Opinion No.

The Honorable Roy Ragland State Representative Post Office Box 610 Marshall, AR 72650

Dear Representative Ragland:

I am writing in response to your request for an opinion on the following matter:

Representative Monty Davenport and I would like to respectfully request a formal Attorney General opinion on the extent and scope of EO 05-04. In addition, I ask that you urge the ADEQ/APCE to include the public, small businesses and local governments in the development of these economic impact guidelines.

RESPONSE

In my opinion, Executive Order 05-04 requires an agency, as defined by EO 05-04, to complete an analysis of the economic impact on small business and feasible alternatives prior to promulgating a rule or regulation in accordance with A.C.A. § 25-15-204 (Supp. 2003).

Specifically, EO 05-04 requires state entities, except for the General Assembly and the Judiciary, to determine whether certain proposed rules and regulations will affect small business. If so, the Executive Order requires that the agency prepare an economic impact statement detailing several factors relating to the impact of the proposed rule on small businesses. The statement is to be filed with the Division of the Department of Economic Development, which, in turn, is to provide feedback to the agency submitting the statement. The submitting agency is required to respond in writing to the Director's feedback as to whether any action is warranted thereon.

You have asked that I explain the "extent and scope" of Executive Order 05-04. I am uncertain as to the exact nature of your question. The extent and scope of EO 05-04 are delineated in the text of the Executive Order. If you have a more specific question pertaining to the application of Executive Order 05-04, I would be glad to respond to such a request.

Furthermore, I am unclear on why you have referenced the Arkansas Department of Environmental Quality/Arkansas Pollution Control Ecology Commission in your request for an opinion. Although Executive Order 05-04 certainly applies to ADEQ/ACPE (each is an "agency" as defined in the Executive Order), ADEQ/ACPE is not referenced or singled out in Executive Order 05-04. The Arkansas Pollution Control Ecology Commission is required to promulgate rules and regulations implementing the substantive duties of the Arkansas Department of Environmental Quality. A.C.A. § 8-1-203(b)(1)(A) (Repl. 2000). With respect to these rules and regulations, a separate legislative enactment requires the APCE Commission to perform a cost-benefit analysis of the economic impact versus the environmental benefit of proposed rules or regulations. A.C.A. § 8-1-203(b)(1)(B) (Repl. 2000); see also Op. Att'y Gen. 2004-343 (copy enclosed). The analysis required by EO 05-04 is a separate analysis that is required in addition to the analysis required of the APCE under A.C.A. § 8-12-203(b)(2)(B). The only state department specifically referenced in EO 05-04 is the Department of Economic Development. I have attached a copy of Executive Order 05-04 for your convenience.

Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB: JMD/cyh