2010 Arkansas Code
25-15-204. Rules -- Procedure for adoption.
Title 25 - State Government
Chapter 15 - Administrative Procedures
Subchapter 2 - Administrative Procedure Act
§ 25-15-204 - Rules -- Procedure for adoption.
(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:
(1) (A) Give at least thirty (30) days' notice of its intended action. The thirty-day period shall begin on the first day of the publication of notice.
(B) The notice shall include a statement of the terms or substance of the intended action or a description of the subjects and issues involved and the time, the place where, and the manner in which interested persons may present their views on the intended action or the subjects and issues involved.
(C) The notice shall be mailed to any person specified by law and to all persons who have requested advance notice of rule-making proceedings.
(D) (i) Unless otherwise provided by law, the notice shall be published in a newspaper of general daily circulation for three (3) consecutive days and, when appropriate, in those trade, industry, or professional publications that the agency may select.
(ii) The notice shall be published by the Secretary of State on the Internet for thirty (30) days in accordance with 25-15-218;
(2) (A) Afford all interested persons reasonable opportunity to submit written data, views, or arguments, orally or in writing.
(B) Opportunity for oral hearing must be granted if requested by twenty-five (25) persons, by a governmental subdivision or agency, or by an association having no fewer than twenty-five (25) members.
(C) The agency shall fully consider all written and oral submissions respecting the proposed rule before finalizing the language of the proposed rule and filing the proposed rule as required by subsection (d) of this section.
(D) Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within thirty (30) days thereafter, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein its reasons for overruling the considerations urged against its adoption.
(E) When rules are required by law to be made on the record after opportunity for an agency hearing, the provisions of that law shall apply in place of this subdivision (a)(2); and
(3) Comply with 25-15-301 et seq.
(b) (1) If an agency finds that imminent peril to the public health, safety, or welfare or compliance with federal laws or regulations requires adoption of a rule upon less than thirty (30) days' notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing, or upon any abbreviated notice and hearing that it may choose, to adopt an emergency rule.
(2) The rule may be effective for no longer than one hundred twenty (120) days.
(c) (1) Every agency shall accord any person the right to petition for the issuance, amendment, or repeal of any rule.
(2) Within thirty (30) days after submission of a petition, the agency shall:
(A) Deny the petition, stating in writing its reasons for the denial; or
(B) Initiate rule-making proceedings.
(d) (1) (A) Every agency, including those exempted under 25-15-202, shall file with the Secretary of State, the Arkansas State Library, and the Bureau of Legislative Research a copy of each rule adopted by it and a statement of financial impact for the rule.
(B) Rules shall be filed in compliance with this section and with 25-15-218 and 10-3-309.
(2) The Secretary of State shall keep a register of the rules open to public inspection, and it shall be a permanent register.
(3) (A) The scope of the financial impact statement shall be determined by the agency but at a minimum shall include the estimated cost of complying with the rule and the estimated cost for the agency to implement the rule.
(B) Except as provided in 6-11-132, if the agency has reason to believe that the development of a financial impact statement will be so speculative as to be cost prohibitive, the agency shall submit a statement and explanation to that effect.
(C) If the purpose of a state agency rule is to implement a federal rule or regulation, the financial impact statement shall be limited to any incremental additional cost of the state rule, as opposed to the federal rule or regulation.
(e) (1) Each rule adopted by an agency is effective ten (10) days after filing unless a later date is specified by law or in the rule itself.
(2) (A) (i) However, an emergency rule may become effective immediately upon filing or at a stated time less than ten (10) days after filing if the agency finds that this effective date is necessary because of imminent peril to the public health, safety, or welfare.
(ii) The agency's finding and a brief statement of the reasons for the finding shall be filed with the rule.
(B) The agency shall take appropriate measures to make emergency rules known to the persons who may be affected by the emergency rules.
(f) No rule adopted after June 30, 1967, is valid unless adopted and filed in substantial compliance with this section.
(g) (1) In any proceeding brought that questions the existence of imminent peril to the public health, safety, or welfare, a written finding by an agency that adoption of any emergency rule was necessary to avoid the loss of federal funding or certification establishes a prima facie case of the existence of imminent peril to the public health, safety, or welfare.
(2) The burden of proof shifts to the challenger to rebut the existence of the condition by a preponderance of the evidence.
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