1052.1 This policy establishes a uniform
method and system for promulgation of rules and regulations within the
Department of Human Services (DHS) in accordance with the Arkansas
Administrative Procedure Act (Act), Ark. Code Ann. §§
25-15-201 et seq. The Act requires
that an agency promulgate "rules of practice describing the nature and
requirements of all formal and informal procedures including forms and
instructions used by the agency. All rules promulgated must be in compliance
with federal and state laws.
1052.2
This policy is applicable to all Divisions and Offices within DHS and to all
managers and staff responsible for the promulgation of rules within their
particular division or office.
1052.3
Definitions
1052.3.1
Emergency
Rule - A policy or procedure that requires immediate
implementation due to a finding of imminent peril to the public health, safety,
or welfare, or loss of federal funds.
1052.3.2
Marked-up
Copy
- If an already existing rule is being amended,
a copy of the proposed amendment indicating significant changes. A rule is to
be marked up by striking the old language and inserting and underlining the new
language. This is to be submitted in typewritten format.
1052.3.3
Notice Of Rule
Making - A general clear statement of the subjects and issues
involved, and the time, place, and manner in which interested persons may
present their views thereon.
1052.3.4
Rule - Any
Department, Division or Office statement of general applicability and future
effect that implements, interprets, or prescribes law or policy; or describes
the organization procedure or practice of any agency. "Rule" does not mean any
statement concerning the internal management of DHS or any intra-office
memoranda. Policies or procedures that do not have a direct impact on the
public are not considered rules that require promulgation.
1052.3.5
Summary of
Changes - A summary of the changes made in any revision of a
Rule.
1052.3.6
Summary
of Rule - A summary of the provisions of any new rule in one or
more paragraphs.
1052.4
Promulgation1052.4.1
A. If the rule will be applicable to or have
an effect on DHS as a whole, the promulgation steps described below will be
carried out by the Office of Administrative Services, Human Resources/Support
Services Section, Policy and Administrative Program Management Unit (OAS/PAPM).
B. If the rule is applicable only
to a particular division or divisions, the division itself is responsible for
carrying out all the steps of promulgation.
1052.4.2
Executive Staff Review
The Division or Office shall prepare the rule in draft form to
be reviewed by the DHS Executive Staff.
A. In the case of departmental rules, the
draft will then be submitted, preferably as an attachment to an e-mail message
(specific e-mail addressee to be ascertained), to OAS/PAPM, which will, in
turn, e-mail the draft to all members of the Executive Staff.
B. In the case of divisional rules, the
originating section will e-mail the draft to the Executive Staff.
C. The draft is to be accompanied by an
Executive Summary consisting of the Summary of Rule or Summary of
changes.
D. The Executive Staff
will be allowed approximately two weeks to reply with a concurrence or with
non-concurring comment.
1052.4.3 After approval by the Executive
Staff, a Notice of Rule Making (Notice) shall be prepared. The Notice shall be
published in a newspaper of general daily circulation for seven (7) consecutive
days to afford all interested members of the public up to thirty (30) days
opportunity to submit comments, orally or in writing. The Notice shall also be
mailed to any person who requested advance notice of rule making
proceedings.
1052.4.4 Prior to
newspaper publication, the Notice of Rule Making, the Arkansas Register
Transmittal Sheet, the Arkansas State Library Agency Certification Form, the
Legislative Questionnaire, the Bureau of Legislative Research page, and the
Financial Impact Statement shall be submitted to the DHS Office of Chief
Counsel (OCC). OCC shall review the submission within three (3) days for
compliance with the Act and will issue a statement to the appropriate Division
or Office finding the rule in compliance or not in compliance. Upon approval by
OCC, the Notice of Rule Making may be published.
1052.4.5
Initial Bureau of
Legislative Research Filing Every Division or Office must submit
for review any proposed, revised, amended, changed, or repealed rules with the
Bureau of Legislative Research thirty (30) days before the expiration of the
period for public comment.
A. Three (3) copies
of the rule, and two (2) copies each of the Legislative Questionnaire, the
Financial Impact Statement, and the marked-up copy (see §1052.3.2 for
format) must be submitted to the Legislative Council.
B. When filing a new rule, two (2) copies of
a Summary of Rule must be submitted. Two (2) copies of a Summary of Changes are
to be submitted with any revised rule.
C. One copy each of the rule is to be file
stamped and returned to the Division or Office. A cover letter should accompany
the submission requesting that the rule be placed on the Legislative
Administrative Rules and Regulations
Subcommittee agenda for review. Providing a copy of the cover
memorandum accompanying the submitted materials for date stamping and return to
the agency is optional.
1052.4.6
Filing The
day after the thirty (30) day public review period expires the Division or
Office shall file its rule with the Secretary of State, the Arkansas State
Library, and the Bureau of Legislative Research. Every promulgated rule must be
filed at least ten (10) days prior to its effective date. Each rule adopted by
an agency shall be effective ten (10) days after filing unless a later date is
specified in the rule itself.
A. Secretary of
State: Two (2) paper copies each of the proposed rule and the Arkansas Register
Transmittal Sheet, and one (1) copy each of the Notice of Rule Making, and the
Financial Impact Statement must be filed with the Secretary of State. One (1)
electronic copy of the rule in Word© format shall be e-mailed to the
Secretary of State's office (addressee to be determined beforehand). The
electronic copy may also be on a diskette and hand delivered at the time of
filing. One (1) copy each of the rule and the transmittal stamped with the
filing date will be returned to the Division or Office.
B. State Library: One (1) copy of the
proposed rule must be filed with the Arkansas State Library. Two (2) copies of
the Arkansas State Library Agency Certification Form and one (1) copy of the
Financial Impact Statement must accompany the proposed rule. One (1) copy of
the Certification Form stamped with the filing date will be returned to the
Division or Office. Fifteen (15) copies of the final rule shall be sent to the
Coordinator of Document Services (682-2326) at the Arkansas State Library upon
finalization of promulgation.
C.
Bureau of Legislative Research: Three (3) copies of the proposed rule, three
(3) copies of the Bureau coversheet, three (3) copies of the marked-up copy,
and three (3) copies of the Financial Impact Statement must also be filed with
the Bureau of Legislative Research. An electronic copy of the rule on diskette
in Word© format shall also be filed with the Bureau, and if any
modifications had been made to the draft rule during the public review period
(see §1052.4.3), a summary of those changes must be submitted. One (1)
copy each of the rule and coversheet stamped with the filing date will be
returned to the Division or Office.
D. The Notice of Rule Making shall be mailed
to all persons who have requested advance notice of rule making proceedings.
The Division or Office must obtain confirmation of the actual publication of
the Notice of Rule Making in the newspaper to be retained in its
files.
1052.4.7
Arkansas Legislative Council - Administrative Rules and Regulations
Subcommittee (Subcommittee)
The Subcommittee will review promulgated rules at their monthly
session at the State Capitol. The Bureau of Legislative Research will place the
rule on the Subcommittee's monthly agenda based on the information provided in
the
Legislative Questionnaire submitted to the Bureau by the
promulgating agency during the initial filing (see §1052.4.4). The
promulgating agency must schedule promulgation such that the public review
period has been completed before the Subcommittee review date.
1052.4.8 If during the
promulgation process the Division or Office elects to change, revise, or amend
the proposed rule, there shall be a second review of the altered proposed rule
by OCC for compliance with the Administrative Procedure Act. The change may
require re-promulgation. The OCC will promptly advise the Division or Office if
this becomes necessary.
1052.5
Emergency Filing
Under an "Emergency" rule, the Division or Office may proceed
without prior notice or hearing, or upon any abbreviated notice and hearing
that it may choose, to issue an emergency rule. The Division or Office shall
file with the proposed rule a statement that includes a finding of imminent
peril to the public health, safety, or welfare, or loss of federal funds which
requires issuance of rule with fewer than ten (10) days notice. The Division or
Office shall specifically state the factual reason for the finding to the
public health, safety, or welfare, or loss of federal funds. The emergency rule
will be effective immediately upon filing with the Secretary of State, the
Arkansas State Library, and the Bureau of Legislative Research, but for no
longer than 120 days. Within the 120 days, the proposed rule must be
promulgated according to §1052.4 above.
1052.6
Petition For Issuance,
Amendment, Or Repeal Of Rule
Any person has the right to petition the initiating Division or
Office within DHS for the issuance, amendment, or repeal of any rule. The
Division or Office must either initiate rule making proceedings or deny the
petition in writing within thirty (30) days of the submission of such a
petition.
1052.7
Failure To Promulgate
Failure to promulgate a rule can result in a rule being
declared null and void, and monetary liability to the Division or Office
resulting from a rule being declared ineffective. Failure for any reason to
comply with these promulgation requirements may result in discipline to the DHS
employee who is responsible for the rule's promulgation.
1052.8
Declaratory Orders
The Department shall provide for the filing and prompt
disposition of declaratory orders as to the applicability of any rule, statute,
or order in force by it. These declaratory orders shall have the same status as
agency orders in cases of adjudication. Petitions for declaratory orders shall
be filed with the Division or Office issuing the rule that is the subject of
the petition of the declaratory order. If this situation occurs, contact OCC
for technical assistance.
1052.9
Conflicting Policies
Other policies or parts thereof in conflict with the contents
of this policy are hereby repealed or amended as necessary.
1052.10
Originating Section/Department
Contact
Office of Chief Counsel P. O. Box 1437, Slot S260 Little Rock,
AR 72203-1437
Telephone Number: (501) 682-8934
1052.11
Notice
Replacement Notation: This policy replaces DHS Policy 1052
previously issued with an effective date of August 10, 1995.
