code, standard, or rule are available in written or electronic form from the agency adopting the rule or the agency of the United States, this State, another state, or the organization or association originally issuing the code, standard, or rule.
(B) A copy of the code, standard, or rule is made available for public inspection at the principal office of the agency, and is available at that office for copying in the manner set forth in 1 V.S.A. § 316 and subject to the exceptions set forth in 1 V.S.A. § 317(c).
(C) The incorporated code, standard, or rule is made available for free public access online unless the agency is prevented from providing such access by law or legally enforceable contract. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 3; 1999, No. 146 (Adj. Sess.), § 4; 2001, No. 149 (Adj. Sess.), § 50, eff. June 27, 2002; 2007, No. 209 (Adj. Sess.), § 1; 2015, No. 3, § 1; 2017, No. 156 (Adj. Sess.), § 2.)
§ 839. Publication of proposed rules
(a) Online. The Secretary of State shall publish online notice of a proposed rule within two weeks after receipt of the proposed rule. Notice shall include the following information:
(1) the name of the agency;
(2) the title or subject of the rule;
(3) a concise summary in plain language of the effect of the rule;
(4) an explanation of the people, enterprises, and governmental entities affected by the rule;
(5) a brief summary of the economic impact;
(6) the name, telephone number, and address of an agency official able to answer questions and receive comments on the proposal;
(7) the date, time, and place of the hearing or hearings; and
(8) the deadline for receiving comments.
(b) Editing of notices. The Secretary of State may edit all notices for clarity, brevity, and format and shall include a brief statement explaining how members of the public can participate in the rulemaking process.
(c) Newspaper publication. The Secretary of State shall arrange for one formal publication, in a consolidated advertisement in newspapers having general circulation in different parts of the State as newspapers of record approved by the Secretary of State, of information relating to all proposed rules that includes the following information:
(1) the name of the agency and its Internet address;
(2) the title or subject and a concise summary of the rule and the Internet address at which the rule may be viewed; and
(3) the office name, office telephone number, and office mailing address of an agency official able to answer questions and receive comments on the proposal.
(d) Reimbursement. The Secretary of State shall be reimbursed by agencies making publication in accordance with subsection (c) of this section so that all costs are prorated among agencies publishing at the same time. (Added 1981, No. 82, § 6; amended 2009, No. 146 (Adj. Sess.), § F2; 2013, No. 1, § 79; 2017, No. 156 (Adj. Sess.), § 2.)
§ 840. Public hearing and comment
(a) The agency may hold one or more public hearings for each proposed rule. A public hearing shall be scheduled if so requested by 25 persons, by a governmental subdivision or agency, by the Interagency Committee on Administrative Rules, or by an association having 25 or more members. The first hearing shall not be held sooner than 30 days following the notice required by section 839 of this title.
(b) On request, the agency shall promptly provide a copy of a proposed or final proposed rule. If the copy is mailed, it shall be sent not later than the end of the third working day after the request is received. The agency may charge for copying costs in the amount provided by law.
(c) An agency shall afford all persons reasonable opportunity to submit data, views or arguments, orally or in writing, at least through the seventh day following the last public hearing.
(d) The agency shall consider fully all written and oral submissions concerning the proposed rule, and all submissions on separate requirements for small businesses. The agency shall provide information to all individuals, who submitted written or oral comment, on the procedure for adoption of rules and how to obtain changes in the proposed rule.
(e) If requested by an interested person at any time before 30 days after final adoption of a rule, the adopting authority shall issue an explanation of the proposed rule. The explanation shall include:
(1) a concise statement of the principal reasons for and against the adoption of the rule in its final form; and
(2) an explanation of why the adopting authority overruled the arguments and considerations against the rule. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 4; 1999, No. 146 (Adj. Sess.), § 5; 2009, No. 146 (Adj. Sess.), § F3.)
§ 841. Final proposal
(a) After considering public comment as required in section 840 of this title, an agency shall file a final proposal with the Secretary of State and with the Legislative Committee on Administrative Rules. The Committee may require that the agency include an electronic copy of the final proposal with its filing.
(b) The filing of the final proposal shall include all information required to be filed with the original proposal, suitably amended to reflect any changes made in the rule and the fact that public hearing and comment have been completed.
(1) With the final proposal, the agency shall include a statement that succinctly and separately addresses each of the following:
(A) how the proposed rule is within the authority of the agency;
(B) why the proposed rule is not arbitrary;
(C) the strategy for maximizing public input that was prescribed by the Interagency Committee on Administrative Rules and the actions taken by the agency that demonstrate compliance with that strategy;
(D) the sufficiency of the economic impact analysis; and
(E) the sufficiency of the environmental impact analysis.
(2) When an agency decides in a final proposal to overrule substantial arguments and considerations raised for or against the original proposal or to reject suggestions with respect to separate requirements for small businesses, the final proposal shall include a description of the reasons for the agency’s decision.
(c) The Legislative Committee on Administrative Rules shall distribute a copy of the final proposal to:
(1) the chairs of the appropriate standing committees;
(2) each member of the appropriate standing committees who requests a copy of the filing; and
(3) the Chairs of the House Committee on Government Operations and Military Affairs and the Senate Committee on Government Operations, if the cover sheet accompanying the filing identifies a Public Records Act exemption in the rule.
(d) The chair of a standing committee that considered legislation delegating rulemaking authority and, in the case of rules that create or enlarge the scope of a Public Records Act exemption, the Chairs of the House Committee on Government Operations and Military Affairs and Senate Committee on Government Operations, may convene the committee for the purpose of considering a recommended course of action for the Legislative Committee on Administrative Rules. The chair may convene such a meeting, pursuant to 2 V.S.A. § 23, while the General Assembly is not in session. Any recommended course of action shall be filed with the Legislative Committee on Administrative Rules no later than five working days before the Committee has scheduled a review of the proposed rule. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 5; 1989, No. 134 (Adj. Sess.); 1999, No. 146 (Adj. Sess.), § 6; 2001, No. 149 (Adj. Sess.), § 51, eff. June 27, 2002; 2015, No. 3, § 2; 2017, No. 156 (Adj. Sess.), § 2.)
§ 842. Review by Legislative Committee
(a) Objection; time frame; process.
(1) Within 45 days after the filing of a final proposal unless the agency consents to an extension of this review period, the Legislative Committee on Administrative Rules, by majority vote of the entire Committee, may object under subsection (b) of this section and recommend that the agency amend or withdraw the proposal. The agency shall be notified promptly of the objections. Failure to give timely notice shall be deemed approval.
(2) The agency shall within 14 days after receiving notice respond in writing to the Committee and send a copy to the Secretary of State. In its response, the agency may include revisions to the proposed rule or filing documents that seek to cure defects noted by the Committee.
(3) After receipt of this response, the Committee may withdraw or modify its objections.
(b) Grounds for objection. The Committee may object under this subsection if:
(1) a proposed rule is beyond the authority of the agency;
(2) a proposed rule is contrary to the intent of the Legislature;
(3) a proposed rule is arbitrary;
(4) the agency did not adhere to the strategy for maximizing public input prescribed by the Interagency Committee on Administrative Rules;
(5) a proposed rule is not written in a satisfactory style in accordance with section 833 of this title;
(6) the economic impact analysis fails to recognize a substantial economic impact of the proposed rule, fails to include an evaluation and statement of costs to local school districts required under section 838 of this title, or fails to recognize a substantial economic impact of the rule to such districts; or
(7) the environmental impact analysis fails to recognize a substantial environmental impact of the proposed rule.
(c) Objections; legal effect.
(1) When objection is made under this section, and the objection is not withdrawn after the agency responds, on majority vote of the entire Committee, it may file the objection in certified form with the Secretary of State. The objection shall contain a concise statement of the Committee’s reasons for its action. The Secretary shall affix to each objection a certification of its filing and as soon as practicable transmit a copy to the agency.
(2) After a Committee objection is filed with the Secretary under this subsection, or on the same grounds under subsection 817(d) of this title, to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the Legislature, is not arbitrary, and is written in a satisfactory style in accordance with section 833 of this title, and that the agency did adhere to the strategy for maximizing public input prescribed by the Interagency Committee on Administrative Rules and its economic and environmental impact analyses did not fail to recognize a substantial economic or environmental impact. The objection of the Committee shall not be admissible evidence in any proceeding other than to establish the fact of the objection. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid.
(3) The failure of the Committee to object to a rule is not an implied legislative authorization of its substantive or procedural lawfulness.
(d) Notice of objection; inclusion on rule copies. When an objection is made under subsection (b) of this section and has been certified by the Secretary of State, notice of the objection shall be included on all copies of the rule distributed to the public. (Added 1981, No. 82, § 6; amended 1981, No. 158 (Adj. Sess.), § 1; 1999, No. 9, § 1, eff. May 4, 1999; 2001, No. 149 (Adj. Sess.), § 52, eff. June 27, 2002; 2017, No. 156 (Adj. Sess.), § 2; 2019, No. 12, § 1, eff. April 30, 2019.)
§ 843. Filing of adopted rules
(a) An adopting authority may adopt a properly filed final proposed rule after:
(1) The passage of 45 days after filing of a final proposal under section 841 of this title, provided the agency has not received notice of objection from the Legislative Committee on Administrative Rules;
(2) Receiving notice of approval from the Legislative Committee on Administrative Rules; or
(3) Responding to an objection of the Legislative Committee on Administrative Rules under section 842 of this title. After responding to such an objection, an agency may adopt the rule without change or may make a germane change in accordance with subsection (b) of this section.
(b) The text of the adopted rule shall be the same as the text of the final proposed rule submitted under section 841, except that any germane change may be made by the agency in response to an objection or expressed concern of the Legislative Committee on Administrative Rules.
(c) Adoption shall be complete upon proper filing with the Secretary of State and with the Legislative Committee on Administrative Rules. An agency shall have eight months from the date of initial filing with the Secretary of State to adopt a rule unless extended by action or request of the Legislative Committee on Administrative Rules. The Secretary of State shall refuse to accept a final filing after that date, except that:
(1) Within 30 days after discovering that the text of a final adopted rule deviates from the text of a final proposed rule as approved by the Legislative Committee on Administrative Rules, an agency shall correct the adopted rule to conform to the final proposed rule as so approved and shall refile the adopted rule in the manner set forth in this section, along with documentation demonstrating that the refiled adopted rule conforms to the final proposed rule as approved.
(2) An agency may refile a final adopted rule in the manner set forth in this section solely for the purpose of correcting one or more typographic errors that do not change the substance or effect of the rule.
(d) Adopted rules filed shall include:
(1) A cover sheet on a form prepared by the Secretary of State containing at least the following information:
(A) the name of the agency;
(B) the title or subject of the rule;
(C) a brief summary of any changes made since the filing of the final proposed rule, including any changes in expected economic impact;
(D) a summary of the dates on which the agency complied with the procedural requirements of this chapter; and
(E) a signed and dated statement by the adopting authority that the procedural requirements of this chapter have been met and that the adopting authority approves of the contents of the filing; and
(2) An adopting page as required by section 838 of this title; and
(3) The text of the rule.
(e) After adopting a rule, the agency shall create a file containing all papers used or created in that action. The file shall be retained for at least one year. (Added 1981, No. 82, § 6; amended 1983, No. 202 (Adj. Sess.), § 1, eff. April 26, 1984; 1999, No. 9, § 2, eff. May 4, 1999; 2017, No. 156 (Adj. Sess.), § 2; 2019, No. 12, § 1, eff. April 30, 2019.)
§ 844. Emergency rules
(a) Where an agency believes that there exists an imminent peril to public health, safety, or welfare, it may adopt an emergency rule. The rule may be adopted without having been prefiled or filed in proposed or final proposed form, and may be adopted after whatever notice and hearing the agency finds to be practicable under the circumstances. The agency shall make reasonable efforts to ensure that emergency rules are known to persons who may be affected by them.
(b) Emergency rules adopted under this section shall not remain in effect for more than 180 days. An agency may propose a permanent rule on the same subject at the same time that it adopts an emergency rule.
(c) Emergency rules adopted under this section shall be filed with the Secretary of State and with the Legislative Committee on Administrative Rules. The Legislative Committee on Administrative Rules shall distribute copies of emergency rules to the appropriate standing committees.
(d) Emergency rules adopted under this section shall include:
(1) as much of the information required for the filing of a proposed rule as is practicable under the circumstances; and
(2) a signed and dated statement by the adopting authority explaining the nature of the imminent peril to the public health, safety, or welfare and approving of the contents of the rules.
(e)(1) On a majority vote of the entire Committee, the Committee may object under this subsection if an emergency rule is:
(A) beyond the authority of the agency;
(B) contrary to the intent of the Legislature;
(C) arbitrary; or
(D) not necessitated by an imminent peril to public health, safety, or welfare sufficient to justify adoption of an emergency rule.
(2) When objection is made under this subsection, on majority vote of the entire Committee, the Committee may file the objection in certified form with the Secretary of State. The objection shall contain a concise statement of the Committee’s reasons for its action. The Secretary shall affix to each objection a certification of its filing and as soon as practicable transmit a copy to the agency. After a Committee objection is filed with the Secretary under this subsection, to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the Legislature, is not arbitrary, and is justified by an imminent peril to the public health, safety, or welfare. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the Committee to object to a rule is not an implied legislative authorization of its substantive or procedural lawfulness.
(3) When the Committee makes an objection to an emergency rule under this subsection, the agency may withdraw the rule to which an objection was made. Prior to withdrawal, the agency shall give notice to the Committee of its intent to withdraw the rule. A rule shall be withdrawn upon the filing of a notice of withdrawal with the Secretary of State and the Committee. If the emergency rule amended an existing rule, upon withdrawal of the emergency rule, the existing rule shall revert to its original form, as though the emergency rule had never been adopted.
(f) In response to an expressed concern of the Legislative Committee on Administrative Rules, an agency may make a germane change to an emergency rule that is approved by the Committee. A change under this subsection shall not be considered a newly adopted emergency rule and shall not extend the period during which the emergency rule remains in effect.
(g) In the alternative to the grounds specified in subsection (a) of this section, an agency may adopt emergency amendments to existing rules using the process set forth in this section if each of the subdivisions (1)-(5) of this subsection applies. On a majority vote of the entire Committee, the Legislative Committee on Administrative Rules may object to the emergency amendments on the basis that one or more of these subdivisions do not apply or under subdivision (e)(1)(A), (B), or (C) of this section, or both.
(1) The existing rules implement a program controlled by federal statute or rule or by a multistate entity.
(2) The controlling federal statute or rule has been amended to require a change in the program or the multistate entity has made a change in the program that is to be implemented in all of the participating states.
(3) The controlling federal statute or rule or the multistate entity requires implementation of the change within 120 days or less.
(4) The adopting authority finds each of the following in writing:
(A) The agency cannot by the date required for implementation complete the final adoption of amended rules using the process set forth in sections 837 through 843 of this title.
(B) Failure to amend the rules by the date required for implementation would cause significant harm to the public health, safety, or welfare or significant financial loss to the State.
(5) On the date the emergency rule amendments are adopted pursuant to this subsection, the adopting authority prefiles a corresponding permanent rule pursuant to section 837 of this title. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 2; 2011, No. 89 (Adj. Sess.), § 1; 2017, No. 156 (Adj. Sess.), § 2.)
§ 845. Effect of rules
(a) Rules shall be valid and binding on persons they affect and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as provided by subsections 842(c) and 844(e) of this title, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.
(b) No agency shall grant routine waivers of or variances from any provisions of its rules without either amending the rules or providing by rule for a process and specific criteria under which the agency may grant a waiver or variance in writing. The duration of the waiver or variance may be temporary if the rule so provides.
(c) Nothing in this chapter:
(1) allows rules to provide for penalties, fines, or imprisonment not authorized by other law;
(2) enlarges the authority of any agency to impose requirements on any member of the public; or
(3) allows an agency by rule to require permits, licenses, or fees or to define unprofessional conduct unless specifically authorized by other law.
(d) Rules adopted under this chapter shall take effect 15 days after adoption is complete or at a later time provided in the text of the rule or on its adopting page. However, an emergency rule shall take effect upon filing, or at a later time provided in the text of the rule or on its adopting page.
(e) Rules shall remain in effect until:
(1) repealed or modified by subsequent rule;
(2) limited or invalidated by a court; or
(3) repealed or modified by statute. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 3; 1995, No. 186 (Adj. Sess.), § 32, eff. May 22, 1996; 1999, No. 52, § 44; 2017, No. 156 (Adj. Sess.), § 2.)
§ 846. Remedies for procedural failures
(a) The following shall prevent a rule from taking effect:
(1) failure to file with the Secretary of State;
(2) failure to file with the Legislative Committee on Administrative Rules;
(3) failure to file with the Interagency Committee on Administrative Rules; or
(4) failure to respond to an objection of the Legislative Committee on Administrative Rules as required in section 842 of this title.
(b) The following shall not affect the validity of a rule after its adoption:
(1) inadvertent failure to make required assurances relating to an incorporation by reference; or
(2) amendment after public hearing of the text of a proposed rule in a manner that does not cause the published summary of the rule to become misleading or inadequate; or
(3) failure to certify that all procedures required by this chapter have been satisfied; or
(4) failure to meet the style requirements of section 833 of this title; or
(5) inadvertent failure to mail notice or copies of any rule.
(c) Failure to identify the creation or enlargement in scope of a Public Records Act exemption in accordance with subsection 838(b) or 841(b) of this title shall render invalid the provisions of the rule that create or enlarge the exemption.
(d) For other violations of this chapter, the Court may fashion appropriate relief.
(e) An action to contest the validity of a rule for noncompliance with any of the provisions of this chapter, other than those listed in subsections (a) and (c) of this section, must be commenced within one year after the effective date of the rule. (Added 1981, No. 82, § 6; amended 1995, No. 61 § 4; 2001, No. 149 (Adj. Sess.), § 53, eff. June 27, 2002; 2015, No. 3, § 3.)
§ 847. Availability of adopted rules; rules by Secretary of State
(a) Availability from agency. An agency shall make each rule it has finally adopted available to the public online and for physical inspection and copying. Online, the agency shall post its adopted rules on a separate web page that is readily accessible from a prominent link on its main web page, that lists adopted rules by title and topic, and that is searchable.
(b) Register; code.
(1) The Secretary of State (Secretary) shall keep open to public inspection a permanent register of rules. The Secretary may satisfy this requirement by incorporating the register into the centralized rule system created pursuant to section 818 of this title.
(2) The Secretary shall publish a code of administrative rules that contains the rules adopted under this chapter. The requirement to publish a code shall be considered satisfied if a commercial publisher offers such a code in print at a competitive price and at no charge online. However, if the Secretary establishes the centralized rule system under section 818 of this title as a digital system, then the system shall include the online publication of this code.
(c) Rules for administration. The Secretary of State shall adopt rules for the effective administration of this chapter. These rules shall be applicable to every agency and shall include uniform procedural requirements, style, appropriate forms, and a system for compiling and indexing rules. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 5; 2013, No. 142 (Adj. Sess.), § 10; 2015, No. 131 (Adj. Sess.), § 19; 2015, No. 169 (Adj. Sess.), § 11; 2017, No. 156 (Adj. Sess.), § 2.)
§ 848. Rules repeal; amendment of authority; notice by agency
(a) Repeal by operation of law. A rule shall be repealed without formal proceedings under this chapter if:
(1) the agency that adopted the rule is abolished and its authority, specifically including its authority to implement its existing rules, has not been transferred to another agency;
(2) a court of competent jurisdiction has declared the rule to be invalid; or
(3) the statutory authority for the rule, as stated by the agency under subdivision 838(a)(10) of this title, is repealed by the General Assembly or declared invalid by a court of competent jurisdiction.
(b) Notice to Secretary of State; deletion. When a rule is repealed by operation of law under this section, the agency that adopted the rule shall notify the Secretary of State in such manner as the Secretary may prescribe by rule or procedure, and the Secretary shall delete the rule from the published code of administrative rules.
(c) Repeal for nonpublication.
(1) On July 1, 2018, a rule shall be repealed without formal proceedings under this chapter if:
(A) as of July 1, 2016, the rule was in effect but not published in the code of administrative rules; and
(B) the rule is not published in such code before July 1, 2018.
(2) An agency seeking to publish a rule described in subdivision (1) of this subsection may submit a digital copy of the rule to the Secretary of State with proof acceptable to the Secretary that as of July 1, 2016 the rule was adopted and in effect under this chapter and the digital copy consists of the text of such rule without change.
(d) Amendment of authority for rule.
(1) If the statutory authority for a rule, as stated by the agency under subdivision 838(a)(10) of this title, is amended by the General Assembly, and the amendment does not transfer authority from the adopting agency to another agency, the agency within 30 days following the effective date of the statutory amendment shall review the rule and make a written determination as to whether the statutory amendment repeals the authority upon which the rule is based or requires revision of the rule and shall submit a copy of this written determination to the Secretary of State and the Legislative Committee on Administrative Rules, in such manner as the Secretary may prescribe by rule or procedure.
(2) If the statutory authority for a rule, as stated by the agency under subdivision 838(a)(10) of this title, is transferred by act of the General Assembly to another agency, the agency to which the authority is transferred shall provide notice of the transfer, in such manner as the Secretary of State may prescribe by rule or procedure, within 30 days following the effective date of the statutory amendment, to the Secretary and the Legislative Committee on Administrative Rules. (Added 1983, No. 202 (Adj. Sess.), § 2, eff. April 26, 1984; amended 2015, No. 169 (Adj. Sess.), § 12; 2017, No. 156 (Adj. Sess.), § 2; 2019, No. 14, § 4, eff. April 30, 2019.)
§ 849. Repealed. 2017, No. 156 (Adj. Sess.), § 2.
