Understanding Administrative Rules in Iowa State Government

Introduction

Notice and the opportunity for public participation constitute only the first half of the rulemaking process. A proposed rule is not effective until three things occur; these requirements constitute the publication portion of the rulemaking process:

 

• The notice of intended action is adopted in final form;

 

• The adopted rule is filed with the Administrative Rules Coordinator:

 

• The adopted rule is again published for 35 days in the Iowa Administrative Bulletin {IAB} and also indexed and codified into the Iowa Administrative Code {IAC}.

 

Not less than 35 days after the publication of the notice of intended action the agency may adopt the proposed rule in final form. Adoption can occur on the 35th day. During the notice process the agency has collected and reviewed the public comment offered on the proposal. At the conclusion of the notice period the agency decision maker makes whatever changes may be necessary or desirable and formally adopts the final product.

 

Changing the Text From Notice to Adoption

The most controversial issue in the adoption process is the extent to which the text of a notice of intended action can be changed prior to the final adoption of the rule. An agency may make changes in the text of a noticed rule based on the comments received during the rulemaking process or for any other reason. Under Iowa law even substantial changes can be made to a notice of intended action as long as those changes are within the scope of the original notice and a logical outgrowth of the comment received on the proposal.

 

The Details of Adoption: Procedure and Effect

The decision-making head of the agency, as determined by statute, is the entity to adopt a rule in final form. Adoption cannot occur sooner than 35 days after publication of the notice of intended action. In a single headed agency authority is usually vested in the director, but authority can be delegated down to an assistant, adopting on the director’s behalf. In boards or commissions, a vote of a majority of the entire body is required. Adoption is evidenced by actually certifying an original copy of the adopted rule. A certified copy is actually little more than a signed copy; an affidavit or notarized signature is not required. In essence certification means that the signor attests the document as being true or as represented. Adoption is, in affect, a waiver by the agency of any further right to make changes in the rule. The agency declares that the terms and substance of the rule are now fixed. At that point, for the agency, the rulemaking process is finished—if any additional changes are needed, even technical corrections, a new rulemaking process must begin.

 

Filing with the Administrative Rules Coordinator

§ 17A.5(1) requires that a copy of the adopted rule be filed with the Administrative Rules Coordinator (ARC) and with Administrative Code Editor. The ARC is an integral part of the Governors’ office assigning each filing a specific number. Most rulemaking proceedings will have two assigned numbers. One number is for the notice of intended action and the second number is for the final adopted form of the rule. These numbers assist in tracking the progress of the filing through the process.

 

• The office serves as an archive for the original copy of all administrative rules. This archive is critical to check the accuracy of the printed copy against the original text.

 

• The ARC assigns each filing a specific number. Most rulemaking proceedings will ultimately have two of these numbers; one for the notice of intended action and a second for the final adopted form. Their use is in tracking the progress of the filing through the process.

 

Publication and Indexing

Both publication and indexing are critical to ensure that the public is able to actually find the rules that they must obey. The second 35 day waiting period is not an additional opportunity for comment. In essence it is a grace period allowing the new rule to be published, distributed and reviewed by the general public before it goes into effect. The delay provides affected individuals with an opportunity to bring their affairs into compliance with the new requirements.

 

The publication process is actually the most important part of the rulemaking process, because it is the only provision that is required by the Constitution. The XIVth Amendment to the United States Constitution provides that no person may be deprived of life, liberty or property without due process of law. A fundamental part of due process is the right to notice. As relating to administrative rules this means that a right exists to have a published copy available before the rule is enforced against a particular individual.

 

The Effective Date

A rule can be made effective no sooner than 35 days after the rule is adopted in final form, filed with the Administrative Rules Coordinator, and published in the Iowa Administrative Bulletin and Iowa Administrative Code. Agencies may specify a later effective date, as long as that date is set out in the filing. Frequently agencies prefer to set the first of the month, or even the first of the following year for an effective date

 

In calculating the precise moment, the actual date of publication is excluded from the calculation. A published rule goes into effect on the 35th day {e.g.: 34 days plus one minute}. Each issue of the Iowa Administrative Bulletin contains a chart calculating every step of the rulemaking process, including the earliest effective dates for each rulemaking period.