§ 16-3-103 — Adoption, amendment and repeal of rules; notice; hearing; emergency rules; proceedings to contest; review and approval by governor

(a) Prior to an agency's adoption, amendment or repeal of
all rules other than interpretative rules or statements of
general policy, the agency shall:
(i) Give at least forty-five (45) days notice of its
intended action. Notice shall be mailed to all persons making
timely requests of the agency for advanced notice of its
rulemaking proceedings and to the attorney general, the
secretary of state's office as registrar of rules, and the
legislative service office if a state agency. The agency shall
submit a copy of the proposed rules, in a format conforming to
any requirements prescribed pursuant to subsection (f) of this
section, with the notice given to the legislative service
office. The notice shall include:
(A) The time when, the place where and the
manner in which interested persons may present their views on
the intended action;
(B) A statement of the terms and substance of
the proposed rule or a description of the subjects and issues
involved;
(C) If an amendment or a repeal, the citation to
the agency rule to be amended or repealed;
(D) If new rules, a statement that they are new
rules and a citation of the statute which authorizes adoption of
the rules;
(E) The place where an interested person may
obtain a copy of the proposed rules in a format conforming to
any requirements prescribed pursuant to subsection (f) of this
section;
(F) If the agency asserts that all or a portion
of a rule is proposed to be adopted, amended or repealed in
order for the state to comply with federal law or regulatory
requirements:
(I) A statement that the adoption,
amendment or repeal of the rule is required by federal law or
regulation together with citations to the applicable federal law
or regulation; and
(II) A statement whether the proposed rule
change meets minimum federal requirements or whether the
proposed rule change exceeds minimum federal requirements.
(G) A statement whether the proposed rule change
meets minimum substantive state statutory requirements or
whether the proposed rule change exceeds minimum substantive
state statutory requirements. If the rule change exceeds minimum
substantive state statutory requirements, the agency shall
include a statement explaining the reason why the rule exceeds
minimum substantive statutory requirements;
(H) A statement that the agency has complied
with the requirements of W.S. 9-5-304 and the location where an
interested person may obtain a copy of the assessment used to
evaluate the proposed rule pursuant to W.S. 9-5-304;
(J) A concise statement of the principal reasons
for adoption of the rule. In compliance with Tri-State
Generation and Transmission Association, Inc. v. Environmental
Quality Council, 590 P.2d 1324 (Wyo. 1979), the statement shall
include a brief explanation of the substance or terms of the
rule and the basis and purpose of the rule;
(K) If a state agency is proposing a rule that
differs from the uniform rules listed in subsection (j) of this
section, a statement of the reasons for varying from the uniform
rules.
(ii) Afford all interested persons reasonable
opportunity to submit data, views or arguments, orally or in
writing, provided this period shall consist of at least forty-
five (45) days from the later of the dates specified under
subparagraph (A) of this paragraph, and provided:
(A) In the case of substantive rules,
opportunity for oral hearing shall be granted if requested by
twenty-five (25) persons, or by a governmental subdivision, or
by an association having not less than twenty-five (25) members.
No hearing under this subparagraph shall be conducted until at
least forty-five (45) days after the later of:
(I) The date notice of intended action is
given under paragraph (i) of this subsection; or
(II) The date notice is published if
publication is required by subsection (e) of this section.
(B) The agency shall consider fully all written
and oral submissions respecting the proposed rule;
(C) If prior to final adoption any person
objects to the accuracy of a statement made by the agency
pursuant to W.S. 16-3-103(a)(i)(F)(I) or (II), the agency shall:
(I) Provide the objecting person with a
written response explaining and substantiating the agency's
position by reference to federal law or regulations; and
(II) Include with the final rules submitted
for review to the governor and legislative service office a
concise statement of the objection and the agency's response.
(D) Upon adoption of the rule, the agency, if
requested to do so by an interested person, either prior to
adoption or within thirty (30) days thereafter, shall issue a
concise statement of the principal reasons for overruling the
consideration urged against its adoption.
(iii) Comply with the requirements of W.S. 9-5-304.
(b) When an agency finds that an emergency requires the
agency to proceed without notice or opportunity for hearing
required by subsection (a) of this section, it may adopt
emergency rules. An emergency rule is effective when filed. A
state agency emergency rule shall bear the endorsement of the
governor's concurrence on the finding of emergency before the
registrar of rules accepts the rule for filing. The rule so
adopted shall be effective for no longer than one hundred twenty
(120) days but the adoption of an identical rule under W.S.
16-3-103(a) or of an emergency rule under this subsection is not
precluded. In no case shall identical or substantially similar
emergency rules be effective for a total period of more than two
hundred forty (240) days. A local agency may proceed with the
emergency rule when notice of the emergency is filed with the
local registrar of rules.
(c) No rule is valid unless submitted, filed and adopted
in substantial compliance with this section. A proceeding to
contest any rule on the ground of noncompliance with the
procedural requirements of this section must be commenced within
two (2) years from the effective date of the rule.
(d) No state agency rule or any amendment, repeal,
modification or revision of the rule may be filed with the
registrar of rules unless the rule has been submitted to the
governor for review and the governor has approved and signed the
rule. Except in the case of emergency rules and rules adopted by
the game and fish commission fixing general hunting or fishing
regulations, season or bag limits or establishing hunting areas,
the governor shall not approve any rule until the date of
receipt of the legislative management council's recommendation
under W.S. 28-9-106(a) or until forty (40) days after the rule
is filed with the legislative service office pursuant to W.S.
28-9-103(b), whichever is sooner. During the process of
approving rules, the governor may disapprove any portion of a
rule not conforming to paragraphs (d)(i), (ii) or (iii) of this
section by clearly indicating the portion of the rule
disapproved and the basis for the disapproval. Only those
portions of a rule approved by the governor shall be filed with
the registrar of rules as provided by W.S. 16-3-104(a). Any
portion of a rule disapproved by the governor shall be returned
to the agency and shall be null and void and shall not be filed,
implemented or enforced. The governor shall report his
disapproval of any rule or portion thereof to the management
council within fifteen (15) days. The governor shall not approve
any rule or any amendment, repeal, modification or revision of
the rule unless it:
(i) Is within the scope of the statutory authority
delegated to the adopting agency;
(ii) Appears to be within the scope of the
legislative purpose of the statutory authority; and
(iii) Has been adopted in compliance with the
procedural requirements of this act. For the purposes of this
subsection, an "agency" means any authority, bureau, board,
commission, department, division, officer or employee of the
state, excluding the state legislature and the judiciary.
(e) If a state agency created as a licensing or regulatory
board or commission for any profession or occupation regulated
under title 33 regularly publishes a newsletter, memorandum or
other written or electronic communication which serves as a
medium to provide information to members of the regulated
profession or occupation, then in addition to the notice
requirements of subsection (a) of this section, the agency shall
publish within that medium the proposed rules in a format
conforming to any requirements prescribed pursuant to subsection
(f) of this section. If the agency determines publication in
such manner is not practicable, it shall publish within the
chosen medium at least once prior to taking final action to
adopt, amend or repeal any rule notice of its intended
rulemaking proceedings and make available the full text of all
proposed changes in the format conforming to any requirements
prescribed pursuant to subsection (f) of this section. This
subsection shall not apply to emergency rules adopted pursuant
to subsection (b) of this section.
(f) The state registrar of rules shall prescribe a format
for state agencies to follow in preparing proposed amendments to
existing rules which shall ensure that additions to and
deletions from existing language are clearly indicated.
(g) Upon receipt of a notice of intended action from a
state agency under paragraph (a)(i) of this section, the
secretary of state's office shall maintain a file of these
notices and make them available for public inspection during
regular business hours. A notice shall remain in the file until
the rules are adopted or until the agency determines not to take
action to adopt the proposed rules. To the extent that resources
enable the office to do so, the secretary of state's office
shall make these notices available to the public electronically.
The secretary of state may promulgate rules specifying the
format of notices submitted by state agencies under this
subsection. Compliance with this subsection shall not affect the
validity of rules promulgated by state agencies.
(h) An agency may incorporate, by reference in its rules
and without publishing the incorporated matter in full, all or
any part of a code, standard, rule or regulation that has been
adopted by an agency of the United States or of this state,
another state or by a nationally recognized organization or
association, provided:
(i) The agency determines that incorporation of the
full text in agency rules would be cumbersome or inefficient
given the length or nature of the rules;
(ii) 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;
(iii) The agency, organization or association
originally issuing the incorporated matter makes copies of it
readily available to the public;
(iv) The incorporating agency maintains and makes
available for public inspection a copy of the incorporated
matter at cost from the agency and the rules of the
incorporating agency state where the incorporated matter is
available on the internet as defined in W.S. 9-2-3219(a)(iii);
and
(v) The incorporating agency otherwise complies with
all procedural requirements under this act and the rules of the
registrar of state agency rules governing the promulgation and
filing of agency rules.
(j) Each state agency shall adopt as much of the uniform
rules promulgated pursuant to the following provisions as is
consistent with the specific and distinct requirements of the
agency and state or federal law governing or applicable to the
agency:
(i) W.S. 16-3-102(d);
(ii) W.S. 16-4-204(e).