The Vermont Statutes Online

Title 3: Executive

Chapter 25: ADMINISTRATIVE PROCEDURE

§ 800. Purpose

The general assembly intends that:

(1) agencies maximize the involvement of the public in the development of rules;

(2) agency inclusion of public participation in the rule-making processes should be consistent;

(3) the general assembly should articulate, as clearly as possible, the intent of any legislation which delegates rule-making authority;

(4) when an agency adopts policy or procedures, it should not do so to supplant or avoid the adoption of rules. (Added 1999, No. 146 (Adj. Sess.), § 2.)

§ 801. Short title and definitions

(a) This chapter may be cited as the "Vermont Administrative Procedure Act."

(b) As used in this chapter:

(1) "Agency" means a state board, commission, department, agency, or other entity or officer of state government, other than the legislature, the courts, the Commander in Chief and the Military Department, authorized by law to make rules or to determine contested cases;

(2) "Contested case" means a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing;

(3) "License" includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law;

(4) "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license;

(5) "Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party;

(6) "Person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency;

(7) "Practice" means a substantive or procedural requirement of an agency, affecting one or more persons who are not employees of the agency, which is used by the agency in the discharge of its powers and duties. The term includes all such requirements, regardless of whether they are stated in writing;

(8) "Procedure" means a practice which has been adopted in the manner provided in section 835 of this title, either at the election of the agency or as the result of a request under subsection 831(b) of this title;

(9) "Rule" means each agency statement of general applicability which implements, interprets, or prescribes law or policy and which has been adopted in the manner provided by sections 836-844 of this title;

(10) "Incorporation by reference" means the use of language in the text of a regulation which expressly refers to a document other than the regulation itself;

(11) "Adopting authority" means, for agencies which are attached to the agencies of administration, development and community affairs, natural resources, human services and transportation, or any of their components, the secretaries of those agencies; for agencies attached to other departments or any of their components, the commissioners of those departments; and for other agencies, the chief officer of the agency. However, for the procedural rules of boards with quasi-judicial powers, for the transportation board, for the Vermont veterans' memorial cemetery advisory board and for the fish and wildlife board, the chairman or executive secretary of the board shall be the adopting authority. The secretary of state shall be the adopting authority for the office of professional regulation;

(12) "Small business" means a business employing no more than 20 full-time employees. (1967, No. 360 (Adj. Sess.), § 1, eff. July 1, 1969; amended 1981, No. 82, § 1; 1983, No. 158 (Adj. Sess.), eff. April 13, 1984; 1985, No. 56, § 1; 1985, No. 269 (Adj. Sess.), § 4; 1987, No. 76, § 18; 1989, No. 69, § 2, eff. May 27, 1989; 1989, No. 250 (Adj. Sess.), § 88; 2001, No. 149 (Adj. Sess.), § 46, eff. June 27, 2002.)

§§ 802Repealed. 1981, No. 82, § 7(1).

§ 803. Repealed. 1981, No. 82, § 7(2).

§ 804. Repealed. 1981, No. 82, § 7(3).

§ 805. Repealed. 1981, No. 82, § 7(4).

§ 806. Procedure to request adoption of rules or procedures

A person may submit a written request to an agency asking the agency to adopt, amend or repeal a procedure or rule. Within 30 days of receiving the request, the agency shall initiate rule-making proceedings, shall adopt a procedure, or shall deny the request, giving its reasons in writing. (1967, No. 360 (Adj. Sess.), § 6, eff. July 1, 1969; amended 1981, No. 82, § 2.)

§ 807. Declaratory judgment on validity or applicability of rules

The validity or applicability of a rule may be determined in an action for declaratory judgment in the Washington superior court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. (1967, No. 360 (Adj. Sess.), § 7, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3.)

§ 808. Procedure to request declaratory rulings by agencies

Each agency shall provide for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency, and may so provide by procedure or rule. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases. (1967, No. 360 (Adj. Sess.), § 8, eff. July 1, 1969; amended 1981, No. 82, § 3.)

§ 809. Contested cases; notice; hearing; records

(a) In a contested case, all parties shall be given an opportunity for hearing after reasonable notice.

(b) The notice shall include:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved;

(4) a short and plain statement of the matters at issue. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.

(c) Opportunity shall be given all parties to respond and present evidence and argument on all issues involved.

(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

(e) The record in a contested case shall include:

(1) all pleadings, motions, intermediate rulings;

(2) all evidence received or considered;

(3) a statement of matters officially noticed;

(4) questions and offers of proof, objections, and rulings thereon;

(5) proposed findings and exceptions; and

(6) any decision, opinion, or report.

(f) Oral proceedings or any part thereof shall be transcribed on request of any party subject to other applicable provisions of law, and upon payment by the requesting party of the reasonable costs thereof.

(g) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

(h) The chair of a board, commission or panel, a hearing officer appointed by a board, commission or panel, or a licensed attorney representing a party before a board, commission or panel may, whether or not specifically authorized in any other provision of law, compel, by subpoena, the attendance and testimony of witnesses and the production of books and records. Sections 809a and 809b of this title shall apply to all subpoenas issued under this subsection. Notwithstanding the provisions of section 816 of this title, this subsection shall apply to the human services board, the labor relations board and the employment security board. (1967, No. 360 (Adj. Sess.), § 9, eff. July 1, 1969; amended 1987, No. 104.)

§ 809a. Enforcement of subpoenas; compulsion of testimony

(a) When an agency has issued a subpoena to compel a person to appear and testify or to produce documents or things, if the person:

(1) Has failed to appear or has failed to produce the subpoenaed materials, any party or the agency may bring a proceeding to enforce the subpoena.

(2) Has appeared but has refused to take an oath or affirmation authorized by law, or has refused to testify or to answer a question, any party or the agency may bring a proceeding to compel testimony by the person.

(b) A proceeding under this section shall be brought in superior court for the county in which the administrative proceeding is or will be held. The court shall consist of the presiding judge, sitting alone, and no jury shall be used. The proceeding shall be commenced by motion, and the motion shall be served in the manner provided for motions in civil actions. No filing fee shall be required. No answer or responsive motion is required, but such papers may be filed. The court shall schedule a hearing on the motion as soon as is reasonably practicable.

(c) In a proceeding to compel testimony, the court may order the respondent to testify and answer questions, and may impose limits on those questions or answers.

(d) In a proceeding to enforce a subpoena, if the petitioner establishes that the subpoena was properly issued, and that the person subpoenaed has failed to appear or to produce documents or things required, the court shall issue an order compelling compliance with the agency subpoena. Otherwise, the court shall vacate or modify the subpoena.

(e) In a proceeding to enforce a subpoena, after giving the respondent an opportunity to present evidence, if the court determines that the subpoena was properly issued, and that failure to comply with the agency's subpoena was without reasonable excuse, it shall assess a penalty against the respondent, to be paid to the petitioner, in an amount not to exceed $100.00 and shall also award all costs of litigation which the petitioner incurred as a result of the respondent's noncompliance, including but not limited to costs of issuing new subpoenas and incurring additional expenses for expert witnesses.

(f) A person who, without reasonable excuse, fails to comply with an order of the court issued under this section may be held to be in contempt of the court. (Added 1983, No. 230 (Adj. Sess.), § 5.)

§ 809b. Modification of subpoena or discovery order

(a) When an agency has issued a subpoena to compel testimony or the production of documents or things, or has issued a discovery order to a party, an aggrieved person may bring a proceeding to modify or vacate the subpoena or order in the superior court for the county in which the petitioner resides or in which the administrative proceeding is or will be held.

(b) The court shall consist of the presiding judge, and no jury shall be used. The proceeding shall be commenced by motion, which shall be served in the manner provided for motions in civil actions. No answer or responsive motion is required, but such papers may be filed. No filing fee shall be required. The court shall schedule a hearing on the motion as soon as is reasonably practicable.

(c) After hearing, the court may issue its order affirming, modifying, or vacating the subpoena or discovery order. (Added 1983, No. 230 (Adj. Sess.), § 5.)

§ 810. Rules of evidence; official notice

In contested cases:

(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the superior courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;

(2) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original;

(3) A party may conduct cross-examinations required for a full and true disclosure of the facts;

(4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. (1967, No. 360 (Adj. Sess.), § 10, eff. July 1, 1969; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

§ 811. Examination of evidence by agency

When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section. (1967, No. 360 (Adj. Sess.), § 11, eff. July 1, 1969.)

§ 812. Decisions and orders

(a) A final decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified forthwith either personally or by mail of any decision or order. A copy of the decision or order shall be delivered or mailed forthwith to each attorney of record and to each party not having an attorney of record. That mailing shall constitute actual knowledge to that person or party.

(b) When a decision or order is approved for issue by a board or commission, the decision or order may be signed by the chair or vicechair on behalf of the issuing board or commission. (1967, No. 360 (Adj. Sess.), § 12, eff. July 1, 1969; amended 1983, No. 190 (Adj. Sess.), § 1, eff. April 27, 1984.)

§ 813. Ex parte consultations

Unless required for the disposition of ex parte matters authorized by law, members or employees of any agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his or her representative, except upon notice and opportunity for all parties to participate. An agency member:

(1) May communicate with other members or employees of the agency; and

(2) May have the aid and advice of one or more personal assistants. (1967, No. 360 (Adj. Sess.), § 13, eff. July 1, 1969.)

§ 814. Licenses

(a) When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases shall apply.

(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.

(c) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

(d) An agency having jurisdiction to conduct proceedings and impose sanctions in connection with conduct of a licensee or former licensee shall not lose jurisdiction if the license is not renewed or is surrendered or otherwise terminated prior to initiation of such proceedings. (1967, No. 360 (Adj. Sess.), § 14, eff. July 1, 1969; amended 1987, No. 229 (Adj. Sess.), § 1; 2001, No. 151 (Adj. Sess.), § 4, eff. June 27, 2002.)

§ 815. Judicial review of contested cases

(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in any contested case may appeal that decision to the supreme court, unless some other court is expressly provided by law. However, a preliminary, procedural, or intermediate agency action or ruling is immediately appealable under those rules if review of the final decision would not provide an adequate remedy, and the filing of the appeal does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.

(b) If, before the date set for court hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decisions by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

(c) If the final decision of an agency is expressly provided by law to be reviewable in superior court or in the supreme court, such review shall be commenced by filing a notice of appeal pursuant to Rule 74 of the Vermont Rules of Civil Procedure or Rule 13 of the Vermont Rules of Appellate Procedure, as appropriate. (1967, No. 360 (Adj. Sess.), § 15, eff. July 1, 1969; amended 1971, No. 185 (Adj. Sess.), § 1, eff. March 29, 1972; 1997, No. 161 (Adj. Sess.), § 2, eff. Jan. 1, 1998.)

§ 816. Exemptions

(a) Sections 809-813 of this title shall not apply to:

(1) Acts, decisions, findings, or determinations by the Human Services Board or the Commissioner for Children and Families or a duly authorized agent, and to procedures or hearings before and by the Board or Commissioner or agent.

(2) Acts, decisions, findings, or determinations by the Employment Security Board or the Commissioner of Labor or his or her, its, or their duly authorized agents and to any and all procedures or hearings before and by him or her or it or his or her or its agents, provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) of this title shall not apply to information made confidential under federal or State law and provided further that subdivisions 802(a)(3) and (4), and subsections 802(b) and 804(a) shall not apply to a determination of a hearing or claims examiner or appeal referee.

(3) Acts, decisions, findings, or determinations by the Department of Labor or the Commissioner of Labor or his or her, its, or their duly authorized agents as to any and all procedures or hearings before and by the Department or Commissioner or his or her or their agents, arising out of or with respect to 21 V.S.A. chapter 5, subchapter 2, and chapters 9 and 11.

(b) Sections 809-814 of this title shall not apply to any and all acts, decisions, findings, or determinations by the Commissioner of Motor Vehicles or his or her duly authorized agents or to any and all procedures or hearings before and by him or her, or his or her agents, provided further that subsection 804(a) of this title shall not apply to decisions of that Commissioner respecting the grant, denial, suspension, or revocation of a license or registration under Title 23.

(c) This chapter shall not be construed to apply to the Commander-in-Chief or any other officer, individual, board, or set of persons in the Military Department of this State. (Added 1967, No. 360 (Adj. Sess.), § 17, eff. July 1, 1969; amended 1981, No. 66, § 5(b), eff. May 1, 1981; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 4; 2013, No. 15, § 7.)

§ 817. Legislative committee on administrative rules

(a) There is created a joint legislative committee to be known as the Legislative Committee on Administrative Rules. The Legislative Committee on Administrative Rules shall be composed of eight members of the General Assembly to be appointed for two-year terms ending on February 1 of odd-numbered years as follows: four members of the house of representatives, appointed by the Speaker of the House, not all from the same party, and four members of the senate to be appointed by the Senate Committee on Committees, not all from the same party. The Committee shall elect a chairman and a vice-chairman from among its members.

(b) The Committee shall meet as necessary for the prompt discharge of its duties and may use the staff and services of the Legislative Council. The Committee shall adopt rules to govern its operation and organization. A quorum of the committee shall consist of five members. For attendance at a meeting when the General Assembly is not in session, members of the Legislative Committee on Administrative Rules shall be entitled to the same per diem compensation and reimbursement for necessary expenses as provided members of standing committees under 2 V.S.A. § 406.

(c) The Legislative Committee on Administrative Rules may hold public hearings on a proposed or previously adopted rule on its own initiative. The Committee shall give public notice of any hearing at least 10 days in advance and shall notify the agency affected. Any public hearing shall be scheduled at a time and place chosen to afford opportunity for affected persons to present their views. As appropriate, the Legislative Committee on Administrative Rules shall consult with the standing legislative committee having jurisdiction in the area of the rule under review.

(d) In addition to its powers under section 842 of this title concerning rules, the Committee may, in similar manner, conduct public hearings, object, and file objections concerning existing rules. A rule reviewed under this subsection shall remain in effect until amended or repealed.

(e) At any time following its consideration of a final proposal under section 841 of this title, the Committee, by majority vote of the entire Committee, may request that any standing committees of the General Assembly review the issues or questions presented therein which are outside the jurisdiction of the committee but are within the jurisdiction of the standing committees. On receiving a request for review under this subsection, a standing Committee may at its discretion review the issues or questions and act on them. The Committee's request for review shall not affect the review or review period of a final proposal. (Added 1975, No. 211 (Adj. Sess.), § 1; amended 1979, No. 59, § 12; 1981, No. 82, § 4; 1983, No. 88, § 10, eff. July 3, 1983; 2011, No. 89 (Adj. Sess.), § 2.)

§§ 818Repealed. 1981, No. 82, § 7(5).

§ 819. Repealed. 1981, No. 82, § 7(6).

§ 820. Interagency committee on administrative rules

(a) For assistance in the review, evaluation and coordination of programs and activities of state agencies, the development of strategies for maximizing public input, and the promotion of consistent measures among agencies for involving the public in the rulemaking process, subject to the provisions of this chapter, an interagency committee on administrative rules is created. Members of the committee shall be appointed by the governor from the executive branch and shall serve at his or her pleasure.

(b) The duties and responsibilities of the committee shall be those established under this section or those directed by the governor and shall include review of existing and proposed rules of agencies designated by the governor for style, consistency with the law, legislative intent and the policies of the governor. The committee shall make reports and recommendations concerning programs and activities of designated agencies subject to this chapter.

(c) After a proposed rule is prefiled with the committee, the committee shall work with the agency and prescribe a strategy for maximizing public input on the proposed rule. The committee shall evaluate the current efforts and practices of agencies for including the public in the development of proposed rules, and shall recommend an appropriate process for maximizing public input, based on the committee's evaluation of current agency practices and the importance of public involvement, given the nature of the proposed rule. The committee shall prescribe a specific strategy regarding the location, time and frequency of public hearings, and advise the agency on specific provisions of chapter 5 of Title 1 and the consequences of failing to adhere to the prescribed strategy. (Added 1975, No. 211 (Adj. Sess.), § 2; amended 1981, No. 82, § 5; 1999, No. 146 (Adj. Sess.), § 3; 2001, No. 149 (Adj. Sess.), § 47, eff. June 27, 2002.)

§ 821. -830. [Reserved.]

§ 831. Required policy statements and rules

(a) Where due process or a statute directs an agency to adopt rules, the agency shall initiate rulemaking and adopt rules in the manner provided by sections 836-844 of this title.

(b) An agency shall adopt a procedure describing an existing practice when so requested by an interested person.

(c) An agency shall initiate rulemaking to adopt as a rule an existing practice or procedure when so requested by 25 or more persons or by the legislative committee on administrative rules. An agency shall not be required to initiate rulemaking with respect to any practice or procedure, except as provided by this subsection.

(d) An agency required to hold hearings on contested cases as required by section 809 of this title shall adopt rules of procedure in the manner provided in this chapter.

(e) Except as provided in subsections (a)-(d) of this section, an agency shall not be required to initiate rulemaking or to adopt a procedure or a rule. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 1; 2001, No. 149 (Adj. Sess.), § 48, eff. June 27, 2002.)

§ 832. Exemptions; limitations

(a) No agency shall be required to adopt a procedure or rule:

(1) which may result in the disclosure of information considered by statute to be confidential;

(2) setting forth guidelines to be used by the staff of an agency in the performance of audits, investigations, inspections, in settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution, or settlement of cases, if the disclosure of the statement would:

(A) enable law violators to avoid detection;

(B) facilitate disregard of requirements imposed by law; or

(C) give a clearly improper advantage to persons who are in an adverse position to the state; or

(3) describing the content of an agency budget.

(b) Subsection 831(c) of this title does not require any agency to adopt rules:

(1) establishing specific prices to be charged for particular goods or services sold by an agency;

(2) concerning only the physical servicing, maintenance, or care of agency owned or operated facilities or property;

(3) relating only to the use of a particular facility or property owned, operated, or maintained by the state or any of its subdivisions, if the substance of that rule is adequately indicated by means of signs or signals to persons who use the facility or property;

(4) concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, if adopted by that facility, institution, or hospital.

(c) Subsections 831(b) and (c) of this title do not require the attorney general to adopt procedures or rules describing the content of opinions or other legal advice given to agencies.

(d) Notwithstanding subsections 831(b) and (c), when an agency receives a request to adopt a procedure or rule, it may elect to issue a declaratory ruling when it has in effect a procedure or rule, as requested, which disposes of the question presented. (Added 1981, No. 82, § 6.)

§ 832a. Rules affecting small businesses

(a) Where a rule provides for the regulation of a small business, an agency shall consider ways by which a small business can reduce the cost and burden of compliance by specifying less numerous, detailed or frequent reporting requirements, or alternative methods of compliance.

(b) An agency shall also consider creative, innovative, or flexible methods of compliance with the rule when the agency finds, in writing, such action would not:

(1) significantly reduce the effectiveness of the rule in achieving the objectives or purposes of the statutes being implemented or interpreted; or

(2) be inconsistent with the language or purpose of statutes that are implemented or interpreted by the rule; or

(3) increase the risk to the health, safety, or welfare of the public or to the beneficiaries of the regulation, or compromise the environmental standards of the state.

(c) This section shall not apply where the regulation is incidental to:

(1) a purchase of goods or services by the state or an agency thereof; or

(2) the payment for goods or services by the state or an agency thereof for the benefit of a third party. (Added 1985, No. 56, § 2.)

§ 832b. Administrative rules affecting school districts

If a rule affects or provides for the regulation of public education and public schools, the agency proposing the rule shall evaluate the cost implications to local school districts and school taxpayers, clearly state the associated costs, and report them in a local school cost impact statement to be filed with the economic impact statement on the rule required by subsection 838(c) of this title. An agency proposing a rule affecting school districts shall also consider and include in the local school cost impact statement an evaluation of alternatives to the rule, including no rule on the subject which would reduce or ameliorate costs to local school districts while achieving the objectives or purposes of the proposed rule. The legislative committee on administrative rules may object to any proposed rule if a local school cost impact statement is not filed with the proposed rule, or the committee finds the statement to be inadequate, in the same manner in which the committee may object to an economic impact statement under section 842 of this title. (Added 2003, No. 68, § 44.)

§ 833. Style of rules

Rules and procedures shall be written in a clear and coherent manner using words with common and everyday meanings, consistent with the text of the rule or procedure. (Added 1981, No. 82, § 6.)

§ 834. Periodic review of rules and forms

(a) Upon written request to an agency by the legislative committee on administrative rules, a rule or part of a rule that has not been adopted, readopted or substantially amended during the preceding six years shall expire one year from the date of the request. However, this section does not prevent the agency from adopting the same or a similar rule during that year.

(b) The secretary of state shall review all forms used by agencies and affecting members of the public and shall make recommendations for their simplification and consolidation. Agencies shall provide the secretary with information reasonably requested for this purpose. The recommendations shall be sent to the agencies concerned, and to the chairs of the legislative committee on administrative rules and the interagency committee on administrative rules. (Added 1981, No. 82, § 6.)

§ 835. Compilation of procedures

Procedures shall be maintained by the agency in an official current compilation that is indexed by subject. Each addition, change or deletion to the official compilation shall also be dated, indexed and recorded. The compilation shall be a public record. (Added 1981, No. 82, § 6.)

§ 836. Procedure for adoption of rules

Except for emergency rules, rules shall be adopted by taking the following steps:

(1) prefiling, when required;

(2) filing proposed rule;

(3) publishing proposed rule;

(4) holding public hearing and receiving comments;

(5) filing final proposal;

(6) responding to legislative committee on administrative rules when required; and

(7) filing adopted rule. (Added 1981, No. 82, § 6.)

§ 837. Prefiling

Except for emergency rules, a rule shall be prefiled with the interagency committee on administrative rules 15 days before filing under section 838 of this title. (Added 1981, No. 82, § 6; amended 2001, No. 149 (Adj. Sess.), § 49, eff. June 27, 2002.)

§ 838. Filing of proposed rules

(a) Proposed rules shall be filed with the secretary of state. The filing shall include the following:

(1) a cover sheet;

(2) an economic impact statement;

(3) an incorporation by reference statement, if the proposed rule includes an incorporation by reference;

(4) an adopting page;

(5) the text of the proposed rule;

(6) an annotated text showing changes from existing rules;

(7) an explanation of the strategy for maximizing public input on the proposed rule as prescribed by the interagency committee on administrative rules; and

(8) a brief summary of the scientific information upon which the proposed rule is based to the extent the proposed rule depends on scientific information for its validity.

(b) The cover sheet shall be on a form prepared by the secretary of state containing at least the following information:

(1) the name of the agency;

(2) the title or subject of the rule;

(3) a concise summary explaining the effect of the rule;

(4) the specific statutory authority for the rule, and, if none exists, the general statutory authority for the rule;

(5) an explanation of why the rule is necessary;

(6) an explanation of the people, enterprises and government entities affected by the rule;

(7) a brief summary of the economic impact of the rule;

(8) the name, address and telephone number of an individual in the agency able to answer questions and receive comments on the proposal;

(9) a proposed schedule for completing the requirements of this chapter, including, if there is a hearing scheduled, the date, time and place of that hearing, and a deadline for receiving comments; and

(10) a signed and dated statement by the adopting authority approving the contents of the filing.

(c)(1) The economic impact statement shall analyze the anticipated costs and benefits to be expected from adoption of the rule. Specifically, each economic impact statement shall, for each requirement in the rule:

(A) list categories of people, enterprises and government entities potentially affected and estimate for each the costs and benefits anticipated;

(B) compare the economic impact of the rule with the economic impact of other alternatives to the rule, including no rule on the subject or a rule having separate requirements for small business;

(C) include a flexibility statement. The flexibility statement shall compare the burden imposed on small businesses by compliance with the rule to the burden which would be imposed by alternatives considered under section 832a of this title;

(D) include a greenhouse gas impact statement. The greenhouse gas impact statement shall explain how the rule has been crafted to reduce the extent to which greenhouse gases are emitted. The secretary of administration, in conjunction with the secretaries of agriculture, food and markets, of natural resources, and of transportation, and the commissioner of public service shall provide a checklist which shall be used in the adoption of rules to assure the full consideration of greenhouse gas impacts, direct and indirect.

(2) In addition, each economic impact statement shall conclude that the rule is the most appropriate method of achieving the regulatory purpose and, with respect to small businesses, contain any findings required by section 832a of this title. Only employees of the agency and information either already available to the agency or available at reasonable cost shall be used in preparing economic impact statements.

(d) Any required incorporation by reference statement shall include a separately signed statement by the adopting authority:

(1) certifying that the text of the matter incorporated has been reviewed by the agency, with the name of the reviewing official;

(2) explaining how the text of the matter incorporated can be obtained by the public, and at what cost;

(3) explaining any modifications to the matter incorporated;

(4) discussing the comparative desirability of reproducing the incorporated matter in full in the text of the rule; and

(5) certifying that the agency has the capability and the intent to enforce the rule.

(e) The adopting page shall be on a form prepared by the secretary of state and shall contain the name of the agency, the subject of the proposed rule, an explanation of the effect of the proposal on existing rules and any internal reference number assigned by the agency.

(f) The annotated text of the rule shall include markings to clearly indicate changed wording from any existing rule.

(g) The brief summary of scientific information shall refer to scientific studies upon which the proposed rule is based and shall explain the procedure for obtaining such studies from the agency. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 3; 1999, No. 146 (Adj. Sess.), § 4; 2001, No. 149 (Adj. Sess.), § 50, eff. June 27, 2002; 2007, No. 209 (Adj. Sess.), § 1.)

§ 839. Publication of proposed rules

(a) The Secretary of State shall publish online notice of a proposed rule within two weeks of receipt of the proposed rule. Notice shall include the following information:

(1) the name of the agency;

(2) the title or subject of the rule;

(3) a concise summary of the effect of the rule;

(4) an explanation of the people, enterprises, and governmental entities affected by the rule;

(5) a brief summary of economic impact;

(6) the name, telephone number, and address of an agency official able to answer questions and receive comments on the proposal;

(7) the date, time, and place of the hearing or hearings; and

(8) the deadline for receiving comments.

(b) The Secretary of State may edit all notices for clarity, brevity, and format and shall include a brief statement explaining how members of the public can participate in the rulemaking process.

(c) The Secretary of State shall arrange for one formal publication, in a consolidated advertisement in newspapers having general circulation in different parts of the state as newspapers of record approved by the secretary of state, of information relating to all proposed rules that includes the following information:

(1) the name of the agency and its Internet address;

(2) the title or subject and a concise summary of the rule; and

(3) the office name, office telephone number, and office mailing address of an agency official able to answer questions and receive comments on the proposal.

(d) The Secretary of State shall be reimbursed by agencies making publication in accordance with subsection (c) of this section so that all costs are prorated among agencies publishing at the same time. (Added 1981, No. 82, § 6; amended 2009, No. 146 (Adj. Sess.), § F2; 2013, No. 1, § 79.)

§ 840. Public hearing and comment

(a) The agency may hold one or more public hearings for each proposed rule. A public hearing shall be scheduled if so requested by 25 persons, by a governmental subdivision or agency, by the interagency committee on administrative rules, or by an association having 25 or more members. The first hearing shall not be held sooner than 30 days following the notice required by section 839 of this title.

(b) On request, the agency shall promptly provide a copy of a proposed or final proposed rule. If the copy is mailed, it shall be sent not later than the end of the third working day after the request is received. The agency may charge for copying costs in the amount provided by law.

(c) An agency shall afford all persons reasonable opportunity to submit data, views or arguments, orally or in writing, at least through the seventh day following the last public hearing.

(d) The agency shall consider fully all written and oral submissions concerning the proposed rule, and all submissions on separate requirements for small businesses. The agency shall provide information to all individuals, who submitted written or oral comment, on the procedure for adoption of rules and how to obtain changes in the proposed rule.

(e) If requested by an interested person at any time before 30 days after final adoption of a rule, the adopting authority shall issue an explanation of the proposed rule. The explanation shall include:

(1) a concise statement of the principal reasons for and against the adoption of the rule in its final form; and

(2) an explanation of why the adopting authority overruled the arguments and considerations against the rule. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 4; 1999, No. 146 (Adj. Sess.), § 5; 2009, No. 146 (Adj. Sess.), § F3.)

§ 841. Final proposal

(a) After considering public comment as required in section 840 of this title, an agency shall file a final proposal with the secretary of state and with the legislative committee on administrative rules.

(b) The filing of the final proposal shall include all information required to be filed with the original proposal, suitably amended to reflect any changes made in the rule and the fact that public hearing and comment has been completed. Where an agency decides in a final proposal to overrule substantial arguments and considerations raised for or against the original proposal or to reject suggestions with respect to separate requirements for small businesses, the final proposal shall include a description of the reasons for the agency's decision.

(c) The legislative committee on administrative rules shall distribute , by email or regular mail, a brief summary of final proposed rules to the chairs of the appropriate standing committees. In addition, upon request, each member of the appropriate standing committee shall be notified by email or in summary fashion that the final proposed rule has been filed, the date of filing, and, upon request, shall be provided with a copy of the filing.

(d) The chair of a standing committee which considered legislation delegating rulemaking authority may convene the committee for the purpose of considering a recommended course of action for the legislative committee on administrative rules. The chair may convene such a meeting, pursuant to 2 V.S.A. § n 406, while the general assembly is not in session. Any recommended course of action shall be filed with the legislative committee on administrative rules no later than five working days before the committee has scheduled a review of the proposed rule. (Added 1981, No. 82, § 6; amended 1985, No. 56, § 5; 1989, No. 134 (Adj. Sess.); 1999, No. 146 (Adj. Sess.), § 6; 2001, No. 149 (Adj. Sess.), § 51, eff. June 27, 2002.)

§ 842. Review by legislative committee

(a) Within 30 days of the date a rule is first placed on the committee's agenda but no later than 45 days after the filing of a final proposal unless the agency consents to an extension of this review period, the legislative committee on administrative rules, by majority vote of the entire committee, may object under subsection (b), (c), or (d) of this section, and recommend that the agency amend or withdraw the proposal. The agency shall be notified promptly of the objections. Failure to give timely notice shall be deemed approval. The agency shall within 14 days of receiving notice respond in writing to the committee. After receipt of this response the committee may withdraw or modify its objections.

(b) The committee may object under this subsection if:

(1) a proposed rule is beyond the authority of the agency;

(2) a proposed rule is contrary to the intent of the legislature;

(3) a proposed rule is arbitrary; or

(4) the agency did not adhere to the strategy for maximizing public input prescribed by the interagency committee on administrative rules.

When objection is made under this subsection, and the objection is not withdrawn after the agency responds, on majority vote of the entire committee, it may file the objection in certified form with the secretary of state. The objection shall contain a concise statement of the committee's reasons for its action. The secretary shall affix to each objection a certification of its filing and as soon as practicable transmit a copy to the agency. After a committee objection is filed with the secretary under this subsection, or on the same grounds under subsection 817(d) of this title, to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is not arbitrary, and the agency did adhere to the strategy for maximizing public input prescribed by the interagency committee on administrative rules. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule is not an implied legislative authorization of its substantive or procedural lawfulness.

(c) The committee may object under this subsection if a proposed rule is not written in a satisfactory style according to section 833 of this title.

(d) The committee may object under this subsection if the economic impact statement fails to recognize a substantial economic impact of the proposed rule that the committee describes in its notice of objection.

The committee may object one time under this subsection and return the proposed rule to the agency as unacceptable for filing. The agency may then cure the defect and adopt the rule, or it may adopt the rule without change.

(e) When an objection is made under subsection (b) of this section and has been certified by the secretary of state, notice of the objection shall be included on all copies of the rule distributed to the public. (Added 1981, No. 82, § 6; amended 1981, No. 158 (Adj. Sess.), § 1; 1999, No. 9, § 1, eff. May 4, 1999; 2001, No. 149 (Adj. Sess.), § 52, eff. June 27, 2002.)

§ 843. Filing of adopted rules

(a) An adopting authority may adopt a properly filed final proposed rule after:

(1) The passage of 30 days from the date a rule is first placed on the committee's agenda or 45 days after filing of a final proposal under section 841 of this title, whichever occurs first, provided the agency has not received notice of objection from the legislative committee on administrative rules; or

(2) Receiving notice of approval from the legislative committee on administrative rules; or

(3) Responding to an objection of the legislative committee on administrative rules under section 842 of this title.

(b) The text of the adopted rule shall be the same as the text of the final proposed rule submitted under section 841, except that any germane change may be made by the agency in response to an objection or expressed concern of the legislative committee on administrative rules.

(c) Adoption shall be complete upon proper filing with the secretary of state and with the legislative committee on administrative rules. An agency shall have eight months from the date of initial filing with the secretary of state to adopt a rule unless extended by action or request of the legislative committee on administrative rules. The secretary of state shall refuse to accept a final filing after that date.

(d) Adopted rules filed shall include:

(1) A cover sheet on a form prepared by the secretary of state containing at least the following information:

(A) the name of the agency;

(B) the title or subject of the rule;

(C) a brief summary of any changes made since the filing of the final proposed rule, including any changes in expected economic impact;

(D) a summary of the dates on which the agency complied with the procedural requirements of this chapter; and

(E) a signed and dated statement by the adopting authority that the procedural requirements of this chapter have been met and that the adopting authority approves of the contents of the filing; and

(2) An adopting page as required by section 838 of this title; and

(3) The text of the rule.

(e) After adopting a rule, the agency shall create a file containing all papers used or created in that action. The file shall be retained for at least one year. (Added 1981, No. 82, § 6; amended 1983, No. 202 (Adj. Sess.), § 1, eff. April 26, 1984; 1999, No. 9, § 2, eff. May 4, 1999.)

§ 844. Emergency rules

(a) Where an agency believes that there exists an imminent peril to public health, safety, or welfare, it may adopt an emergency rule. The rule may be adopted without having been prefiled or filed in proposed or final proposed form, and may be adopted after whatever notice and hearing that the agency finds to be practicable under the circumstances. The agency shall make reasonable efforts to ensure that emergency rules are known to persons who may be affected by them.

(b) Emergency rules adopted under this section shall not remain in effect for more than 120 days. An agency may propose a permanent rule on the same subject at the same time that it adopts an emergency rule.

(c) Emergency rules adopted under this section shall be filed with the Secretary of State and with the Legislative Committee on Administrative Rules. The Legislative Committee on Administrative Rules shall distribute copies of emergency rules to the appropriate standing committees.

(d) Emergency rules adopted under this section shall include:

(1) as much of the information required for the filing of a proposed rule as is practicable under the circumstances; and

(2) a signed and dated statement by the adopting authority explaining the nature of the imminent peril to the public health, safety, or welfare and approving of the contents of the rules.

(e)(1) On a majority vote of the entire Committee, the Committee may object under this subsection if an emergency rule is:

(A) beyond the authority of the agency;

(B) contrary to the intent of the Legislature;

(C) arbitrary; or

(D) not necessitated by an imminent peril to public health, safety, or welfare sufficient to justify adoption of an emergency rule.

(2) When objection is made under this subsection, on majority vote of the entire Committee, the Committee may file the objection in certified form with the Secretary of State. The objection shall contain a concise statement of the Committee's reasons for its action. The Secretary shall affix to each objection a certification of its filing and as soon as practicable transmit a copy to the agency. After a committee objection is filed with the Secretary under this subsection, to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the Legislature, is not arbitrary, and is justified by an imminent peril to the public health, safety, or welfare. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the Committee to object to a rule is not an implied legislative authorization of its substantive or procedural lawfulness.

(3) When the Committee makes an objection to an emergency rule under this subsection, the agency may withdraw the rule to which an objection was made. Prior to withdrawal, the agency shall give notice to the Committee of its intent to withdraw the rule. A rule shall be withdrawn upon the filing of a notice of withdrawal with the Secretary of State and the Committee. If the emergency rule amended an existing rule, upon withdrawal of the emergency rule, the existing rule shall revert to its original form, as though the emergency rule had never been adopted. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 2; 2011, No. 89 (Adj. Sess.), § 1.)

§ 845. Effect of rules

(a) Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as provided by subsections 842(b) and 844(e) of this title, rules shall be prima facie evidence of the proper interpretation of the matter that they refer to.

(b) No agency shall grant routine waivers of or variances from any provisions of its rules without either amending the rules, or providing by rule for a waiver or variance procedure. The duration of the waiver or variance may be temporary if the rule so provides.

(c) Nothing in this chapter:

(1) allows rules to provide for penalties, fines or imprisonment not authorized by other law;

(2) enlarges the authority of any agency to impose requirements on any member of the public; or

(3) allows an agency by rule to require permits, licenses or fees or to define unprofessional conduct unless specifically authorized by other law.

(d) Rules adopted under this chapter shall take effect 15 days after adoption is complete or at a later time provided in the text of the rule or on its adopting page. However, an emergency rule shall take effect upon filing, or at a later time provided in the text of the rule or on its adopting page.

(e) Rules shall remain in effect until:

(1) repealed or modified by subsequent rule;

(2) limited or invalidated by a court; or

(3) repealed or modified by statute. (Added 1981, No. 82, § 6; amended 1995, No. 61, § 3; 1995, No. 186 (Adj. Sess.), § 32, eff. May 22, 1996; 1999, No. 52, § 44.)

§ 846. Remedies for procedural failures

(a) The following shall prevent a rule from taking effect:

(1) failure to file with the secretary of state;

(2) failure to file with the legislative committee on administrative rules;

(3) failure to file with the interagency committee on administrative rules; or

(4) failure to respond to an objection of the legislative committee on administrative rules as required in section 842 of this title.

(b) The following shall not affect the validity of a rule after its adoption:

(1) inadvertent failure to make required assurances relating to an incorporation by reference; or

(2) amendment after public hearing of the text of a proposed rule in a manner that does not cause the published summary of the rule to become misleading or inadequate; or

(3) failure to certify that all procedures required by this chapter have been satisfied; or

(4) failure to meet the style requirements of section 833 of this title; or

(5) inadvertent failure to mail notice or copies of any rule.

(c) For other violations of this chapter, the court may fashion appropriate relief.

(d) An action to contest the validity of a rule for noncompliance with any of the provisions of this chapter other than those listed in subsection (a) of this section must be commenced within one year after the effective date of the rule. (Added 1981, No. 82, § 6; amended 1995, No. 61 § 4; 2001, No. 149 (Adj. Sess.), § 53, eff. June 27, 2002.)