Arkansas Administrative Code › Agency 054 - Arkansas Insurance Department › Division 01 - Legal Division › Rule 054.01.20-003 - Proposed Rule 121: "Declaratory Orders"

Current through Register Vol. 49, No. 6, June, 2024
AID issues this emergency rule in order to avoid challenges to
				our authority to issue declaratory orders. The Arkansas Administrative
				Procedures Act requires AID to have a validly enacted Rule authorizing
				declaratory Orders. Ark. Code Ann. §
								25-15-206 states that each agency
				shall provide by rule for the filing and prompt disposition of petitions for
				declaratory orders as to the applicability of any rule, statute, or order
				enforced by it. Currently, for authority to issue declaratory orders, the only
				reference to AID authority to issue declaratory orders, is referred to in a
				document entitled, "AID Rules of Practice and Procedure," written prior to
				1980. There exists no Rule history file for this document as we do have and
				maintain for our promulgated rules. We are therefore unsure if these Rules of
				practice and procedure were validly promulgated. We currently have a pending
				declaratory action and, out of an abundance of caution, we are in need of
				immediate rule authority and authority in the future to issue declaratory
				orders.
The proposed emergency Rule herein for declaratory orders is
				copied from the Arkansas Attorney General's "Model Rule of Procedure for
				Regulatory and Licensing Agencies." AID copied the Model Rule section in this
				manual pertaining to declaratory orders.
We intend to adopt the currently proposed emergency rule as a
				permanent rule within 120 days.
SECTION
			 1.
BACKGROUND & PURPOSE
A declaratory order is a means of resolving a controversy or
				answering questions or doubts concerning the applicability of statutory
				provisions, rules, or orders over which the agency the agency has authority. A
				petition for declaratory order may be used only to resolve questions or doubts
				as to how the statutes, rules, or orders may apply to the petitioner's
				particular circumstances. A declaratory order is not the appropriate means for
				determining the conduct of another person or for obtaining a policy statement
				of general applicability from an agency. A petition or declaratory order must
				describe the potential impact of statutes, rules, or orders upon the
				petitioner's interests.
SECTION
			 2.
AUTHORITY
Ark. Code Ann. §
									25-15-206 states that each agency
				shall provide by rule for the filing and prompt disposition of petitions for
				declaratory orders as to the applicability of any rule, statute, or order
				enforced by it. These declaratory orders shall have the same status as agency
				orders in cases of adjudication. Ark. Code Ann. §
									25-15-204(b) (1)
				states that if an agency finds that imminent peril to the public health,
				safety, or welfare or compliance with federal laws or regulations requires
				adoption of a rule upon less than thirty (30) days' notice and states in
				writing its reasons for that finding, it may proceed without prior notice or
				hearing, or upon any abbreviated notice and hearing that it may choose, to
				adopt an emergency rule. The rule may be effective for no longer than one
				hundred twenty (120) days.
SECTION
			 3.
THE PETITION
The process to obtain a declaratory order is begun by filing
				with the Insurance Commissioner a petition that provides the following
				information:
1. The name, address,
			 telephone number and facsimile number of the petitioner;
2. The name, address, telephone number and
			 facsimile number of the attorney of the petitioner;
3. The statutory provision(s), agency
			 rule(s), or agency order(s) on which the declaratory order is sought;
4. A description of how the statutes, rules,
			 or orders may substantially affect the petitioner and the petitioner's
			 particular set of circumstances, and the question or issue on which the
			 petitioner seeks a declaratory order;
5. The signature of the petitioner or
			 petitioner's attorney;
6. The date;
			 and
7. Request for a hearing, if
			 desired.
The agency may rely on the statements of fact set out in the
				petition without taking any position with regard to the validity of the facts.
				Within ninety (90) days of the filing of the petition, the agency will render a
				final order denying the petition or issuing a declaratory order.