4-5-226 - Expiration of rules Review by general assembly. - Tennessee Statutes

4-5-226. Expiration of rules Review by general assembly.

(a)  Notwithstanding any other law to the contrary, unless legislation is enacted to continue a rule to a date certain or indefinitely, any permanent rule filed in the office of the secretary of state shall expire on June 30 of the year following the year of its filing.

(b)  (1)  Notwithstanding any other law to the contrary, unless legislation is enacted to continue a rule to a date certain or to a date indefinitely beyond the date upon which an agency terminates, each permanent rule that does not expire under subsection (a), shall expire on the day provided in chapter 29, part 2 of this title for termination of the agency that promulgated such rule; provided, that if such agency continues in existence pursuant to § 4-29-112, such agency rule shall expire upon completion of such wind-up period.

     (2)  All rules and regulations issued or promulgated by any department or agency of state government whose functions, duties, or responsibilities have been transferred to another department or agency shall remain in full force and effect, and shall thereafter be administered and enforced by the agency or department assuming responsibility for those functions, duties, or responsibilities as rules of that agency or department, and all proposed rules pending with the attorney general and reporter or secretary of state, unless withdrawn, shall continue that status as proposed rules until becoming effective as rules of the agency assuming the functions, duties, or responsibilities. The agency or department assuming responsibility for such functions, duties, or responsibilities shall have the authority to promulgate new rules and regulations pursuant to this chapter to effectuate its duties and responsibilities. To this end, the department or agency shall have the authority, consistent with the statutes and regulations pertaining to the programs and functions transferred, to modify or rescind orders, rules and regulations, decisions or policies heretofore issued and to adopt, issue or promulgate new orders, rules and regulations, decisions or policies as may be necessary for the administration of the programs or functions transferred.

(c)  Rules promulgated pursuant to this chapter may be reviewed by the government operations committees of the senate and the house of representatives meeting jointly or separately; or, alternatively, at the discretion of the chair of either of such committees, such rule may be reviewed by a subcommittee of the government operations committees. Members of the government operations committees of the senate and the house of representatives shall serve as members of such committees until their successors are duly appointed; provided, that such members remain members of the general assembly. Any member of either government operations committee who ceases to be a member of the general assembly shall cease to be a member of the government operations committee on the same date such member's membership in the general assembly ceases, as provided in the Constitution of Tennessee. In the event a majority of the membership of either government operations committee shall cease to be members of the general assembly, the speaker of the senate or the speaker of the house of representatives, as the case may be, may designate an appropriate number of members to serve interim appointments until the government operations committee is reconstituted. The house and senate government operations committees shall strive to hear rules within ninety (90) days of such rules being filed in the office of the secretary of state.

(d)  In conducting the review required by subsection (c), the committees or subcommittees shall hold at least one (1) public hearing to receive testimony from the public and from the administrative head of the agency. At such hearing, the agency shall have the burden of demonstrating that consideration of the factors enumerated in subsection (e) justifies the continued existence of an agency rule. Notice of the time and place of the public hearing shall be on the general assembly web site prior to the hearing. To the extent reasonably practicable, the committees or subcommittees shall conduct hearings on newly filed rules, other than emergency rules, during the ninety-day period immediately following the filing of the original of such rule in the office of the secretary of state.

(e)  In conducting the review of agency rules, the committees or subcommittees shall consider the following factors:

     (1)  Authority;

     (2)  Clarity;

     (3)  Consistency;

     (4)  Justification;

     (5)  Necessity, which shall include the need for a regulation where no regulations presently apply; and

     (6)  Reference.

(f)  As used in subsection (e):

     (1)  “Authority” means provisions of law that permit or obligate the agency to adopt, amend or repeal a regulation;

     (2)  “Clarity” means the grammatical and structural soundness of a rule that tends to ensure that the rule will be easily understood by those persons directly affected by such rule;

     (3)  “Consistency” means the quality of being in harmony with, and not in conflict with or contradictory to, existing provisions of laws;

     (4)  “Justification” refers to the diligent, knowledgeable, zealous and timely efforts of the agency proposing continuation of a rule to produce all pertinent and relevant documents, records, written and verbal comments, and other items of information needed to justify continuation of the rule to the committee;

     (5)  “Necessity” means the need for and usefulness of a regulation as dictated by public policy considerations; and

     (6)  “Reference” means the statute, court decision or other provision of law that the agency implements, interprets or makes specific by adopting, amending or repealing a regulation.

(g)  Nothing contained in this chapter shall be construed to prohibit the general assembly by legislative enactment from directly or indirectly repealing or amending any rule.

(h)  The committees or subcommittees have the authority to hold hearings, subpoena records, documents and persons, and to exercise all powers otherwise vested upon committees of the general assembly by title 3, chapter 3, and by the rules of the appropriate house.

(i)  (1)  All agencies, upon filing a rule in the office of the secretary of state, shall also submit the following information:

          (A)  A brief summary of the rule and a description of all relevant changes in previous regulations effectuated by such rule;

          (B)  A citation to and brief description of any federal law or regulation or any state law or regulation mandating promulgation of such rule or establishing guidelines relevant thereto;

          (C)  Identification of persons, organizations, corporations or governmental entities most directly affected by this rule, and whether those persons, organizations, corporations or governmental entities urge adoption or rejection of this rule;

          (D)  Identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to the rule;

          (E)  An estimate of the probable increase or decrease in state and local government revenues and expenditures, if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate is based. An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two percent (2%) of the agency's annual budget or five hundred thousand dollars ($500,000), whichever is less;

          (F)  Identification of the appropriate agency representative or representatives, possessing substantial knowledge and understanding of the rule;

          (G)  Identification of the appropriate agency representative or representatives who will explain the rule at a scheduled meeting of the committees;

          (H)  Office address, e-mail address and telephone number of the agency representative or representatives who will explain the rule at a scheduled meeting of the committees; and

          (I)  Any additional information relevant to the rule proposed for continuation that the committee requests.

     (2)  (A)  All amendments to existing executive agency rules to be reviewed by the committees or subcommittees pursuant to this part shall be filed with the secretary of state. One (1) copy of the amendments shall be filed in redline form for review by the committees or subcommittees.

          (B)  As used in subdivision (i)(2)(A), “redline form” means to denote all amendments to an existing rule by placing a line through all language to be deleted and by including all language to be added in brackets or underlined or by another clearly recognizable method that indicates the changes made to the rule.

     (3)  Failure to comply with the provisions of this subsection (i) may be considered as evidence of the failure by an agency to meet its burden of proof required by subsection (d).

     (4)  The secretary of state shall refuse to accept the filing of any rule that fails to comply with this subsection (i).

(j)  (1)  The committee may express its disapproval of a rule that fails to satisfy any or all of the factors enumerated in subsection (e), by voting to allow such rule to expire upon its established expiration date or by voting to request the agency to repeal, amend or withdraw this rule before such established expiration date. Notice of the committee's disapproval of a rule whether by vote to allow the rule to expire or by vote to request the agency to repeal, amend or withdraw a rule shall be posted on the administrative register web site as soon as possible after the committee meeting in which such action was taken.

     (2)  In the event an agency fails to comply with the committee's request to repeal, amend or withdraw a rule within a reasonable time and before the established expiration date, the committee may vote to request the general assembly to suspend any or all of such agency's rulemaking authority for any reasonable period of time or with respect to any particular subject matter, by legislative enactment.

(k)  [Deleted by 2009 amendment.]

(l)  In addition to the grounds stated in subdivision (j) it shall also be grounds for the government operations committee to recommend to the general assembly to terminate a rule promulgated under authority of any provision of title 68, chapters 201221, or title 69, chapter 3, that imposes environmental requirements or restrictions on municipalities or counties that are more stringent than federal statutes or rules on the same subject, and that result in increased expenditure requirements on municipalities or counties beyond those required to meet the federal requirements, unless the general assembly has appropriated funds to the affected local government or governments to cover the increased expenditures, in addition to those they receive pursuant to other laws; provided, a timely comment was addressed to the promulgating authority pursuant to § 4-5-204, raising this issue and specifying the level of increased expenditure mandated by the rule.

(m)  If, pursuant to this section, the general assembly terminates a rule amending a previously existing rule, then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law.

(n)  If, pursuant to this chapter, an agency withdraws a rule amending a previously existing rule, then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law.

[Acts 1982, ch. 874, § 67; 1983, ch. 479, §§ 2-5; 1984, ch. 707, § 1; 1984, ch. 969, §§ 3, 4; 1985, ch. 440, § 3; 1986, ch. 575, §§ 3, 4; 1986, ch. 738, §§ 8, 9; 1988, ch. 700, § 3; 1990, ch. 838, § 1; 1991, ch. 206, § 1; 1992, ch. 703, § 1; 1993, ch. 316, § 3; 1994, ch. 878, § 1; 1995, ch. 546, §§ 1, 3; 1996, ch. 844, § 1; 1997, ch. 162, § 1; T.C.A., § 4-5-225; Acts 1999, ch. 381, § 1; 2008, ch. 741, § 1; 2009, ch. 566, § 19.]