Administrative Rule Review Report  #AR10-004

Legislative Service Office

12-Jan-10

AGENCY: Department of Agriculture.

DATE SUBMITTED: January 7, 2010.

SUBJECT: Chapter 18, Weights and Measures, Metrology Laboratory and Registered Service Technicians; Chapter 15,Checkweighing Prepackaged Commodities (Repeal); Chapter XVIII, Specifications, Tolerances and Testing Procedures for Weighing Devices (Repeal); and Chapter XX, Registration of Weighing and Measuring Device Service Technicians (Repeal).

NATURE OF RULES:                     Legislative, Procedural

STATUTORY AUTHORITY:         W.S. 40-10122(a)(iii), (viii) and (xi).

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: 

Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28‑9‑103(d).  No comments have been received to date.  However, in response to a public comment, the Agency eliminated an expiration date of January 1, 2020 in three places in new Chapter 18, Section 4.  The Attorney General's Office has tendered a note saying the change is not a substantive change because "it leaves current practice unchanged, does not change the intent of the rules, and makes the rules less restrictive".

This is a new chapter and the three existing chapters are being repealed.  The elimination of the expiration date appears to be beyond a change considered to be a typo, error or organization.  Rather, this change to make these rules "less restrictive" would appear to be a substantive change, requiring these rules to be resubmitted to the public for public comment pursuant to W.S. 16-3-103(a)(i).  Someone who may not have submitted a comment to the proposed rule with the inclusion of the expiration date, should have the opportunity to submit a comment on the proposed rule after the expiration date had been eliminated.

Further, pursuant to W.S. 28‑9‑103(d), the new rules are required to be submitted to legislators and legislative committees who are the primary sponsors of the legislation.  The elimination of the expiration date to these new rules from the proposed rules was not provided to LSO.  Therefore, the final rules as submitted to LSO appear to be a different set of rules than were submitted to the sponsors of the legislation.

Administrative Rule Review Report  #AR10-004

Legislative Service Office

12-Jan-10

Page 2

SUMMARY OF RULES:  These new rules combine old Chapters 15, 18 and 20 into a new Chapter 18 and then the old Chapters 15, 18 and 20 are repealed.  These rules are being promulgated to reflect changes made to the weights and measures law pursuant to 2009 Session Laws, Chapter 191.  These new rules contain definitions, provide technical requirements for weighing and measuring devices and checking net contents of packaged goods, contain exemptions, provide for inspections and testing of weights and measures used commercially, provide for registered service technicians, registration and certification of service technicians, establish testing and inspection fees, laboratory fees and establishment license fees.  These rules adopt federal handbooks by reference that are specific to weighing and measuring devices, laboratory operations and current industry practices.

FINDINGS:  The rules appear to be within the scope of statutory authority and legislative intent of 2009 Session Laws, Chapter 191.  However, the rules do not appear to be filed in compliance with W.S. 16-3-103(a)(i). 

STAFF RECOMMENDATION:  That the Council recommend the Governor not approve the rules for failure to comply with procedural requirements for adoption of rules, as noted in the rule review report.

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Maxine R. Weaver

Staff Attorney

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Lynda G. Cook

Staff Attorney

MRW/