Attorney General: Honorable Edward C. Krawiecki, Jr. , House Minority Leader , 1993-015 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 21, 1993 

Honorable Edward C. Krawiecki, Jr.
House Minority Leader
State Capitol
Hartford, Connecticut 06106

Dear Representative Krawiecki:

You have requested our opinion regarding the temporary rules and regulations of the Department of Revenue Services under Conn. Pub. Act 91-3, ee 51 to 93, of the June 1991 Special Session, as amended (the "Public Act"). The Public Act is entitled "An Act Making Appropriations for the Expenses of the State for the Fiscal Year Ending June 30, 1992, Providing Funds for Such Expenses and Concerning Fiscal Reform." Sections 51 to 93 of the Public Act relate to the state income tax.

Specifically, you have asked for an opinion on two questions: (l) "How long can [the Public Act] run on temporary rules?" and (2) "Does [the Public Act] require permanent regulations approved at some point in time and/or ultimately by the Regulations Review Committee of the Connecticut State Legislature?" For the reasons set forth below, our opinion is that temporary rules may continue to be employed under the Public Act in lieu of regulations until such time as regulations are in fact adopted and approved, and that the Public Act does require that such temporary rules be replaced ultimately by regulations adopted and approved by the Regulations Review Committee in accordance with the Uniform Administrative Procedure Act ("UAPA"), Conn. Gen. Stat. ee 4-166 to 4-189.

As a general proposition, any administrative agency statement of general applicability having a substantial impact on the rights or obligations of those regulated by the agency must be promulgated as a regulation in accordance with the UAPA. Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health Care, 177 Conn. 356, 361-62, 417 A.2d 358 (1979). The UAPA establishes specific requirements for the adoption of regulations by state agencies, including approval by the Regulation Review Committee. Conn. Gen. Stat. e4-168. In addition, the UAPA provides that, if a public act requires an agency to adopt regulations, the agency must (l) publish the required notice of intent to adopt regulations within five months of the effective date of the act or within such other time specified by the act; and (2) submit the regulations to the Regulation Review Committee for approval within 180 days after publication of the notice. Id. e 4-168(b).

The Public Act, however, creates an express exception from the requirements of the UAPA for temporary regulations to implement the Act. Section 92 of the Public Act provides:

Notwithstanding the provisions of Chapter 54 of the general statutes [the UAPA] and sections 51 to 93, inclusive, of this act, the commissioner of revenue services may, in any instance in which, in accordance with [the UAPA] or said sections 51 to 93, inclusive of this act, he may or is required to adopt regulations, adopt rules and issue rulings in lieu of such regulations for the purposes of said sections 51 to 93, inclusive, of this act, on a temporary basis, which shall have the force and effect of regulations, until such regulations are adopted and approved.

In considering this provision, as with all legislation, we are guided by the cardinal rule of statutory interpretation: unambiguous language must be given its plain meaning. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991); Conn. Gen. Stat. e 1-1. Statutory language is unambiguous if it is susceptible to only one reasonable interpretation. Id. The legislature is presumed to have expressed its intent through the actual language used in a statute. Therefore, in the absence of ambiguity, statutory language should be interpreted without reference to extrinsic evidence of intent and must be afforded its plain and ordinary meaning. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390-91, ___ A.2d ___ (1993); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537-38, 582 A.2d 1184 (1990).

The language used in Section 92 is clear and can sustain only one reasonable construction. Accordingly, even in instances in which the Public Act otherwise expressly mandates the Commissioner of Revenue Services (the "Commissioner") to adopt certain regulations in accordance with the UAPA, Section 92 of the Public Act permits the Commissioner to adopt temporary rules without following the UAPA's requirements. Although the Public Act contemplates that these rules shall have a temporary, rather than a permanent, character, the only limitation on their duration is found in the final clause of Section 92. That clause provides that the temporary rules are effective until such time as regulations are in fact adopted and approved. Therefore, in response to your first question, it is our opinion that the temporary rules may continue in full force and effect until the Commissioner adopts such regulations and they are approved.

Your second question asks whether the Public Act requires, at some point in time, the adoption and approval of such regulations. The answer to this question is closely related to that for the first question. Section 91(a) of the Public Act provides that the Commissioner "is authorized to adopt regulations ... as may be necessary to enforce the [Public Act]." See also Conn. Gen. Stat. e 12-2 (Commissioner "may prescribe regulations, to be adopted in accordance with" the UAPA). In addition, several provisions of the Public Act specifically refer to regulations on various subject matters that the Commissioner shall or may adopt. See, e.g., Public Act ee 56(a), 65(b)(2), 67(b), 91(c). Such regulations, as with all agency statements of general applicability having a substantial impact on persons' rights or obligations, would, absent Section 92, have to be promulgated as directed by the UAPA. See Salmon Brook, 177 Conn. at 361-62. Section 92, as discussed above, allows the Commissioner to operate under temporary rules notwithstanding the UAPA's requirements.

This authorization to adopt rules and issue rulings in lieu of regulations is expressly limited to a "temporary basis." Such rules may temporarily remain in effect only up until the Commissioner adopts regulations. Thus, if the Commissioner adopts a temporary rule, which, in the absence of Section 92, he would otherwise have been required to adopt as a regulation in accordance with the UAPA, the temporary rule must ultimately be replaced by such a regulation. The temporary rules may not continue in place indefinitely. Their duration ends, under the Public Act, when the Commissioner replaces them with regulations. The legislature plainly intended that the Commissioner would ultimately adopt regulations subject to the approval of the Regulation Review Committee. The timing of their adoption, however, is left to the discretion of the Commissioner.

In sum, the Public Act permits the Commissioner to continue to administer the Public Act under temporary rules until regulations are in fact adopted and approved, but requires that the Commissioner at some point adopt regulations in place of such temporary rules subject to the approval of the Regulations Review Committee as required by the UAPA.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Mark F. Kohler
Assistant Attorney General

RB:MFK:mc


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