HB5083 - Relating to the adoption and review of rules by state agencies.

  89R15304 JCG-F     By: Patterson, Capriglione, Curry H.B. No. 5083       A BILL TO BE ENTITLED   AN ACT   relating to the adoption and review of rules by state agencies.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 28.002(m), Education Code, is amended to   read as follows:          (m)  Section 2001.0395 [ 2001.039 ], Government Code, [ as   added by Chapter 1499, Acts of the 76th Legislature, Regular   Session, 1999, ] does not apply to a rule adopted by the State Board   of Education under Subsection (c) or (d).          SECTION 2.  Subchapter A, Chapter 2001, Government Code, is   amended by adding Section 2001.008 to read as follows:           Sec.   2001.008.     EXPRESS STATUTORY AUTHORITY FOR RULE OR   GUIDANCE DOCUMENT REQUIRED. (a) In this section, "guidance   document" means any letter, opinion, compliance manual, or other   statement issued by a state agency that explains or interprets one   or more of the state agency's rules.           (b)     A state agency may not adopt a rule or issue a guidance   document unless the agency has been granted an express statutory   delegation of authority to adopt the rule or issue the guidance   document.           (c)     For purposes of Subsection (b), a state agency does not   have an express statutory delegation of authority to adopt a rule or   issue a guidance document solely because the rule or guidance   document is reasonably related to the purpose of the state agency's   enabling legislation or to a general statutory power or duty of the   state agency.          SECTION 3.  Subchapter B, Chapter 2001, Government Code, is   amended by adding Section 2001.0227 to read as follows:           Sec.   2001.0227.     CERTAIN RULES PROHIBITED BASED ON COSTS OF   COMPLIANCE; COST-BENEFIT ANALYSES REQUIRED. (a) A state agency   shall prepare a cost-benefit analysis for each proposed rule as   provided by this section.           (b)  The cost-benefit analysis must include:                 (1)     a cost-benefit analysis estimating for each year   of the first six years that the rule will be in effect:                       (A)     the public benefits expected as a result of   adoption of the rule; and                       (B)     the expected economic costs to persons   required to comply with the rule;                 (2)     an explanation of all assumptions, methods,   supporting data, and, if any, discount rates used in preparing the   cost-benefit analysis; and                 (3)     a clear statement of the total expected economic   costs to persons required to comply with the rule and the total   public benefits expected as a result of the adoption of the rule.           (c)  A state agency may not adopt a proposed rule:                 (1)     for which the cost-benefit analysis under   Subsection (b) states that the total expected economic costs to   comply with the rule exceed the total public benefits expected as a   result of the adoption of the proposed rule; or                 (2)     if there are alternative methods of regulation   that could accomplish the legislature's intent in authorizing the   rule and any statutory purposes provided by the legislature at a   lower economic cost to persons required to comply with the rule.           (d)     If the proposed rule takes effect and remains in effect   at least six years, the state agency shall:                 (1)     solicit from interested stakeholders data   regarding the stakeholders' experience and actual economic costs of   compliance with the rule; and                 (2)     conduct a retrospective cost-benefit analysis   that compares:                       (A)     estimates made under Subsection (b)(1)   regarding the economic costs of compliance; and                       (B)     the actual economic costs of compliance based   on the data provided under Subdivision (1) and any other readily   available data relevant to this purpose.           (e)     If a state agency uses a discount rate in preparing an   analysis under Subsection (b) or (d), the state agency shall   provide:                 (1)     a reasoned justification for the use of the   discount rate; and                 (2)     another cost-benefit analysis for the same rule   that does not include the use of the discount rate.           (f)     A state agency that prepares an analysis under   Subsection (b) or (d) shall publish on the agency's publicly   accessible Internet website all documentation and other materials   used to prepare the analysis in a machine-readable format.           (g)     A reference to an existing rule under this section   includes any amendments to the rule, and, to the extent feasible,   the state agency shall prepare the analysis required under   Subsection (b) based on the terms of the rule as amended.          SECTION 4.  Section 2001.024(a), Government Code, is amended   to read as follows:          (a)  The notice of a proposed rule must include:                (1)  a brief explanation of the proposed rule;                (2)  the text of the proposed rule, except any portion   omitted under Section 2002.014, prepared in a manner to indicate   any words to be added or deleted from the current text;                (3)  a statement of the statutory or other authority   under which the rule is proposed to be adopted, including:                      (A)  a concise explanation of the particular   statutory or other provisions under which the rule is proposed;                      (B)  the section or article of the code affected;                      (C)  if applicable, the bill number for the   legislation that enacted the statutory authority under which the   rule is proposed to be adopted if the legislation was enacted during   the four-year period preceding the date notice of the proposed rule   is given; and                      (D)  a certification that the proposed rule has   been reviewed by legal counsel and found to be within the state   agency's authority to adopt;                (4)  a fiscal note showing the name and title of the   officer or employee responsible for preparing or approving the note   and stating for each year of the first five years that the rule will   be in effect:                      (A)  the additional estimated cost to the state   and to local governments expected as a result of enforcing or   administering the rule;                      (B)  the estimated reductions in costs to the   state and to local governments as a result of enforcing or   administering the rule;                      (C)  the estimated loss or increase in revenue to   the state or to local governments as a result of enforcing or   administering the rule; and                      (D)  if applicable, that enforcing or   administering the rule does not have foreseeable implications   relating to cost or revenues of the state or local governments;                (5)   the cost-benefit analysis required under Section   2001.0227 [ a note about public benefits and costs showing the name   and title of the officer or employee responsible for preparing or   approving the note and stating for each year of the first five years   that the rule will be in effect:                      [ (A)     the public benefits expected as a result of   adoption of the proposed rule; and                      [ (B)     the probable economic cost to persons   required to comply with the rule ];                (6)  the local employment impact statement prepared   under Section 2001.022, if required;                (7)  a request for comments on the proposed rule from   any interested person; and                (8)  any other statement required by law.          SECTION 5.  Section 2001.033, Government Code, is amended by   amending Subsection (a) and adding Subsection (c) to read as   follows:          (a)  A state agency order finally adopting a rule must   include:                (1)  a reasoned justification for the rule as adopted   consisting solely of:                      (A)  a summary of comments received from parties   interested in the rule that shows the names of interested groups or   associations offering comment on the rule and whether they were for   or against its adoption;                      (B)  a summary of the factual basis for the rule as   adopted which demonstrates a rational connection between the   factual basis for the rule and the rule as adopted; and                      (C)  the reasons why the agency disagrees with   party submissions and proposals;                (2)  a concise restatement of the particular statutory   provisions under which the rule is adopted and of how the agency   interprets the provisions as authorizing or requiring the rule;   [ and ]                (3)  a certification that the rule, as adopted, has   been reviewed by legal counsel and found to be a valid exercise of   the agency's legal authority ; and                 (4)     the cost-benefit analysis required under Section   2001.0227 updated to reflect reasonable public commentary on the   state agency's calculations of the costs and benefits of the rule or   a reasoned justification for why the agency did not update the   cost-benefit analysis based on the public commentary .           (c)  A state agency rule may not be arbitrary or capricious.          SECTION 6.  Section 2001.038, Government Code, is amended by   adding Subsection (g) to read as follows:           (g)     A respondent subject to an enforcement action by a state   agency for the violation of a rule may request a declaratory   judgment from the court finding a rule invalid if the state agency   lacks express statutory delegation of authority [Text truncated for display. 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