SENATE BILL NO. 405
INTRODUCED BY LAIBLE
A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING CERTAIN EXECUTIVE BRANCH AGENCY RULES TO BE PLACED ON THE AGENDA OF AN APPROPRIATE LEGISLATIVE COMMITTEE BEFORE ENACTMENT; AMENDING SECTIONS 2-4-303, 2-4-305, AND 2-4-402, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Short title. [Sections 1 through 3] may be cited as the "Legislative Responsibility Act".
NEW SECTION. Section 2. Purpose. The purposes of [sections 1 through 3] are to:
(1) promote compliance with Article V, section 1, of the Montana constitution, which grants legislative power to the legislature;
(2) ensure that certain state executive branch rules be carefully scrutinized;
(3) require that certain rules proposed by agencies of the executive branch be placed on the agenda of an appropriate legislative committee before enactment; and
(4) provide a more democratic and accountable legislature and protect the public from rules for which elected, accountable officials are unwilling to take responsibility.
NEW SECTION. Section 3. Enactment of agency rules -- legislative review -- agency report. (1) An agency rule that increases fees to citizens, businesses, or any other tax-paying entity and that is expected to have an aggregate effect of increasing fees by $50,000 or more A YEAR on those regulated by the rule may not take effect before the rule has been placed on the agenda of the appropriate legislative interim committee and has been reviewed by the committee.
(2) Whenever an agency promulgates a rule that requires legislative review under subsection (1), the agency shall submit to the appropriate legislative interim committee a report containing the text of the proposed rule and an explanation of the proposed rule. The explanation must consist of the concise general statement of the basis and purpose of the rule required by 2-4-302.
Section 4. Section 2-4-303, MCA, is amended to read:
"2-4-303. Emergency or temporary rules. (1) If Except as provided in subsection (3), 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.
(3) A rule subject to the provisions of [sections 1 through 3] may not be enacted as an emergency rule under this section."
Section 5. 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 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 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. A substantive rule may not be proposed or adopted unless:
(a) a statute granting the agency authority to adopt rules clearly and specifically lists the subject matter of the rule as a subject upon which the agency shall or may adopt rules; or
(b) the rule implements and relates to a subject matter or an agency function that is clearly and specifically included in a statute to which the grant of rulemaking authority extends.
(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, an adoption, amendment, or repeal of a rule 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. A statute mandating that the agency adopt rules establishes the necessity for rules but does not, standing alone, constitute reasonable necessity for a rule. The agency shall also address the reasonableness component of the reasonable necessity requirement by, as indicated in 2-4-302(1) and subsection (1) of this section, stating the principal reasons and the rationale for its intended action and for the particular approach that it takes in complying with the mandate to adopt rules. Subject to the provisions of subsection (8), reasonable necessity must be clearly and thoroughly demonstrated for each adoption, amendment, or repeal of a rule 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. A statement that merely explains what the rule provides is not a statement of the reasonable necessity for the rule.
(7) A rule is not valid unless notice of it is given and it is adopted in substantial compliance with 2-4-302, 2-4-303, or 2-4-306, or [sections 1 through 3], 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 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.
(9) If a majority of the members of the appropriate administrative rule review committee notify the committee presiding officer that those members object to a notice of proposed rulemaking, the committee shall notify the agency in writing that the committee objects to the proposal notice and will address the objections at the next committee meeting. Following notice by the committee to the agency, the proposal notice may not be adopted until publication of the last issue of the register that is published before expiration of the 6-month period during which the adoption notice must be published, unless prior to that time, the committee meets and does not make the same objection. A copy of the committee's notification to the agency must be included in the committee's records."
Section 6. Section 2-4-402, MCA, is amended to read:
"2-4-402. Powers of committees -- duty to review rules. (1) The administrative rules review committees shall review all proposed rules filed with the secretary of state, and rules that are required to be placed on a committee's agenda must be reviewed as provided in [sections 1 through 3].
(2) The appropriate administrative rule review committee may:
(a) request and obtain an agency's rulemaking records for the purpose of reviewing compliance with 2-4-305;
(b) prepare written recommendations for the adoption, amendment, or rejection of a rule and submit those recommendations to the department proposing the rule and submit oral or written testimony at a rulemaking hearing;
(c) require that a rulemaking hearing be held in accordance with the provisions of 2-4-302 through 2-4-305;
(d) institute, intervene in, or otherwise participate in proceedings involving this chapter in the state and federal courts and administrative agencies;
(e) review the incidence and conduct of administrative proceedings under this chapter."
NEW SECTION. Section 7. Codification instruction. [Sections 1 through 3] are intended to be codified as an integral part of Title 2, chapter 4, and the provisions of Title 2, chapter 4, apply to [sections 1 through 3].
NEW SECTION. Section 8. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 9. Applicability. [This act] applies to agency rules promulgated on or after [the effective date of this act].
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Latest Version of SB 405 (SB0405.02)
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