Dear Executive Director Hesser,
The Attorney General is in receipt of your request for an opinion wherein you ask the following question:
Must the Oklahoma Department of Tourism and Recreation employprocedures prescribed by the Administrative Procedures Act when adoptingguidelines for distribution of funds to multi-county organizationsline-itemed in the Oklahoma Tourism and Recreations appropriations bill?
74 Ohio St. 1802 states that:
"there is hereby created the Oklahoma Tourism and Recreation Commission hereinafter referred to as the "Commission" and the Oklahoma Tourism and Recreation Department hereinafter referred to as the "Department". The Commission and the Department shall be the successors to the Oklahoma Industrial Development and Park Commission and the Oklahoma Industrial Development Park Department insofar as their duties and authority. . ."
The Administrative Procedures Act as shown in 75 Ohio St. 301 defines "agency" to mean any state board, commission, department, authority, bureau or office authorized by the Constitution or statutes to make rules or to formulate orders except . . . (with the Department of Tourism and Recreation not shown as one of the exceptions.)
75 Ohio St. 301(g)(2) defines "rule" as follows:
"any agency statement of general applicability and future effect that implements, interprets or prescribes substantive law or policy or prescribes the procedure or practice requirements of the agency. The term includes the amendment or appeal of a prior rule but does not include
(A) the issuance, renewal or denial of licenses;
(B) the approval, disapproval of prescription of rates;
(C) statements concerning only the internal management of an agency and not effecting private rights or procedures available to the public;
(D) interagency memorandum; or
(E) declaratory rulings issued pursuant to 308 of this title.)"
Multi-county organizations were formed to promote tourism and recreation within designated districts (countries) with matching funds to be disbursed with the authority and approval of the Department of Tourism Recreation which includes expenses for administration and promotional items.
74 Ohio St. 285 (39A) (1978) effective May 10, 1978, sets the funding and procedures for multi-county organizations.
"The Oklahoma Tourism and Recreation Department with approval of the Tourism and Recreation Commission shall develop and administer rules and regulations including, but not limited to policies which set forth eligibility standards for reimbursement, scope of administration and promotion programs, and an annual independent and certified audit."
Since the guidelines do not effect only the internal management of the agency but also the private rights or procedures available to the public, these guidelines would constitute rules as defined by the Administrative Procedures Act.
It is, therefore, the opinion of the Attorney General that:Multi-county guidelines (Rules and Regulations) developed andadministered by the Oklahoma Tourism Recreation Department fordisbursement of line-itemed funds to multi-county organizations aresubject to the Administrative Procedures Act.
JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA
VICTOR G. HILL, JR., ASSISTANT ATTORNEY GENERAL