House Bill No. 389
Introduced By simon, ellis, grosfield, grinde, baer, bohlinger, sliter, mccann, peck, ohs, knox, beaudry, debruycker, harp, cocchiarella, boharski
A Bill for an Act entitled: "An Act providing for greater public participation in agency rulemaking and other agency
actions; amending provisions for notice of agency rules and actions; defining terms; clarifying existing provisions;
strengthening the requirements for an emergency rule; prohibiting the use of an adoption notice to cure deficiencies in
statements of reasonable necessity; and amending sections 2-3-101, 2-3-102, 2-3-103, 2-3-104, 2-3-105,
2-3-203, 2-3-213, 2-3-221, 2-4-102, 2-4-302, 2-4-303, 2-4-305, and 2-4-306, MCA."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 2-3-101, MCA, is amended to read:
"2-3-101. Legislative intent. The legislature finds and declares pursuant to the mandate of Article II, section 8, of the 1972 Montana constitution that legislative guidelines should be established to secure to the people of Montana their constitutional right to be afforded reasonable opportunity to participate in the operation of governmental agencies prior to the final decision of the agency and that this part must be liberally construed to achieve that purpose."
Section 2. Section 2-3-102, MCA, is amended to read:
"2-3-102. Definitions. As used in this part, the following definitions apply:
(1) "Agency" means
any a board, bureau, commission, department, authority, or officer of the state or local government
authorized by law to make rules, determine contested cases, or enter into contracts except:
(a) the legislature
and any or a branch, committee, or officer thereof of the legislature;
(b) the judicial
branches and any branch or a committee or officer thereof of the judicial branch;
(c) the governor, except that an agency is not exempt merely because the governor has been designated as a member
thereof of the agency; or
(d) the state military establishment and agencies concerned with civil defense and recovery from hostile attack.
(2) "Agency action" means the whole or a part of, or the equivalent or denial of, the adoption of an agency rule, the
issuance of a license or order, the award of a contract, or
the equivalent or denial thereof an agency decision that is of
significant interest to the public.
(3) "Rule" means any agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include:
(a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; or
(b) declaratory rulings as to the applicability of any statutory provision or of any rule.
(4) "Significant interest to the public" means the undertaking of an agency action or decision that involves a
matter THAT THE AGENCY KNOWS TO BE CONTROVERSIAL, a SIGNIFICANT fiscal impact on a particular class
or group of individuals, or significant citizen interest."
Section 3. Section 2-3-103, MCA, is amended to read:
"2-3-103. Public participation -- governor to
insure ensure guidelines adopted. (1) Each agency shall develop
procedures for permitting and encouraging the public to participate in agency decisions that are of significant interest to the
public. The procedures shall assure must ensure adequate notice and assist public participation before a final agency action
is taken that is of significant interest to the public. Each agency shall create and maintain an interested persons list
CONTAINING THE SUBJECT OR SUBJECTS IN WHICH EACH PERSON ON THE LIST IS INTERESTED. Each
person submitting oral or written comments to, attending a hearing of, or in any way contacting the agency for any purpose
concerning agency actions and decisions must be ADVISED OF AND GIVEN AN OPPORTUNITY TO BE placed on the
list by the agency and given notice of each intended or proposed agency action and each agency decision relating to matters
in AS TO which the person has expressed an interest in the person's contacts with the agency REQUESTED NOTICE.
(2) The governor shall
insure ensure that each board, bureau, commission, department, authority, agency, or officer of the
state adopts coordinated rules for its programs ,. which The guidelines shall must provide policies and procedures to
facilitate public participation in those programs, consistent with subsection (1) of this section. These guidelines shall must
be adopted as rules and published in a manner which that may be provided to a member of the public upon request."
Section 4. Section 2-3-104, MCA, is amended to read:
"2-3-104. Requirements for compliance with notice provisions. An agency
shall be considered to have complied
complies with the notice provisions of 2-3-103 if:
(1) an environmental impact statement is prepared and distributed as required by the Montana Environmental Policy Act, Title 75, chapter 1;
(2) a proceeding is held as required by the Montana Administrative Procedure Act;
(2) A PROCEEDING IS HELD AS REQUIRED BY THE MONTANA ADMINISTRATIVE PROCEDURE ACT AND NOTICE OF THE PROCEEDING IS EITHER POSTED ON THE STATE ELECTRONIC BULLETIN BOARD OR IS PUBLISHED IN A PRESS RELEASE ISSUED BY THE AGENCY;
(3)(2)(3) a public hearing, after appropriate and adequate notice is given, is held pursuant to any other a provision of state
law or a local ordinance or resolution; or (4)(3)(4) a newspaper of general circulation within the area to be affected by a decision of significant interest to the public
has carried a news story or advertisement A NEWS STORY OR an advertisement giving notice of opportunity to be heard
concerning the decision sufficiently prior to a final decision to permit public comment on the matter. The AN
advertisement must be printed in at least 12-point type and must comply with the notice requirements of 2-4-302(1). If the
newspaper has a Sunday edition, the advertisement must be in that edition."
Section 5. Section 2-3-105, MCA, is amended to read:
"2-3-105. Supplemental notice by radio or television. (1)
Any An official of the state or any of one of its political
subdivisions who is required by law to publish any a notice required by law may, and is encouraged to, supplement such
the publication by a radio or television broadcast, or both, of a summary of such the notice or by both of such broadcasts
when if in his the official's judgment the public interest will be served.
The When a summary of such a notice shall only be read with no reference to any person by name then is broadcast, a
candidate for political office may not be referred to.
Such announcements shall be made A summary may be broadcast only by duly employed personnel of the station from
which such the broadcast emanates.
Announcements An announcement by a political subdivisions subdivision may be made only by stations a station
situated within the county of origin of the legal notice unless no a broadcast station exists does not exist in such that county,
in which case announcements the announcement may be made by a station or stations situated in any county other than the
county of origin of the legal notice." Section 6. Section 2-3-112, MCA, is amended to read: "2-3-112. Exceptions. The provisions of 2-3-103 and 2-3-111 do not apply to: (1) an agency decision that must be made to deal with an emergency situation affecting the public health, welfare, or
safety; (2) an agency decision that must be made to maintain or protect the interests of the agency, including but not limited to the
filing of to file a lawsuit in a court of law or becoming to become a party to an administrative proceeding; or (3) a decision involving no more than a ministerial act."
Section 6. Section 2-3-114, MCA, is amended to read:
"2-3-114. Enforcement. The district courts of the state have jurisdiction to set aside or declare void an agency decision
under this part upon petition
made within 30 days of the date of the decision of any by a person whose rights have been
prejudiced THAT IS FILED WITHIN 30 DAYS AFTER THE DATE OF THE DECISION OR WITHIN 30 DAYS
AFTER THE DECISION BECOMES PUBLIC, WHICHEVER IS LATER." Section 8. Section 2-3-203, MCA, is amended to read: "2-3-203. Meetings of public agencies and certain associations of public agencies to be open to public -- exceptions.
(1) All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political
subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public
funds must be open to the public. (2) All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that
regulate the rights, duties, or privileges of any individual must be open to the public. (3) Provided, however, the The presiding officer of any a meeting subject to subsections (1) and (2) may close the meeting
during the time that the discussion relates to a matter of individual privacy and then if and only if the presiding officer
determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual
privacy may be waived by the individual about whom the discussion pertains, and, in that event, the meeting must be open. (4) (a) However, except Except as provided in subsection (4)(b), a meeting may be closed to discuss a strategy to be
followed with respect to litigation when an open meeting would have a detrimental effect on the litigating position of the
public agency. (b) A meeting may not be closed to discuss strategy to be followed in litigation involving the enforcement or preservation
of a constitutional right of the people or in which the only parties are public bodies or associations described in subsections
(1) and (2). (5) Any A committee or subcommittee appointed by a public body or an association described in subsection (2) for the
purpose of conducting business which that is within the jurisdiction of that agency is subject to the requirements of this
Section 7. Section 2-3-213, MCA, is amended to read:
Any A decision made in violation of 2-3-203 may be declared void by a district court having
jurisdiction. A suit to void any such decision must be commenced within 30 days of the decision. AN ACTION TO
INVALIDATE THE DECISION MUST BE COMMENCED WITHIN 30 DAYS AFTER THE DATE OF THE
DECISION OR WITHIN 30 DAYS AFTER THE DECISION BECOMES PUBLIC, WHICHEVER IS LATER."
Section 8.Section 2-3-221, MCA, is amended to read:
"2-3-221. Costs and attorney fees to
plaintiff PARTY in certain actions to enforce constitutional right to know. A
plaintiff PARTY who prevails in an action brought in district court to enforce his the plaintiff's PARTY'S rights under
Article II , section 9, of the Montana constitution may must MAY be awarded his costs and reasonable attorneys' attorney
fees as a matter of course. A prevailing plaintiff PARTY who is not represented by an attorney must be awarded 90% of
what the judge determines would be a reasonable attorney fee if the plaintiff PARTY had been represented by an attorney."
Section 9. Section 2-4-102, MCA, is amended to read:
"2-4-102. Definitions. For purposes of this chapter, the following definitions apply:
(1) "Administrative code committee" or "committee" means the committee provided for in Title 5, chapter 14.
(2) (a) "Agency" means an agency, as defined in 2-3-102, of the state government, except that the provisions of this chapter do not apply to the following:
(i) the state board of pardons and parole, except that the board is subject to the requirements of 2-4-103, 2-4-201, 2-4-202,
and 2-4-306 and its rules must be published in the
Administrative Rules of Montana ARM and the Montana Administrative
(ii) the supervision and administration of a penal institution with regard to the institutional supervision, custody, control, care, or treatment of youths or prisoners;
(iii) the board of regents and the Montana university system;
(iv) the financing, construction, and maintenance of public works.
(b) Agency does not include a school district, unit of local government, or any other political subdivision of the state.
(3) "Agency action" means the whole or a part of, or the equivalent or denial of, the adoption of an agency rule, the issuance of a license or order, the award of a contract, or an agency decision that is of significant interest to the public.
(3)(4) "ARM" means the Administrative Rules of Montana. (4)(5) "Contested case" means a proceeding before an agency in which a determination of legal rights, duties, or privileges
of a party is required by law to be made after an opportunity for hearing. The term includes but is not restricted to
ratemaking, price fixing, and licensing.
(6) "Interested person" means a person
known to the committee or to an agency to have WHO HAS demonstrated in any
way TO THE AGENCY an interest concerning agency actions or other agency administrative matters AND HAS
REQUESTED TO BE PLACED ON THE AGENCY'S LIST OF INTERESTED PERSONS. (5)(7) "License" includes the whole or part of any an agency permit, certificate, approval, registration, charter, or other
form of permission required by law but does not include a license required solely for revenue purposes. (6)(8) "Licensing" includes any an agency process respecting the grant, denial, renewal, revocation, suspension,
annulment, withdrawal, limitation, transfer, or amendment of a license. (7)(9) "Party" means a person named or admitted as a party or properly seeking and entitled as of right to be admitted as a
party, but nothing in this chapter may not be construed to prevent an agency from admitting any person as a party for
limited purposes. (8)(10) "Person" means an individual, partnership, corporation, association, governmental subdivision, agency, or public
organization of any character. (9)(11) "Register" means the Montana Administrative Register. (10)(12) "Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets,
or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term
includes the amendment or repeal of a prior rule but does not include:
(a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
(b) formal opinions of the attorney general and declaratory rulings issued pursuant to 2-4-501;
(c) rules relating to the use of public works, facilities, streets, and highways when the substance of the rules is indicated to the public by means of signs or signals;
(d) seasonal rules adopted annually or biennially relating to hunting, fishing, and trapping when there is a statutory requirement for the publication of the rules and rules adopted annually or biennially relating to the seasonal recreational use of lands and waters owned or controlled by the state when the substance of the rules is indicated to the public by means of signs or signals;
(e) rules implementing the state personnel classification plan, the state wage and salary plan, or the statewide budgeting and accounting system;
(f) uniform rules adopted pursuant to interstate compact, except that the rules must be filed in accordance with 2-4-306 and
must be published in the
Administrative Rules of Montana ARM.
(13) "Significant interest to the public", when used in reference to agency action, means agency action that involves a
controversial matter THAT THE AGENCY KNOWS TO BE CONTROVERSIAL, a SIGNIFICANT fiscal impact on a
particular class or group of individuals, or significant citizen interest. (11)(14) "Substantive rules" are either:
(a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or
(b) adjective or interpretive rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. The interpretation lacks the force of law."
Section 10. Section 2-4-302, MCA, is amended to read:
"2-4-302. Notice, hearing, and submission of views. (1) Prior to the adoption, amendment, or repeal of
any a rule, the
agency shall give written notice of its intended action. The notice shall must, at a minimum, include a statement of either
the terms or substance of the intended action or a description of the subjects and issues involved, the rationale for the
intended action, and the time when, place where, and manner in which interested persons may present their views thereon
on the intended action. To promote the public's full comprehension of the notice, the notice must be written in plain and
clear English and use familiar and understandable words and terms.
(2) (a) The notice
shall must be filed with the secretary of state for publication in the register, as provided in 2-4-312, and
mailed within 3 days of publication to interested persons who have made timely requests to the agency for notice of its
rulemaking proceedings to be informed of agency actions and to the office of any professional, trade, or industrial society
or organization or member thereof which of those entities that has filed a request with the administrative code committee
when such request that has been forwarded to the agency as provided in subsection (2)(b). Each agency shall create and
maintain a list of interested persons AND THE SUBJECT OR SUBJECTS IN WHICH EACH PERSON ON THE LIST IS
INTERESTED. A person who submits an oral or written comment, attends a hearing, or contacts an agency by any means
and for any purpose in regard to intended PROPOSED agency action must be informed of the list by the agency.
(b) The administrative code committee shall forward a list of all organizations or interested persons who have submitted a
request to be informed of agency actions to all agencies publishing rulemaking notices in the
Register ARM. The list must be amended by the agency upon request of any interested person requesting to be added to or
deleted from the list.
(c) The notice
shall must be published and mailed at least 30 days in advance of the agency's intended action. If the
intended action is of significant interest to the public, the notice must, at a minimum, be published as required in
any a statute provides for a different method of publication different from that provided in subsection (2), the
affected agency shall comply with the statute in addition to the requirements contained herein in this section. However, in
no case may the notice period may not be less than 30 days or more than 6 months.
(4) Prior to the adoption, amendment, or repeal of any rule, the agency shall afford interested persons at least 20 days'
notice of a hearing and 28 days from the day of notice to submit data, views, or arguments, orally or in writing. In the case
of substantive rules, the notice of proposed rulemaking must state that opportunity for oral hearing
shall must be granted if
requested by either 10% or 25, whichever is less, of the persons who will be directly affected by the proposed rule, by a
governmental subdivision or agency, by the administrative code committee, or by an association having not less than 25
members who will be directly affected.
(5) An agency may continue a hearing date for cause. In the discretion of the agency, contested case procedures need not
be followed in hearings held pursuant to this section. If a hearing is otherwise required by statute, nothing
herein in this
section alters that requirement.
(6) If an agency fails to publish a notice of adoption within the time required by 2-4-305(7) and the agency again proposes the same rule for adoption, amendment, or repeal, the proposal must be considered a new proposal for purposes of compliance with this chapter.
(7) At the commencement of
any a hearing on the intended action, the person designated by the agency to preside at the
(a) read aloud the "Notice of Function of Administrative Code Committee" appearing in the register;
(b) explain the primary function and purpose of the administrative code committee and state how the administrative code committee may be contacted; and
(c) inform the persons at the hearing of the provisions of subsection (2)(a) and provide them an opportunity to place their names on the list."
Section 11. Section 2-4-303, MCA, is amended to read:
"2-4-303. Emergency or temporary rules. (1) If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, it may proceed upon special notice filed with the committee, without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule may be effective for a period not longer than 120 days, after which a new emergency rule with the same or substantially the same text may not be adopted, but the adoption of an identical rule under 2-4-302 is not precluded. Because the exercise of emergency rulemaking power precludes the people's constitutional right to prior notice and participation in the operations of their government, it constitutes the exercise of extraordinary power requiring extraordinary safeguards against abuse. An emergency rule may be adopted only in circumstances that truly and clearly constitute an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act. The sufficiency of the reasons for a finding of imminent peril to the public health, safety, or welfare is subject to immediate judicial review upon petition by any person. The sufficiency of the reasons justifying a finding of imminent peril and the necessity for emergency rulemaking must be compelling and, as written in the rule adoption notice, must stand on their own merits for purposes of judicial review. The dissemination of emergency rules required by 2-4-306 must be strictly observed and liberally accomplished.
(2) A statute enacted or amended to be effective prior to October 1 of the year of enactment or amendment may be implemented by a temporary administrative rule, adopted before October 1 of that year, upon any abbreviated notice or hearing that the agency finds practicable, but the rule may not be filed with the secretary of state until at least 30 days have passed since publication of the notice of proposal to adopt the rule. The temporary rule is effective until October 1 of the year of adoption. The adoption of an identical rule under 2-4-302 is not precluded during the period that the temporary rule is effective."
Section 12. Section 2-4-305, MCA, is amended to read:
"2-4-305. Requisites for validity -- authority and statement of reasons. (1) The agency shall fully consider
written and oral submissions respecting the proposed rule. Upon adoption of a rule, an agency shall issue a concise
CONCISE statement of the principal reasons for and against its adoption, comprehensively incorporating in the statement
the reasons for overruling the considerations urged against its adoption. If substantial differences exist between the rule as
proposed and as adopted and the differences have not been described or set forth in the adopted rule as that rule is printed in
the Montana Administrative Register register, the differences must be described in the statement of reasons for and against
agency action. When written or oral submissions have not been received, an agency may omit the statement of reasons.
(2) Rules may not unnecessarily repeat statutory language. Whenever it is necessary to refer to statutory language in order to convey the meaning of a rule interpreting the language, the reference must clearly indicate the portion of the language that is statutory and the portion that is an amplification of the language.
(3) Each proposed and adopted rule must include a citation to the specific grant of rulemaking authority pursuant to which the rule or any part of the rule is adopted. In addition, each proposed and adopted rule must include a citation to the specific section or sections in the Montana Code Annotated that the rule purports to implement.
(4) Each rule that is proposed and adopted by an agency and that implements a policy of a governing board or commission must include a citation to and description of the policy implemented. Each agency rule implementing a policy and the policy itself must be based on legal authority and otherwise comply with the requisites for validity of rules established by this chapter.
(5) To be effective, each substantive rule adopted must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.
(6) Whenever by the express or implied terms of any statute a state agency has authority to adopt rules to implement, interpret, make specific, or otherwise carry out the provisions of the statute, a rule adopted is not valid or effective unless it is:
(a) consistent and not in conflict with the statute; and
(b) reasonably necessary to effectuate the purpose of the statute. Subject to the provisions of subsection (8), reasonable necessity must be demonstrated in the agency's notice of proposed rulemaking and in the written and oral data, views, comments, or testimony submitted by the public or the agency and considered by the agency.
(7) A rule is not valid unless notice of it is given and it is adopted, in
substantial compliance with 2-4-302 or 2-4-303 and
this section, and unless 2-4-306 is complied with and notice of adoption of the rule is published within 6 months of the
publishing of notice of the proposed rule. If an amended or supplemental notice of either proposed or final rulemaking, or
both, is published concerning the same rule, the 6-month limit must be determined with reference to the latest notice in all
(8) An agency may use an amended proposal notice or the adoption notice to correct deficiencies in
reasonable necessity, in citations of authority for rules , and in citations of sections implemented by rules. An agency may
use an amended proposal notice, but not the adoption notice, to correct deficiencies in a statement of reasonable necessity."
Section 13. Section 2-4-306, MCA, is amended to read:
"2-4-306. Filing, format, and effective date -- dissemination of emergency rules. (1) Each agency shall file with the secretary of state a copy of each rule adopted by it.
(2) The secretary of state may prescribe a format, style, and arrangement for notices and rules
which that are filed pursuant
to this chapter and may refuse to accept the filing of any notice or rule that is not in compliance therewith with this chapter.
He The secretary of state shall keep and maintain a permanent register of all notices and rules filed, including superseded
and repealed rules, which shall must be open to public inspection and shall provide copies of any notice or rule upon
request of any person. Unless otherwise provided by statute, the secretary of state may require the payment of the cost of
providing such copies.
(3) In the event that the administrative code committee has conducted a poll of the legislature in accordance with 2-4-403
or the revenue oversight committee has conducted a poll in accordance with 5-18-109, the results of the poll
shall must be
published with the rule.
(4) Each rule
shall become becomes effective after publication in the register as provided in 2-4-312, except that:
(a) if a later date is required by statute or specified in the rule, the later date
shall be is the effective date;
(b) subject to applicable constitutional or statutory provisions:
(i) a temporary rule is effective immediately upon filing with the secretary of state or at a stated date following publication in the register; and
(ii) an emergency rule
shall become becomes effective immediately upon filing with the secretary of state or at a stated date
following publication in the register or immediately upon filing with the secretary of state if the agency finds that this
effective date is necessary because of imminent peril to the public health, safety, or welfare. The agency's finding and a
brief statement of reasons therefor shall for the finding must be filed with the rule. The agency shall, in addition to the
required publication in the register, take appropriate and extraordinary measures to make emergency rules known to every
person who may be affected by them."