Opinion No. (1993) ( 1993 )

THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUEST FOR AN INFORMAL OPINION FROM JOE MCCORMICK REGARDING THE NECESSITY OF PREPARING A RULE IMPACT STATEMENT FOR PROPOSED PERMANENT RULEMAKING.

I HAVE REVIEWED YOUR LETTER OF APRIL 13, 1993 AND I UNDERSTAND YOUR CONCERN REGARDING THE PUBLIC INTEREST IN HAVING THESE RULES PROMULGATED THIS SESSION. NEVERTHELESS, THE DICTATES OF THE OKLAHOMA ADMINISTRATIVE PROCEDURES ACT ARE CLEAR. THE REQUIREMENT CONTAINED IN 75 O.S. 303(D) THAT AN AGENCY MUST PREPARE A RULE IMPACT STATEMENT WITHIN 15 DAYS OF THE PUBLICATION OF THE NOTICE OF PROPOSED RULEMAKING, UNLESS EXPRESSLY WAIVED BY THE GOVERNOR, IS MANDATORY. THERE IS NO PRIOR REQUIREMENT THAT THE LEGISLATURE OR GOVERNOR REQUEST REVIEW OF THE RULE IMPACT STATEMENT; A RULE IMPACT STATEMENT SHALL BE PREPARED, AND MADE PART OF THE AGENCY RULEMAKING RECORD PURSUANT TO 75 O.S. 302(B)(H).

I AM NOT PERSUADED THAT THE TIMELY PREPARATION OF A RULE IMPACT STATEMENT IS A MERE PROCEDURAL REQUIREMENT AS YOU SUGGEST IN YOUR LETTER. THE RULE IMPACT STATEMENT IS, INSTEAD, AN IMPORTANT PART OF THE RULEMAKING PROCESS, ONE WHICH SHOULD BE UTILIZED BY THE AGENCY TO DETERMINE THE EFFECT OF A PROPOSED RULE AND THE WISDOM IN PROCEEDING WITH THAT RULEMAKING ACTION AND UTILIZED BY THE LEGISLATURE AND THE GOVERNOR IN REVIEWING THE PROPOSED RULE. NEITHER AM I PERSUADED BY THE FACT A RULE CANNOT BE INVALIDATED ON THE GROUNDS THAT THE CONTENTS OF THE RULE IMPACT STATEMENT ARE INSUFFICIENT OR INACCURATE PURSUANT TO 75 O.S. 303(E). SECTION 303(E) ADDRESSES THE REVIEW OF THE VALIDITY OF A RULE, PRESUMABLY BY THE COURTS, RATHER THAN REVIEW OF A PROPOSED RULE BY THE LEGISLATURE AND THE GOVERNOR. I;. ADDITION, 303(E) ADDRESSES THE SUFFICIENCY OR ACCURACY OF A RULE IMPACT STATEMENT, NOT THE FAILURE TO PROVIDE ONE UNTIL REQUESTED BY THE LEGISLATURE TO DO SO.

IT IS, THEREFORE, MY OPINION THAT THE SPEAKER OF THE HOUSE OF REPRESENTATIVES HAS PROPERLY CONSTRUED THE REQUIREMENTS OF THE OKLAHOMA ADMINISTRATIVE PROCEDURES ACT IN REQUESTING THAT THE OKLAHOMA STATE BOARD OF EMBALMERS AND FUNERAL DIRECTORS WITHDRAW ITS CURRENT RULEMAKING ACTION BECAUSE A RULE IMPACT STATEMENT WAS NOT PREPARED WITHIN THE FIFTEEN DAYS REQUIRED BY 75 O.S. 303(D). I WOULD REMIND YOU THAT THE OPINION STATED ABOVE IS THE OPINION OF THE UNDERSIGNED ATTORNEY AND NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. IF YOU HAVE ANY QUESTIONS, PLEASE FEEL FREE TO CONTACT ME.

(REBECCA RHODES)