OLC briefs LCAR on rulemaking process, timelines and limits of committee authority

Damon Leonard of the Office of Legislative Council gave LCAR a detailed overview of the state's administrative rulemaking process and the committee's review authority at the Feb. 6, 2025 meeting.

Leonard told members, "we cannot stop a rule from being adopted. We can just object to the rule being adopted," stressing that LCAR's power is to review and, where appropriate, certify objections that change how courts treat a challenged rule.

Leonard outlined the typical sequence: agencies pre-file with the Interagency Committee on Administrative Rules (ICAR), file proposed rules with the Secretary of State, and then publish notices and hold public hearings. He said an agency generally has eight months from filing with the Secretary of State to adopt a rule unless that period is extended.

LCAR then has a 45-day review period after it receives a proposed final rule; Leonard said the committee frequently grants or receives extensions to that review window. If LCAR objects to a rule, the agency has 14 days to respond; a certified objection filed with the Secretary of State changes the burden of proof in subsequent court challenges, making the agency prove the rule's validity for the objected portions.

Leonard described grounds for objection authorized by statute: rules beyond agency authority; rules contrary to legislative intent; arbitrary rules lacking factual basis; style or clarity defects; failures to maximize public input; and insufficient economic or environmental impact analysis when applicable. He said LCAR may also ask a standing committee of jurisdiction to review questions outside LCAR's technical review.

Leonard discussed emergency rules and limitations on their use. He explained agencies may adopt emergency rules when an imminent peril to public health, safety or welfare exists or, in limited circumstances, when a federal or multistate change requires rapid state action; agencies adopting an emergency rule are expected to propose a final rule during the emergency period. Leonard noted the committee has in past sought legislative fixes to recurring timing problems (for example, rules tied to multistate gaming agreements) and described other seldom-used LCAR powers, including initiating reviews of existing rules and compelling agencies to start formal rulemaking on existing practices.

Committee members asked clarifying questions during the presentation. Leonard said his office had sent a longer memo with more detail and that LCAR staff would continue to assist members with rule summaries and model motion language for LCAR actions.