October 28, 2003, Introduced by Senator ALLEN and referred to the Committee on Government Operations.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 3, 5, 24, 28, 39, 41, 41a, 42, 44, 45, 45a,
49, and 52 (MCL 24.203, 24.205, 24.224, 24.228, 24.239, 24.241,
24.241a, 24.242, 24.244, 24.245, 24.245a, 24.249, and 24.252),
section 3 as amended by 1988 PA 277, sections 5, 24, 41a, 42, 44,
45, and 52 as amended and sections 28, 39, and 45a as added by
1999 PA 262, and section 41 as amended by 1993 PA 141.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 3. (1) "Adoption of a rule" means that step in the
2 processing of a rule consisting of the formal action of an agency
3 establishing a rule before its promulgation.
4 (2) "Agency" means a state department, bureau, division,
5 section, board, commission, trustee, authority or officer,
6 created by the constitution, statute, or agency action. Agency
1 does not include an agency in the legislative or judicial branch
2 of state government, the governor, an agency having direct
3 governing control over an institution of higher education, the
4 state civil service commission, or an association of insurers
5 created under the insurance
code of 1956, Act No. 218 of the
6 Public Acts of 1956,
being sections 500.100 to 500.8302 of the
7 Michigan Compiled Laws 1956
PA 218, MCL 500.100 to 500.8302, or
8 other association or
facility formed under Act No. 218 of the
9 Public Acts of 1956 the insurance code of 1956, 1956 PA 218, MCL
10 500.100 to 500.8302, as a nonprofit organization of insurer
11 members.
12 (3) "Contested case" means a proceeding, including
13 rate-making, price-fixing, and licensing, in which a
14 determination of the legal rights, duties, or privileges of a
15 named party is required by law to be made by an agency after an
16 opportunity for an evidentiary hearing. When a hearing is held
17 before an agency and an appeal from its decision is taken to
18 another agency, the
hearing and the appeal are deemed
19 considered to be a continuous proceeding as though before a
20 single agency.
21 (4) "Committee" means the joint committee on administrative
22 rules.
23 (5) "Copy" means, in the context of the processing of a rule,
24 an electronic reproduction of a record.
25 (6) (5) "Court"
means the circuit court.
26 (7) (6) "Guideline"
means an agency statement or
27 declaration of policy which
that the agency intends to follow,
1 which that does not have the force or effect of law,
and
2 which that binds the agency but does not bind any
other
3 person.
4 Sec. 5. (1) "License" includes the whole or part of an
5 agency permit, certificate, approval, registration, charter, or
6 similar form of permission required by law, but does not include
7 a license required solely for revenue purposes, or a license or
8 registration issued under the Michigan vehicle code, 1949 PA 300,
9 MCL 257.1 to 257.923.
10 (2) "Licensing" includes agency activity involving the grant,
11 denial, renewal, suspension, revocation, annulment, withdrawal,
12 recall, cancellation, or amendment of a license.
13 (3) "Michigan register" means the publication described in
14 section 8.
15 (4) "Notice" means a record or a copy that informs a person
16 of past or future action of the person generating the record or
17 copy.
18 (5) (4) "Notice
of objection" means the document record
19 adopted by the committee that indicates the committee's formal
20 objection to a proposed rule.
21 (6) (5) "Party"
means a person or agency named, admitted,
22 or properly seeking and entitled of right to be admitted, as a
23 party in a contested case.
24 (7) (6) "Person"
means an individual, partnership,
25 association, corporation, limited liability company, governmental
26 subdivision, or public or private organization of any kind other
27 than the agency engaged in the particular processing of a rule,
1 declaratory ruling, or contested case.
2 (8) (7) "Processing
of a rule" means the action required or
3 authorized by this act
regarding a rule which that is to be
4 promulgated, including the rule's adoption, and ending with the
5 rule's promulgation.
6 (9) (8) "Promulgation
of a rule" means that step in the
7 processing of a rule consisting of the filing of a rule with the
8 secretary of state.
9 (10) "Record" means information that is inscribed on a
10 tangible electronic medium or that is stored in an electronic
11 medium and is retrievable in perceivable form.
12 Sec. 24. (1) Before the adoption of a guideline, an agency
13 shall give notice of the proposed guideline to the committee, the
14 office of regulatory reform, and each person who requested the
15 agency in writing or electronically for advance notice of
16 proposed action which
that may affect the person. The
17 committee shall provide the notice of the proposed guideline not
18 later than the next business day after receipt of the notice from
19 the agency to members of the committee and to members of the
20 standing committees of the senate and house of representatives
21 that deal with the subject matter of the proposed guideline. The
22 notice shall be given
by mail, in writing, transmitted to the
23 last address specified by the person. A request for notice is
24 renewable each December.
25 (2) The notice required by subsection (1) shall include all
26 of the following:
27 (a) A statement of the terms or substance of the proposed
1 guideline, a description of the subjects and issues involved, and
2 the proposed effective date of the guideline.
3 (b) A statement that the addressee may express any views or
4 arguments regarding the proposed guideline or the guideline's
5 effect on a person.
6 (c) The address to which written comments may be sent and the
7 date by which comments
shall be mailed transmitted, which date
8 shall not be less than 35
days from the date of the mailing
9 transmittal of the notice.
10 (d) A reference to the specific statutory provision about
11 which the proposed guideline states a policy.
12 Sec. 28. (1) Before the adoption of a standard form
13 contract that would have been considered a rule but for the
14 exemption from
rule-making under section 7(o) 7(p) or a policy
15 exempt from rule-making
under section 7(p) 7(q), an agency
16 shall give notice of the proposed standard form contract or
17 policy to the committee and the office of regulatory reform. The
18 committee shall provide a copy of the notice not later than the
19 next business day after receipt of the notice from the agency to
20 members of the committee and to members of the standing
21 committees of the senate and house of representatives that deal
22 with the subject matter of the proposed standard form contract or
23 policy.
24 (2) The notice required by subsection (1) shall include all
25 of the following:
26 (a) A statement of the terms of substance of the proposed
27 standard form contract or policy, a description of the subjects
1 and issues involved, and the proposed effective date of the
2 standard form contract or policy.
3 (b) A statement that the addressee may express any views or
4 arguments regarding the proposed standard form contract or policy
5 or the standard form contract's or policy's effect on a person.
6 (c) The address to which comments may be sent and the date by
7 which the comments shall
be mailed transmitted, which date
8 shall not be less than 35
days from the date of the mailing
9 transmittal of the notice.
10 (d) A reference to the specific statutory provision under
11 which the standard form contract or policy is issued.
12 (3) If the value of a proposed standard form contract exempt
13 from rule-making under
section 7(o) 7(p) is $10,000,000.00 or
14 more, the notice required under subsection (1) shall include a
15 copy of the proposed standard form contract. If the value of the
16 proposed standard form contract exempt from rule-making under
17 section 7(o) 7(p)
is less than $10,000,000.00, the department
18 agency shall provide a copy of the proposed standard form
19 contract or policy to any legislator requesting a copy.
20 Sec. 39. (1) Before initiating any changes or additions to
21 rules, an agency shall file with the office of regulatory reform
22 a request for rule-making
on in a form format prescribed by
23 the office of regulatory reform. The request for rule-making
24 shall include the following:
25 (a) The state or federal statutory or regulatory basis for
26 the rule.
27 (b) The problem the rule intends to address.
1 (c) An assessment of the significance of the problem.
2 (2) An agency shall not proceed with the processing of a rule
3 outlined in this chapter unless the office of regulatory reform
4 has approved the request for rule-making.
5 (3) The office of regulatory reform shall record the receipt
6 of all requests for rule-making on the internet and shall make
7 copies of approved requests for rule-making available to members
8 of the general public upon request.
9 (4) The office of regulatory reform shall immediately make
10 available to the committee copies of the request for rule-making
11 submitted to the office of regulatory reform. On a weekly basis,
12 the office of regulatory reform shall provide to the committee a
13 listing of all requests for rule-making approved or denied during
14 the previous week. The committee shall provide a copy of the
15 approved and denied requests for rule-making, not later than the
16 next business day after receipt of the notice from the office of
17 regulatory reform, to members of the committee and to members of
18 the standing committees of the senate and house of
19 representatives that deal with the subject matter of the proposed
20 rule.
21 Sec. 41. (1) Except as provided in section 44, before the
22 adoption of a rule, an agency shall give notice of a public
23 hearing and offer a person an opportunity to present data, views,
24 questions, and arguments. The notice shall be given within the
25 time prescribed by any applicable statute, or if none, in the
26 manner prescribed in section 42(1).
27 (2) The notice described in subsection (1) shall include all
1 of the following:
2 (a) A reference to the statutory authority under which the
3 action is proposed.
4 (b) The time and place of the public hearing and a statement
5 of the manner in which data, views, questions, and arguments may
6 be submitted by a person to the agency at other times.
7 (c) A statement of the terms or substance of the proposed
8 rule, a description of the subjects and issues involved, and the
9 proposed effective date of the rule.
10 (3) The agency shall transmit copies of the notice to each
11 person who requested the
agency in writing for advance notice
12 of proposed action which
may affect the person. The If
13 requested, the notice shall be by mail, in writing, to the last
14 address specified by the person.
15 (4) The public hearing shall comply with any applicable
16 statute, but is not subject to the provisions governing a
17 contested case.
18 (5) The head of the promulgating agency or 1 or more persons
19 designated by the head of the agency who have knowledge of the
20 subject matter of the proposed rule shall be present at the
21 public hearing and shall participate in the discussion of the
22 proposed rule.
23 Sec. 41a. A member of the legislature may annually submit a
24 written request to the office of regulatory reform requesting
25 that a copy of all proposed rules or changes in rules, or any
26 designated proposed rules or changes in rules submitted to the
27 office of regulatory reform for its approval, be transmitted to
1 the requesting member
upon their receipt of the same by the
2 office of regulatory reform.
3 Sec. 42. (1) Except as provided in section 44, at a
4 minimum, an agency shall publish the notice of public hearing as
5 prescribed in any applicable statute or, if none, the agency
6 shall publish the notice not less than 10 days and not more than
7 60 days before the date of the public hearing in at least 3
8 newspapers of general circulation in different parts of the
9 state, 1 of which shall be in the Upper Peninsula.
10 (2) Additional methods that may be employed by the agency,
11 depending upon the circumstances, include publication in trade,
12 industry, governmental, or professional publications or posting
13 on the agency's website or other publicly accessible internet or
14 electronic media.
15 (3) In addition to the requirements of subsection (1), the
16 agency shall submit a copy of the notice of public hearing to the
17 office of regulatory reform for publication in the Michigan
18 register. An agency's notice shall be published in the Michigan
19 register before the public hearing and the agency shall file a
20 copy of the notice of public hearing with the office of
21 regulatory reform. Within 7 days after receipt of the notice of
22 public hearing, the office of regulatory reform shall do all of
23 the following before the public hearing:
24 (a) Forward a copy of the notice of public hearing to the
25 committee.
26 (b) Provide notice electronically
through publicly
27 accessible internet or electronic media.
1 (4) After the office
of regulatory reform forwards
2 transmits a copy of the notice of public hearing to the
3 committee, the committee
shall send transmit copies of the
4 notice of public hearing, not later than the next business day
5 after receipt of the notice from the office of regulatory reform,
6 to each member of the committee and to the members of the
7 standing committees of the senate and house of representatives
8 that deal with the subject matter of the proposed rule.
9 (5) After receipt of the notice of public hearing filed under
10 subsection (3), the committee may meet to consider the proposed
11 rule, take testimony, and provide the agency with the committee's
12 informal response to the rule.
13 Sec. 44. (1) Sections 41 and 42 do not apply to an
14 amendment or rescission of a rule that is obsolete or superseded,
15 or that is required to make obviously needed corrections to make
16 the rule conform to an amended or new statute or to accomplish
17 any other solely formal purpose, if a statement to that effect is
18 included in the legislative
service bureau office of regulatory
19 reform certificate of approval of the rule.
20 (2) Sections 41 and 42 do not apply to a rule that is
21 promulgated under the Michigan occupational safety and health
22 act, 1974 PA 154, MCL 408.1001 to 408.1094, that is substantially
23 similar to an existing federal standard that has been adopted or
24 promulgated under the occupational safety and health act of 1970,
25 Public Law 91-596, 84 Stat. 1590. However, notice of the
26 proposed rule shall be published in the Michigan register at
27 least 35 days before the submission of the rule to the secretary
1 of state pursuant to
section 46(4) 46(1). A reasonable period,
2 not to exceed 21 days, shall be provided for the submission of
3 written comments and views following publication in the
4 Michigan register.
5 (3) For purposes of subsection (2), "substantially similar"
6 means identical, with the exception of style or format
7 differences needed to conform to this or other state laws, as
8 determined by the office of regulatory reform pursuant to section
9 45(1).
10 Sec. 45. (1) If
approved by the office of regulatory
11 reform, the The agency may shall submit
the proposed rule to
12 the legislative
service bureau office of regulatory reform for
13 its formal
certification. The legislative service bureau
14 office of regulatory reform shall promptly shall approve issue
15 a certificate of approval indicating a determination that a
16 proposed rule if it
considers the proposed rule to be is proper
17 as to all matters of
form, classification, and arrangement .
18 The office of
regulatory reform and may
approve a proposed rule
19 if it considers the proposed rule to be legal.
20 (2) Except as provided in subsection (6), after notice is
21 given as provided in this act and before the agency proposing the
22 rule has formally adopted the rule, the agency shall prepare an
23 agency report containing a synopsis of the comments contained in
24 the public hearing record and shall describe any changes in the
25 proposed rules that were made by the agency after the public
26 hearing. The office of regulatory reform shall transmit by
27 letter a notice of transmittal to the committee
copies of the
1 rule, the agency reports,
and certificates certificate of
2 approval from the
legislative service bureau and the office of
3 regulatory reform. The
number of copies transmitted shall be
4 the number required in
the committee procedures and standards but
5 not to exceed 12
copies. The agency shall transmit to
the
6 committee the documents
records described in this subsection
7 within 1 year after the date of the last public hearing on the
8 proposed rule unless the proposed rule is a resubmission under
9 section 45a(7).
10 (3) Except for a rule promulgated under sections 33, 44, and
11 48, the agency shall
prepare and include with the letter notice
12 of transmittal a regulatory impact statement containing all of
13 the following information:
14 (a) A comparison of the proposed rule to parallel federal
15 rules or standards set by a state or national licensing agency or
16 accreditation association, if any exist.
17 (b) An identification of the behavior and frequency of
18 behavior that the rule is designed to alter.
19 (c) An identification of the harm resulting from the behavior
20 that the rule is designed to alter and the likelihood that the
21 harm will occur in the absence of the rule.
22 (d) An estimate of the change in the frequency of the
23 targeted behavior expected from the rule.
24 (e) An identification of the businesses, groups, or
25 individuals who will be directly affected by, bear the cost of,
26 or directly benefit from the rule.
27 (f) An identification of any reasonable alternatives to
1 regulation pursuant to the proposed rule that would achieve the
2 same or similar goals.
3 (g) A discussion of the feasibility of establishing a
4 regulatory program similar to that proposed in the rule that
5 would operate through market-based mechanisms.
6 (h) An estimate of the cost of rule imposition on the agency
7 promulgating the rule.
8 (i) An estimate of the actual statewide compliance costs of
9 the proposed rule on individuals.
10 (j) An estimate of the actual statewide compliance costs of
11 the proposed rule on businesses and other groups.
12 (k) An identification of any disproportionate impact the
13 proposed rule may have on small businesses because of their
14 size.
15 (l) An identification of the nature of any report and the
16 estimated cost of its preparation by small business required to
17 comply with the proposed rule.
18 (m) An analysis of the costs of compliance for all small
19 businesses affected by the proposed rule, including costs of
20 equipment, supplies, labor, and increased administrative costs.
21 (n) An identification of the nature and estimated cost of any
22 legal consulting and accounting services that small businesses
23 would incur in complying with the proposed rule.
24 (o) An estimate of the ability of small businesses to absorb
25 the costs estimated under subdivisions (l) through (n) without
26 suffering economic harm and without adversely affecting
27 competition in the marketplace.
1 (p) An estimate of the cost, if any, to the agency of
2 administering or enforcing a rule that exempts or sets lesser
3 standards for compliance by small businesses.
4 (q) An identification of the impact on the public interest of
5 exempting or setting lesser standards of compliance for small
6 businesses.
7 (r) A statement describing the manner in which the agency
8 reduced the economic impact of the rule on small businesses or a
9 statement describing the reasons such a reduction was not
10 feasible.
11 (s) A statement describing whether and how the agency has
12 involved small businesses in the development of the rule.
13 (t) An estimate of the primary and direct benefits of the
14 rule.
15 (u) An estimate of any cost reductions to businesses,
16 individuals, groups of individuals, or governmental units as a
17 result of the rule.
18 (v) An estimate of any increase in revenues to state or local
19 governmental units as a result of the rule.
20 (w) An estimate of any secondary or indirect benefits of the
21 rule.
22 (x) An identification of the sources the agency relied upon
23 in compiling the regulatory impact statement.
24 (y) Any other information required by the office of
25 regulatory reform.
26 (4) The agency shall electronically transmit the regulatory
27 impact statement required under subsection (3) to the office of
1 regulatory reform at least 28 days before the public hearing
2 required pursuant to section 42. Before the public hearing can
3 be held, the regulatory impact statement must be approved by the
4 office of regulatory reform. The agency shall also transmit a
5 copy of the regulatory impact statement to the committee before
6 the public hearing and the agency shall make copies available to
7 the public at the public hearing.
8 (5) The committee
shall furnish transmit to the senate
9 fiscal agency and the
house fiscal agency with a copy of each
10 rule and regulatory impact statement filed with the committee, as
11 well as a copy of the agenda identifying the proposed rules to be
12 considered by the committee. The senate fiscal agency and the
13 house fiscal agency shall analyze each proposed rule for possible
14 fiscal implications which
that, if the rule were adopted, would
15 result in additional appropriations in the current fiscal year or
16 commit the legislature to an appropriation in a future fiscal
17 year. The senate fiscal agency and the house fiscal agency shall
18 electronically report
their findings in writing to the senate
19 and house appropriations committees and to the committee before
20 the date of consideration of the proposed rule by the committee.
21 (6) Subsections (2), (3), and (4) do not apply to a rule that
22 is promulgated under sections 33, 44, and 48.
23 Sec. 45a. (1) Except as otherwise provided for in
24 subsections (7) and (8), after receipt by the committee of the
25 letter notice of transmittal specified in section
45(2), the
26 committee has 21 calendar days in which to consider the rule and
27 to object to the rule by filing a notice of objection approved by
1 a concurrent majority of the committee members. A notice of
2 objection may only be approved by the committee if the committee
3 affirmatively determines by a concurrent majority that 1 or more
4 of the following conditions exist:
5 (a) The agency lacks statutory authority for the rule.
6 (b) The agency is exceeding the statutory scope of its
7 rule-making authority.
8 (c) There exists an emergency relating to the public health,
9 safety, and welfare that would warrant disapproval of the rule.
10 (d) The rule is in conflict with state law.
11 (e) A substantial change in circumstances has occurred since
12 enactment of the law upon which the proposed rule is based.
13 (f) The rule is arbitrary or capricious.
14 (g) The rule is unduly burdensome to the public or to a
15 licensee licensed by the rule.
16 (2) If the committee does not file a notice of objection
17 within the time period prescribed in subsection (1), the office
18 of regulatory reform may immediately file the rule with the
19 secretary of state. The rule shall take effect 7 days after the
20 date of its filing unless a later date is indicated within the
21 rule.
22 (3) If the committee files a notice of objection within the
23 time period prescribed in subsection (1), the committee chair,
24 the alternate chair, or any member of the committee shall cause
25 bills to be introduced in both houses of the legislature
26 simultaneously. Each house shall place the bill or bills
27 directly on its calendar. The bills shall contain 1 or more of
1 the following:
2 (a) A rescission of a rule upon its effective date.
3 (b) A repeal of the statutory provision under which the rule
4 was authorized.
5 (c) A bill staying the effective date of the proposed rule
6 for up to 1 year.
7 (4) The notice of objection filed under subsection (3) stays
8 the ability of the office of regulatory reform to file the rule
9 with the secretary of state for the following time periods:
10 (a) Except as provided in subdivision (b) or (c), 21
11 consecutive calendar days.
12 (b) If both houses of the legislature are not in session for
13 more than 14 consecutive calendar days but 21 or less consecutive
14 calendar days following the filing of a notice of objection, the
15 21-day time period described in subdivision (a) shall toll, with
16 the remainder of the 21-day time period available for
17 consideration upon the return of both houses. In no case under
18 this subdivision shall the combined time period for consideration
19 by the committee and full legislature exceed 63 consecutive
20 calendar days.
21 (c) If both houses of the legislature are not in session more
22 than 21 consecutive calendar days following the filing of a
23 timely notice of objection, the 21-day time period described in
24 subdivision (a) shall toll, with the remainder of the 21-day time
25 period available for consideration upon the return of both
26 houses.
27 (5) If the legislation introduced pursuant to subsection (3)
1 is defeated in either house and if the vote by which the
2 legislation failed to pass is not reconsidered in compliance with
3 the rules of that house, or if legislation introduced pursuant to
4 subsection (3) is not adopted by both houses within the time
5 period specified in subsection (4), the office of regulatory
6 reform may file the rule with the secretary of state. Upon
7 filing with the secretary of state, the rule shall take effect 7
8 days after the filing date unless a later date is specified
9 within the rule.
10 (6) If the legislation introduced pursuant to subsection (3)
11 is enacted by the legislature and presented to the governor
12 within the 21-day period, the rules do not become effective
13 unless the legislation is vetoed by the governor as provided by
14 law. If the governor vetoes the legislation, the office of
15 regulatory reform may file the rules immediately. The rule shall
16 take effect 7 days after the date of its filing unless a later
17 effective date is indicated within the rule.
18 (7) An agency may withdraw a proposed rule under the
19 following conditions:
20 (a) With permission of the committee chair and alternate
21 chair, the agency may withdraw the rule and resubmit it. If
22 permission to withdraw is granted, the 21-day time period
23 described in subsection (1) is tolled until the rule is
24 resubmitted, except that the committee shall have at least 7
25 calendar days after resubmission to consider the resubmitted
26 rule. The period of time between withdrawal and resubmission of
27 the rule is not counted toward the 63-day limit for rule
1 consideration described in subsection (4)(b).
2 (b) Without permission of the committee chair and alternate
3 chair, the agency may withdraw the rule and resubmit it. If
4 permission to withdraw is not granted, a new and untolled 21-day
5 time period described in subsection (1) shall begin upon
6 resubmission of the rule to the committee for consideration.
7 (8) Subsections (1) through (5) do not apply to rules adopted
8 under sections 33, 44, and 48.
9 Sec. 49. (1) The
secretary of state shall transmit, or
10 mail forthwith, after copies of rules are filed in his or her
11 office, copies on which
the day and hour of such that filing
12 have been indorsed, as follows:
13 (a) To the secretary
of the joint committee on
14 administrative rules and the legislative service bureau office
15 of regulatory reform.
16 (b) To the secretary of the senate and the clerk of the house
17 of representatives for distribution by them to each member of the
18 senate and the house of representatives. When the legislature is
19 not in session, or is in session but will not meet for more than
20 10 days after the secretary and clerk have received the rules,
21 the secretary and clerk
shall mail transmit 1 copy to each
22 member of the legislature at his or her home address.
23 (2) The secretary of the senate and clerk of the house of
24 representatives shall present the rules to the senate and the
25 house of representatives.
26 Sec. 52. (1) If authorized by concurrent resolution of the
27 legislature, the committee, acting between regular sessions, may
1 suspend a rule or a part of a rule promulgated during the interim
2 between regular sessions.
3 (2) The committee shall notify the agency promulgating the
4 rule, the secretary of state, the department of management and
5 budget, and the legislative
service bureau and office of
6 regulatory reform of any rule or part of a rule the committee
7 suspends. ,
and the A rule or part of a rule suspended under
8 this section shall not be published in the Michigan register or
9 in the Michigan administrative code while suspended.
10 (3) A rule suspended by the committee continues to be
11 suspended no not
longer than the end of the next regular
12 legislative session.