Request By:
William Horace Brown, Chairman
Environmental Quality Commission
Ash Annex, 18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Martin Glazer, Assistant Attorney General
You seek an official opinion on behalf of the Kentucky Environmental Quality Commission as to whether an administrative body can amend a regulation at an Administrative Review Subcommittee meeting without filing a revised Statement of Consideration and publishing such changes pursuant to KRS 13A.280. You also want to know whether such procedure violates federal due process.
The specific facts cited by you are that amendments to exempt dry cleaners from the air toxics regulations, 401 KAR 63:021 and 401 KAR 63:022, were made after the Statement of Consideration was filed. The Statement gave no indication that the Division of Air was considering exempting dry cleaners from the regulations. Such amendments were offered at the Administrative Regulation Review Subcommittee meeting on November 11, 1986. The Subcommittee accepted and approved the amendment with no discussion.
We shall answer the second question first, i.e., the issue of a violation of federal due process. We assume you are referring to a right of individuals to appear at a hearing on the changes, to receive notice, and to be heard thereon.
The right to a hearing is founded on the Fifth and Fourteenth Amendments to the Constitution of the United States, to wit: "No person shall . . . be deprived of life, liberty, or property without due process of law."
What is procedurally required for "due process of law" depends upon the nature of the proceeding in question.
The courts have required the minimum of a fair hearing where the issue is adjudicatory in nature, that is where the tribunal is determining specific personal rights or obligations.
An administrative body performs judicial, executive, and legislative functions. When it holds a hearing to determine the rights of an individual, such as a disciplinary hearing, due process requires that it give fair and reasonable notice, allow counsel, confrontation, and the usual judicial rights. But, when it is making a rule or regulation which applies generally, it is performing a legislative function.
There is no constitutional requirement under the Due Process Clause or otherwise for public evidentiary hearings in connection with rule-making by administrative agencies. California Citizens Band Association v. United States, (CA, Cal. 1967) 375 F.2d 43, cert. den. 88 S. Ct. 96, 389 U.S. 844, 19 L. Ed. 2d 112; Alaska Steamship Company v. Federal Maritime Commission, (CA, Wash. 1966), 356 F.2d 59; United Air Lines, Inc., v. CAB, 766 F.2d 1107 (CA7, 1985).
Therefore, the failure to give notice or a second hearing in regard to the amendments exempting dry cleaners from the proposed regulations does not violate the federal Constitution. If there is a requirement for notice and a hearing, it must be bottomed elsewhere, in the procedural statutes, perhaps.
We come now to answer your first question: "Do the statutes require that second hearing?"
KRS 13A.270 does require that new regulations and amendments to existing regulations be published in the Administrative Register and the publication of a hearing date. Persons desiring to be heard shall notify the administrative body in writing as to their desire to appear and testify at such hearing not less than five (5) days before the scheduled date of the hearing.
If no requests to testify are received, the administrative body can cancel the hearing and notify the administrative regulations compiler.
Under KRS 13A.300, the administrative body can request deferment of a regulation hearing considered by the Administrative Regulation Subcommittee. The subcommittee, itself, has no authority to defer consideration on its own, or anyone else's, except upon the request of the administrative body. However, KRS 13A.320 specifically provides:
When a proposed administrative regulation or proposed amendment to an administrative regulation is amended with the consent of the administrative body during a public meeting of the subcommittee, nothing in this chapter shall be construed to require its resubmission or refiling or other action. The administrative regulation may be adopted as amended. Subsequent to its adoption it shall be published in the administrative register.
In accordance with the Administrative Register, Volume 13, Number 6, Monday, December 1, on pages 1213-1214, the two regulations were amended. "The subcommittee determined that the following regulations, amended as agreed by the subcommittee and promulgation body, complied with KRS Chapter 13A." (Minutes of the November 10-11, 1986, meeting).
Therefore, it appears that the changes in the two regulations complied with KRS 13A.320 and were properly amended.