Ark. Code Ann. § 10-3-309 (2020)

1. 1. 1. In the passage of this section, the General Assembly is aware of the significant number of laws which have been enacted granting to boards, commissions, departments, and administrative agencies of state government the authority to promulgate and enforce rules.
      2. The General Assembly is further aware that ample safeguards have not been established whereby the General Assembly may be informed of circumstances in which administrative rules do not conform to legislative intent.
   2. It is the purpose of this section to establish a method for continuing legislative review and approval of such rules to correct abuses of rulemaking authority or clarify legislative intent with respect to the rulemaking authority granted the administrative boards, commissions, departments, or agencies.
2. As used in this section:
   1. 1. “Rule” means a state agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice of a state agency and includes without limitation the amendment or repeal of a prior rule.
      2. “Rule” does not mean:
         1. A statement that concerns the internal management of a state agency and that does not affect the private rights or procedures available to the public;
         2. A declaratory order or ruling issued under § 25-15-206 or other provision of law applicable to the state agency issuing the declaratory order or ruling;
         3. Intraagency memoranda; or
         4. A medical code within the Arkansas Medicaid Program that is issued by the Centers for Medicare and Medicaid Services, including without limitation:
            1. Current Procedural Terminology codes;
            2. Healthcare Common Procedure Coding System codes;
            3. International Classification of Diseases codes;
            4. National Uniform Billing Committee Official UB-04 Data Specifications Manual codes; and
            5. National Correct Coding Initiative codes; and
   2. 1. “State agency” means an office, board, commission, department, council, bureau, or other agency of state government having authority to promulgate or enforce rules.
      2. “State agency” does not include the following unless the Legislative Council adopts rules under subsection (h) of this section that include one (1) or more of the following in the definition of “state agency”:
         1. The Arkansas State Game and Fish Commission, if the rule is not promulgated under authority of a statute enacted by the General Assembly;
         2. Except as provided in § 10-3-3102 and § 27-65-107(a)(18)(A), the State Highway Commission and the Arkansas Department of Transportation, if the rule is not promulgated under authority of a statute enacted by the General Assembly; and
         3. An institution of higher education.
3. 1. A state agency shall file a proposed rule with the Legislative Council at least thirty (30) days before the expiration of the period for public comment on the rule under the Arkansas Administrative Procedure Act, § 25-15-201 et seq., or other laws or policies pertaining to the rulemaking authority of that state agency.
   2. The Legislative Council shall assign proposed rules to the Administrative Rules Subcommittee of the Legislative Council.
   3. 1. 1. The proposed rule shall be reviewed by the Administrative Rules Subcommittee of the Legislative Council.
         2. When reviewing a rule under subdivision (c)(3)(A)(i) of this section, the Administrative Rules Subcommittee of the Legislative Council shall allow members of the public a reasonable opportunity to comment on the proposed rule.
      2. 1. 1. Except as set forth in subdivision (c)(3)(B)(ii) of this section, upon conclusion of the review of the proposed rule by the Administrative Rules Subcommittee of the Legislative Council, the proposed rule shall be considered approved unless a majority of a quorum present request that the Administrative Rules Subcommittee of the Legislative Council vote on the issue of approving the proposed rule.
            2. If the Administrative Rules Subcommittee of the Legislative Council votes on the issue of approving the proposed rule, the proposed rule shall be approved unless a majority of a quorum present vote for the proposed rule to not be approved.
         2. A proposed rule submitted by the State Board of Health under § 20-7-604(d)(2)(D), concerning exemptions from the requirements of the Prescription Drug Monitoring Program, shall be considered reviewed and approved by the Administrative Rules Subcommittee of the Legislative Council upon an affirmative vote of three-fourths (3/4) of the members present when a quorum is present.
   4. 1. 1. Except as set forth in subdivision (c)(4)(B) of this section, a proposed rule approved by the Administrative Rules Subcommittee of the Legislative Council shall be considered approved by the Legislative Council unless a majority of a quorum present request that the Legislative Council vote on the issue of approving the proposed rule.
         2. If the Legislative Council votes on the issue of approving the proposed rule, the proposed rule shall be approved unless a majority of a quorum present vote for the proposed rule to not be approved.
      2. A proposed rule submitted by the State Board of Health under § 20-7-604(d)(2)(D), concerning exemptions from the requirements of the Prescription Drug Monitoring Program, shall be considered reviewed and approved by the Legislative Council upon an affirmative vote of three-fourths (¾) of the members present when a quorum is present.
   5. 1. 1. If enacted legislation requires or results in more than one (1) state agency adopting, amending, or repealing rules on a similar subject matter:
            1. A state agency may request that all proposed rules filed with the Legislative Council regarding the enacted legislation be grouped together and reviewed and approved as a single group; or
            2. A member of the General Assembly may request that all proposed rules filed with the Legislative Council regarding the enacted legislation be grouped together and reviewed and approved as a single group.
         2. If the proposed rules are grouped together under subdivision (c)(5)(A)(i) of this section, the proposed rules may be reviewed and approved as a single group by any of the following, as appropriate:
            1. The Legislative Council;
            2. The Administrative Rules Subcommittee of the Legislative Council;
            3. The Joint Budget Committee; or
            4. The Administrative Rule Review Subcommittee of the Joint Budget Committee.
      2. If the proposed rules are grouped together under subdivision (c)(5)(A)(i) of this section for review, the Legislative Council, the Administrative Rules Subcommittee of the Legislative Council, the Joint Budget Committee, or the Administrative Rule Review Subcommittee of the Joint Budget Committee, as appropriate, may:
         1. Separate the proposed rules if requested by:
            1. A member of the General Assembly; or
            2. One (1) of the state agencies that promulgated the proposed rules; and
         2. Elect to approve one (1) or more of the proposed rules separated under subdivision (c)(5)(B)(i) of this section.
4. 1. A state agency shall file a proposed emergency rule with the Executive Subcommittee of the Legislative Council.
   2. A proposed emergency rule shall be considered approved by the Executive Subcommittee of the Legislative Council if:
      1. 1. The proposed emergency rule is reviewed and approved at a meeting of the Executive Subcommittee of the Legislative Council.
         2. After the review of a proposed emergency rule at a meeting of the Executive Subcommittee of the Legislative Council, the proposed emergency rule shall be considered approved unless a majority of a quorum present request that the Executive Subcommittee of the Legislative Council vote on the issue of approving the proposed emergency rule.
         3. If the Executive Subcommittee of the Legislative Council votes on the issue of approving the proposed emergency rule, the proposed emergency rule shall be approved unless a majority of a quorum present vote for the proposed emergency rule to not be approved; or
      2. 1. A majority or more of the members of the Executive Subcommittee of the Legislative Council approve the proposed emergency rule in writing.
         2. An approval in writing of a proposed emergency rule under subdivision (d)(2)(B)(i) of this section shall not constitute a meeting under the Freedom of Information Act of 1967, § 25-19-101 et seq.
   3. A proposed emergency rule approved by the Executive Subcommittee of the Legislative Council shall be reported to the Administrative Rules Subcommittee of the Legislative Council.
5. 1. The Joint Budget Committee shall establish the Administrative Rule Review Subcommittee.
   2. 1. The Administrative Rule Review Subcommittee shall consist of twenty-two (22) members of the General Assembly.
      2. 1. Nine (9) members of the Administrative Rule Review Subcommittee shall be appointed by the Senate Cochair of the Joint Budget Committee.
         2. The Senate Cochair of the Joint Budget Committee shall designate one (1) of his or her appointees as Senate Cochair of the Administrative Rule Review Subcommittee.
      3. 1. Nine (9) members of the Administrative Rule Review Subcommittee shall be appointed by the House Cochair of the Joint Budget Committee.
         2. The House Cochair of the Joint Budget Committee shall designate one (1) of his or her appointees as House Cochair of the Administrative Rule Review Subcommittee.
   3. The cochairs and co-vice chairs of the Legislative Council shall be ex officio members of the Administrative Rule Review Subcommittee.
   4. 1. The Administrative Rule Review Subcommittee may meet only during a regular, fiscal, or extraordinary session of the General Assembly.
      2. The Administrative Rule Review Subcommittee shall meet at the call of the cochairs of the Administrative Rule Review Subcommittee.
   5. 1. During a regular, fiscal, or extraordinary session of the General Assembly:
         1. The Administrative Rule Review Subcommittee shall perform the functions assigned to the Administrative Rules Subcommittee of the Legislative Council under this section; and
         2. The Joint Budget Committee shall perform the functions assigned to the Legislative Council under this section.
      2. Actions taken by the Administrative Rule Review Subcommittee and the Joint Budget Committee under this subsection have the same effect as actions taken by the Administrative Rules Subcommittee of the Legislative Council and the Legislative Council under this section.
      3. The Joint Budget Committee shall file a report of its actions under this subsection with the Legislative Council as soon as practicable.
6. 1. A committee or subcommittee under this section may vote to not approve a rule under this section only if the rule is inconsistent with:
      1. State or federal law; or
      2. Legislative intent.
   2. A committee or subcommittee under this section voting not to approve a rule under this section shall state the grounds under subdivision (f)(1) of this section when not approving a rule.
   3. A committee or subcommittee under this section considering a rule submitted in accordance with § 20-7-604(d)(2)(D), concerning exemptions from the Prescription Drug Monitoring Program, is not required to state the grounds required under subdivision (f)(1) of this section when not approving a rule.
7. 1. The Administrative Rules Subcommittee of the Legislative Council, the Legislative Council, the Administrative Rule Review Subcommittee, or the Joint Budget Committee may refer a rule to a committee of the General Assembly for the committee's consideration.
   2. After the referred rule is presented to a committee of the General Assembly and considered, the committee to whom the rule was referred may provide its views and opinions on the rule to the committee or subcommittee that referred the rule.
   3. The Administrative Rules Subcommittee of the Legislative Council, the Legislative Council, the Administrative Rule Review Subcommittee, or the Joint Budget Committee shall not delegate their authority to review or approve a rule under this section to a committee or subcommittee of the General Assembly or the Legislative Council.
8. 1. The Legislative Council shall adopt rules to implement this section, including without limitation rules concerning:
      1. The process for determining when a rule will be placed on the agendas of the Administrative Rules Subcommittee of the Legislative Council and the Legislative Council; and
      2. The materials a state agency shall provide with the rule to aid committees and subcommittees under this section in their review and approval of the rule.
   2. The Legislative Council may adopt rules amending the definition of “state agency” under subdivision (b)(2)(B) of this section to provide:
      1. That the definition of “state agency” includes an agency of state government, including without limitation an agency of state government under subdivision (b)(2)(B) of this section; and
      2. That the definition of “state agency” under this section does not include an agency of state government.
9. The review and approval of a rule under this section shall not be construed to:
   1. Represent an expression by the General Assembly that the rule is consistent with:
      1. State or federal law; or
      2. Legislative intent; and
   2. Have any effect in a judicial proceeding relating to the rule, including without limitation a judicial review of the rule under § 25-15-212 or other applicable provision of law.

History. Acts 1973, No. 583, §§ 1, 2, 4-6; 1979, No. 136, § 1; A.S.A. 1947, §§ 6-608, 6-608n, 6-610 — 6-612; Acts 1987, No. 85, § 1; 1995, No. 884, §§ 4, 5; 1995, No. 1104, § 2; 1997, No. 1354, § 15; 2001, No. 983, § 1; 2006 (1st Ex. Sess.), No. 38, § 2; 2011, No. 273, § 1; 2013, No. 759, § 2; 2015, No. 1258, § 13; 2016 (3rd Ex. Sess.), No. 1, § 2; 2017, No. 605, § 1; 2017, No. 707, § 12; 2017, No. 820, §§ 6, 7; 2019, No. 315, §§ 736-742; 2019, No. 319, § 3.

A.C.R.C. Notes. Acts 2015, No. 1258, § 1, provided: “LEGISLATIVE FINDINGS. The General Assembly finds:

“(1) Amendment 92 to the Arkansas Constitution states in part: ‘The General Assembly may provide by law for the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and that administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section’;

“(2) As Amendment 92 does not define the term ‘state agency’, the General Assembly may establish a definition by law as part of its implementation of Amendment 92;

“(3) The General Assembly at this time wishes to exclude the Arkansas State Game and Fish Commission, the State Highway Commission, the Arkansas State Highway and Transportation Department, and institutions of higher education from the definition of ‘state agency’ applied to the implementation of Amendment 92; and

“(4) The General Assembly or the Legislative Council reserve the right to amend the definition of ‘state agency’ in the future to include one (1) or all of the Arkansas State Game and Fish Commission, the State Highway Commission, the Arkansas State Highway and Transportation Department, and institutions of higher education.”

Acts 2016 (3rd Ex. Sess.), No. 1, § 1, provided: “This act shall be known and may be cited as the ‘Arkansas Highway Improvement Plan of 2016’.”

Acts 2019 No. 319, § 1, provided: “Title. This act shall be known and may be cited as the ‘Red Tape Reduction Collective Rulemaking Act of 2019’”.

Acts 2019, No. 319, § 2, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) Arkansas is taking a leading role in the nationwide pursuit of reforms to the system of occupational licensing;

“(2) Arkansas became one (1) of eleven (11) states chosen to participate in the Occupational Licensing Policy Learning Consortium, an initiative funded by a grant from the United States Department of Labor and supported in partnership with the National Conference of State Legislatures, the Council of State Governments, and the National Governors Association;

“(3) Governor Asa Hutchinson appointed seventeen (17) individuals to the Red Tape Reduction Working Group to review and address occupational licensing regulations that create unnecessary barriers to labor market entry; and

“(4) The Red Tape Reduction Working Group issued a final report to the Governor in the fall of 2018 with five (5) recommendations for substantive legislative reform, which are to:

“(A) Establish an expedited procedure for occupational licensing entities to collectively submit administrative rules that are responsive to new legislation;

“(B) Extend Acts 2017, No. 781, to allow repeal of subsections of rules;

“(C) Establish provisions to allow certain agencies to consider occupational relevance with regard to criminal background issues;

“(D) Authorize occupational licensing entities to identify types of individuals or entities that may be issued temporary or provisional licenses; and

“(E) Establish a systematic process for review of:

“(i) New occupational licensure and occupational licensing entities; and

“(ii) Existing occupational licensure and occupational licensing entities.

“(b) It is the intent of the General Assembly to establish an expedited procedure for occupational licensing entities to collectively submit administrative rules that are responsive to new legislation”.

Publisher's Notes. Acts 1977, No. 100, referred to in this section is not codified since all of the actions required by that act were completed prior to the adoption of this code. The act may be found in the Appendix following this title.

Amendments. The 2011 amendment added (g).

The 2013 amendment in (e)(1)(B), substituted “as provided under the Arkansas Administrative Procedure Act, § 25-15-201 et seq.” for “determined by the agency” and substituted “without limitation” for “at a minimum”; deleted (e)(1)(C) and (D); and substituted “Filings under the Arkansas Administrative Procedure Act, § 25-15-201 et seq.” for “In either event, the proposed rule or regulation”.

The 2015 amendment rewrote the section heading and the section.

The 2016 (3rd Ex. Sess.) amendment substituted “that include” for “including” in the introductory language of (b)(2)(B); and added “Except as provided in §§ 10-3-3102 and 27-65-107(a)(18)(A)” to the beginning of (b)(2)(B)(ii).

The 2017 amendment by No. 605 added (b)(1)(B)(iv).

The 2017 amendment by No. 707 substituted “Department of Transportation” for “State Highway and Transportation Department” in (b)(2)(B)(ii).

The 2017 amendment by No. 820 redesignated former (c)(3)(B)(i) and (c)(3)(B)(ii) as (c)(3)(B)(i) (a) and (c)(3)(B)(i) (b) ; added “Except as set forth in subdivision (c)(3)(B)(ii) of this section” in (c)(3)(B)(i) (a) ; added (c)(3)(B)(ii); redesignated former (c)(4)(A) and (c)(4)(B) as (c)(4)(A)(i) and (c)(4)(A)(ii); added “Except as set forth in subdivision (c)(4)(B) of this section” in (c)(4)(A)(i); added (c)(4)(B); and added (f)(3).

The 2019 amendment by No. 315 substituted “Administrative Rules Subcommittee” for “Administrative Rules and Regulations Subcommittee” throughout the section; and substituted “Administrative Rule Review Subcommittee” for “Administrative Rule and Regulation Review Subcommittee” throughout the section.

The 2019 amendment by No. 319 added (c)(5).

Cross References. Rulemaking power to be narrowly interpreted, § 25-15-220.