17A.4 - PROCEDURE FOR ADOPTION OF RULES.
17A.4 PROCEDURE FOR ADOPTION OF RULES.
1. Prior to the adoption, amendment, or repeal of any rule an
agency shall:
a. Give notice of its intended action by submitting the
notice to the administrative rules coordinator and the administrative
code editor. The administrative rules coordinator shall assign an
ARC number to each rulemaking document. The administrative code
editor shall publish each notice meeting the requirements of this
chapter in the Iowa administrative bulletin created pursuant to
section 17A.6. Any notice of intended action shall be published at
least thirty-five days in advance of the action. The notice shall
include a statement of either the terms or substance of the intended
action or a description of the subjects and issues involved, and the
time when, the place where, and the manner in which interested
persons may present their views.
b. Afford all interested persons not less than twenty days to
submit data, views, or arguments in writing. If timely requested in
writing by twenty-five interested persons, by a governmental
subdivision, by the administrative rules review committee, by an
agency, or by an association having not less than twenty-five
members, the agency must give interested persons an opportunity to
make oral presentation. The opportunity for oral presentation must
be held at least twenty days after publication of the notice of its
time and place in the Iowa administrative bulletin. The agency shall
consider fully all written and oral submissions respecting the
proposed rule. Within one hundred eighty days following either the
notice published according to the provisions of paragraph "a" or
within one hundred eighty days after the last date of the oral
presentations on the proposed rule, whichever is later, the agency
shall adopt a rule pursuant to the rulemaking proceeding or shall
terminate the proceeding by publishing notice of termination in the
Iowa administrative bulletin.
c. Mail the number of copies of the proposed rule as
requested to the state office of a trade or occupational association
which has registered its name and address with the agency. The trade
or occupational association shall reimburse the agency for the actual
cost incurred in providing the copies of the proposed rule under this
paragraph. Failure to provide copies as provided in this paragraph
shall not be grounds for the invalidation of a rule, unless that
failure was deliberate on the part of that agency or the result of
gross negligence.
2. An agency shall include in a preamble to each rule it adopts a
brief explanation of the principal reasons for its action and, if
applicable, a brief explanation of the principal reasons for its
failure to provide in that rule for the waiver of the rule in
specified situations if no such waiver provision is included in the
rule. This explanatory requirement does not apply when the agency
adopts a rule that only defines the meaning of a provision of law if
the agency does not possess delegated authority to bind the courts to
any extent with its definition. In addition, if requested to do so
by an interested person, either prior to adoption or within thirty
days thereafter, the agency shall issue a concise statement of the
principal reasons for and against the rule adopted, incorporating
therein the reasons for overruling considerations urged against the
rule. This concise statement shall be issued either at the time of
the adoption of the rule or within thirty-five days after the agency
receives the request.
3. When an agency for good cause finds that notice and public
participation would be unnecessary, impracticable, or contrary to the
public interest, the provisions of subsection 1 shall be
inapplicable. The agency shall incorporate in each rule issued in
reliance upon this provision either the finding and a brief statement
of the reasons for the finding, or a statement that the rule is
within a very narrowly tailored category of rules whose issuance has
previously been exempted from subsection 1 by a special rule relying
on this provision and including such a finding and statement of
reasons for the entire category. If the administrative rules review
committee by a two-thirds vote, the governor, or the attorney general
files with the administrative code editor an objection to the
adoption of any rule pursuant to this subsection, that rule shall
cease to be effective one hundred eighty days after the date the
objection was filed. A copy of the objection, properly dated, shall
be forwarded to the agency at the time of filing the objection. In
any action contesting a rule adopted pursuant to this subsection, the
burden of proof shall be on the agency to show that the procedures of
subsection 1 were impracticable, unnecessary, or contrary to the
public interest and that, if a category of rules was involved, the
category was very narrowly tailored.
4. Any notice of intended action or rule filed without notice
pursuant to subsection 3, which necessitates additional annual
expenditures of at least one hundred thousand dollars or combined
expenditures of at least five hundred thousand dollars within five
years by all affected persons, including the agency itself, shall be
accompanied by a fiscal impact statement outlining the expenditures.
The agency shall promptly deliver a copy of the statement to the
legislative services agency. To the extent feasible, the legislative
services agency shall analyze the statement and provide a summary of
that analysis to the administrative rules review committee. If the
agency has made a good faith effort to comply with the requirements
of this subsection, the rule shall not be invalidated on the ground
that the contents of the statement are insufficient or inaccurate.
5. No rule adopted after July 1, 1975, is valid unless adopted in
substantial compliance with the above requirements of this section.
However, a rule shall be conclusively presumed to have been made in
compliance with all of the above procedural requirements of this
section if it has not been invalidated on the grounds of
noncompliance in a proceeding commenced within two years after its
effective date.
6. a. If the administrative rules review committee created by
section 17A.8, the governor, or the attorney general finds objection
to all or some portion of a proposed or adopted rule because that
rule is deemed to be unreasonable, arbitrary, capricious, or
otherwise beyond the authority delegated to the agency, the
committee, governor, or attorney general may, in writing, notify the
agency of the objection. In the case of a rule issued under
subsection 3, or a rule made effective under section 17A.5,
subsection 2, paragraph "b", the committee, governor, or attorney
general may notify the agency of such an objection. The committee,
governor, or attorney general shall also file a certified copy of
such an objection in the office of the administrative code editor and
a notice to the effect that an objection has been filed shall be
published in the next issue of the Iowa administrative bulletin and
in the Iowa administrative code when that rule is printed in it. The
burden of proof shall then be on the agency in any proceeding for
judicial review or for enforcement of the rule heard subsequent to
the filing to establish that the rule or portion of the rule timely
objected to according to the above procedure is not unreasonable,
arbitrary, capricious, or otherwise beyond the authority delegated to
it.
b. If the agency fails to meet the burden of proof prescribed
for a rule objected to according to the provisions of paragraph
"a", the court shall declare the rule or portion of the rule
objected to invalid and judgment shall be rendered against the agency
for court costs. Such court costs shall include a reasonable
attorney fee and shall be payable by the director of the department
of administrative services from the support appropriations of the
agency which issued the rule in question.
7. Upon the vote of two-thirds of its members the administrative
rules review committee may delay the effective date of a rule seventy
days beyond that permitted in section 17A.5, unless the rule was
promulgated under section 17A.5, subsection 2, paragraph "b".
This provision shall be utilized by the committee only if further
time is necessary to study and examine the rule. Notice of an
effective date that was delayed under this provision shall be
published in the Iowa administrative code and bulletin.
8. The governor may rescind an adopted rule by executive order
within seventy days of the rule becoming effective. The governor
shall provide a copy of the executive order to the administrative
code editor who shall include it in the next publication of the Iowa
administrative bulletin. Section History: Early Form
[C66, 71, § 17A.6, 17A.7; C73, § 17A.6, 17A.7, 17A.17; C75, 77,
79, 81, § 17A.4] Section History: Recent Form
83 Acts, ch 142, § 9; 86 Acts, ch 1245, § 2038; 90 Acts, ch 1266,
§32; 91 Acts, ch 258, §17, 18; 98 Acts, ch 1202, §8, 9, 46; 2003
Acts, ch 35, §27, 49; 2003 Acts, ch 145, §286; 2006 Acts, ch 1011,
§2; 2008 Acts, ch 1031, §80
Referred to in § 17A.4A, 17A.7, 17A.8, 35A.13, 68B.2, 100B.22,
135C.2, 163.30, 249A.3, 249A.20A, 249A.21, 267.6, 422.11N, 455B.105,
459.301, 479.29, 479B.20, 502.321B, 514B.4A, 519A.4
Rules mandating expenditures by political subdivisions;
limitations; fiscal impact statements; § 25B.6
Subsection 7, see also §17A.8(9)