As discussed in a prior post, the Missouri State Board of Embalmers and Funeral Directors is now four years removed from Senate Bill No. 1 and the exigent circumstances that authorized emergency rules. The State Board must now address several issues through the formal rulemaking process. Understanding that the process may take a year or more, that carpenter’s adage about avoiding waste seems particularly apropos. No agency wants to spend the time and resources promulgating and implementing a rule only to have a court or the administrative hearing commission strike it down. Nor does the industry want to waste resources implementing compliance procedures that prove to have been for naught.
The Missouri Bar Association’s Handbook on Administrative Law contains a short checklist for attorneys that look to challenge either an administrative rule or a policy implemented outside of the rulemaking process. In a nutshell, the checklist describes three areas of challenge: the statutory authority for the rule (including whether the rule is consistent with the law), the procedural requirements, and whether the rule is arbitrary, unreasonable or an abuse of discretion.
We feel that some of the proposals, as currently written, fall short of these measures. Depending on how the proposals are to be submitted to the Secretary of State, we plan to apply these measures to certain of the proposed rules.
To gain a better appreciation of the challenges of promulgating an administrative rule, the Missouri Secretary of State provides a hyperlink to the basics of rulemaking.