Procedural Requirements for Adoption, Amendment, or Repeal of Rules; Emergency Rules; Limitation on Action to Contest Rule; Legislative Override

  1. Law
  2. Georgia Code
  3. State Government
  4. Administrative Procedure
  5. General Provisions
  6. Procedural Requirements for Adoption, Amendment, or Repeal of Rules; Emergency Rules; Limitation on Action to Contest Rule; Legislative Override

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  1. Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general statements of policy, the agency shall:
    1. Give at least 30 days' notice of its intended action. The notice shall include an exact copy of the proposed rule and a synopsis of the proposed rule. The synopsis shall be distributed with and in the same manner as the proposed rule. The synopsis shall contain a statement of the purpose and the main features of the proposed rule, and, in the case of a proposed amendatory rule, the synopsis also shall indicate the differences between the existing rule and the proposed rule. The notice shall also include the exact date on which the agency shall consider the adoption of the rule and shall include the time and place in order that interested persons may present their views thereon. The notice shall also contain a citation of the authority pursuant to which the rule is proposed for adoption and, if the proposal is an amendment or repeal of an existing rule, the rule shall be clearly identified. The notice shall be mailed to all persons who have requested in writing that they be placed upon a mailing list which shall be maintained by the agency for advance notice of its rule-making proceedings and who have tendered the actual cost of such mailing as from time to time estimated by the agency;
    2. Afford to all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In the case of substantive rules, opportunity for oral hearing must be granted if requested by 25 persons who will be directly affected by the proposed rule, by a governmental subdivision, or by an association having not less than 25 members. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if requested to do so by an interested person either prior to adoption or within 30 days thereafter, shall issue a concise statement of the principal reasons for and against its adoption and incorporate therein its reason for overruling the consideration urged against its adoption;
    3. In the formulation and adoption of any rule which will have an economic impact on businesses in the state, reduce the economic impact of the rule on small businesses which are independently owned and operated, are not dominant in their field, and employ 100 employees or less by implementing one or more of the following actions when it is legal and feasible in meeting the stated objectives of the statutes which are the basis of the proposed rule:
      1. Establish differing compliance or reporting requirements or timetables for small businesses;
      2. Clarify, consolidate, or simplify the compliance and reporting requirements under the rule for small businesses;
      3. Establish performance rather than design standards for small businesses; or
      4. Exempt small businesses from any or all requirements of the rules; and
    4. In the formulation and adoption of any rule, an agency shall choose an alternative that does not impose excessive regulatory costs on any regulated person or entity which costs could be reduced by a less expensive alternative that fully accomplishes the stated objectives of the statutes which are the basis of the proposed rule.
  2. If any agency finds that an imminent peril to the public health, safety, or welfare, including but not limited to, summary processes such as quarantines, contrabands, seizures, and the like authorized by law without notice, requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable to adopt an emergency rule. Any such rule adopted relative to a public health emergency shall be submitted as promptly as reasonably practicable to the House of Representatives and Senate Committees on Judiciary. The rule may be effective for a period of not longer than 120 days but the adoption of an identical rule under paragraphs (1) and (2) of subsection (a) of this Code section is not precluded; provided, however, that such a rule adopted pursuant to discharge of responsibility under an executive order declaring a state of emergency or disaster exists as a result of a public health emergency, as defined in Code Section 38-3-3, shall be effective for the duration of the emergency or disaster and for a period of not more than 120 days thereafter.
  3. It is the intent of this Code section to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules. Except for emergency rules which are provided for in subsection (b) of this Code section, the provisions of this Code section are applicable to the exercise of any rule-making authority conferred by any statute, but nothing in this Code section repeals or diminishes additional requirements imposed by law or diminishes or repeals any summary power granted by law to the state or any agency thereof.
  4. No rule adopted after April 3, 1978, shall be valid unless adopted in exact compliance with subsections (a) and (e) of this Code section and in substantial compliance with the remainder of this Code section. A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this Code section must be commenced within two years from the effective date of the rule.
  5. The agency shall transmit the notice provided for in paragraph (1) of subsection (a) of this Code section to the legislative counsel. The notice shall be transmitted at least 30 days prior to the date of the agency's intended action. Within three days after receipt of the notice, if possible, the legislative counsel shall furnish the presiding officers of each house with a copy of the notice, and the presiding officers shall assign the notice to the chairperson of the appropriate standing committee in each house for review and any member thereof who makes a standing written request. In the event a presiding officer is unavailable for the purpose of making the assignment within the time limitations, the legislative counsel shall assign the notice to the chairperson of the appropriate standing committee. The legislative counsel shall also transmit within the time limitations provided in this subsection a notice of the assignment to the chairperson of the appropriate standing committee. Each standing committee of the Senate and the House of Representatives is granted all the rights provided for interested persons and governmental subdivisions in paragraph (2) of subsection (a) of this Code section.
    1. In the event a standing committee to which a notice is assigned as provided in subsection (e) of this Code section files an objection to a proposed rule prior to its adoption and the agency adopts the proposed rule over the objection, the rule may be considered by the branch of the General Assembly whose committee objected to its adoption by the introduction of a resolution for the purpose of overriding the rule at any time within the first 30 days of the next regular session of the General Assembly. It shall be the duty of any agency which adopts a proposed rule over such objection so to notify the presiding officers of the Senate and the House of Representatives, the chairpersons of the Senate and House committees to which the rule was referred, and the legislative counsel within ten days after the adoption of the rule. In the event the resolution is adopted by such branch of the General Assembly, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch of the General Assembly to have such branch, within five days after the receipt of the resolution, to consider the resolution for the purpose of overriding the rule. In the event the resolution is adopted by two-thirds of the votes of each branch of the General Assembly, the rule shall be void on the day after the adoption of the resolution by the second branch of the General Assembly. In the event the resolution is ratified by less than two-thirds of the votes of either branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of his or her veto, the rule shall remain in effect. In the event of his or her approval, the rule shall be void on the day after the date of his or her approval.
    2. In the event each standing committee to which a notice is assigned as provided in subsection (e) of this Code section files an objection to a proposed rule prior to its adoption by a two-thirds' vote of the members of the committee who were voting members on the tenth day of the current session, after having given public notice of the time, place, and purpose of such vote at least 48 hours in advance, as well as the opportunity for members of the public including the promulgating agency, to have a reasonable time to comment on the proposed committee action at the hearing, the effectiveness of such rule shall be stayed until the next legislative session at which time the rule may be considered by the General Assembly by the introduction of a resolution in either branch of the General Assembly for the purpose of overriding the rule at any time within the first 30 days of the next regular session of the General Assembly. In the event the resolution is adopted by the branch of the General Assembly in which it was introduced, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch of the General Assembly to have such branch, within five days after the receipt of the resolution, to consider the resolution for the purpose of overriding the rule. In the event the resolution is adopted by two-thirds of the votes of each branch of the General Assembly, the rule shall be void on the day after the adoption of the resolution by the second branch of the General Assembly. In the event the resolution is ratified by less than two-thirds of the votes of either branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of his or her veto, the rule shall remain in effect. In the event of his or her approval, the rule shall be void on the day after the date of his or her approval. If after the thirtieth legislative day of the legislative session of which the challenged rule was to be considered the General Assembly has not considered an override of the challenged rule pursuant to this subsection, the rule shall then immediately take effect.
    1. Subsection (f) of this Code section shall not apply to the Environmental Protection Division of the Department of Natural Resources as to any rule for which, as part of the notice required by paragraph (1) of subsection (a) of this Code section, the director of the division certifies that such rule is required for compliance with federal statutes or regulations or to exercise certain powers delegated by the federal government to the state to implement federal statutes or regulations, but paragraph (2) of this subsection shall apply to the Environmental Protection Division of the Department of Natural Resources as to any rule so certified. As part of such certification, the director shall cite the specific section or sections of federal statutes or regulations which the proposed rule is intended to comply with or implement. General references to the name or title of a federal statute or regulation shall not suffice for the purposes of this paragraph. Any proposed rule or rules that are subject to this paragraph shall be noticed separately from any proposed rule or rules that are not subject to this paragraph.
    2. In the event the chairperson of any standing committee to which a proposed rule certified by the director of the division pursuant to paragraph (1) of this subsection is assigned notifies the director that the committee objects to the adoption of the rule or has questions concerning the purpose, nature, or necessity of such rule, it shall be the duty of the director to consult with the committee prior to the adoption of the rule.
  8. The provisions of subsections (e) and (f) of this Code section shall apply to any rule of the Department of Public Health that is promulgated pursuant to Code Section 31-2A-11 or 31-45-10, except that the presiding officer of the Senate is directed to assign the notice of such a rule to the chairperson of the Senate Science and Technology Committee and the presiding officer of the House of Representatives is directed to assign the notice of such a rule to the chairperson of the House Committee on Industry and Labor. As used in this subsection, the term "rule" shall have the same meaning as provided in paragraph (6) of Code Section 50-13-2 and shall include interpretive rules and general statements of policy, notwithstanding any provision of subsection (a) of this Code section to the contrary.
  9. This Code section shall not apply to any comprehensive state-wide water management plan or revision thereof prepared by the Environmental Protection Division of the Department of Natural Resources and proposed, adopted, amended, or repealed pursuant to Article 8 of Chapter 5 of Title 12; provided, however, that this Code section shall apply to any rules or regulations implementing such a plan.

(Ga. L. 1964, p. 338, § 4; Ga. L. 1965, p. 283, § 6; Ga. L. 1977, p. 1520, §§ 1-4; Ga. L. 1978, p. 1437, §§ 1-5; Ga. L. 1982, p. 3, § 50; Ga. L. 1984, p. 1219, § 1; Ga. L. 1990, p. 1274, § 1; Ga. L. 1993, p. 1817, § 2; Ga. L. 1994, p. 97, § 50; Ga. L. 1994, p. 503, § 1; Ga. L. 1997, p. 1521, § 1; Ga. L. 2000, p. 549, § 4; Ga. L. 2000, p. 1619, § 2; Ga. L. 2002, p. 1386, § 16; Ga. L. 2004, p. 711, § 3; Ga. L. 2008, p. 7, § 1/SB 352; Ga. L. 2009, p. 8, § 50/SB 46; Ga. L. 2009, p. 303, §§ 4, 15/HB 117; Ga. L. 2009, p. 453, §§ 1-4, 1-10/HB 228; Ga. L. 2011, p. 705, §§ 3-3, 6-3/HB 214; Ga. L. 2013, p. 141, § 50/HB 79.)

The 2011 amendment, effective July 1, 2011, in the first sentence of subsection (h), substituted "Department of Public Health" for "Department of Community Health" and substituted "Code Section 31-2A-11" for "Code Section 31-2-12".

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "House Committee on Industry and Labor" for "House Committee on Industrial Relations" at the end of the first sentence of subsection (h).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, "31-45-10" was substituted for "31-43-10" in the first sentence in subsection (h).

Pursuant to Code Section 28-9-5, in 2002, "of" was substituted for "or" in the third sentence of subsection (b).

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. Rev. 301 (1997). For article on the 2004 amendment of this Code section, see 21 Ga. St. Rev. 1 (2004). For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For article, "The Status of Administrative Agencies under the Georgia Constitution," see 40 Ga. L. Rev. 1109 (2006). For article on the 2011 amendment of this Code section, see 28 Ga. St. Rev. 147 (2011). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article, "Researching Georgia Law," see 34 Ga. St. Rev. 741 (2015). For note on the 2002 amendment of this Code section, see 19 Ga. St. Rev. 1 (2002).

JUDICIAL DECISIONS

O.C.G.A. § 50-13-4 mandates full consideration of all written and oral submissions. Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827, cert. denied, 186 Ga. App. 918, 367 S.E.2d 827 (1988).

Failure to comply with O.C.G.A. § 50-13-4(a)(1) invalidates an amended rule. Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827, cert. denied, 186 Ga. App. 918, 367 S.E.2d 827 (1988).

Economic impact on businesses.

- Mere fact that most of the affected businesses have less than 100 employees is not a sufficient reason to conclude that compliance with O.C.G.A. § 50-13-4(a)(3) is not necessary. Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827, cert. denied, 186 Ga. App. 918, 367 S.E.2d 827 (1988).

Exemptions from procedural requirements.

- Under the Georgia Administrative Procedure Act, O.C.G.A. Ch. 13, T. 50, the adoption of rules relating to benefits by the state or of an agency is expressly exempted by O.C.G.A. § 50-13-2(6)(I) from the strict rule-making procedural requirements of O.C.G.A. § 50-13-4. This includes the promulgation of policies determining eligibility for entitlement and rules for granting unemployment benefits. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674, 302 S.E.2d 596 (1983).

Strict compliance with respect to the citation requirement is necessary only when a rule is being adopted, not when the rule is amended or repealed. Corner v. State, 223 Ga. App. 353, 477 S.E.2d 593 (1996).

Cited in Cullers v. Home Credit Co., 130 Ga. App. 441, 203 S.E.2d 544 (1973); Georgia State Bd. of Dental Exmrs. v. Daniels, 137 Ga. App. 706, 224 S.E.2d 820 (1976); State v. Strickman, 173 Ga. App. 1, 325 S.E.2d 775 (1984); Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Charles H. Wesley Educ. Found., Inc. v. State Election Bd., 282 Ga. 707, 654 S.E.2d 127 (2007); Olvera v. Univ. Sys. of Georgia's Bd. of Regents, 331 Ga. App. 392, 771 S.E.2d 91 (2015); Olvera v. Univ. Sys. of Georgia's Bd. of Regents, 298 Ga. 425, 782 S.E.2d 436 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Rules must be properly adopted to be valid.

- Any rule, regulation, resolution, etc., by whatever name called, which falls under the definition of a "rule," as defined by Ga. L. 1965, p. 283, §§ 2-4 (see O.C.G.A. § 50-13-2), must be adopted pursuant to the procedure for adoption of rules, i.e., Ga. L. 1965, p. 283, §§ 6, 7, and 8, and Ga. L. 1964, p. 338, § 6 (see O.C.G.A. §§ 50-13-4 through50-13-7), if it is to be valid against any person or party. Op. Att'y Gen. No. 71-158.

Agency pronouncements should be promulgated in accordance with O.C.G.A. Ch. 13, T. 50. - Those pronouncements by which an agency seeks to interpret the agency's rules and regulations by formulating explicit and detailed standards which have substantial impact should be promulgated in accordance with the Georgia Administrative Procedure Act, Ga. L. 1968, p. 338, § 1 et seq. (see O.C.G.A. Ch. 13, T. 50). 1976 Op. Att'y Gen. No. 76-78.

Effective date of emergency rules adopted by agency.

- Emergency rules adopted by state agencies may be made effective by the agency on the date of adoption, if the agency so desires; all emergency rules should be accompanied by a statement from the agency indicating the rules' effective date. 1975 Op. Att'y Gen. No. 75-123.

Regulations as stringent as federal regulations authorized.

- O.C.G.A. § 50-13-4(a)(4) does not prohibit the Board of Natural Resources and director of the Environmental Protection Division from adopting regulations and taking such actions as are necessary to ensure that the state's regulatory authority is at least as stringent as federal regulatory authority established pursuant to federal environmental laws. 1997 Op. Att'y Gen. No. 97-25.

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, § 190 et seq.

C.J.S.

- 73 C.J.S., Public Administrative Law and Procedure, §§ 161 et seq., 208, 209. 73A C.J.S., Public Administrative Law and Procedure, § 313 et seq.

U.L.A.

- Model State Administrative Procedure Act (U.L.A.) § 3-101 et seq.

ALR.

- Retroactive operation of regulation of administrative authority amending a previous regulation, 153 A.L.R. 1188.


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