Administrative Rule Review Report  #AR10-020

Legislative Service Office

11-Mar-10

 

AGENCY:                                 Department of Agriculture.

 

DATE SUBMITTED:                   March 2, 2010.

 

SUBJECT:                                 Chapter 14, Federal Regulations.

 

NATURE OF RULES:                     Legislative, Procedural

 

STATUTORY AUTHORITY:         W.S. 35-7-120(a), 35-7-123(a)(iii) and 35-7-127(c)

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  The rules were not submitted in a strike and underline format as required by rules of the Secretary of State.  The Agency has indicated there is no change in the rules but the rules are being re-adopted because of updates in the federal Code of Federal Regulations (CFR's).  These rules do not meet the requirements provided under W.S. 16-3-103(h)(ii), otherwise, procedural compliance is apparently complete to date.

 

SUMMARY OF RULES:  These rules are being re-adopted to be consistent with changes in the federal CFR's  and to allow the meat inspection program to meet the federal requirements. 

 

FINDINGS:  Except as noted here, the rules appear to be within the scope of statutory authority and legislative intent.  This Chapter 14 is an adoption of the federal regulations that are cited in the Agency's rules.  These references are allowed pursuant to W.S. 16-3-103(h).  However, W.S. 16-3-103(h)(ii) requires that the reference in the rules of the incorporating agency "fully identifies the incorporated matter by location, date and otherwise, and states that the rule does not include any later amendments or editions of the incorporated matter;".  While these rules do reference by location, they do not reference by date and do not state that the rules do not include any later amendments.

 

STAFF RECOMMENDATION:  That the Council notify the Governor that there is a likelihood that, if challenged, the rules may be held to be invalid due to the apparent failure of the Agency to comply with the procedural requirements for adoption, as noted above.  Further, that the Council recommend the Governor not approve the rules for failure to comply with statutory procedural requirements for adoption of rules, as noted in the rule review report.

 

 

                                                            ____________________________

                                                            Maxine R. Weaver

                                                            Staff Attorney

 

 

                                                            ____________________________

                                                            Lynda G. Cook

                                                            Staff Attorney

MRW/