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SB 439 - Administrative Procedure - rule adoption, amendment

Meyer von Bremen, Michael S. (12th)	Lee, Daniel W. (29th)	Ragan, Harold (11th)

Status Summary	SC:	Judy	HC:	Judy	FR:	02/10/00	LA:	05/01/00	Signed by Governor

First Reader Summary

A bill to be entitled an Act to amend Article 1 of Chapter 13 of Title 50 of the Official Code of Georgia Annotated, relating to general provisions concerning administrative procedure, so as to provide for additional definitions; to change certain time limits for the giving of notice concerning the adoption, amendment, or repeal of rules; to change certain provisions relating to providing copies of proposed rules to the legislative counsel; to change the requirements relating to the Secretary of State and the keeping of files and records; to change the provisions relating to the effective date of rules; to provide for the publication of rules, compilations, and bulletins in print and electronically; to repeal conflicting laws; and for other purposes.

Code Sections - 50-13-2/ 21-5-7

SB 439 00                                            SB439/AP 
 
      SENATE BILL 439 
 
      By:  Senators Meyer von Bremen of the 12th, Lee of the 29th 
           and Ragan of the 11th 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Article 1 of Chapter 13 of Title 50 of the Official 
  1- 2  Code of Georgia Annotated, relating to general provisions 
  1- 3  concerning administrative procedure, so as to provide for 
  1- 4  additional definitions; to change certain time limits for 
  1- 5  the giving of notice concerning the adoption, amendment, or 
  1- 6  repeal of rules; to change certain provisions relating to 
  1- 7  providing copies of proposed rules to the legislative 
  1- 8  counsel; to change the requirements relating to the 
  1- 9  Secretary of State and the keeping of files and records; to 
  1-10  change the provisions relating to the effective date of 
  1-11  rules; to provide for the publication of rules, 
  1-12  compilations, and bulletins in print and electronically; to 
  1-13  amend Code Section 21-5-7 of the Official Code of Georgia 
  1-14  Annotated, relating to administrative procedure on 
  1-15  complaints filed with the State Ethics Commission, so as to 
  1-16  change provisions relating to notice of such complaints; to 
  1-17  provide for the commission's adoption of rules relating to 
  1-18  complaints alleging technical violations and cure of such 
  1-19  violations prior to further proceedings; to provide for 
  1-20  related matters; to repeal conflicting laws; and for other 
  1-21  purposes. 
 
  1-22       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-23                           SECTION 1. 
 
  1-24  Article 1 of Chapter 13 of Title 50 of the Official Code of 
  1-25  Georgia Annotated, relating to general provisions concerning 
  1-26  administrative procedure, is amended by striking Code 
  1-27  Section 50-13-2, relating to definitions, and inserting in 
  1-28  its place the following: 
 
  1-29    "50-13-2. 
 
  1-30    As used in this chapter, the term: 
 
  1-31      (1) 'Agency' means each state board, bureau, commission, 
  1-32      department, activity, or officer authorized by law 
  1-33      expressly to make rules and regulations or to determine 
  1-34      contested cases, except the General Assembly; the 
 
 
                                 -1- 
 
 
 
  2- 1      judiciary; the Governor; the State Board of Pardons and 
  2- 2      Paroles; the State Financing and Investment Commission; 
  2- 3      the State Properties Commission; the Board of Bar 
  2- 4      Examiners; the Board of Corrections and its penal 
  2- 5      institutions; the State Board of Workers' Compensation; 
  2- 6      all public authorities; the State Personnel Board (Merit 
  2- 7      System); the Department of Administrative Services or 
  2- 8      commissioner of administrative services; the Department 
  2- 9      of Technical and Adult Education; the Department of 
  2-10      Revenue when conducting hearings relating to alcoholic 
  2-11      beverages; the Georgia Tobacco Community Development 
  2-12      Board; any school, college, hospital, or other such 
  2-13      educational, eleemosynary, or charitable institution; or 
  2-14      any agency when its action is concerned with the 
  2-15      military or naval affairs of this state.  The term 
  2-16      'agency' shall include the State Board of Education and 
  2-17      Department of Education, subject to the following 
  2-18      qualifications: 
 
  2-19        (A) Subject to the limitations of subparagraph (B) of 
  2-20        this paragraph, all otherwise valid rules adopted by 
  2-21        the State Board of Education and Department of 
  2-22        Education prior to January 1, 1990, are ratified and 
  2-23        validated and shall be effective until January 1, 
  2-24        1991, whether or not such rules were adopted in 
  2-25        compliance with the requirements of this chapter; and 
 
  2-26        (B) Effective January 1, 1991, any rule of the State 
  2-27        Board of Education or Department of Education which 
  2-28        has not been proposed, submitted, and adopted in 
  2-29        accordance with the requirements of this chapter shall 
  2-30        be void and of no effect. 
 
  2-31      (2) 'Contested case' means a proceeding, including, but 
  2-32      not restricted to, rate making, price fixing, and 
  2-33      licensing, in which the legal rights, duties, or 
  2-34      privileges of a party are required by law to be 
  2-35      determined by an agency after an opportunity for 
  2-36      hearing. 
 
  2-37      (2.1) 'Electronic' means, without limitation, analog, 
  2-38      digital, electronic, magnetic, mechanical, optical, 
  2-39      chemical, electromagnetic, electromechanical, 
  2-40      electrochemical, or other similar means. 
 
  2-41      (3) 'License' means the whole or part of any agency 
  2-42      permit, certificate, approval, registration, charter, or 
  2-43      similar form of permission required by law, but it does 
 
 
 
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  3- 1      not include a license required solely for revenue 
  3- 2      purposes. 'Licensing' includes the agency process 
  3- 3      respecting the grant, denial, renewal, revocation, 
  3- 4      suspension, annulment, withdrawal, or amendment of a 
  3- 5      license. 
 
  3- 6      (3.1) 'Mailed' includes electronic means of 
  3- 7      communication. 
 
  3- 8      (3.2) 'Mailing list' includes electronic means of 
  3- 9      distribution. 
 
  3-10      (4) 'Party' means each person or agency named or 
  3-11      admitted as a party or properly seeking and entitled as 
  3-12      of right to be admitted as a party. 
 
  3-13      (5) 'Person' means any individual, partnership, 
  3-14      corporation, association, governmental subdivision, or 
  3-15      public or private organization of any character other 
  3-16      than an agency. 
 
  3-17      (5.1) 'Record' means information created, transmitted, 
  3-18      received, or stored either in human perceivable form or 
  3-19      in a form that is retrievable in human perceivable form. 
 
  3-20      (6) 'Rule' means each agency regulation, standard, or 
  3-21      statement of general applicability that implements, 
  3-22      interprets, or prescribes law or policy or describes the 
  3-23      organization, procedure, or practice requirements of any 
  3-24      agency. The term includes the amendment or repeal of a 
  3-25      prior rule but does not include the following: 
 
  3-26        (A) Statements concerning only the internal management 
  3-27        of an agency and not affecting private rights or 
  3-28        procedures available to the public; 
 
  3-29        (B) Declaratory rulings issued pursuant to Code 
  3-30        Section 50-13-11; 
 
  3-31        (C) Intra-agency memoranda; 
 
  3-32        (D) Statements of policy or interpretations that are 
  3-33        made in the decision of a contested case; 
 
  3-34        (E) Rules concerning the use or creation of public 
  3-35        roads or facilities, which rules are communicated to 
  3-36        the public by use of signs or symbols; 
 
  3-37        (F) Rules which relate to the acquiring, sale, 
  3-38        development, and management of the property, both real 
  3-39        and personal, of the state or of an agency; 
 
 
 
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  4- 1        (G) Rules which relate to contracts for the purchases 
  4- 2        and sales of goods and services by the state or of an 
  4- 3        agency; 
 
  4- 4        (H) Rules which relate to the employment, 
  4- 5        compensation, tenure, terms, retirement, or regulation 
  4- 6        of the employees of the state or of an agency; 
 
  4- 7        (I) Rules relating to loans, grants, and benefits by 
  4- 8        the state or of an agency; or 
 
  4- 9        (J) The approval or prescription for the future of 
  4-10        rates or prices." 
 
  4-11                           SECTION 2. 
 
  4-12  Said article is further amended by striking subsections (a), 
  4-13  (b), and (e) of Code Section 50-13-4, relating to procedural 
  4-14  requirements for adoption, amendment, or repeal of rules, 
  4-15  emergency rules, limitation on actions to contest rules, and 
  4-16  legislative override, and inserting in their places the 
  4-17  following: 
 
  4-18    "(a) Prior to the adoption, amendment, or repeal of any 
  4-19    rule, other than interpretive rules or general statements 
  4-20    of policy, the agency shall: 
 
  4-21      (1) Give at least 30 30 days' notice of its intended 
  4-22      action.  The notice shall include an exact copy of the 
  4-23      proposed rule and a synopsis of the proposed rule. The 
  4-24      synopsis shall be distributed with and in the same 
  4-25      manner as the proposed rule.  The synopsis shall contain 
  4-26      a statement of the purpose and the main features of the 
  4-27      proposed rule, and, in the case of a proposed amendatory 
  4-28      rule, the synopsis also shall indicate the differences 
  4-29      between the existing rule and the proposed rule.  The 
  4-30      notice shall also include the exact date on which the 
  4-31      agency shall consider the adoption of the rule and shall 
  4-32      include the time and place in order that interested 
  4-33      persons may present their views thereon.  The notice 
  4-34      shall also contain a citation of the authority pursuant 
  4-35      to which the rule is proposed for adoption and, if the 
  4-36      proposal is an amendment or repeal of an existing rule, 
  4-37      the rule shall be clearly identified. The notice shall 
  4-38      be mailed to all persons who have requested in writing 
  4-39      that they be placed upon a mailing list which shall be 
  4-40      maintained by the agency for advance notice of its 
  4-41      rule-making proceedings and who have tendered the actual 
 
 
 
 
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  5- 1      cost of such mailing as from time to time estimated by 
  5- 2      the agency; 
 
  5- 3      (2) Afford to all interested persons reasonable 
  5- 4      opportunity to submit data, views, or arguments, orally 
  5- 5      or in writing.  In the case of substantive rules, 
  5- 6      opportunity for oral hearing must be granted if 
  5- 7      requested by 25 persons who will be directly affected by 
  5- 8      the proposed rule, by a governmental subdivision, or by 
  5- 9      an association having not less than 25 members. The 
  5-10      agency shall consider fully all written and oral 
  5-11      submissions respecting the proposed rule.  Upon adoption 
  5-12      of a rule, the agency, if requested to do so by an 
  5-13      interested person either prior to adoption or within 30 
  5-14      days thereafter, shall issue a concise statement of the 
  5-15      principal reasons for and against its adoption and 
  5-16      incorporate therein its reason for overruling the 
  5-17      consideration urged against its adoption; 
 
  5-18      (3) In the formulation and adoption of any rule which 
  5-19      will have an economic impact on businesses in the state, 
  5-20      reduce the economic impact of the rule on small 
  5-21      businesses which are independently owned and operated, 
  5-22      are not dominant in their field, and employ 100 
  5-23      employees or less by implementing one or more of the 
  5-24      following actions when it is legal and feasible in 
  5-25      meeting the stated objectives of the statutes which are 
  5-26      the basis of the proposed rule: 
 
  5-27        (A) Establish differing compliance or reporting 
  5-28        requirements or timetables for small businesses; 
 
  5-29        (B) Clarify, consolidate, or simplify the compliance 
  5-30        and reporting requirements under the rule for small 
  5-31        businesses; 
 
  5-32        (C) Establish performance rather than design standards 
  5-33        for small businesses; or 
 
  5-34        (D) Exempt small businesses from any or all 
  5-35        requirements of the rules; and 
 
  5-36      (4) In the formulation and adoption of any rule, an 
  5-37      agency shall choose an alternative that does not impose 
  5-38      excessive regulatory costs on any regulated person or 
  5-39      entity which costs could be reduced by a less expensive 
  5-40      alternative that fully accomplishes the stated 
  5-41      objectives of the statutes which are the basis of the 
  5-42      proposed rule. 
 
 
 
                                 -5- 
 
 
 
  6- 1    (b) If any agency finds that an imminent peril to the 
  6- 2    public health, safety, or welfare, including but not 
  6- 3    limited to, summary processes such as quarantines, 
  6- 4    contrabands, seizures, and the like authorized by law 
  6- 5    without notice, requires adoption of a rule upon fewer 
  6- 6    than 30 30 days' notice and states in writing its reasons 
  6- 7    for that finding, it may proceed without prior notice or 
  6- 8    hearing or upon any abbreviated notice and hearing that it 
  6- 9    finds practicable to adopt an emergency rule.  The rule 
  6-10    may be effective for a period of not longer than 120 days 
  6-11    but the adoption of an identical rule under paragraphs (1) 
  6-12    and (2) of subsection (a) of this Code section is not 
  6-13    precluded." 
 
  6-14    "(e) The agency shall transmit three copies of the notice 
  6-15    provided for in paragraph (1) of subsection (a) of this 
  6-16    Code section to the legislative counsel.  The copies 
  6-17    notice shall be transmitted at least 30 days prior to the 
  6-18    date of the agency's intended action.  Within three days 
  6-19    after receipt of the copies notice, if possible, the 
  6-20    legislative counsel shall furnish the presiding officers 
  6-21    of each house with a copy of the notice, and the presiding 
  6-22    officers shall assign the notice to the chairperson of the 
  6-23    appropriate standing committee in each house for review 
  6-24    and any member thereof who makes a standing written 
  6-25    request. In the event a presiding officer is unavailable 
  6-26    for the purpose of making the assignment within the time 
  6-27    limitations, the legislative counsel shall assign the 
  6-28    notice to the chairperson of the appropriate standing 
  6-29    committee.  The legislative counsel shall also transmit 
  6-30    within the time limitations provided in this subsection a 
  6-31    notice of the assignment to the chairperson of the 
  6-32    appropriate standing committee.  Each standing committee 
  6-33    of the Senate and the House of Representatives is granted 
  6-34    all the rights provided for interested persons and 
  6-35    governmental subdivisions in paragraph (2) of subsection 
  6-36    (a) of this Code section." 
 
  6-37                           SECTION 3. 
 
  6-38  Said article is further amended by striking subsection (c) 
  6-39  of Code Section 50-13-5, relating to filing of previously 
  6-40  adopted rules, and inserting in its place the following: 
 
  6-41    "(c) The Secretary of State shall endorse on each copy the 
  6-42    time and date of filing and shall maintain a file record 
  6-43    of the rules for public inspection." 
 
 
 
                                 -6- 
 
 
 
  7- 1                           SECTION 4. 
 
  7- 2  Said article is further amended by striking subsections (a) 
  7- 3  and (b) of Code Section 50-13-6, relating to the effective 
  7- 4  date of rules, exceptions, and rules governing the manner 
  7- 5  and form of filing, and inserting in their place the 
  7- 6  following: 
 
  7- 7    "(a) Each rule adopted after July 1, 1965, shall not 
  7- 8    become effective until the expiration of 20 days after an 
  7- 9    original and two copies of the rule are is filed in the 
  7-10    office of the Secretary of State.  Each rule so filed 
  7-11    shall contain a citation of the authority pursuant to 
  7-12    which it was adopted and, if an amendment, shall clearly 
  7-13    identify the original rule. 
 
  7-14    (b) The Secretary of State shall endorse on each rule thus 
  7-15    filed the time and date of filing and shall maintain a 
  7-16    file record of the rules for public inspection." 
 
  7-17                           SECTION 5. 
 
  7-18  Said article is further amended by striking subsections (a), 
  7-19  (b), and (c) of Code Section 50-13-7, relating to the 
  7-20  publication of a compilation of rules and a monthly bulletin 
  7-21  by the Secretary of State, and inserting in their place the 
  7-22  following: 
 
  7-23    "(a) The Secretary of State shall compile, index, and 
  7-24    publish in print or electronically all rules adopted by 
  7-25    each agency and remaining in effect.  Compilations shall 
  7-26    be supplemented or revised as often as necessary and at 
  7-27    least once every two years. 
 
  7-28    (b) The Secretary of State shall publish in print or 
  7-29    electronically a monthly quarterly bulletin in which he 
  7-30    the Secretary of State shall set forth the text of all 
  7-31    rules filed during the preceding quarter. 
 
  7-32    (c) The Secretary of State, in his or her discretion, may 
  7-33    omit rules from the bulletin or compilation if their 
  7-34    publication would be unduly cumbersome, expensive, or 
  7-35    otherwise inexpedient, provided that the omitted rules are 
  7-36    made available in electronic, printed, or processed form 
  7-37    on application to the adopting agency and that the 
  7-38    bulletin or compilation contains a notice stating the 
  7-39    general subject matter of the rules so omitted and stating 
  7-40    how copies thereof may be obtained." 
 
 
 
 
                                 -7- 
 
 
 
  8- 1                           SECTION 6. 
 
  8- 2  Code Section 21-5-7 of the Official Code of Georgia 
  8- 3  Annotated, relating to administrative procedure on 
  8- 4  complaints filed with the State Ethics Commission, is 
  8- 5  amended by striking the Code section in its entirety and 
  8- 6  inserting in its place a new Code section to read as 
  8- 7  follows: 
 
  8- 8    "21-5-7. 
 
  8- 9    (a) The commission shall not initiate any investigation or 
  8-10    inquiry into any matter under its jurisdiction based upon 
  8-11    the complaint of any person unless that person shall 
  8-12    reduce the same in writing and verify the same under oath 
  8-13    to the best information, knowledge, and belief of such 
  8-14    person, the falsification of which shall be punishable as 
  8-15    false swearing under Code Section 16-10-71. The person 
  8-16    against whom any complaint is made shall be furnished or 
  8-17    mailed a copy of the complaint by the commission within 
  8-18    five business days after the filing immediately upon the 
  8-19    commission's receipt of such complaint and prior to any 
  8-20    other public dissemination of such complaint. Nothing in 
  8-21    this Code section, however, shall be construed to limit or 
  8-22    encumber the right of the commission to initiate on 
  8-23    probable cause an investigation on its own cognizance as 
  8-24    it deems necessary to fulfill its obligations under this 
  8-25    chapter. 
 
  8-26    (b) The commission shall adopt rules which shall provide 
  8-27    that: 
 
  8-28      (1) Upon the commission's receipt of a complaint, a 
  8-29      determination shall be made as to whether the complaint 
  8-30      relates to an alleged technical defect in a filing. For 
  8-31      this purpose, a technical defect shall be a defect such 
  8-32      as a failure to include a date or an incorrect date, a 
  8-33      failure to include a contributor's occupation or an 
  8-34      incorrect occupation, a failure to include an address or 
  8-35      an incorrect address, or any other similar technical 
  8-36      defect as specified by rule of the commission; 
 
  8-37      (2) When the commission determines that a complaint 
  8-38      relates to a technical defect in a filing, the subject 
  8-39      of the complaint shall be given a period of ten days to 
  8-40      correct the alleged technical defect. During such 
  8-41      ten-day period the complaint shall be considered as 
  8-42      received by the commission but not yet filed with the 
  8-43      commission. If during such ten-day period the alleged 
 
 
                                 -8- 
 
 
 
  9- 1      technical violation is cured by an amended filing or 
  9- 2      otherwise, or if during such ten-day period the subject 
  9- 3      of the complaint demonstrates that there is no technical 
  9- 4      violation as alleged, the complaint shall be disposed of 
  9- 5      without filing or further proceedings and no penalty 
  9- 6      shall be imposed." 
 
  9- 7                           SECTION 7. 
 
  9- 8  All laws and parts of laws in conflict with this Act are 
  9- 9  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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