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2021 KLRD Legislator Briefing Book – State and Local Government

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2021 KLRD Legislator Briefing Book – State and Local Government Kansas Legislator Briefing Book 2021 J-1 State and Local Government Administrative Rule and Regulation J-1 Administrative Rule and Regulation Legislative Legislative Oversight Oversight J-2 Since 1939, Kansas statutes have provided for legislative oversight Board of Indigents’ of rules and regulations filed by state officers, boards, departments, Defense Services and commissions. The 1939 law declared all rules and regulations of a general or statewide character were to be filed with the Revisor of J-3 Statutes and would remain in force until and unless the Legislature Home Rule disapproved or rejected the regulations. It was not until 1974 that the Legislature took steps to formalize an oversight process. In J-4 that year, all filed rules and regulations were submitted to each chamber. Within 60 days of submission, the Legislature could act Kansas Public to modify and approve or reject any of the regulations submitted. Employees In 1984, the Kansas Supreme Court, in State ex rel. Stephan v. Retirement System’s Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622 Retirement Plans and (1984), held a procedure adopted in 1979, which authorized the History use of concurrent resolutions to modify or revoke administrative rules and regulations, violated the doctrine of separation of powers J-5 under the Kansas Constitution. Senate Confirmation Process The 1975 interim Legislative Budget Committee, under Proposal No. 33, found it “important to maintain and even enhance legislative J-6 oversight of all regulations in order to make sure that they conform State Employee with legislative intent.” The 1976 Legislature enacted several amendments to the Rules and Regulations Filing Act (Act). Issues In that same year, the Legislative Coordinating Council created the Special Committee on Administrative Rules and Regulations to review proposed administrative rules and regulations filed with the Revisor of Statutes. The law was later changed to require proposed agency rules and regulations to be reviewed as outlined below. A 1977 law created the Joint Committee on Administrative Rules and Regulations (Joint Committee). In 1988, responsibility for filing and publishing all rules and regulations was statutorily assigned to the Secretary of State. The Policy and Procedure Manual for the Filing of Kansas Administrative Regulations of the Kansas Department of Administration provides guidance to agencies on development of and procedures for promulgating rules and regulations. Jill Shelley Principal Research Analyst Rule and Regulation Authority—Examples 785-296-8085 [email protected] Regulations implement or interpret legal responsibilities of a state agency. The statutory authority for the agency to adopt these rules Kansas Legislative Research Department 2021 Briefing Book and regulations is found in enabling legislation, as The Regulation Adoption Process illustrated in the example language found below. Administrative rules and regulations may be temporary or permanent. A temporary rule and Commercial Industrial Hemp Program regulation, as defined in KSA 77-422, may be (2019 Session) adopted by an agency if the State Rules and Regulations Board (Board) finds preservation of The Kansas Department of Agriculture (KDA), the health, safety, welfare, or public peace makes in consultation with the Governor and Attorney it necessary or desirable to put the regulation General, shall submit a plan to the U.S. into effect before a permanent regulation would Department of Agriculture under which the take effect. Temporary rules and regulations KDA will monitor and regulate the commercial take effect after approval by the Director of the production of industrial hemp within the state Budget, the Secretary of Administration, the . The Secretary of Agriculture shall Attorney General, and the Board and may remain promulgate rules and regulations to implement effective for no more than 120 days, beginning the plan submitted . with the date of approval by the Board and filing with the Secretary of State. A state agency, for good cause, may request a temporary rule and AO-K to Work Program (2019 Session) regulation be renewed one time for an additional period not to exceed 120 days. The State Board of Regents may adopt rules and regulations to implement and administer KSA 77-420 and 77-421 outline the process for the provisions of this act. the adoption of permanent Kansas Administrative Regulations (KAR) in the following steps, which Powers of the Secretary (KSA 32-807) are to be followed in consecutive order: 1. Obtain approval of the proposed rules The Secretary [of Wildlife, Parks and Tourism] and regulations from the Director of shall have the power to: (a) Adopt, in the Budget (Director). KSA 77-420 accordance with KSA 32-805 and requires the Director to review the amendments thereto [approval, modification economic impact statement submitted and approval, or rejection of proposed with the rules and regulations and rules and regulations by the Wildlife, Parks conduct an independent analysis to and Tourism Commission], such rules and determine whether the costs incurred regulations as necessary to implement, by businesses, local government, or administer and enforce the provisions of individuals would be $3.0 million or less wildlife, parks and tourism laws of this state; over a two-year period. If the impact . does not exceed that threshold, the Director will approve the proposed rule and regulation for submission to Rules and regulations of the Kansas Lottery are the Secretary of Administration and exempt from the Act (KSA 74-8710). Attorney General. If the impact exceeds $3.0 million, the Director may either The Rules and Regulations Filing Act (KSA 77- disapprove the proposed rule and 415 through 77-438, and amendments thereto) regulation or approve it, provided the outlines the statutory requirements for the filing of agency had conducted a public hearing regulations by most executive branch agencies prior to submitting the proposed rule and for the Legislature’s review of the agency and regulation, and the agency found regulations. the costs to be accurately determined and necessary for achieving legislative intent, and the Director independently 2 State and Local Government 2021 Briefing Book Kansas Legislative Research Department concurs with the agency’s findings and regulation is not the logical outgrowth analysis; of the rule and regulation as originally 2. Obtain approval of the organization, proposed; style, orthography, and grammar of the 9. Adopt the rules and regulations; and proposed rules and regulations from the 10. File the rules and regulations and Secretary of Administration; associated documents with the Secretary 3. Obtain approval of the proposed rules of State. and regulations from the Attorney A permanent rule and regulation takes effect 15 General, including whether the rule and days after publication in the Kansas Register regulation is within the authority of the (KSA 77-426). The Secretary of State, as state agency; directed by KSA 77-417, endorses on each 4. Submit the notice of hearing, copies rule and regulation filed at the time and date of of the proposed rules and regulations filing, maintains a file of rules and regulations for as approved, the economic impact public inspection, keeps a complete record of all statement, and the environmental amendments and revocations, indexes the filed benefit statement, if required by KSA rules and regulations, and publishes the rules 77-416, to the Secretary of State, and and regulations. The Office of the Secretary submit a copy of the notice of hearing to of State publishes new, amended, or revoked the chairperson, vice-chairperson, and regulations in the Kansas Register and compiles ranking minority member of the Joint the adopted regulations in the KAR Volumes Committee and to the Kansas Legislative and Supplements and on the Office’s website. Research Department (KLRD); the The Secretary of State is authorized to return notice also must be published in the to the state agency or otherwise dispose of any Kansas Register; document that had been adopted previously by 5. Review the proposed rules and reference and filed with the Secretary of State. regulations with the Joint Committee during the public comment period, which Legislative Review is at least 60 days for all rules and regulations, except for certain hunting The 12-member Joint Committee is required and fishing activities and for permanent by KSA 77-436 to review proposed rules and prior authorization on a prescription-only regulations during the public comment period prior drug (KSA 2019 Supp. 39-7,120), for to the required public hearing on the proposed which the public comment period is at regulations. Recent legislative changes to the Act least 30 days; have not changed this review process. 6. Hold the public hearing and cause minutes or other records of the meeting The Joint Committee may introduce legislation it to be made; deems necessary in the performance of its review functions. Provisions of KSA 77-426 authorize 7. Prepare a statement of the principal the Legislature to adopt a concurrent resolution reason for adopting the rules and expressing its concern with any temporary or regulations, including reasons for not permanent rule and regulation filed during the accepting substantial arguments made preceding year and requesting revocation or in comments and reasons for any amendment of such rule and regulation. substantial change from the proposal; 8. Initiate new rulemaking proceedings if The Joint Committee provides comments the final rule and regulation would differ reflecting its concerns or recommendations to in subject matter or effect in any material the agency for consideration at the time of the respect from the rule and regulation agency’s public hearing on the proposed rules and as originally proposed or the rule and regulations. KSA 77-436 also requires the Joint J-1 Administrative Rule and Regulation Legislative Oversight 3 Kansas Legislative Research Department 2021 Briefing Book Committee to issue a report of those comments to authorized publication of the KAR in paper or the Legislature following each meeting.
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