ADMIN. RULE-MAKING DEADLINES - S.B. 255: COMMITTEE SUMMARY
sans-serif">Senate Bill 255 (as introduced 3-4-03)
Sponsor: Senator Michael D. Bishop
Committee: Government Operations
Date Completed: 3-11-03
CONTENT
The bill would amend the Administrative Procedures Act to do the following:
-- Extend the period of time that the Joint Committee on Administrative Rules (JCAR) has to consider a proposed rule.
-- Extend the period of time that a notice of objection stays the ability of the Office of Regulatory Reform (ORR) to file a rule.
-- Allow an agency to withdraw a proposed rule at any time.
-- Extend the time period for JCAR to consider a resubmitted rule.
In general, the periods of time would be lengthened from 21 to 90 days.
Currently, after JCAR receives a letter of transmittal proposing a rule, the Committee has 21 calendar days to consider the rule and to object to it by filing a notice of objection. Under the bill, JCAR would have 90 calendar days to consider a rule and object to it.
Under the Act, JCAR may file a notice of objection based on the grounds listed in the Act. If JCAR files a notice of objection, the Committee chair, the alternate chair, or any member of JCAR must cause bills to be introduced simultaneously in both houses of the Legislature. The notice of objection stays the ORR’s ability to file the rule with the Secretary of State for 21 calendar days, unless both houses of the Legislature are not in session for more than 14 calendar days after the notice of objection is filed. In that case, the 21-day period is tolled and, upon the return of both houses of the Legislature, the remainder of the 21-day period is available for consideration. (If the Legislature is out of session for 21 days or less, the combined period for consideration by JCAR and the full Legislature may not exceed 63 days.)
Under the bill, a notice of objection would stay the ORR’s ability to file a rule for 90 calendar days. If both houses of the Legislature were not in session for more than 14 calendar days during that 90-day period, the 90-day period would be tolled and the remainder would be available when both houses of the Legislature returned. Currently, if the Legislature enacts legislation within the 21-day period, the rule does not become effective unless the Governor vetoes the legislation. The bill would refer to the 90-day period.
Under the Act, an agency may withdraw and resubmit a proposed rule with or without permission of the JCAR chair and alternate chair, and the following time periods apply:
-- If permission to withdraw is granted, the 21-day time period for JCAR consideration and objection is tolled until the rule is resubmitted, except that JCAR has at least seven calendar days after resubmission to consider the resubmitted rule.
-- If permission to withdraw is not granted, a new and untolled 21-day time period begins upon resubmission of the rule for JCAR consideration.
The bill would delete these provisions. Instead, an agency could withdraw a proposed rule at any time. If the rule were resubmitted, JCAR would have a new 90-day period to consider the rule and to file a notice of objection.
BACKGROUND
Public Act 262 of 1999 created the current rule-making procedures within the Administrative Procedures Act, following a 1997 ruling of the Michigan Court of Appeals that the former process was unconstitutional (Blank v Michigan Department of Corrections, 222 Mich App 385). Previously, if JCAR disapproved a rule or reached an impasse on a proposed rule, the agency proposing it could not adopt or promulgate the rule unless JCAR subsequently approved it or the Legislature adopted a concurrent resolution approving the rule within 60 days after each house received a report from JCAR about the disapproval or impasse. The Court of Appeals found that this procedure violated the “enactment and presentment” clauses of Article IV of the State Constitution, and therefore violated the doctrine of separation of powers.
For a time after that decision, rules could be promulgated without approval of either JCAR or the Legislature, although agencies still had to give public notice and an opportunity to be heard. Public Act 262 of 1999 then enacted revised approval procedures, including the deadlines described above.
Under the APA, the Joint Committee on Administrative Rules may file a notice of objection only if it determines one or more of the following:
-- The agency lacks statutory authority for the rule.
-- The agency is exceeding the statutory scope of its rule-making authority.
-- There is an emergency relating to the public health, safety, and welfare that would warrant disapproval of the rule.
-- The rule conflicts with State law.
-- A substantial change in circumstances has occurred since the enactment of the law upon which the proposed rule is based.
-- The rule is arbitrary or capricious.
-- The rule is unduly burdensome to the public or to a licensee.
If JCAR does not file a notice of objection within the prescribed time period, the Office of Regulatory Reform may immediately file the rule with the Secretary of State.
If JCAR does file a notice of objection and bills are introduced in the Legislature, as required, the bills must contain one or more of the following:
-- A rescission of a rule upon its effective date.
-- A repeal of the statutory provision under which the rule was authorized.
-- A stay of the proposed rule’s effective date for up to one year.
If both houses of the Legislature do not adopt the legislation within the 21-day time limit, the ORR may file the rule with the Secretary of State.
- Legislative Analyst: George Towne
FISCAL IMPACT
The bill would have no fiscal impact on State or local government.
- Fiscal Analyst: Bill BowermanS0304\s255sa
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.