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STATE OF OKLAHOMA
1st Session of the 5 8th Legislature (2021)
SENATE BILL 539 By: Dahm
AS INTRODUCED
An Act relating to agency administrative rules;
amending 75 O.S. 2011, Sections 250.4a, 250.10, as
amended by Section 49, Chapter 227, O.S. L. 2013, 302,
303, as amended by Section 50, Chapter 227, O.S.L.
2013, 307.1, 308 and 308.1, as amended by Sections 4
and 5, Chapter 357, O.S.L. 2013 , 308.2 and Section 6,
Chapter 357, O.S.L. 2013 (75 O.S. Supp. 2020,
Sections 250.10, 303, 308, 308.1 and 308.3), which
relate to the Administrative Procedures Act;
requiring certain publication on agency websites;
deleting deadlines for certain duties; modifying time
by which agency required to make certain re sponses;
stating requirements for waiver request; d eleting
provision relating to function of certain committees;
granting Legislature authority to amend proposed and
effective agency rules; providing procedures;
providing that certain rights, privileges or
interests not affected by subsequent amendment;
modifying time by which certain proceeding must be
commenced; specifying requirements for certain joint
resolutions; updating statutory references; and
declaring an emergency .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 75 O.S. 2011, Section 250.4a, is
amended to read as follows:
Section 250.4a. A. Any agency exempt from all or part of the
Administrative Procedures Act pursuant to subsect ion A of Section
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250.4 of this title shall maintain and make available for public
inspection its exempt rules at its principal place of business , and
shall also publish its exempt rules on its website .
B. It is recognized by the Ok lahoma Legislature that agencies
specified by subsection A of this section have published rules
containing obsolete rules or internal policy statements or agency
statements which do not meet the Administrative Procedures Act
definition of rules. Therefore , by December 31, 2005, each such
agency shall conduct an internal review o f its rules to determine
whether each of its rules is current and is a rule as such term is
defined by the Administrative Procedures Act. Any rule determined
by an agency to be obs olete or an internal pol icy statement or any
agency statement which does no t meet the definition of a rule
pursuant to the Administrative Procedures Act shall be deleted by
the agency. Notice of such deletion shall be submitted to the
Speaker of the House of Representatives, the President Pro Tempore
of the Senate and the Govern or for informational purposes.
C. The provisions of this section shall not be construed to
authorize any agency to amend any rule or to delete any rule which
affects any private ri ghts or procedures avail able to the public.
SECTION 2. AMENDATORY 75 O.S. 2011, Section 250.10, as
amended by Section 49, Chapter 227, O.S.L. 2013 (75 O.S. Supp. 2020,
Section 250.10), is amended to read as follows:
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Section 250.10. The Governor by Execu tive Order or either house
of the Legislature or bo th houses of the Legislature by resolution,
or a small business, may request an agency to review its rules to
determine whether or not the rules in question should be amended,
repealed or redrafted. The a gency shall respond to requests from
the Governor or the Legislature within ninety (90) thirty (30)
calendar days of such request and shall respond to requests from a
small business within ninety (90) calendar days of such request .
SECTION 3. AMENDATORY 75 O.S. 2011, Section 302, is
amended to read as follows:
Section 302. A. In addition to other rulemaking requirements
imposed by law, each agency which has rulemaking authority, shall:
1. Promulgate as a rule a description of th e organization of
the agency, stating the general c ourse and method of the operations
of the agency and the methods whereby the public may obtain
information or make submissions or requests;
2. Promulgate rules of practice setting forth the nature and
requirements of all formal and informal procedures ava ilable,
including a description of all forms and instructions issued by the
agency for use by the public;
3. Make available for public inspection and publish on its
website all rules and all other written statements of policy or
interpretations formulated , adopted, promulgated or used by the
agency in the discharge of its functions;
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4. Make available for public inspection and publish on its
website pursuant to the provisions of the Open Records Act all fi nal
orders, decisions and opinions.
B. 1. An agency shall maintain an official rulemaking record
for each proposed rule or promulgated rule. The record and
materials incorporated by reference shall be available for public
inspection and shall be publish ed on the agency’s website .
2. The agency rulemaki ng record shall contain:
a. copies of all publications in "The Oklahoma Register"
with respect to the rule or the proceeding upon which
the rule is based,
b. copies of any portions of the agency's public
rulemaking docket containing entries relating to the
rule or the proceeding upon which the rule is based,
c. all written petitions, requests, submissions, and
comments received by the agency and all other written
materials considered by the agency in connec tion with
the formulation, proposal, or adoption of the rule or
the proceeding upon which the rule is based,
d. any official transcript of oral presentations made in
the proceeding upon which the rule is based or, if not
transcribed, any tape recording or stenographic record
of those presentations, and any memorandum prepared by
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a presiding official summarizing the contents of those
presentations,
e. a copy of any regulatory analysis prepared for the
proceeding upon which the rule is based,
f. a copy of the rule and analysis of each such rule
filed with the Office pursuant to Section 251 of this
title,
g. all petitions for exceptions to, amendments of, or
repeal or suspension of, the rule,
h. a copy of the rule impact statement, if ma de, and
i. such other information concerning such rules as may be
determined necessary by the agency.
3. Upon judicial review, the record required by this section
constitutes the official agency rulemaking record with respect to a
rule. Except as otherwi se required by a provisi on of law, the
agency rulemaking record need not co nstitute the exclusive basis for
agency action on that rule or for judicial review thereof.
C. 1. By December 31, 2002, each Each agency that issues
precedent-setting orders shall maintain and index all such orders
that the agency intends to rely upon as precedent. The index and
the orders shall be available for public inspection and copying in
the main office and each regional or district office of the agency
and shall be publish ed on the agency’s websi te. The orders shall be
indexed by subject.
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2. After December 31, 2002, an An order shall not be relied
upon as precedent by an agency to the detriment of any person until
it has been made avai lable for public inspection and, indexed, and
published in the manner described in this subsection.
3. An agency shall consistently apply rules to each person
subject to the jurisdiction of the agency regarding issuance of
orders.
D. An agency shall not by internal policy, memorandum, or ot her
form of action not o therwise authorized by the Administrative
Procedures Act:
1. Amend, interpret, implement, or repeal a statute or a rule;
2. Expand upon or limit a statute or a rule; and
3. Except as authorized by the Constitution of the United
States, the Oklahoma Cons titution or a statute, expand or limit a
right guaranteed by the Constitution of the United States, the
Oklahoma Constitution, a statute, or a rule.
E. Any agency memorandum, internal policy, or other form of
action violative of th is section or the spirit thereof is null,
void, and unenforceable.
F. This section shall not be construed to prohibit an agency
issuing an opinion or administrative decision which is authorized by
statute provided that, unless such opinion or administrati ve
decision is issued pu rsuant to the procedures required pursuant to
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the Administrative Procedures Act, such decision or opinion shall
not have the force and effect of law.
SECTION 4. AMENDATORY 75 O.S. 2011, Section 303, as
amended by Section 50, Chapt er 227, O.S.L. 2013 (75 O.S. Supp. 20 20,
Section 303), is amended to read as follows:
Section 303. A. Prior to the adoption of any rule or amendment
or revocation of a rule, the agency shall:
1. Cause notice of any intended actio n to be published in "Th e
Oklahoma Register" pursuant to subsection B of th is section;
2. For at least thirty (30) days after publication of the
notice of the intended rulemaking action, afford a comment period
for all interested persons to submit data, v iews or arguments,
orally or in writing. The agency shall consider fully a ll written
and oral submissions respecting the proposed rule;
3. Hold a hearing, if required, as provided by subsection C of
this section;
4. Consider the effect its intended acti on may have on the
various types of business and governmental entities. Ex cept where
such modification or variance is prohibited by statute or
constitutional constraints, if an agency finds that its actions may
adversely affect any such entity, the agency may modify its actions
to exclude that type of entity, or may "tier" its a ctions to allow
rules, penalties, fines or reporting procedures and forms to vary
according to the size of a business or governmental entity or its
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ability to comply or both. For b usiness entities, the ag ency shall
include a description of the probable qu antitative and qualitative
impact of the proposed rule, economic or otherwise, and use
quantifiable data to the extent possible, taking into account both
short-term and long-term consequences; and
5. Consider the effect its intended action may have on the
various types of consumer groups. If an agency finds that its
actions may adversely affect such groups, the agency may modify its
actions to exclude that type of activity.
B. The notice required by para graph 1 of subsection A of this
section shall include, but not be limited to:
1. In simple language, a brief summary of the rule;
2. The proposed action being taken;
3. The circumstances which created the need for the rule;
4. The specific legal author ity authorizing the proposed rule;
5. The intended effect of the rule;
6. If the agency determines that the rule affects business
entities, a request that such entities provide the agency, within
the comment period, in dollar amou nts if possible, the inc rease in
the level of direct costs such as fees, an d indirect costs such as
reporting, recordkeeping, equipment, construction, labor,
professional services, revenue loss, or other costs expected to be
incurred by a particular entity due to compliance with the proposed
rule;
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7. The time when, the place whe re, and the manner in which
interested persons may present their views thereon pursuant to
paragraph 3 of subsection A of this section;
8. Whether or not the agency intends to issu e a rule impact
statement according to subsection D of this section and whe re copies
of such impact statement may be obtained for review by the public;
9. The time when, the place where, and the manner in which
persons may demand a hearing on the proposed rule if the notice does
not already provide for a hearing. If the notice provides for a
hearing, the time and place of the hearing shall be specified in the
notice; and
10. Where copies of the proposed rules may be obtained for
review by the public. An agency may charge perso ns for the actual
cost of mailing a copy of the pro posed rules to such persons.
The number of copies of such notice as specified by the
Secretary shall be submitted to the Secretary who shall publish the
notice in "The Oklahoma Regi ster" pursuant to the pr ovisions of
Section 255 of this title.
Prior to or within three (3) days after publication of the
notice in "The Oklahoma Register", the agency shall cause a copy of
the notice of the proposed rule adoption and the rule impact
statement, if available, to b e mailed to all persons who have made a
timely request of the agency for advance notice of its rulemaking
proceedings. Provided, in lieu of mailing copies, an agency may
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electronically notify interested persons that a copy of the p roposed
rule and the rule impact statement, if available, may be viewed on
the agency's website. If an agency posts a copy of the proposed
rule and rule impact statement on its website, the agency shall not
charge persons for the cost of downloading or pr inting the proposed
rule or impact statement. Each agency shall maintain a listing of
persons or entities requesting such notice.
C. 1. If the published notice does not already provide for a
hearing, an agency shall schedule a hearing on a proposed rule if,
within thirty (30) days after the published notice of the proposed
rule adoption, a written request for a hearing is submitted by:
a. at least ten persons,
b. a political subdivision,
c. an agency, or
d. an association having not less than twenty -five members.
At that hearing persons may present oral argument, data, and
views on the proposed rule.
2. A hearing on a proposed rule may not be held earlier than
thirty (30) days after notice of the hearing is published pursuant
to subsection B of this sect ion.
3. The provisions of this subsection shall not be construed to
prevent an agency from holding a hearing or hearings on the proposed
rule although not required by the provisions of this subsection;
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provided that notice of such hearing shall be publish ed in "The
Oklahoma Register" at least thirty (30) days prior to such heari ng.
D. 1. Except as otherwise provided in this subsection, an
agency shall issue a rule impact statement of a proposed rule prior
to or within fifteen (15) days after the date of publication of the
notice of proposed rule adoption. The rule impact state ment may be
modified after any hearing or comment period afforded pursuant to
the provisions of this section.
2. Except as otherwise provided in this subsection, the rule
impact statement shall include, b ut not be limited to:
a. a brief description of the purpose of the proposed
rule,
b. a description of the classes of persons who most
likely will be affected by the proposed rule,
including classes that will bear the costs of the
proposed rule, and any inf ormation on cost impacts
received by the agency fro m any private or public
entities,
c. a description of the classes of persons who will
benefit from the proposed rule,
d. a description of the probable economic impact of the
proposed rule upon affected cla sses of persons or
political subdivisions , including a listing of all fee
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changes and, whenever possible, a separate
justification for each fee change,
e. the probable costs and benefits to the agency and to
any other agency of the implementation and enfor cement
of the proposed rule, the source of revenue to be used
for implementation and enforcement of the proposed
rule, and any anticipated effect on state revenues ,
including a projected net loss or gain in such
revenues if it can b e projected by the agenc y,
f. a determination of whether implementation of the
proposed rule will have an economic impact on any
political subdivisions or require their cooperation in
implementing or enforcing the rule,
g. a determination of whether implem entation of the
proposed rule may have an adverse economic effect on
small business as provided by the Oklahoma Small
Business Regulatory Flexibility Act,
h. an explanation of the measures the agency has taken to
minimize compliance costs and a determinati on of
whether there are less costly or nonregulatory methods
or less intrusive methods for achieving the purpose of
the proposed rule,
i. a determination of the effect of the proposed rule on
the public health, safety and environment and, if the
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proposed rule is designed to reduc e significant risks
to the public health, safety an d environment, an
explanation of the nature of the risk and to what
extent the proposed rule will reduce the risk,
j. a determination of any detrimental effect on the
public health, safety and environment if the proposed
rule is not implemented, and
k. the date the rule impact statement was prepared and if
modified, the date modified.
3. To the extent an agency for good cause finds the preparation
of a rule impact statement or the s pecified contents thereo f are
unnecessary or contrary to the public interes t in the process of
adopting a particular rule, the agency may request the Governor to
waive such requirement. Such request shall be in writing and shall
state the agency’s finding s and the justification for such findings.
Upon request by an agency, the Governor may also waive the rule
impact statement requirements if the agency is required to implement
a statute or federal requirement that does not require an agency to
interpret or describe the requireme nts, such as federally mandated
provisions which afford the agency no discretion to consider less
restrictive alternatives. If the Governor fails to waive such
requirement, in writing, prior to publication of the notice of the
intended rulemaking action, the rule impact statement shall be
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completed. The determination to waive the rule impact statement
shall not be subject to judicial review.
4. The rule shall not be invalidated on the ground that the
contents of the rule impact st atement are insufficient or
inaccurate.
E. Upon completing the requirement s of this section, an agency
may adopt a proposed rule. No rule is valid unless adopted in
substantial compliance with the provisions of this section.
SECTION 5. AMENDATORY 75 O. S. 2011, Section 307.1, is
amended to read as follo ws:
Section 307.1. A. The Speaker of the House of Representatives
and the President Pro Tempore of the Senate may each establish a
rule review committee or designate standing comm ittees of each such
house to review administrative rules.
B. Such committees may meet separately or jointly at any time,
during sessions of the Legislature and in the interim.
C. The function of the committees so established or designated
shall be the review and promotion of ad equate and proper rules by
agencies and developing an understanding on the part of the public
respecting such rules. Such function shall be advisory only.
Each committee may review all adopted rules and such other rules
the committee deems appropriate and may make recommendations
concerning such rules to their respective house of the Legislature,
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or to the agency adopting the rule, or to both their respective
house of the Legislature and the agency.
D. In addition to the review of agency-adopted rules pursuant
to this act Section 250 et seq. of this title , each such committee
shall have the power and duty to:
1. Conduct a continuous study and investigations as to whether
additional legislation or changes in legislation are needed b ased on
various factors, including, but not limited to, review of proposed
rules, review of existing rules including , but not limited to,
consideration of amendments to or repeal of existing rules, the lack
of rules, the ability of agencies to promulgate such rules, and the
needs of administrative agencies;
2. Conduct a continuo us study of the rulemaking process of all
state agencies including those agencies exempted by Section 250.4 of
this title for the purpose of improving the rulemaking process;
3. Conduct such other studies and investigations relating to
rules as may be determined to be necessary by the committee; and
4. Monitor and investigate compliance of agencies with the
provisions of the Administrative Procedures Act, make periodic
investigations of the rulemaking act ivities of all agencies and
evaluate and report on all rules in terms of their propriety, legal
adequacy, relation to statutory authorization, economic and
budgetary effects and public policy.
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SECTION 6. AMENDATORY 75 O.S. 2011, S ection 308, as
amended by Section 4, Chapter 357, O .S.L. 2013 (75 O.S. Supp. 20 20,
Section 308), is amended to read as follows:
Section 308. A. Upon receipt of any adopted rules, the Speaker
of the House of Representatives and the Pr esident Pro Tempore o f the
Senate shall assign such rules to the appropr iate committees of each
house of the Legislature for review. Except as otherwise provided
by this section:
1. If such rules are received on or before April 1, the
Legislature shall have until the last da y of the regular legislative
session of that year t o review such rules; and
2. If such rules are received after April 1, the Legislature
shall have until the last day of the regular legislative session of
the next year to review such rules.
B. By the adoption of a joint resolution during the review
period specified in subsection A of this section, the Legislature
may disapprove or, approve or amend any rule. Any such action may
apply to any rule in whole or in part. The Legislature may also
take any such action and provide further instructions to the ag ency
that promulgated the rule.
C. Unless otherwise authorized by the Legislature, whenever a
rule is disapproved as provided in subsection B of this section, the
agency adopting such rules shall not have authority to resubmit an
identical rule, except du ring the first sixty (60) calendar days of
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the next regular legislative session. Any effective emergency rule
which would have been superseded by a disapproved permanent rule
shall be deemed null and void on the date the Legislature
disapproves the perman ent rule. Rules may be disapproved in part or
in whole by the Legislature. Upon enactment of any joint resolution
disapproving or amending a rule, the agency shall file notice of
such legislative disappr oval or amendment with the Secretary of
State for publication in "The Oklahoma Register ".
D. Unless otherwise provided by specific vote of the
Legislature, joint resolutions introduced for purposes of
disapproving or, approving or amending a rule or the omnibus joint
resolution described in Section 6 308.3 of this act title shall not
be subject to regular legislative cutoff dates, shall be limited to
such provisions as may be necessary for disapproval or, approval or
amendment of a rule, and any such other direction or mandate
regarding the rule deemed nec essary by the Legislature. The
resolution shall contain no other provisions.
E. A proposed permanent rule shall be deemed finally adopted
if:
1. Approved or amended by the Legislature pursua nt to Section 6
308.3 of this act title, provided that any such joint resolution
becomes law in accordance with Section 11 of Article VI of the
Oklahoma Constitution;
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2. Approved by the Governor pursuant to subsection D of Section
6 308.3 of this act title;
3. Approved or amended by a joint resolution pursuant to
subsection B of this section, provided that any such resolution
becomes law in accordance with Section 11 of Article VI of the
Oklahoma Constitution; or
4. Disapproved by a joint resolution purs uant to subsection B
of this section or Section 6 308.3 of this act title which has been
vetoed by the Governor in accordance with Section 11 of Article VI
of the Oklahoma Constitution and the veto has not been overridden.
F. Prior to final adoption of a rule, an agency may withdraw a
rule from legislative review. N otice of such withdrawal shall be
given to the Governor, the Speaker of the House of Representatives,
the President Pro Tempore of the Senate, and to the Secretary of
State for publication in "The Oklahoma Register".
G. An agency may promulgate an emergen cy rule only pursuant to
Section 253 of this title.
H. Any rights, privileges, or interests gained by any person by
operation of an emergency rule, shall not be affected by reason of
any subsequent disapproval or, rejection or amendment of such rule
by either house of the Legislature.
SECTION 7. AMENDATORY 75 O.S. 2011, Section 308.1, as
amended by Section 5, Chapter 357, O.S.L. 2013 (75 O.S. Supp. 20 20,
Section 308.1), is amen ded to read as follows:
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Section 308.1. A. Upon final adoption, the agency shall submit
the rule to the Secretary for filing and publishing such rule
pursuant to Sections 251 and 255 of this title.
B. The text of the rule submitted for publication shall be the
same as the text of the rule that has been fina lly adopted.
C. After final adoption, filing and publication, an effective
agency rule may be amended by the Legislature in a joint resolution
if such resolution becomes law in accordance with Section 11 of
Article VI of the Oklahoma Constitution. Unless otherwise provided
by specific vote of the Legislature, joint resolutions introduced
for purposes of amending a rule shall not be subject to regular
legislative cutoff dates, shall be limited to such p rovisions as may
be necessary for amendment of a rule and any such other direction or
mandate regarding the rule deemed necessary by the Legislature. The
resolution shall contain no other provisions.
SECTION 8. AMENDATORY 75 O.S. 2011, Section 308.2, is
amended to read as follows:
Section 308.2. A. No agency rule is valid or effective against
any person or party, or may be invoked by the agency for any
purpose, until it has been promulgated as required in the
Administrative Procedures Act.
B. A proceeding to contest any promulgate d rule on the ground
of noncompliance with the procedural requirements of Article I of
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the Administrative Procedures Act must be commenced within two (2)
three (3) years from the effective date of the p romulgated rule.
C. 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
otherwise provided by law, rules shall be p rima facie evidence of
the proper interpretation of th e matter to which they refer.
SECTION 9. AMENDATORY Section 6, Chapter 357, O.S.L.
2013 (75 O.S. Supp. 20 20, Section 308.3), is amended to read as
follows:
Section 308.3. A. The Legislature shall have an omnibus joint
resolution prepared for consideration each session.
B. The joint resolution shall be substantially in the following
form: "All proposed permanent rules of Oklahoma state agencies
filed on or before April 1 are hereby approved except for the
following:".
C. For the purpose of this section, a proposed permanent rule
may be disapproved, in whole or in part, or amended, in the omnibus
joint resolution considered by the Legislature.
D. 1. If an agency believes tha t a rule has not been approved
by the Legislature purs uant to this section and should be approved
and finally adopted, the agency may seek the Governor 's declaration
approving the rule.
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2. In seeking the approval of a proposed permanent rule, the
agency shall submit a petition to the Governor that affirmativ ely
states:
a. the rule is necessary, and
b. a citation to the source of its authority to make the
rule.
3. a. If the Governor finds that the necessity does exist,
and that the agency has the authority to make the
rule, the Governor may declare the rule to be approved
and finally adopted by publishing that declaration in
"The Oklahoma Register " on or before July 17 of that
year.
b. The declaration shall set forth the rule to be
approved, the reasons the approval is necessary, and a
citation to the source of the agency's authority to
make the rule.
4. If the omnibus joint resolution fails to pass both houses of
the Legislature and be signed by the Governor or is found by the
Governor to have a technical legal defect non-substantive error
preventing approval of administrative rules intended to be approved
by the Legislature, the Governor may declare all rules to be
approved and finally adopted by publishing a single declaration in
"The Oklahoma Register " on or before July 17 without meeting
requirements of paragraphs 2 and 3 of this subsection. If the
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Governor finds that the joint resolution has a technical legal
defect non-substantive error, the Governor shall make the finding in
writing and submit the fin ding to the Legislature.
SECTION 10. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
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