Tennessee Administrative Procedure Act
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The Tennessee Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in Tennessee. It can be found in Title 4, Chapter 5 of the Tennessee Code.[1]
Part 1: General provisions
Section 4-5-101: Short title
Text of Section 4-5-101:
| This chapter may be cited as the "Uniform Administrative Procedures Act."[2] |
Section 4-5-102: Chapter definitions
Text of Section 4-5-102:
| As used in this chapter, unless the context otherwise requires:
(2) "Agency" means each state board, commission, committee, department, officer, or any other unit of state government authorized or required by any statute or constitutional provision to make rules or to determine contested cases; (3) "Contested case" means a proceeding, including a declaratory proceeding, in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing. Such proceeding may include rate making; price fixing; granting of certificates of convenience and necessity; the making, review or equalization of tax assessments; the granting or denial of licenses, permits or franchises where the licensing board is not required to grant the licenses, permits or franchises upon the payment of a fee or the finding of certain clearly defined criteria; and suspensions of, revocations of, and refusals to renew licenses. An agency may commence a contested case at any time with respect to a matter within the agency's jurisdiction; (4) "Hearing officer" means an agency member, agency employee or employee or official of the office of the secretary of state, not licensed to practice law, and authorized by law to conduct a contested case proceeding pursuant to § 4-5-301; (5) "License" includes the whole or part of any agency, permit, certificate, approval, registration, charter or similar form of permission required by law; (6) "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, withdrawal or amendment of a license; (7) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of a specific person or persons; (8) "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; (9) "Person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character, including another agency; (10) "Policy" means a set of decisions, procedures and practices pertaining to the internal operation or actions of an agency; (11) "Publication" means a posting of materials on the appropriate web site by the secretary of state that have been submitted in accordance with this chapter or any other information for which the secretary of state is responsible; (12) “Rule” means any agency regulation, standard, statement, or document of general applicability that is not a policy as defined in subdivision (10) that: A. Describes the procedure or practice requirements of an agency; or B. Implements, prescribes, or interprets an enactment of the general assembly or congress or a regulation adopted by a federal agency. “Rule” includes the establishment of a fee and the amendment or repeal of a prior rule. “Rule” does not include: i. Declaratory orders issued pursuant to § 4-5-223; ii. Intra-agency memoranda; iii. General policy statements that are substantially repetitious of existing law; iv. Agency statements that: a. Relate to the use of the highways and are made known to the public by means of signs or signals; or b. Relate to the curriculum of individual state-supported institutions of postsecondary education or to the admission or graduation of students of such individual institutions but not to the discipline or housing of students; Rate filings pursuant to title 56, chapters 5 and 6; or Statements concerning inmates of a correctional or detention facility, or statements concerning offenders who are serving a sentence under probation or parole in the community; and “Small business” means a business entity, including its affiliates, that employs fifty (50) or fewer full-time employees.[3] |
Section 4-5-103: Construction of chapter
Text of Section 4-5-103:
| (a)(1) This chapter shall not be construed as in derogation of the common law, but as remedial legislation designed to clarify and bring uniformity to the procedure of state administrative agencies and judicial review of their determination and shall be applied accordingly.
(b) This chapter does not repeal § 65-2-110, and where there is a conflict between this chapter and that section, that section shall control. In any other case of conflict between this chapter and any statute, whether general or specific, this chapter shall control; however, compliance with the procedures prescribed by this chapter does not obviate the necessity of complying with procedures prescribed by other provisions of this code. (c) Nothing in this chapter shall be held to modify or repeal the statutes with respect to payment of taxes under protest and suits for the recovery thereof.[4] |
Section 4-5-104: Suspension of provisions when necessary to avoid loss of federal funds
Text of Section 4-5-104:
| (a) The governor may exempt an agency from complying with any provision of this chapter where necessary to conform to any provisions of federal law or rules and regulations as a condition to the receipt of federal granted funds provided that:
(2) The governor determines that the alternative procedure necessary to satisfy federal funding requirements does not abrogate basic fairness; (3) The governor exempts that agency from only those provisions of the chapter compliance with which would jeopardize federal funding; (4) The governor states in detail and in writing the governor's findings under subdivisions (a)(1) and (2), the extent of the agency's exemption under subdivision (a)(3), and the alternative procedures to replace those procedures from which the agency is exempted under this section; (5) The governor files a copy of such written statement with the secretary of state; (6) The effectiveness of the exemption shall in no case be extended beyond thirty (30) days after the date of adjournment of the next session of the general assembly lasting ten (10) legislative days or longer; and that if the general assembly fails to act within such legislative session to make by law such exemption permanent, then the governor may not at a later time reinstitute the same exemption; and (7) The governor may at any time determine that the federal funding is no longer jeopardized and at such time revoke the governor's exemption of an agency from any particular provision of the chapter, which revocation shall be effective upon the governor filing a written statement to that effect with the secretary of state. (b) Such administrative latitude is intended to facilitate the operation of state government and cooperation between the state of Tennessee and the United States government and shall not be used to create job positions that are intended to exist beyond the federal funding, nor to create any program requiring the expenditure of state funds not specifically directed by the general assembly, or that are intended to exist beyond the federal funding.[5] |
Section 4-5-105: Informal settlements
Text of Section 4-5-105:
| Except to the extent precluded by another provision of law, informal settlement of matters that may make unnecessary more elaborate proceedings under this chapter is encouraged. Agencies may establish specific procedures for attempting and executing informal settlement of matters. This section does not require any party or other person to settle a matter pursuant to informal procedures.[6] |
Section 4-5-106: Application
Text of Section 4-5-106:
| (a) This chapter shall not apply to the military, the governor, the general assembly, the state building commission, the state funding board or the courts, nor shall it apply to county and municipal boards, commissions, committees, departments or officers.
(c) Sections 4-5-105, 4-5-219, 4-5-223, 4-5-225 and 4-5-301 -- 4-5-323 shall not apply to the board of claims, the state election commission or the board of parole. (d) The rulemaking and publication provisions of this chapter shall not apply to proclamations promulgated under title 70, and the promulgation, filing and publication provisions of such title shall control, except that the secretary of state shall publish on the administrative register web site current and effective proclamations in the same manner that rules and other notices are published under § 4-5-220. The text of proclamations shall be published on the administrative register web site under the proclamation section and shall have the same weight and effect prescribed in § 4-5-221(c), for the text of rules so published. The wildlife resources agency shall keep an original copy of all proclamations from which the effective dates of all proclamations can be determined. (e) Sections 4-5-303, 4-5-309, 4-5-311(a), (b) and (c), 4-5-312(c), 4-5-314(b), 4-5-315 -- 4-5-318, 4-5-322 and 4-5-323, shall not apply to the department administering the Employment Security Law under title 50, chapter 7. (f) This chapter shall not apply to revenue rulings and letter rulings issued by the commissioner of revenue.[7] |
Section 4-5-107: Majority needed to determine rules or contested cases, exceptions
Text of Section 4-5-107:
| Unless otherwise provided by statute, no state board, commission or department composed of two (2) or more members or commissioners shall make any rule or declaratory rulings or finally determine any contested case, as the terms "rule" and "contested case" are defined in this chapter, unless a majority of the members or commissioners is present.[8] |
Section 4-5-108: Legislative proposals affecting administrative procedure, prior study
Text of Section 4-5-108:
| (a) Any legislation that, in whole or in part, amends or repeals any provision of this chapter, or any legislation that reestablishes, restructures or otherwise delegates any type of rulemaking authority to any new or preexisting governmental entity to which this chapter applies, shall be referred to the government operations committee according to the rules of the senate and the rules of the house of representatives. The government operations committees of each house shall then review the legislation and shall recommend that the legislation be considered for passage or shall recommend against passage to the appropriate standing committee.
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Part 2: Rulemaking and Publications
Section 4-5-201: Petitions for or against rules
Text of Section 4-5-201:
| (a) Except where the right to petition for a rule is restricted by statute to a designated group or except where the form of procedure for such petition is otherwise prescribed by statute, any municipality, corporation or any five (5) or more persons having an interest in a rule may petition an agency requesting the adoption, amendment or repeal of such rule.
(1) The substance or nature of the rulemaking that is requested; (2) The reasons for the request and the petitioner's interest in the request; and (3) Reference to the authority of the agency to take the action that is requested. (c) After submission of a petition, the agency shall, as promptly as is consistent with the orderly dispatch of its business, deny the request or grant the same or provide for some modified form of the proposed rule. If the agency denies the petition, it shall promptly give notice thereof to the person who filed the petition. If the agency grants the petition in whole or in part, it shall proceed to meet the rulemaking requirements set out in this chapter.[10] |
Section 4-5-202: When hearings required
Text of Section 4-5-202:
| (a) An agency shall precede all its rulemaking with notice and a public hearing unless:
(2) The proposed rule is posted to the administrative register web site within the secretary of state's web site within seven (7) days of receipt, together with a statement that the agency will adopt the proposed rule without a public hearing unless within ninety (90) days after filing of the proposed rule with the secretary of state, a petition for a public hearing on the proposed rule is filed by ten (10) persons who will be affected by the rule, an association of ten (10) or more members, a municipality or by a majority vote of any standing committee of the general assembly. If an agency receives such a petition, it shall not proceed with the proposed rulemaking until it has given notice and held a hearing as provided in this section. The agency shall forward the petition to the secretary of state. The secretary of state shall not be required to compile all filings of the preceding month into one (1) document. (b) Subdivision (a)(2) does not apply if another statute specifically requires the agency to hold a hearing prior to adoption of the rule under consideration. (c) The secretary of state shall prescribe rules governing the manner and form in which proposed written rules shall be prepared by the agencies for submission for publication under subdivision (a)(2). The secretary of state may require the online submission of rules and related filings pursuant to this part. The secretary of state may refuse to accept for publication any proposed rule that does not conform to such requirements.[11] |
Section 4-5-203: Notice of hearing
Text of Section 4-5-203:
| (a) Whenever an agency is required by law to hold a public hearing as part of its rulemaking process, the agency shall:
B. Whenever an agency is required by law to hold a public hearing as part of its rulemaking process, the agency shall make copies of the rule available in redline form to persons in attendance at the hearing. As used in this subsection (a), “redline form” has the same meaning as defined in § 4-5-226(i)(2)(B); (2) Take such other steps as it deems necessary to convey effective notice to persons who are likely to have an interest in the proposed rulemaking. (b) Except as otherwise permitted by § 4-5-204(e), notice through publication on the administrative register web site shall be given at least forty-five (45) days prior to the date set for the hearing and shall be deemed to have been given seven (7) days from the date notice was transmitted to the secretary of state for such publication. (c) The notice that this section requires an agency to give shall include: (1) A statement of the time and place at which the hearing is to be held; (2) (A) The express terms of the rule being proposed; provided, that an informative summary reasonably calculated to give notice to interested parties may be substituted for the express terms of the proposed rule if: (i) The express terms of the rule being proposed are filed with the secretary of state; (ii) The secretary of state determines that publication of the entire text of the proposed rule would be impractical; and (iii) The complete text of the express terms of the proposed rule is made available by the secretary of state or the agency for public inspection and copying; (B) Nothing in this section shall be construed to preclude an agency from making changes in the rule being proposed after the public hearing, so long as the changes are within the scope of the rulemaking notice filed with the secretary of state; (3) Insofar as practicable, a reference to the statutory authority pursuant to which the agency proposed to adopt the rule; and (4) Any additional matter that may be prescribed by statute applicable to the specific rule or class of rules under consideration. (d) Failure of any person to receive notice of a hearing on proposed rulemaking is not grounds for invalidating the resulting rule if notice of the hearing was published as provided in subdivision (a)(1). (e) The secretary of state shall prescribe rules governing the manner and form in which written notice of hearings shall be transmitted by the agencies to the secretary of state for publication in the notice section of the administrative register web site. The secretary of state may require the online submission of notices of hearing and related filings pursuant to this part. The secretary of state may refuse to accept for publication any notice of hearing transmitted that does not conform to such requirements, in which case transmission of notice shall be deemed not to have been satisfied under subdivision (a)(1) and subsection (b). (f) (1) Except as provided in subdivision (f)(2), a hearing shall be conducted prior to the adoption of a permanent rule if such rule was filed previously as an emergency rule pursuant to § 4-5-208. (2) A hearing shall not be required if the emergency rule was required by an agency of the federal government and adoption of the rule through ordinary rulemaking procedures might jeopardize the loss of a federal program or funds.[12] |
Section 4-5-204: Conduct of hearings
Text of Section 4-5-204:
| (a)
(2) The presiding officer may limit oral presentations if the presiding officer feels that the length of the hearing otherwise would be unduly increased by reason of repetition. (3) The agency shall afford each interested person opportunity to present facts, views or arguments in writing, whether or not such person had an opportunity to present them orally. (4) At the beginning of each hearing, if the agency has made a proposal, the agency shall present a summary of the factual information on which its proposal is based, including any information obtained through the use of advisory committees or as a result of informal conferences or consultation. (b) (1) The person authorized by the agency to conduct the hearing may administer oaths or affirmations and may continue or postpone the hearing to such time and place as it determines. (2) The agency shall keep minutes or a record of the hearing in such manner as it determines to be desirable and feasible. (c) (1) If the officer or a quorum of the board or commission charged by law with ultimate responsibility for rulemaking is not present at the hearing, a person who appears at the hearing shall be given an opportunity to present the person's arguments to such officer or quorum of such board or commission prior to adoption of the proposed rule if, at the hearing, the person makes a request for such opportunity in writing to the person presiding at the hearing. (2) Such officer, board or commission may in its discretion require such arguments to be presented in writing. (3) If a record of the hearing has been made, argument shall be limited to the record. (4) Where oral argument is accorded, such officer, board or commission may impose reasonable limitations on the length and number of appearances in order to conserve time and preclude undue repetition. (d) The procedures prescribed by this section are supplemental to procedures prescribed by any statute relating to the specific agency or to the rule or class of rules under consideration. However, in any case of conflict between this section and another procedural administrative statute, this section shall control. (e) Prior to holding the public hearing as required by subsection (a), the agency may solicit comments from the public on a subject matter of possible rulemaking under active consideration within the agency, significant aspects of which remain undeveloped, by causing notice of the hearing to be published in accordance with the requirements of § 4-5-203. At such hearing notice of the time and place of the public hearing required by subsection (a) shall be announced; and the agency shall take other appropriate actions to comply with § 4-5-203 and title 8, chapter 44, part 1. The hearing procedures set forth in this subsection (e) are in addition to, and not a substitution for, the requirements of § 4-5-203. When the agency has determined the specifics of the proposal, it must comply with the normal hearing and notice requirement of rulemaking.[13] |
Section 4-5-205: Consideration of arguments, reasons given for agency action, advisory committees
Text of Section 4-5-205:
| (a) The agency shall consider fully all written and oral submissions respecting proposed rules.
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Section 4-5-206: Filing of rules
Text of Section 4-5-206:
| (a) It is the duty of the secretary of state to file the rules of each agency in a convenient and accessible manner. Each copy of a rule filed shall contain a citation of the authority pursuant to which it was adopted, and if an amendment, it shall clearly identify the original rule by rule number and title.
(c) No rule shall be filed under this chapter unless it complies with § 4-5-211. (d) The secretary of state shall prescribe rules governing the manner and form in which written rules shall be prepared and transmitted by the agencies to the secretary of state for filing. The secretary of state may require the online submission of rules filed pursuant to this part. The secretary of state may refuse to accept any rule that does not conform to such requirements.[15] |
Section 4-5-207: Effective dates of rules
Text of Section 4-5-207:
| No rule shall become effective unless it complies with §§ 4-5-206 and 4-5-211. No rule, unless filed as an emergency rule pursuant § 4-5-208, shall become effective until ninety (90) days after the filing of such rule in the office of the secretary of state.[16] |
Section 4-5-208: Emergency rules
Text of Section 4-5-208:
| (a) An agency may, upon stating its reasons in writing for making such findings, proceed without prior notice or hearing to adopt an emergency rule, if the agency finds that:
(2) The rule only delays the effective date of another rule that is not yet effective; (3) It is required by the constitution or court order; (4) It is required by an agency of the federal government and adoption of the rule through ordinary rulemaking procedures described in this chapter might jeopardize the loss of a federal program or funds; or (5) The agency is required by an enactment of the general assembly to implement rules within a prescribed period of time that precludes utilization of rulemaking procedures described elsewhere in this chapter for the promulgation of permanent rules. (b) The emergency rule shall become effective immediately, unless otherwise stated in the rule, upon a copy of the rule and a copy of the written statement of the reasons for the rule being filed with the secretary of state. The emergency rule may be effective for a period of not longer than one hundred eighty (180) days. An agency shall not adopt the same or a substantially similar emergency rule within one (1) calendar year from its first adoption, unless the agency clearly establishes that it could not reasonably be foreseen during the initial one hundred eighty-day period that the emergency would continue or would likely recur during the next nine (9) months. The adoption of the same or substantially similar rule through ordinary rulemaking procedures authorized by this chapter shall not be precluded by this section. (c) The agency shall take steps to make emergency rules known to persons who will be affected by the rules. The secretary of state shall post the emergency rule filing to the administrative register web site within four (4) days of filing. An emergency rule filing shall remain on the administrative register web site until the filing expires. The secretary of state shall update relevant rules to reflect the filing and the expiration of emergency rules. (d) In any action contesting a rule adopted in reliance upon this section, the burden of persuasion shall be upon the agency to demonstrate that the rule meets the criteria established by this section. (e) An agency's finding of an emergency pursuant to this section shall not be based upon the agency's failure to timely process and file rules through the normal rulemaking process.[17] |
Section 4-5-209: Reference to public necessity rules deemed references to emergency rules
Text of Section 4-5-209:
| Any reference in this code to public necessity rules shall be deemed to be a reference to emergency rules as provided in § 4-5-208. The Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.[18] |
Section 4-5-210: Promulgation of rules relating to guides to practice
Text of Section 4-5-210:
| (a)
(2) No entity subject to this section shall adopt guides to practice developed or approved by any private organization or association that are not adopted in accordance with this chapter. Any changes to guides to practice made by a private organization or association after the guides to practice are adopted shall be effective only after the changes are also adopted in accordance with this chapter. (3) This subsection (a) only applies to guides to practice: (A) Established, adopted, or amended after April 28, 2017; and (B) That must be complied with in order to maintain a person's license, certification, or registration in order to practice a profession. (b) The rules promulgated by entities pursuant to subsection (a) shall: (1) Supersede any existing guides to practice developed or approved by a private organization or association that conflict with or are otherwise not included in such rules; and (2) Be promulgated in accordance with this chapter. (c) As used in this section, "guides to practice" includes codes of ethics and other measures that establish service quality standards. "Guides to practice" does not include: (A) Tests or examinations; (B) Building codes; (C) Safety codes; or (D) Drug standards.[19] |
Section 4-5-211: Approval of rules by attorney general and reporter
Text of Section 4-5-211:
| No rule shall be filed in the office of the secretary of state until such rule has been filed with the office of the attorney general and reporter. The office of the attorney general and reporter shall review the legality and constitutionality of every rule filed pursuant to this section and shall approve or disapprove of rules based upon the attorney general's determination of the legality of such rules. The attorney general and reporter shall not disapprove an emergency rule filed pursuant to § 4-5-208 solely on the basis of failure to meet the statutory criteria for adoption of the rule contained in this chapter, unless the attorney general and reporter determines and states in writing that the attorney general and reporter could not defend the legality of the rule on the basis of failure to meet the statutory criteria for adoption of the rule contained in this chapter, in any action contesting the legal validity of the rule.[20] |
Section 4-5-212: Remand of rule that may constitute potentially unreasonable restraint of trade
Text of Section 4-5-212:
| Prior to a rule being filed by a regulatory board, as defined in § 4-4-126(a), with the secretary of state pursuant to § 4-5-207 or § 4-5-208, the commissioner or chief executive officer of the administrative department under which a regulatory board operates or to which a regulatory board is administratively attached, or a designee to the extent a conflict of interest may exist with respect to the commissioner or chief executive officer, will remand a rule that may constitute a potentially unreasonable restraint of trade to the regulatory board for additional information, further proceedings, or modification, if the rule is not consistent with a clearly articulated state policy or law established by the general assembly with respect to the regulatory board.[21] |
Section 4-5-214: Withdrawal of rules
Text of Section 4-5-214:
| (a) A rule may be withdrawn by the agency proposing the rule at any point prior to the effective date of the rule. The withdrawal shall become effective upon delivery of a written notification of such withdrawal to the office of the secretary of state and shall result in the nullification of all procedures undertaken or performed in order to promulgate the rule. The secretary of state may require the online submission of the notification of withdrawal of rules filed pursuant to this part.
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Section 4-5-215: Stay of effective date of rules
Text of Section 4-5-215:
| (a) Prior to the effective date of the rule, the agency proposing the rule may stay the running of the ninety-day period required by § 4-5-207 for a period of time not to exceed seventy-five (75) days. The stay shall become effective at such time as the agency files written notice with the secretary of state and shall specify the length of the effectiveness of the stay. The secretary of state may require the online submission of the notice of stay or related filings filed pursuant to this part. Prior to the expiration of the stay, the stay may be withdrawn by the agency. Withdrawal or expiration of the stay shall reactivate the running of the balance of the ninety-day period that remained upon the date the stay was filed.
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Section 4-5-216: Invalidity of improperly adopted rules
Text of Section 4-5-216:
| Any agency rule not adopted in compliance with this chapter shall be void and of no effect and shall not be effective against any person or party nor shall it be invoked by the agency for any purpose.[24] |
Section 4-5-217: Rules of practice required
Text of Section 4-5-217:
| In addition to other rulemaking requirements imposed by law, each agency shall adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including, where practical, a description of all forms and instructions used by the agency.[25] |
Section 4-5-218: Public inspection and copying of agency rules, final orders and decisions
Text of Section 4-5-218:
| (a) Each agency shall make available for inspection and copying:
(2) Written statements of policy or interpretations formulated, adopted or used by the agency in the discharge of its functions; (3) Opinions of the attorney general and reporter rendered to the agency; and (4) A description of its current organization stating the general course and method of its operation and the methods whereby the public may obtain information or make submissions or requests. (b) The agency may charge reasonable compensatory fees for providing any documents specified in this section to requesting persons. (c) Nothing in this section shall be construed to limit access to public documents under any other provision of law. (d) The segregable portion of any document or other agency record specified in this section shall be provided to any person requesting such document or record after deletion of the portions that are confidential under any provision of law and payment of reasonable compensatory fees to the agency.[26] |
Section 4-5-219: Model rules of procedure
Text of Section 4-5-219:
| (a) The secretary of state, from time to time, may adopt, in accordance with the rulemaking requirements of this chapter, model rules of procedure appropriate for use by as many agencies as possible.
(c) Each agency shall adopt as much of the model rules as is practicable. To the extent an agency adopts the model rules, it shall do so in accordance with the rulemaking requirements of this chapter. (d) Any rule or procedure adopted by an agency that differs from the model rules shall be accompanied by a finding stating the reasons why the relevant portions of the model rules were impracticable for such agency.[27] |
Section 4-5-220: Publication of rules on the secretary of state's web site, contents of web site
Text of Section 4-5-220:
| (a) After a rule is filed, the secretary of state shall, within seven (7) days of its acceptance, add the filed rule to the appropriate location within the portion of the secretary of state's web site devoted to this chapter. The secretary of state's web site shall contain the following:
(2) A table listing the citations of all rules filed that have pending effective dates, hearing dates or some other action required by this chapter; (3) A table listing all emergency rules in effect; (4) A table of all pending rules and regulations with projected financial impact upon local governments as provided to the secretary of state pursuant to § 4-5-228; and (5) Any other notices or documents designated by law or by the secretary of state. (b) The secretary of state shall compile on the secretary of state's web site an official compilation of all the effective rules of each agency. Rules compiled and published on the secretary of state's web site as of July 1, 2016, shall be deemed the official compilation of the effective rules of each agency, as amended by the secretary of state from time to time to reflect the addition, deletion, or revision of rules in accordance with this part. The secretary of state shall update agency rules on the effective date of any new amendment to existing rules or of any new rules. The secretary of state shall incorporate emergency rules within the appropriate agency's rules within four (4) days of their filing. The secretary of state shall revise the official compilation of rules upon the expiration of an emergency rule. (c) The secretary of state may, in the secretary of state's discretion, omit from the register or the compilation rules, which, if published, would be unduly cumbersome, expensive or otherwise inexpedient, if such rules are made available in printed, electronic or processed form on application to the adopting agency, and if the register or compilation contains a notice stating the general subject matter of the rules so omitted and stating how copies of the rules may be obtained. (d) The secretary of state shall make the register web site and the official rules and regulation web site available through the Internet without charge to the user.[28] |
Section 4-5-221: Powers of secretary of state regarding publication, certification of rules, web site and its contents prima facie evidence of regulatory law, delegation of duties and powers
Text of Section 4-5-221:
| (a) With respect to the publication of the administrative code to be cited as the rules and regulations of the state of Tennessee, and with regard to the publication of the monthly administrative register to be cited as the Tennessee administrative register, the secretary of state shall have the powers set out in subdivision (a)(1); provided, that the requirements of subdivision (a)(2) are met:
(2) Every agency filing rules for publication in the administrative code and administrative register shall assure the accuracy of its submission and that the submission meets the requirements of the rules and regulations promulgated by the secretary of state pursuant to this chapter, when they are filed with the secretary of state. (b) The secretary of state shall prepare a written certificate of approval for each web site that certifies approval of the web site and its contents and that the text of each rule was compared with the original filing with the secretary of state, and that, with the exception of changes in form permitted by subsection (a), the rules are accurately and correctly copied. (c) The web site of the administrative register and administrative code and its contents that contain the secretary of state's certificate of approval shall constitute prima facie evidence of the regulatory law of the state of Tennessee and be received, recognized, referred to and used in all courts, agencies, departments, offices of and proceedings in Tennessee as the official compilation of rules and regulations of Tennessee. (d) The secretary of state is authorized to delegate any or all duties and powers set out in this section and chapter to the director of the publications division or any other members of the secretary of state's staff.[29] |
Section 4-5-222: Record of voting on policy or rule adoption
Text of Section 4-5-222:
| (a) (1) Notwithstanding any law to the contrary, in addition to other rulemaking requirements imposed by law, each agency shall maintain the following written records on each rule adopted by such agency:
(B) A roll call vote on adoption by "aye" or "no" of each person voting; and (C) The responses of the agency to the comments submitted at any public hearing on the proposed rule. Each comment shall be addressed; provided, however, that similar comments may be grouped together and addressed in one (1) response. The response to specific comments shall include the reasons for agency adoption or rejection of any specific changes suggested by the comments. A transcript of the rulemaking hearing shall not suffice as the response to comments required by this section. (2) The record required by this section need not be published, but a copy shall be filed with the secretary of state, and the agency shall certify its compliance with this section to the attorney general and reporter prior to the approval of the rule. Failure to file such record at the time the rule is filed with the secretary of state will make the rule void and of no effect. Such record shall be available to the public during normal office hours of the agency at its principal office or the office of the secretary of state. (b) Whenever policies that affect the rules and procedures of any agency are decided by vote of the agency, a record on such policies shall be maintained in accordance with this section and made available to the public in the same manner as is required for a rule.[30] |
Section 4-5-223: Declaratory orders
Text of Section 4-5-223:
| (a) Any affected person may petition an agency for a declaratory order as to the validity or applicability of a statute, rule or order within the primary jurisdiction of the agency. The agency shall:
(2) Refuse to issue a declaratory order, in which event the person petitioning the agency for a declaratory order may apply for a declaratory judgment as provided in § 4-5-225. (b) A declaratory order shall be binding between the agency and parties on the state of facts alleged in the petition unless it is altered or set aside by the agency or a court in a proper proceeding. (c) If an agency has not set a petition for a declaratory order for a contested case hearing within sixty (60) days after receipt of the petition, the agency shall be deemed to have denied the petition and to have refused to issue a declaratory order. (d) Each agency shall prescribe by rule the form of such petitions and the procedure for their submission, consideration and disposition.[31] |
Section 4-5-224: Declaratory order request, notices
Text of Section 4-5-224:
| (a) Whenever an agency is petitioned for a declaratory order, that agency shall:
(2) Take such other steps as it deems necessary to convey effective notice to other agencies and professional associations that are likely to have an interest in the declaratory order proceedings. (b) Such notices shall include specific information relating to the declaratory order request, including, but not limited to: (1) Name of petitioner and an explanation of whom such person or entity purports to represent; (2) A summary of the relief requested, including the specific nature of the requested order, and the conclusion or conclusions the petitioner requests that the agency reach following the declaratory proceeding; and (3) A detailed outline and summary of the statutes or regulations that the agency is called upon to interpret or upon which it is to rule. (c) Notwithstanding § 4-5-223(a)-(c), except in the case of an emergency proceeding that meets the conditions of § 4-5-208, no declaratory order proceeding that calls for a title 63 agency to rule on the meaning of any provision of a licensee's professional licensing act may be set until at least forty-five (45) days after the notice required by this section has been filed with the secretary of state.[32] |
Section 4-5-225: Declaratory judgments
Text of Section 4-5-225:
| (a) The legal validity or applicability of a statute, rule or order of an agency to specified circumstances may be determined in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute, if the court finds that the statute, rule or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the complainant. The agency shall be made a party to the suit.
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Section 4-5-226: Expiration of rules, review by general assembly
Text of Section 4-5-226:
| (a) Notwithstanding any other law to the contrary, unless legislation is enacted to continue a rule to a date certain or indefinitely, any permanent rule filed in the office of the secretary of state shall expire on June 30 of the year following the year of its filing.
(1) Notwithstanding any other law to the contrary, unless legislation is enacted to continue a rule to a date certain or to a date indefinitely beyond the date upon which an agency terminates, each permanent rule that does not expire under subsection (a), shall expire on the day provided in chapter 29, part 2 of this title for termination of the agency that promulgated such rule; provided, that if such agency continues in existence pursuant to § 4-29-112, such agency rule shall expire upon completion of such wind-up period. (2) All rules and regulations issued or promulgated by any department or agency of state government whose functions, duties, or responsibilities have been transferred to another department or agency shall remain in full force and effect, and shall thereafter be administered and enforced by the agency or department assuming responsibility for those functions, duties, or responsibilities as rules of that agency or department, and all proposed rules pending with the attorney general and reporter or secretary of state, unless withdrawn, shall continue that status as proposed rules until becoming effective as rules of the agency assuming the functions, duties, or responsibilities. The agency or department assuming responsibility for such functions, duties, or responsibilities shall have the authority to promulgate new rules and regulations pursuant to this chapter to effectuate its duties and responsibilities. To this end, the department or agency shall have the authority, consistent with the statutes and regulations pertaining to the programs and functions transferred, to modify or rescind orders, rules and regulations, decisions or policies heretofore issued and to adopt, issue or promulgate new orders, rules and regulations, decisions or policies as may be necessary for the administration of the programs or functions transferred. (c) Rules promulgated pursuant to this chapter shall be reviewed by the government operations committees of the senate and the house of representatives meeting jointly or separately, or, alternatively, at the discretion of the chair of either of such committees, by a subcommittee of the government operations committees. Members of the government operations committees of the senate and the house of representatives shall serve as members of such committees until their successors are duly appointed; provided, that such members remain members of the general assembly. Any member of either government operations committee who ceases to be a member of the general assembly shall cease to be a member of the government operations committee on the same date such member's membership in the general assembly ceases, as provided in the Constitution of Tennessee. In the event a majority of the membership of either government operations committee shall cease to be members of the general assembly, the speaker of the senate or the speaker of the house of representatives, as the case may be, may designate an appropriate number of members to serve interim appointments until the government operations committee is reconstituted. The house of representatives and senate government operations committees shall strive to hear rules within ninety (90) days of such rules being filed in the office of the secretary of state. (d) (1) In conducting the review required by subsection (c), the committees or subcommittees shall hold at least one (1) public hearing to receive testimony from the public and from the administrative head of the agency. At such hearing, the agency shall have the burden of demonstrating, by convincing evidence, that consideration of the factors enumerated in subsection (e), in their totality, justifies the continued existence of an agency rule. Notice of the time and place of the public hearing shall be on the general assembly web site prior to the hearing. To the extent reasonably practicable, the committees or subcommittees shall conduct hearings on newly filed rules, other than emergency rules, during the ninety-day period immediately following the filing of the original of such rule in the office of the secretary of state. (2) Whether an agency has met its burden of persuasion for the continued existence of a rule is solely within the discretion of the general assembly. Nothing in subdivision (d)(1) or subsection (e) creates a cause of action for any person to seek judicial review of whether the demonstration that an agency offered to justify the continued existence of a rule met the requirements of the standard prescribed in subdivision (d)(1). (e) As part of the review of agency rules, the agency has the burden of demonstrating, by convincing evidence, that consideration of the factors enumerated in this subsection (e) justify the continued existence of an agency rule. Such factors include: (1) Whether the agency is acting within its authority to adopt the rule; (2) Whether the rule, considered in its entirety, will be easily understood by persons directly affected by the rule; (3) Whether the rule is consistent, and not in conflict with or contradictory to existing law; (4) Whether the rule is necessary to secure the health, safety, or welfare of the public; (5) Whether the rule is necessary and essential for the agency to serve persons affected by the rule; (6) Whether the rule is arbitrary or capricious; (7) Whether the rule adversely impacts a person's constitutional rights; (8) Whether the rule unnecessarily adversely impacts business or individuals; (9) Whether the rule will result in economic efficiency for persons served by the agency and persons affected by the rule; and (10) Whether the rule exceeds the mandatory minimum requirements of any relevant federal law or rule. (f) As used in subsection (e): (1) "Arbitrary or capricious" means a willful or unreasonable agency action without consideration of or in disregard of facts or law; and (2) "Authority" means provisions of law that permit or obligate the agency to adopt, amend, or repeal a rule. (g) Nothing contained in this chapter shall be construed to prohibit the general assembly by legislative enactment from directly or indirectly repealing or amending any rule. (h) The committees or subcommittees have the authority to hold hearings, subpoena records, documents and persons, and to exercise all powers otherwise vested upon committees of the general assembly by title 3, chapter 3, and by the rules of the appropriate house. (i) (1) All agencies, upon filing a rule in the office of the secretary of state, shall also submit the following information: (A) A brief summary of the rule and a description of all relevant changes in previous regulations effectuated by such rule; (B) A citation to and brief description of any federal law or regulation or any state law or regulation mandating promulgation of such rule or establishing guidelines relevant thereto; (C) Identification of persons, organizations, corporations or governmental entities most directly affected by this rule, and whether those persons, organizations, corporations or governmental entities urge adoption or rejection of this rule; (D) Identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to the rule or the necessity to promulgate the rule; (E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate is based. An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two percent (2%) of the agency's annual budget or five hundred thousand dollars ($500,000), whichever is less; (F) Identification of the appropriate agency representative or representatives, possessing substantial knowledge and understanding of the rule; (G) Identification of the appropriate agency representative or representatives who will explain the rule at a scheduled meeting of the committees; (H) Office address, e-mail address and telephone number of the agency representative or representatives who will explain the rule at a scheduled meeting of the committees; and (I) Any additional information relevant to the rule proposed for continuation that the committee requests. (2) (A) All amendments to existing executive agency rules to be reviewed by the committees or subcommittees pursuant to this part shall be filed with the secretary of state. One (1) copy of the amendments shall be filed in redline form for review by the committees or subcommittees. (B) As used in subdivision (i)(2)(A), "redline form" means to denote all amendments to an existing rule by placing a line through all language to be deleted and by including all language to be added in brackets or underlined or by another clearly recognizable method that indicates the changes made to the rule. (3) Failure to comply with this subsection (i) may be considered as evidence of the failure by an agency to meet its burden of proof required by subsection (d). (4) The secretary of state shall refuse to accept the filing of any rule that fails to comply with this subsection (i). (j) (1) The committee may express its disapproval of a rule that fails, in its judgment, to satisfy any or all of the factors enumerated in subsection (e), by voting to allow such rule to expire upon its established expiration date or by voting to request the agency to repeal, amend or withdraw this rule before such established expiration date. Notice of the committee's disapproval of a rule whether by vote to allow the rule to expire or by vote to request the agency to repeal, amend or withdraw a rule shall be posted, by the secretary of state, to the administrative register on the secretary of state's web site as soon as possible after the committee meeting in which such action was taken. (2) In the event an agency fails to comply with the committee's request to repeal, amend, or withdraw a rule within a reasonable time and before the established expiration date, the committee may vote to request the general assembly to repeal the rule, or to suspend any or all of such agency's rulemaking authority for any reasonable period of time or with respect to any particular subject matter, by legislative enactment. (k) In addition to the grounds stated in subsection (j) it shall also be grounds for the government operations committee to recommend to the general assembly to terminate a rule promulgated under authority of any provision of title 68, chapters 201--221, or title 69, chapter 3, that imposes environmental requirements or restrictions on municipalities or counties that are more stringent than federal statutes or rules on the same subject, and that result in increased expenditure requirements on municipalities or counties beyond those required to meet the federal requirements, unless the general assembly has appropriated funds to the affected local government or governments to cover the increased expenditures, in addition to those they receive pursuant to other laws; provided, that a timely comment was addressed to the promulgating authority pursuant to § 4-5-204, raising this issue and specifying the level of increased expenditure mandated by the rule. (l) If, pursuant to this section, the general assembly terminates a rule amending a previously existing rule, then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law. (m) If, pursuant to this chapter, an agency withdraws a rule amending a previously existing rule, then such previously existing rule shall continue in effect until it is later amended, repealed or superseded by law.[34] |
Section 4-5-227: Designation of date for automatic termination of rule
Text of Section 4-5-227:
| Upon filing a rule with the secretary of state, an agency may designate a date on which the effectiveness of such rule will automatically terminate. Such a designation shall be made either within the substantive language of the rule or on a form provided for such purpose by the secretary of state and shall result, at the appropriate time, in the repeal and removal of such rule from the Official Compilation of Rules and Regulations of the State of Tennessee, published by the secretary of state, without any further rulemaking activity by the agency. Any rule that automatically expires under § 4-5-226, shall so expire pursuant to that section, notwithstanding the fact that the rulemaking agency may have designated a later date for the automatic termination of such rule under this section. This section shall not apply to emergency rules.[35] |
Section 4-5-228: Statement by proposing agency projecting whether new rule or regulation to have financial impact on local governments
Text of Section 4-5-228:
| (a) On any rule and regulation proposed to be promulgated, the proposing agency shall state in a simple declarative sentence, without additional comments on the merits or the policy of the rule or regulation, whether the rule or regulation may have a projected financial impact on local governments. The statement shall describe the financial impact in terms of increase in expenditures or decrease in revenues. If the statement says that the rule or regulation has a financial impact on local governments, the general assembly may request representatives of any affected local government to testify concerning its impact.
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Section 4-5-229: Effective date of new fees or fee increases promulgated by state agency rule
Text of Section 4-5-229:
| (a) Except as provided in subsections (b) and (c), any new fee or fee increase promulgated by state agency rule, in accordance with this chapter, shall take effect on July 1, following expiration of the ninety (90) days as provided in § 4-5-207.
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Part 3: Contested cases
Section 4-5-301: Conduct of contested cases
Text of Section 4-5-301:
| (a) In the hearing of any contested case, the proceedings or any part thereof shall be conducted:
(2) By an administrative judge or hearing officer sitting alone. (b) It is the duty of the administrative judge or hearing officer to preside at the hearing, rule on questions of the admissibility of evidence, swear witnesses, advise the agency members as to the law of the case, and ensure that the proceedings are carried out in accordance with this chapter, other applicable law and the rules of the respective agency. At no time shall the administrative judge or hearing officer hearing a case with agency members under subsection (a) take part in the determination of a question of fact, unless the administrative judge or hearing officer is an agency member. An administrative judge or hearing officer shall, upon the judge's or the officer's own motion, or timely motion of a party, decide any procedural question of law. (c) The agency shall determine whether a contested case shall be conducted by an administrative judge or hearing officer sitting alone or in the presence of members of the agency; provided, that administrative judges or hearing officers employed in the office of the secretary of state shall not be required to conduct a contested case sitting alone in the absence of agreement between the agency and the secretary of state. (d) Contested cases under this section may be conducted by administrative judges or hearing officers employed in the office of the secretary of state upon the request of the agency being presented to the secretary of state and the request being granted. (e) Any agency not authorized by law to have a contested case conducted by an administrative judge, hearing officer or similar officer from the agency shall direct that the proceedings or any part thereof be conducted by an administrative judge or hearing officer employed in the office of the secretary of state.[38] |
Section 4-5-302: Disqualification of judge, hearing officer, etc., substitutions
Text of Section 4-5-302:
| (a) Any administrative judge, hearing officer or agency member shall be subject to disqualification for bias, prejudice, interest or any other cause provided in this chapter or for any cause for which a judge may be disqualified.
(c) A party petitioning for the disqualification of an agency member shall not be allowed to question the agency member concerning the grounds for disqualification at the hearing or by deposition unless ordered by the administrative judge or hearing officer conducting the hearing and agreed to by the agency member. (d) The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination. (e) If a substitute is required for an individual who becomes unavailable as a result of disqualification or any other reason, the substitute shall be appointed, unless otherwise provided by law by: (1) The governor, if the unavailable individual is a cabinet member or elected official, except that the speakers of the senate and house of representatives shall appoint a substitute for individuals elected by the general assembly; or (2) The appointing authority, if the unavailable individual is an appointed official. (f) Any action taken by a duly appointed substitute for an unavailable individual shall be as effective as if taken by the unavailable individual.[39] |
Section 4-5-303: Separation of functions
Text of Section 4-5-303:
| (a) A person who has served as an investigator, prosecutor or advocate in a contested case may not serve as an administrative judge or hearing officer or assist or advise an administrative judge or hearing officer in the same proceeding.
(c) A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may not serve as an administrative judge or hearing officer or assist or advise an administrative judge or hearing officer in the same proceeding. (d) A person may serve as an administrative judge or hearing officer at successive stages of the same contested case, unless a party demonstrates grounds for disqualification in accordance with § 4-5-302. (e) A person who has participated in a determination of probable cause or other equivalent preliminary determination or participated in or made a decision that is on administrative appeal in a contested case may serve as an agency member in the contested case where authorized by law and not subject to disqualification or other cause provided in this chapter.[40] |
Section 4-5-304: Ex parte communications
Text of Section 4-5-304:
| (a) Unless required for the disposition of ex parte matters specifically authorized by statute, an administrative judge, hearing officer or agency member serving in a contested case proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any person without notice and opportunity for all parties to participate in the communication.
(c) Unless required for the disposition of ex parte matters specifically authorized by statute, no party to a contested case, and no other person may communicate, directly or indirectly, in connection with any issue in that proceeding, while the proceeding is pending, with any person serving as an administrative judge, hearing officer or agency member without notice and opportunity for all parties to participate in the communication. (d) If, before serving as an administrative judge, hearing officer or agency member in a contested case, a person receives an ex parte communication of a type that may not properly be received while serving, the person, promptly after starting to serve, shall disclose the communication in the manner prescribed in subsection (e). (e) An administrative judge, hearing officer or agency member who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the person received an ex parte communication, and shall advise all parties that these matters have been placed on the record. Any party desiring to rebut the ex parte communication shall be allowed to do so, upon requesting the opportunity for rebuttal within ten (10) days after notice of the communication. (f) An administrative judge, hearing officer or agency member who receives an ex parte communication in violation of this section may be disqualified if necessary to eliminate the effect of the communication. (g) The agency shall, and any party may, report any willful violation of this section to appropriate authorities for any disciplinary proceedings provided by law. In addition, each agency by rule may provide for appropriate sanctions, including default, for any violations of this section.[41] |
Section 4-5-305: Representation
Text of Section 4-5-305:
| (a) Any party may participate in the hearing in person or, if the party is a corporation or other artificial person, by a duly authorized representative.
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Section 4-5-306: Prehearing conferences
Text of Section 4-5-306:
| (a) (1) In any action set for hearing, the administrative judge or hearing officer assigned to hear the case, upon the administrative judge's or the hearing officer's own motion, or upon motion of one (1) of the parties or such party's qualified representatives, may direct the parties or the attorneys for the parties, or both, to appear before the administrative judge or hearing officer for a conference to consider:
(B) The necessity or desirability of amendments to the pleadings; (C) The possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; (D) The limitation of the number of expert witnesses; and (E) Such other matters as may aid in the disposition of the action. (2) The administrative judge or hearing officer shall make an order that recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and that limits the issues for hearing to those not disposed of by admissions or agreements of the parties, and such order when entered controls the subsequent course of the action, unless modified at the hearing to prevent manifest injustice. (b) Upon reasonable notice to all parties, the administrative judge or hearing officer may convene a hearing or convert a prehearing conference to a hearing, to be conducted by the administrative judge or hearing officer sitting alone, to consider argument or evidence, or both, on any question of law. The administrative judge or hearing officer may render an initial order, as otherwise provided by this chapter, on the question of law. (c) In the discretion of the administrative judge or hearing officer, all or part of the prehearing conference may be conducted by telephone, television or other electronic means, if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place. (d) If a prehearing conference is not held, the administrative judge or hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.[43] |
Section 4-5-307: Notice of hearing
Text of Section 4-5-307:
| (a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
(1) A statement of the time, place, nature of the hearing, and the right to be represented by counsel; (2) A statement of the legal authority and jurisdiction under which the hearing is to be held, including a reference to the particular sections of the statutes and rules involved; and (3) A short and plain statement of the matters asserted. 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 timely, written application a more definite and detailed statement shall be furnished ten (10) days prior to the time set for the hearing.[44] |
Section 4-5-308: Filing pleadings, briefs, motions, etc., service
Text of Section 4-5-308:
| (a) The administrative judge or hearing officer, at appropriate stages of the proceedings, shall give all parties full opportunity to file pleadings, motions, objections and offers of settlement.
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Section 4-5-309: Default
Text of Section 4-5-309:
| (a) If a party fails to attend or participate in a prehearing conference, hearing or other stage of a contested case, the administrative judge or hearing officer, hearing the case alone, or agency, sitting with the administrative judge or hearing officer, may hold the party in default and either adjourn the proceedings or conduct them without the participation of that party, having due regard for the interest of justice and the orderly and prompt conduct of the proceedings.
(c) A party may petition to have a default set aside by filing a timely petition for reconsideration as provided in § 4-5-317. (d) If a party fails to file a timely petition for reconsideration or the petition is not granted, the administrative judge or hearing officer, sitting alone, or agency, sitting with the administrative judge or hearing officer, shall conduct any further proceedings necessary to complete the contested case without the participation of the defaulting party and shall determine all issues in the adjudication, including those affecting the defaulting party.[46] |
Section 4-5-310: Intervention
Text of Section 4-5-310:
| (a) The administrative judge or hearing officer shall grant one (1) or more petitions for intervention if:
(2) The petition states facts demonstrating that the petitioner's legal rights, duties, privileges, immunities or other legal interest may be determined in the proceeding or that the petitioner qualifies as an intervenor under any law; and (3) The administrative judge or hearing officer determines that the interests of justice and the orderly and prompt conduct of the proceedings shall not be impaired by allowing the intervention. (b) The agency may grant one (1) or more petitions for intervention at any time, upon determining that the intervention sought is in the interests of justice and shall not impair the orderly and prompt conduct of the proceedings. (c) If a petitioner qualifies for intervention, the administrative judge or hearing officer may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include: (1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition; (2) Limiting the intervenor's use of discovery, cross-examination and other procedures so as to promote the orderly and prompt conduct of the proceedings; and (3) Requiring two (2) or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery and other participation in the proceedings. (d) The administrative judge, hearing officer or agency, at least twenty-four (24) hours before the hearing, shall render an order granting or denying each pending petition for intervention, specifying any conditions, and briefly stating the reasons for the order. The administrative judge, hearing officer or agency may modify the order at any time, stating the reasons for the modification. The administrative judge, hearing officer or agency shall promptly give notice of an order granting, denying or modifying intervention to the petitioner for intervention and to all parties.[47] |
Section 4-5-311: Discovery, subpoenas, protective orders
Text of Section 4-5-311:
| (a) The administrative judge or hearing officer, at the request of any party, shall issue subpoenas, effect discovery, and issue protective orders, in accordance with the Tennessee Rules of Civil Procedure, except that service in contested cases may be by certified mail in addition to means of service provided by the Tennessee Rules of Civil Procedure. The administrative judge or hearing officer shall decide any objection relating to discovery under this chapter or the Tennessee Rules of Civil Procedure. Witnesses under subpoena shall be entitled to the same fees as are now or may hereafter be provided for witnesses in civil actions in the circuit court and, unless otherwise provided by law or by action of the agency, the party requesting the subpoenas shall bear the cost of paying fees to the witnesses subpoenaed.
(c) The agency may promulgate rules to further prevent abuse and oppression in discovery. (d) Any party to a contested case shall have the right to inspect the files of the agency with respect to the matter and to copy therefrom, except that records, the confidentiality of which is protected by law, may not be inspected.[48] |
Section 4-5-312: Procedure at hearing
Text of Section 4-5-312:
| (a) The administrative judge or hearing officer shall regulate the course of the proceedings, in conformity with the prehearing order if any.
(c) In the discretion of the administrative judge or hearing officer and agency members and by agreement of the parties, all or part of the hearing may be conducted by telephone, television or other electronic means, if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceedings while taking place. (d) The hearing shall be open to public observation pursuant to title 8, chapter 44, unless otherwise provided by state or federal law. To the extent that a hearing is conducted by telephone, television or other electronic means, the availability of public observation shall be satisfied by giving members of the public an opportunity, at reasonable times, to hear the tape recording and to inspect any transcript obtained by the agency, except as otherwise provided by § 50-7-701.[49] |
Section 4-5-313: Rules of evidence, affidavits, official notice
Text of Section 4-5-313:
| In contested cases:
(2) At any time not less than ten (10) days prior to a hearing or a continued hearing, any party shall deliver to the opposing party a copy of any affidavit such party proposes to introduce in evidence, together with a notice in the form provided in subdivision (4). Unless the opposing party, within seven (7) days after delivery, delivers to the proponent a request to cross-examine an affiant, the opposing party's right to cross-examination of such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after a proper request is made as provided in this subdivision (2), the affidavit shall not be admitted into evidence. "Delivery" for purposes of this section means actual receipt; (3) The officer assigned to conduct the hearing may admit affidavits not submitted in accordance with this section where necessary to prevent injustice; (4) The notice referred to in subdivision (2) shall contain the following information and be substantially in the following form: Click here to view form (5) Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the agency. Upon request, parties shall be given an opportunity to compare the copy with the original, if reasonably available; and (6) (A) Official notice may be taken of: (i) Any fact that could be judicially noticed in the courts of this state; (ii) The record of other proceedings before the agency; (iii) Technical or scientific matters within the agency's specialized knowledge; and (iv) Codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association. (B) Parties must be notified before or during the hearing, or before the issuance of any initial or final order that is based in whole or in part on facts or material noticed, of the specific facts or material noticed and the source thereof, including any staff memoranda and data, and be afforded an opportunity to contest and rebut the facts or material so noticed.[50] |
Section 4-5-314: Final order, initial order
Text of Section 4-5-314:
| (a) An agency with statutory authority to decide a contested case shall render a final order.
(c) A final order, initial order or decision under § 50-7-304 shall include conclusions of law, the policy reasons therefor, and findings of fact for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. The final order, initial order or decision must also include a statement of the available procedures and time limits for seeking reconsideration or other administrative relief and the time limits for seeking judicial review of the final order. An initial order or decision shall include a statement of any circumstances under which the initial order or decision may, without further notice, become a final order. (d) Findings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. The agency member's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence. (e) If an individual serving or designated to serve as an administrative judge, hearing officer or agency member becomes unavailable, for any reason, before rendition of the final order or initial order or decision, a substitute shall be appointed as provided in § 4-5-302. The substitute shall use any existing record and may conduct any further proceedings as is appropriate in the interest of justice. (f) The administrative judge or hearing officer may allow the parties a designated amount of time after conclusion of the hearing for the submission of proposed findings. (g) A final order rendered pursuant to subsection (a) or initial order rendered pursuant to subsection (b) shall be rendered in writing within ninety (90) days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless such period is waived or extended with the written consent of all parties or for good cause shown. (h) The agency shall cause copies of the final order under subsection (a) and the administrative judge or hearing officer shall cause copies of the initial order under subsection (b) to be delivered to each party.[51] |
Section 4-5-315: Review of initial order
Text of Section 4-5-315:
| (a) The agency upon the agency's motion may, and where provided by federal law or upon appeal by any party shall, review an initial order, except to the extent that:
(2) The agency in the exercise of discretion conferred by statute or rule of the agency: (A) Determines to review some but not all issues, or not to exercise any review; (B) Delegates its authority to review the initial order to one (1) or more persons; or (C) Authorizes one (1) or more persons to review the initial order, subject to further review by the agency. (b) A petition for appeal from an initial order shall be filed with the agency, or with any person designated for such purpose by rule of the agency, within fifteen (15) days after entry of the initial order. If the agency on its own motion decides to review an initial order, the agency shall give written notice of its intention to review the initial order within fifteen (15) days after its entry. The fifteen-day period for a party to file a petition for appeal or for the agency to give notice of its intention to review an initial order on the agency's own motion shall be tolled by the submission of a timely petition for reconsideration of the initial order pursuant to § 4-5-317, and a new fifteen-day period shall start to run upon disposition of the petition for reconsideration. If an initial order is subject both to a timely petition for reconsideration and to a petition for appeal or to review by the agency on its own motion, the petition for reconsideration shall be disposed of first, unless the agency determines that action on the petition for reconsideration has been unreasonably delayed. (c) The petition for appeal shall state its basis. If the agency on its own motion gives notice of its intent to review an initial order, the agency shall identify the issues that it intends to review. (d) The person reviewing an initial order shall exercise all the decision-making power that the agency would have had to render a final order had the agency presided over the hearing, except to the extent that the issues subject to review are limited by rule or statute or by the agency upon notice to all parties. (e) The agency shall afford each party an opportunity to present briefs and may afford each party an opportunity to present oral argument. (f) Before rendering a final order, the agency may cause a transcript to be prepared, at the agency's expense, of such portions of the proceeding under review as the agency considers necessary. (g) The agency may render a final order disposing of the proceeding or may remand the matter for further proceedings with instructions to the person who rendered the initial order. Upon remanding a matter, the agency may order such temporary relief as is authorized and appropriate. (h) A final order or an order remanding the matter for further proceedings pursuant to this section shall be rendered and entered in writing within sixty (60) days after receipt of briefs and oral argument, unless that period is waived or extended with the written consent of all parties or for good cause shown. (i) A final order or an order remanding the matter for further proceedings under this section shall identify any difference between such order and the initial order, and shall include, or incorporate by express reference to the initial order, all the matters required by § 4-5-314(c). (j) The agency shall cause copies of the final order or order remanding the matter for further proceedings to be delivered to each party and to the administrative judge or hearing officer who conducted the contested case.[52] |
Section 4-5-316: Stay
Text of Section 4-5-316:
| A party may submit to the agency a petition for stay of effectiveness of an initial or final order within seven (7) days after its entry unless otherwise provided by statute or stated in the initial or final order. The agency may take action on the petition for stay, either before or after the effective date of the initial or final order.[53] |
Section 4-5-317: Reconsideration
Text of Section 4-5-317:
| (a) Any party, within fifteen (15) days after entry of an initial or final order, may file a petition for reconsideration, stating the specific grounds upon which relief is requested. However, the filing of the petition shall not be a prerequisite for seeking administrative or judicial review.
(c) The person or persons who rendered the initial or final order that is the subject of the petition, shall, within twenty (20) days of receiving the petition, enter a written order either denying the petition, granting the petition and setting the matter for further proceedings; or granting the petition and issuing a new order, initial or final, in accordance with § 4-5-314. If no action has been taken on the petition within twenty (20) days, the petition shall be deemed to have been denied. (d) An order granting the petition and setting the matter for further proceedings shall state the extent and scope of the proceedings, which shall be limited to argument upon the existing record, and no new evidence shall be introduced unless the party proposing such evidence shows good cause for such party's failure to introduce the evidence in the original proceeding. (e) The sixty-day period for a party to file a petition for review of a final order shall be tolled by granting the petition and setting the matter for further proceedings, and a new sixty-day period shall start to run upon disposition of the petition for reconsideration by issuance of a final order by the agency.[54] |
Section 4-5-318: Effectiveness of new order
Text of Section 4-5-318:
| (a) Unless a later date is stated in an initial or final order, or a stay is granted, an initial or final order shall become effective upon entry of the initial or final order. All initial and final orders shall state when the order is entered and effective.
(c) The agency shall establish which agency members, officials or employees may sign final orders rendered by the agency. (d) A party may not be required to comply with a final order unless the final order has been mailed to the last known address of the party or unless the party has actual knowledge of the final order. (e) A nonparty may not be required to comply with a final order unless the agency has made the final order available for public inspection and copying or unless the nonparty has actual knowledge of the final order. (f) Unless a later date is stated in an initial order or a stay is granted, the time when an initial order becomes a final order in accordance with § 4-5-314 shall be as follows: (1) When the initial order is entered, if administrative review is unavailable; (2) When the agency enters an order stating, after a petition for appeal has been filed, that review will not be exercised, if discretion is available to make a determination to this effect; or (3) Fifteen (15) days after entry of the initial order, if no party has filed a petition for appeal and the agency has not given written notice of its intention to exercise review. (g) An initial order that becomes a final order in accordance with subsection (f) and § 4-5-314 shall be effective upon becoming a final order; provided, that: (1) A party may not be required to comply with the final order unless the party has been served with or has actual knowledge of the initial order or of an order stating that review will not be exercised; and (2) A nonparty may not be required to comply with the final order unless the agency has made the initial order available for public inspection and copying or the nonparty has actual knowledge of the initial order or of an order stating that review will not be exercised. (h) This section shall not preclude an agency from taking immediate action to protect the public interest in accordance with § 4-5-320.[55] |
Section 4-5-319: Agency record
Text of Section 4-5-319:
| (a) An agency shall maintain an official record of each contested case under this chapter. The record shall be maintained for a period of time not less than three (3) years; provided, that the department of labor and workforce development shall be required to maintain the record for such period of time as shall be determined by the agency or otherwise required by law.
(1) Notice of all proceedings; (2) Any prehearing order; (3) Any motions, pleadings, briefs, petitions, requests and intermediate rulings; (4) Evidence received or considered; (5) A statement of matters officially noticed; (6) Proffers of proof and objections and rulings thereon; (7) Proposed findings, requested orders, and exceptions; (8) The tape recording, stenographic notes or symbols, or transcript of the hearing; (9) Any final order, initial order, or order on reconsideration; (10) Staff memoranda or data submitted to the agency unless prepared and submitted by personal assistants and not inconsistent with § 4-5-304(b); and (11) Matters placed on the record after an ex parte communication. (c) A record, which may consist of a tape or similar electronic recording, shall be made of all oral proceedings. Such record or any part thereof shall be transcribed on request of any party at such party's expense or may be transcribed by the agency at its expense. If the agency elects to transcribe the proceedings, any party shall be provided copies of the transcript upon payment to the agency of a reasonable compensatory fee. (d) Except to the extent that this chapter or another statute provides otherwise, the agency record shall constitute the exclusive basis for agency action in adjudicative proceedings under this chapter, and for judicial review thereof.[56] |
Section 4-5-320: Proceedings affecting licenses
Text of Section 4-5-320:
| (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 apply.
(c) No revocation, suspension, 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 that 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) (1) Notwithstanding subsection (c), in issuing an order of summary suspension of a license the agency shall use one (1) of the following procedures: (A) The agency shall issue a notice to the licensee providing an opportunity for a prompt informal hearing, review or conference before the agency prior to the issuance of an order of summary action; or (B) The agency shall proceed with the summary action and notify the licensee of the opportunity for an informal hearing, review or conference before the agency within seven (7) business days of the issuance of the order of summary action. (2) The notice provided to the licensee may be provided by any reasonable means and shall inform the licensee of the reasons for the action or intended action of the agency and of the opportunity for an informal hearing, review or conference before the agency. The informal hearing, review or conference described by this subsection (d) shall not be required to be held under the contested case provisions of this chapter. The hearing, review or conference is intended to provide an informal, reasonable opportunity for the licensee to present the licensee's version of the situation to the person or entity authorized by law to summarily suspend the license involved. Whether the informal hearing, review or conference is held before or after an order of summary suspension, the sole issue to be considered is whether the public health, safety or welfare imperatively required emergency action by the agency.[57] |
Section 4-5-321: Administrative procedures division, manual of policies and procedures, code of conduct
Text of Section 4-5-321:
| (a) There is created in the office of the secretary of state a division to be known as the administrative procedures division. This division has the responsibility to:
(2) Establish and maintain in cooperation with the office of the attorney general and reporter a pool of administrative judges and hearing officers, who shall be learned in the law; (3) Establish and maintain in cooperation with the office of the attorney general and reporter a pool of court reporters for agency administrative hearing proceedings before the licensing boards that are under the supervision of the departments of commerce and insurance and of health; and (4) Perform any and all other functions assigned to the secretary of state under this chapter and delegated by the secretary of state to the administrative procedures division. (b) The secretary of state shall adopt by rule, promulgated in accordance with the rulemaking requirements of this chapter, a manual of policies and procedures, including a code of conduct, to be followed by all administrative judges and hearing officers.[58] |
Section 4-5-322: Judicial review
Text of Section 4-5-322:
| (a)
(2) A state agency is considered to be an aggrieved person for the purpose of judicial review when the order is from a board, commission or other entity independent of the aggrieved agency. In such instances, judicial review under this chapter is permitted upon the request of the agency head and the approval of the attorney general and reporter. (b) (1) (A) i. Proceedings for review are instituted by filing a petition for review in chancery court. ii. Except as provided in subdivisions (b)(1)(B), venue for appeals of contested case hearings shall be in the chancery court nearest to the place of residence of the person contesting the agency action or alternatively, at the person's discretion, in the chancery court nearest to the place where the cause of action arose, or in the chancery court of Davidson County. iii. Venue for appeals of contested case hearings involving TennCare determinations shall be in the chancery court of Davidson County. iv. Petitions seeking judicial review shall be filed within sixty (60) days after the entry of the agency's final order thereon. (B) (i) A person who is aggrieved by a final decision of the department of human services or the department of children's services in a contested case may file a petition for review in the chancery court located either in the county of the official residence of the appropriate commissioner or in the county in which any one (1) or more of the petitioners reside. (ii) A person who is aggrieved by the final determination of a hearing officer or local board of education in a special education hearing conducted pursuant to § 49-10-601 may file a petition for review in the chancery court of Davidson County or, alternatively, in the county in which the petitioner resides. (iii) A person who is aggrieved by any final decision of the Tennessee public utility commission, or by a final decision of the state board of equalization in a contested case involving centrally assessed utility property assessed in accordance with title 67, chapter 5, part 13, shall file any petition for review with the middle division of the court of appeals. (2) In a case in which a petition for judicial review is submitted within the sixty-day period but is filed with an inappropriate court, the case shall be transferred to the appropriate court. The time for filing a petition for review in a court as provided in this chapter shall not be extended because of the period of time allotted for filing with the agency a petition for reconsideration. Copies of the petition shall be served upon the agency and all parties of record, including the attorney general and reporter, in accordance with the provisions of the Tennessee Rules of Civil Procedure pertaining to service of process. (c) The filing of the petition for review does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but if it is shown to the satisfaction of the reviewing court, in a hearing that shall be held within ten (10) days of a request for hearing by either party, that any party or the public at large may suffer injury by reason of the granting of a stay, then no stay shall be granted until a good and sufficient bond, in an amount fixed and approved by the court, shall be given by the petitioner conditioned to indemnify the other persons who might be so injured and if no bond amount is sufficient, the stay shall be denied. The reviewing court shall not consider a stay unless notice has been given to the attorney general and reporter; nor shall the reviewing court consider a stay unless the petitioner has previously sought a stay from the agency or demonstrates that an agency ruling on a stay application cannot be obtained within a reasonable time. (d) Within forty-five (45) days after service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all the parties of the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional cost. The court may require or permit subsequent corrections or additions to the record. (e) If, before the date set for 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 decision by reason of the additional evidence and shall file that evidence and any modifications, new findings or decisions with the reviewing court. (f) The procedure ordinarily followed in the reviewing court will be followed in the review of contested cases decided by the agency, except as otherwise provided in this chapter. The agency that issued the decision to be reviewed is not required to file a responsive pleading. (g) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. (h) The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) (A) Unsupported by evidence that is both substantial and material in the light of the entire record; (B) In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. (i) No agency decision pursuant to a hearing in a contested case shall be reversed, remanded or modified by the reviewing court unless for errors that affect the merits of such decision. (j) The reviewing court shall reduce its findings of fact and conclusions of law to writing and make them parts of the record.[59] |
Section 4-5-323: Appeals to court of appeals
Text of Section 4-5-323:
| (a) An aggrieved party may obtain a review of any final judgment of the chancery court under this chapter by appeal to the court of appeals of Tennessee.
|
Section 4-5-324: Training program for administrative judges or hearing officers
Text of Section 4-5-324:
| a. Each person employed to serve as an administrative judge or hearing officer within the executive branch shall, within the six-month period following the date of such employment, participate in a program of training for administrative judges and hearing officers conducted by the department of human resources, division of training. The department shall issue a certificate of participation to each judge or officer whose attendance is satisfactory.
|
Section 4-5-325: Payment of costs to cited party
Text of Section 4-5-325:
| (a) When a state agency issues a citation to a person, local governmental entity, board or commission for the violation of a rule, regulation or statute and such citation results in a contested case hearing, at the conclusion of such hearing, the hearing officer or administrative law judge may order such agency to pay to the party issued a citation the amount of reasonable expenses incurred because of such citation, including a reasonable attorney's fee, if such officer or judge finds that the citation was issued:
(2) For an improper purpose such as to harass, to cause unnecessary delay or cause needless expense to the party cited. (b) If a final decision in a contested case hearing results in the party issued a citation seeking judicial review pursuant to § 4-5-322, the judge, at the conclusion of the hearing, may make the same findings and enter the same order as permitted the hearing officer or administrative law judge pursuant to subsection (a).[62] |
Part 4: Regulatory Flexibility Act of 2007
Section 4-5-401: Short title
Text of Section 4-5-401:
| This part shall be known and may be cited as the "Regulatory Flexibility Act of 2007."[63] |
Section 4-5-402: Analysis of impact on small business
Text of Section 4-5-402:
| (a) Prior to initiating the rulemaking process as described in §§ 4-5-202(a)(2) and 4-5-203(a), all agencies shall conduct a review of whether a proposed rule or rule affects small businesses.
(1) The extent to which the rule may overlap, duplicate, or conflict with other federal, state, and local governmental rules; (2) Clarity, conciseness, and lack of ambiguity in the rule; (3) The establishment of flexible compliance and reporting requirements for small businesses; (4) The establishment of friendly schedules or deadlines for compliance and reporting requirements for small businesses; (5) The consolidation or simplification of compliance or reporting requirements for small businesses; (6) The establishment of performance standards for small businesses as opposed to design or operational standards required in the proposed rule; and (7) The unnecessary creation of entry barriers or other effects that stifle entrepreneurial activity, curb innovation, or increase costs.[64] |
Section 4-5-403: Preparation of economic impact statement
Text of Section 4-5-403:
| As part of the rulemaking process for any proposed rule that may have an impact on small businesses, each agency shall prepare an economic impact statement as an addendum for each rule that is deemed to affect small businesses, which shall be published in the Tennessee administrative register, filed with the secretary of state and made available to all interested parties, including the secretary of state, attorney general and reporter and the government operations committees of the senate and the house of representatives, and as described for rules in part 2 of this chapter. The secretary of state may require the online submission of economic impact statements filed pursuant to this part. The statement shall include the following:
(2) The projected reporting, recordkeeping and other administrative costs required for compliance with the proposed rule, including the type of professional skills necessary for preparation of the report or record; (3) A statement of the probable effect on impacted small businesses and consumers; (4) A description of any less burdensome, less intrusive or less costly alternative methods of achieving the purpose and objectives of the proposed rule that may exist, and to what extent the alternative means might be less burdensome to small business; (5) A comparison of the proposed rule with any federal or state counterparts; and (6) Analysis of the effect of the possible exemption of small businesses from all or any part of the requirements contained in the proposed rule.[65] |
Section 4-5-404: Application
Text of Section 4-5-404:
| This part shall not apply to rules that are adopted on an emergency basis under part 2 of this chapter, that are federally mandated, or that substantially codify existing state or federal law.[66] |
Part 5: Right to Earn a Living Act
Section 4-5-501: Part definitions
Text of Section 4-5-501:
| As used in this part:
(A) Any rule promulgated by a licensing authority for the purpose of regulating an occupational or professional group, including, but not limited to, any rule prescribing qualifications or requirements for a person's entry into, or continued participation in, any business, trade, profession, or occupation in this state; or (B) Any policy or practice of a licensing authority that is established, adopted, or implemented by a licensing authority for the purpose of regulating an occupational or professional group, including, but not limited to, any policy or practice relating to the qualifications or requirements of a person's entry into, or continued participation in, any business, trade, profession, or occupation in this state; and (2) "Licensing authority" means any state regulatory board, commission, council, or committee in the executive branch of state government established by statute or rule that issues any license, certificate, registration, certification, permit, or other similar document for the purpose of entry into, or regulation of, any occupational or professional group. "Licensing authority" does not include any state regulatory board, commission, council, or committee that regulates a person under title 63 or title 68, chapter 11 or 140.[67] |
Section 4-5-502: Submission of entry regulations, review, disapproval
Text of Section 4-5-502:
| (a)
(2) After January 1, 2018, each licensing authority shall, prior to the next occurring hearing regarding the licensing authority held pursuant to § 4-29-104, submit to the chairs of the government operations committees of the senate and house of representatives a copy of any entry regulation promulgated by or relating to the licensing authority after the date of the submission pursuant to subdivision (a)(1). The appropriate subcommittees of the government operations committees shall consider the licensing authority's submission as part of the governmental entity review process and shall take any action relative to subsections (b)-(d) as a joint evaluation committee. Prior to each subsequent hearing held pursuant to § 4-29-104, the licensing authority shall submit any entry regulation promulgated or adopted after the submission for the previous hearing. (3) In addition to the process established in subdivisions (a)(1) and (2), the chairs of the government operations committees of the senate and house of representatives may request that a licensing authority present specific entry regulations for the committees' review pursuant to this section at any meeting of the committees. (4) Notwithstanding this subsection (a), the governor or the commissioner of any department created pursuant to chapter 3 of this title, relative to a licensing authority attached to the commissioner's department, may request the chairs of the government operations committees of the senate and house of representatives to review, at the committees' discretion, specific entry regulations pursuant to this section. (b) During a review of entry regulations pursuant to this section, the government operations committees shall consider whether: (1) The entry regulations are required by state or federal law; (2) The entry regulations are necessary to protect the public health, safety, or welfare; (3) The purpose or effect of the entry regulations is to unnecessarily inhibit competition or arbitrarily deny entry into a business, trade, profession, or occupation; (4) The intended purpose of the entry regulations could be accomplished by less restrictive or burdensome means; and (5) The entry regulations are outside of the scope of the licensing authority's statutory authority to promulgate or adopt entry regulations. (c) The government operations committees may express the committees' disapproval of an entry regulation promulgated or adopted by the licensing authority by voting to request that the licensing authority amend or repeal the entry regulation promulgated or adopted by the licensing authority if the committees determine during a review that the entry regulation: (1) Is not required by state or federal law; and (2) (A) Is unnecessary to protect the public health, safety, or welfare; (B) Is for the purpose or has the effect of unnecessarily inhibiting competition; (C) Arbitrarily denies entry into a business, trade, profession, or occupation; (D) With respect to its intended purpose, could be accomplished by less restrictive or burdensome means, including, but not limited to, certification, registration, bonding or insurance, inspections, or an action under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1; or (E) Is outside of the scope of the licensing authority's statutory authority to promulgate or adopt entry regulations. (d) (1) Notice of the disapproval of an entry regulation promulgated or adopted by a licensing authority shall be posted by the secretary of state, to the administrative register on the secretary of state's web site, as soon as possible after the committee meeting in which such action was taken. (2) If a licensing authority fails to initiate compliance with any recommendation of the government operations committees issued pursuant to subsection (c) within ninety (90) days of the issuance of the recommendation, or fails to comply with the request within a reasonable period of time, the committees may vote to request the general assembly to suspend any or all of such licensing authority's rulemaking authority for any reasonable period of time or with respect to any particular subject matter, by legislative enactment. (e) Except as provided in subdivision (a)(2), for the purposes of reviewing any entry regulation of a licensing authority and making final recommendations under this section, the government operations committees may meet jointly or separately and, at the discretion of the chair of either committee, may form subcommittees for such purposes.[68] |
See also
External links
Footnotes
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act," accessed July 10, 2023
- ↑ JUSTIA, "2017 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-101. Short title.," accessed January 17, 2019
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-102. Chapter definitions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-103. Construction of chapter.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-104. Suspension of provisions when necessary to avoid loss of federal funds.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-105. Informal settlements.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-106. Application.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-107. Majority needed to determine rules or contested cases -- Exceptions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 1 - General Provisions, § 4-5-108. Legislative proposals affecting administrative procedure -- Prior study.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-201. Petitions for or against rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-202. When hearings required.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-203. Notice of hearing.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-204. Conduct of hearings.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-205. Consideration of arguments -- Reasons given for agency action -- Advisory committees.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-206. Filing of rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-207. Effective dates of rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-208. Emergency rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-209. Reference to public necessity rules deemed references to emergency rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-210. Promulgation of rules relating to guides to practice.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-211. Approval of rules by attorney general and reporter.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-212. Remand of rule that may constitute potentially unreasonable restraint of trade.," accessed July 10, 2023
- ↑ JUSTIA, "2017 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-214. Withdrawal of rules.," accessed January 17, 2019
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-215. Stay of effective date of rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-216. Invalidity of improperly adopted rules.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-217. Rules of practice required.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-218. Public inspection and copying of agency rules, final orders and decisions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-219. Model rules of procedure.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-220. Publication of rules on the secretary of state's web site -- Contents of web site.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-221. Powers of secretary of state regarding publication -- Certification of rules -- Web site and its contents prima facie evidence of regulatory law -- Delegation of duties and powers.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-222. Record of voting on policy or rule adoption.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-223. Declaratory orders.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-224. Declaratory order request -- Notices.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-225. Declaratory judgments.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-226. Expiration of rules -- Review by general assembly.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-227. Designation of date for automatic termination of rule.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-228. Statement by proposing agency projecting whether new rule or regulation to have financial impact on local governments.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 2 - Rulemaking and Publications § 4-5-229. Effective date of new fees or fee increases promulgated by state agency rule.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-301. Conduct of contested cases.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-302. Disqualification of judge, hearing officer, etc. -- Substitutions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-303. Separation of functions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-304. Ex parte communications.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-305. Representation.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-306. Prehearing conferences.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-307. Notice of hearing.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-308. Filing pleadings, briefs, motions, etc. -- Service.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-309. Default.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-310. Intervention.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-311. Discovery -- Subpoenas -- Protective orders.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-312. Procedure at hearing.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-313. Rules of evidence -- Affidavits -- Official notice.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-314. Final order -- Initial order.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-315. Review of initial order.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-316. Stay.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-317. Reconsideration.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-318. Effectiveness of new order.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-319. Agency record.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-320. Proceedings affecting licenses.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-321. Administrative procedures division -- Manual of policies and procedures -- Code of conduct.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-322. Judicial review.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-323. Appeals to court of appeals.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-324. Training program for administrative judges or hearing officers.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 3 - Contested Cases § 4-5-325. Payment of costs to cited party.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 4 - Regulatory Flexibility Act of 2007 § 4-5-401. Short title.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 4 - Regulatory Flexibility Act of 2007 § 4-5-402. Analysis of impact on small business.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 4 - Regulatory Flexibility Act of 2007 § 4-5-403. Preparation of economic impact statement.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 4 - Regulatory Flexibility Act of 2007 § 4-5-404. Application.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 5 - Right to Earn a Living Act § 4-5-501. Part definitions.," accessed July 10, 2023
- ↑ JUSTIA, "2021 Tennessee Code, Title 4 - State Government, Chapter 5 - Uniform Administrative Procedures Act, Part 5 - Right to Earn a Living Act § 4-5-502. Submission of entry regulations -- Review -- Disapproval.," accessed July 10, 2023
