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; AMENDING PROVISIONS FOR NOTICE OF AGENCY RULES; DEFINING TERMS; 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 2-4-102, 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 2-4-102, 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 Register register;

(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)  "ARM" means the Administrative Rules of Montana.

(4)  "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.

(5) "Interested person" means a person who has expressed to the agency an interest concerning agency actions under this chapter and has requested to be placed on the agency's list of interested persons as to matters of which the person desires to be given notice. The term does not extend to contested cases.

(5)(6)  "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)(7)  "Licensing" includes any an agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, transfer, or amendment of a license.

(7)(8)  "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)(9)  "Person" means an individual, partnership, corporation, association, governmental subdivision, agency, or public organization of any character.

(9)(10) "Register" means the Montana Administrative Register.

(10)(11) "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.

(12) "Significant interest to the public" means agency actions under this chapter regarding matters that the agency knows to be of widespread citizen interest. These matters include issues involving a substantial fiscal impact to or controversy involving a particular class or group of individuals. The term does not extend to contested cases.

(11)(13)  "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 2.  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 rule, the agency shall give written notice of its intended action. The notice shall must 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. The rationale must be written in plain, easily understood language.

(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 to be informed of its rulemaking proceedings 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 a written comment or attends a hearing in regard to proposed agency action under this part must be informed of the list by the agency. An agency complies with this subsection if it includes in the notice an advisement explaining how persons may be placed on the list of interested persons and if it complies with subsection (7).

(b)  The administrative code committee shall forward a list of all organizations or persons who have submitted a request to be informed of agency actions to all agencies publishing rulemaking notices in the Montana Administrative Register ARM. The list must be amended by the agency upon request of any 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. In addition to publishing and mailing the notice under subsection (2)(a) of this section, the agency shall post the notice of the state electronic bulletin board or other electronic communications system available to the public.

(3)  If 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. If the proposed rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing.

(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 hearing on the intended action, the person designated by the agency to preside at the hearing shall:

(a) read aloud the "Notice of Function of Administrative Code Committee" appearing in the register; and

(b) 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 3.  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 judicial review upon petition by any person. The matter must be set for hearing at the earliest possible time and takes precedence over all other matters except older matters of the same character. 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 4.  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 fully written and oral submissions respecting the proposed rule. Upon adoption of a rule, an agency shall issue a concise statement of the principal reasons for and against its adoption, 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, or 2-4-306 and this section and unless 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 cases.

(8)  An agency may use an amended proposal notice or the adoption notice to correct deficiencies in statements of 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, except for clerical corrections, may not use the adoption notice to correct deficiencies in a statement of reasonable necessity."

Section 5.  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."

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