(a) Authority.

1. (1) The Director of the Division of Labor has been authorized by the General Assembly to promulgate rules:

   1. (A) Arkansas Code § 11-4-209(a) (minimum wage and overtime);
   2. (B) Arkansas Code §§ 11-6-111(b)(2) and 11-12-105(1) (child labor); and
   3. (C) Arkansas Code § 11-11-204(d) (private employment agencies).

2. (2)

   1. (A) The Department of Labor and Licensing follows the procedural requirements of the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq., in particular Arkansas Code §§ 25-15-203 and 25-15-204.
   2. (B) Additionally, the department is required to abide by the provisions of Arkansas Code § 10-3-309.

(b) Initiation of rulemaking.

1. (1)

   1. (A) The process of adopting a new rule or amending or repealing an existing rule, hereinafter referred to as rulemaking, may be initiated by request of the director that the staff submit proposed drafts.
   2. (B) Additionally, staff of the department may request permission to initiate rulemaking.
2. (2) Third persons outside the agency may petition for the issuance, amendment, or repeal of any rule.

(c) Petition to initiate rulemaking.

1. (1) Third parties may initiate rulemaking to adopt, amend, or repeal a rule by filing a petition with the Division of Labor to initiate rulemaking.

2. (2) The petition must contain:

   1. (A) The name, address, and telephone number of the petitioner;
   2. (B) The specific rule or action requested;
   3. (C) The reasons for the rule or action requested; and
   4. (D) Facts showing that the petitioner is regulated by the division or has a substantial interest in the rule or action requested.
3. (3) The petition to initiate rulemaking shall be filed with the director.

4. (4) Within thirty (30) days after submission of the petition, the director will either:

   1. (A) Deny the petition, stating the reasons in writing; or
   2. (B) Initiate rulemaking.

(e) Public input.

1. (1)

   1. (A) Before finalizing language of a proposed new rule or an amendment to, or repeal of, an existing rule, the director or his or her designee will receive public input through written comments and/or oral submissions.
   2. (B) The division will designate in its public notice the format and timing of public comment.

2. (2) Any public hearing will provide affected persons and other members of the public a reasonable opportunity for presentation of evidence, arguments, and oral statements within reasonable conditions and limitations imposed by the division to avoid:

   1. (A) Duplication;
   2. (B) Irrelevant comments;
   3. (C) Unnecessary delay; or
   4. (D) Disruption of the proceedings.

3. (3)

   1. (A) The director or his or her designee may preside at the public hearing.
   2. (B) The division must ensure that the division personnel responsible for preparing the proposed rule or amendment are available and will notify third parties initiating rule changes to:

(i) Be available to explain the proposal; and

1. (ii) Respond to questions or comments regarding the proposed rule.
2. (4) The division will preserve the comments made at the public hearing by a recording.

3. (5)

   1. (A) Any person may submit written statements within the specified period of time.

   2. (B) All timely, written statements will be:

      1. (i) Considered by the director; and
      2. (ii) Made a part of the rulemaking record.

(f) Notice of rulemaking.

1. (1) The division will give notice of proposed rulemaking to be published pursuant to Arkansas Code § 25-15-204.

2. (2) The notice will:

   1. (A) Set any written comment period; and
   2. (B) Specify the time, date, and place of any public hearing.

(g) The decision to adopt a rule.

1. (1) The division will not finalize language of the rule or decide whether to adopt a rule until the:

   1. (A) Period for public comment has expired; and
   2. (B) Proposed rule has been reviewed and approved by the Legislative Council or other legislative committee pursuant to Arkansas Code § 10-3-309.

2. (2) Before acting on a proposed rule, the division will consider:

   1. (A) All of the written submissions and/or oral submissions received in the rulemaking proceeding or any memorandum summarizing such oral submissions; and
   2. (B) Any regulatory analysis or fiscal impact statement issued in the rulemaking proceedings.

3. (3) The division may:

   1. (A) Use its own experience, specialized knowledge, and judgment in the adoption of a rule; or
   2. (B) Consider the experience, specialized knowledge, and judgment of division staff.

(h) Variance between adopted rule and published notice of proposed rule.

1. (1) The division may not adopt a rule that differs from the rule proposed in the published notice of the intended rulemaking on which the rule is based unless:

   1. (A) The final rule is in character with the original scheme and was a logical outgrowth of the notice and comments stemming from the proposed rule; or
   2. (B) The notice fairly apprised interested persons of the subject and the issues that would be considered so that those persons had an opportunity to comment.

2. (2) In determining whether the final rule is in character with the original scheme and was a logical outgrowth of the notice and comments, and that the notice of intended rulemaking provided fair warning that the outcome of that rulemaking proceeding could be the rule in question, the division must consider the following factors:

   1. (A) The extent to which persons who will be affected by the rule should have understood that the rulemaking proceeding on which it is based could affect their interests;
   2. (B) The extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of intended rulemaking; and

   3. (C) The extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of intended rulemaking.

      1. (i) Concise statement of reasons.

3. (1)

   1. (A) When requested by an interested person, either prior to the adoption of a rule or within thirty (30) days after its adoption, the division shall issue a concise statement of the principal reasons for and against the adoption of the rule.
   2. (B) Requests for such a statement must be in writing and be delivered to the director.
   3. (C) The request should indicate whether the statement is sought for all or only a specified part of a rule.
   4. (D) A request will be considered to have been submitted on the date on which it is received by the division.

4. (2) The concise statement of reasons must contain:

   1. (A) The division’s reasons for adopting the rule;
   2. (B) An indication of any change between the text of the proposed rule and the text of the rule as finally adopted, with explanations for any such change; and
   3. (C) The principal reasons urged in the rulemaking procedure for and against the rule, and the division’s reasons for overruling the arguments made against the rule.

(j) Contents.

1. (1) The division shall cause its rules to be published and made available to interested persons.

2. (2) The publication must include:

   1. (A) The text of the rule; and

   2. (B) A note containing the following:

      1. (i) The date the division adopted or amended the rule;
      2. (ii) The effective date of the rule;
      3. (iii) Any findings required by any provisions of law as a prerequisite to adoption for effectiveness of the rule; and
      4. (iv) Citation to the entire specific statutory or other authority authorizing the adoption of the rule.
3. (3) The publication of the rule must state the date of publication.

(k) Format. The published rules of the division will be organized substantially in the following format:

1. (1) Statement of organization and operations;
2. (2) Information for public guidance;
3. (3) General organization;
4. (4) Purpose and scope;
5. (5) Definitions;
6. (6) Rulemaking;
7. (7) Emergency rulemaking;
8. (8) Declaratory orders;
9. (9) Adjudicative hearings;
10. (10) Licensing; and

11. (11) Substantive rules and other rules of the division.

    1. (l) Incorporation by reference.

12. (1)

    1. (A) By reference in a rule, the division may incorporate all or any part of a code, standard, rule, or other matter if the division finds that copying the matter in the division’s rule would be unduly cumbersome, expensive, or otherwise inexpedient.

    2. (B) The reference in the rule must:

       1. (i) Fully and precisely identify the incorporated matter by:

(b) (b) Citation;

1. (c) (c) Date; and

   1. (d) (d) Edition, if any;

      1. (ii) Briefly indicate the precise subject and general contents of the incorporated matter; and
      2. (iii) State that the rule does not include any later amendments or editions of the incorporated matter.
2. (2) The division may incorporate such a matter by reference in a proposed or adopted rule only if the division makes copies of the incorporated matter readily available to the public.

3. (3) The rules must state:

   1. (A) How and where copies of the incorporated matter may be obtained at cost from the division; and
   2. (B) How and where copies may be obtained from an agency of the United States, this state, another state, or the organization, association, or persons originally issuing that matter.

4. (4) The division must retain permanently a copy of any materials incorporated by reference in a rule.

   1. (m) Filing.
5. (1) After the division formally adopts a new rule or amends a current rule or repeals an existing rule, and after the rule change has been reviewed and approved by the Legislative Council, the department staff will file final copies of the rule with the Secretary of State, the Arkansas State Library, and the Bureau of Legislative Research, or as otherwise provided by Arkansas Code § 25-15-204(d).
6. (2) Proof of filing a copy of the rule, amendment, or repeal with the Secretary of State, the Arkansas State Library, and the Bureau of Legislative Research will be kept in a file maintained by the Legal Section of the division.
7. (3) Notice of the rule change will be posted on the division website.