The Legislature, including the EQC, plays a significant role in the administrative rulemaking process and is authorized to review administrative rules for compliance with the Montana Administrative Procedure Act, also known as MAPA. More information about the rule review process, the EQC's role and responsibilities, objections to administrative rules, and rules currently proposed by the three agencies under the EQC's purview is available below or by clicking on the links above.
Contact Helen Thigpen at email@example.com for more information on administrative rule review by the EQC.
Administrative Rule Review
The Montana Legislature may authorize administrative agencies to implement and carry out legislative enactments through the adoption of administrative rules. An administrative rule is an 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. See 2-4-102(11), MCA. When this occurs, the legislature establishes law through the adoption of statutes and authorizes an agency to make specific rules or regulations to implement or interpret those statutes. Once adopted, administrative rules carry the full force and effect of law and are subject to judicial challenge.
Administrative agencies are required to follow certain procedures in adopting administrative rules. These procedures are set forth in the Montana Administrative Procedure Act (MAPA). The purpose of MAPA is to ensure that the public receives notice of agency rulemaking and is provided an opportunity for meaningful public participation. MAPA also establishes general uniformity for rulemaking across agencies and provides due process safeguards to the public and to those that will be regulated by the administrative rules.
Administrative rules are published in the Administrative Rules of Montana (ARM), which is updated twice a month by the Montana Administrative Register (MAR). The MAR contains rulemaking notices regarding proposed new, amended, or repealed rules. The MAR also contains notices of adopted rules, recently issued attorney general's opinions, and notices of vacancies on state boards. The ARM and MAR are maintained by the Secretary of State's office and may be accessed at the following website: http://www.mtrules.org/.
Role of the Environmental Quality Council
The legislature, including the EQC, plays a significant role in the administrative rulemaking process and is authorized to review administrative rules for compliance with MAPA. As part of this process, legal staff for the EQC notifies the EQC of proposed, amended, or repealed administrative rules and of any concerns regarding the rulemaking process.
The EQC is responsible for reviewing administrative rules from the following agencies:
There are several avenues for EQC involvement in the agency rulemaking process. Specifically, the EQC may take any one or combination of the following actions:
Request an agency's rulemaking records for checking compliance with MAPA. 2-4-402(2)(a), MCA.
Prepare written recommendations for the adoption, amendment, or rejection of a rule and submit those recommendations to the agency proposing the rule and submit oral or written testimony at a rulemaking hearing. 2-4-402(2)(b), MCA.
Require that a rulemaking hearing be held in accordance with the provisions of 2-4-302 through 2-4-305, MCA. 2-4-402(2)(c), MCA.
Institute, intervene in, or otherwise participate in proceedings involving this chapter in the state and federal courts and administrative agencies. 2-4-402(2)(d), MCA.
Poll the legislature by mail to determine whether a proposed rule is consistent with the intent of the legislature. The results of the poll are admissible in any court proceeding involving the validity of the proposed or adopted rule. 2-4-403 and 2-4-404, MCA.
Require an economic impact statement relating to the adoption of a rule. 2-4-405, MCA.
Object to all or some portion of a proposed or adopted rule and delay the adoption of the rule for sixth months or delay the effective date of the rule until the day after final adjournment of the next legislative session. 2-4-305(9), 2-4-306(4)(c), and 2-4-406(4), MCA.
The EQC may elect to object to a proposed administrative rule. If a majority of the members of the EQC notify the chair that they object to a proposed administrative rule, the EQC must notify the agency of the objection and that the EQC intends to address the objection at the next EQC meeting. Following notice of the objection, the rule may not be adopted until publication of the last issue of the register that is published before the 6-month period during which the adoption notice must be published. The EQC may withdraw its objection and allow the adoption notice to be published.
If the EQC meets and objects to all or some portion of a proposed rule before it is adopted because it considers the rule not to have been proposed or adopted in substantial compliance with 2-4-302,2-4-303, and 2-4-306, MCA, the rule or portion of the rule objected to is not effective until the day after final adjournment of the next regular legislative session. The EQC may withdraw its objection to the administrative rule or the rule may be changed to comply with EQC's objections and concerns. However, the failure of the EQC to object in any manner to the adoption, amendment, or repeal of a rule is inadmissible in court to prove the validity of any rule.
The significance of an objection to an administrative rule is that the EQC may delay the effective date of the administrative rule for 6 months or until the adjournment of the next legislative session. In addition, following an objection the agency may not enforce or implement the proposed administrative rule in question until the new effective date. Finally, by objecting to an administrative rule, the EQC may shift the burden to the agency in a court proceeding to prove that the rule or portion of the rule objected to by the EQC substantially complies with the provisions of MAPA.