41-1052

41-1052. Council review and approval

A. Before filing a final rule with the secretary of state, an agency shall prepare,
transmit to the council and the committee and obtain the council's approval of the rule
and its preamble and economic, small business and consumer impact statement that meets
the requirements of section 41-1055. The governor's office of strategic planning and
budgeting shall prepare the economic, small business and consumer impact statement if the
legislature appropriates monies for this purpose.

B. The council shall accept an early review petition of a proposed rule, in whole
or in part, if the proposed rule is alleged to violate any of the criteria prescribed in
subsection D of this section and if the early petition is filed by a person who would be
adversely impacted by the proposed rule. The council may determine whether the proposed
rule, in whole or in part, violates any of the criteria prescribed in subsection D of
this section.

C. Within one hundred twenty days of receipt of the rule, preamble and economic,
small business and consumer impact statement, the council shall review and approve or
return, in whole or in part, the rule, preamble or economic, small business and consumer
impact statement. An agency may resubmit a rule, preamble or economic, small business
and consumer impact statement if the council returns the rule, economic, small business
and consumer impact statement or preamble, in whole or in part, to the agency.

D. The council shall not approve the rule unless:

1. The economic, small business and consumer impact statement contains information
from the state, data and analysis prescribed by this article.

2. The economic, small business and consumer impact statement is generally
accurate.

3. The probable benefits of the rule outweigh the probable costs of the rule and
the agency has demonstrated that it has selected the alternative that imposes the least
burden and costs to persons regulated by the rule, including paperwork and other
compliance costs, necessary to achieve the underlying regulatory objective.

4. The rule is written in a manner that is clear, concise and understandable to the
general public.

5. The rule is not illegal, inconsistent with legislative intent or beyond the
agency's statutory authority.

6. The agency adequately addressed the comments on the proposed rule and any
supplemental proposals.

7. The rule is not a substantial change, considered as a whole, from the proposed
rule and any supplemental notices.

8. The preamble discloses a reference to any study relevant to the rule that the
agency reviewed and either did or did not rely on in the agency's evaluation of or
justification for the rule.

9. The rule is not more stringent than a corresponding federal law unless there is
statutory authority to exceed the requirements of that federal law.

10. If a rule requires a permit, the permitting requirement complies with section
41-1037.

E. The council shall verify that a rule with new fees does not violate section
41-1008. The council shall not approve a rule that contains a fee increase unless
two-thirds of the voting quorum present vote to approve the rule.

F. The council shall verify that a rule with an immediate effective date complies
with section 41-1032. The council shall not approve a rule with an immediate effective
date unless two-thirds of the voting quorum present vote to approve the rule.

G. The council may require a representative of an agency whose rule is under
examination to attend a council meeting and answer questions. The council may also
communicate to the agency its comments on any rule, preamble or economic, small business
and consumer impact statement and require the agency to respond to its comments in
writing.

H. At any time during the sixty days immediately following receipt of the rule, a
person may submit written comments to the council that are within the scope of subsection
D, E or F of this section. The council may permit oral comments at a council meeting
within the scope of subsection D, E or F of this section.

I. If the agency makes a good faith effort to comply with the requirements
prescribed in this article and has explained in writing the methodology used to produce
the economic, small business and consumer impact statement, the rule may not be
invalidated after it is finalized on the ground that the contents of the economic, small
business and consumer impact statement are insufficient or inaccurate or on the ground
that the council erroneously approved the rule, except as provided for by section
41-1056.01.

J. The absence of comments pursuant to subsection D, E or F of this section or
article 4.1 of this chapter does not prevent the council from acting pursuant to this
section.