Senate Bill No. 271

Introduced By jenkins, bankhead, walters, marshall, lawson, rose, ohs, mills, m. taylor, grinde, brainard, baer, denny, boharski, beaudry, prouse, benedict, feland, molnar, ahner, sprague, keenan, sliter, mood, miller, stovall, orr, jore, crippen, debruycker, simon, peck, wagner, hagener, barnett, hayne, bookout-reinicke, kitzenberg, emerson, wells, devlin, beck, cole, jabs, stang, hargrove, toews, arnott, glaser, anderson, grosfield, shea, crismore, hertel, aklestad, estrada, mcgee, swysgood, lynch, harp, keating, mesaros, depratu, kasten, mcnutt, mercer, clark, raney, foster, gage, bishop, mahlum, hibbard, cobb, bitney, thomas, rehbein

A Bill for an Act entitled: "An Act providing that an administrative rule objected to by a majority of the members of the administrative code committee may not be adopted until the end of the 6-month period during which the rule must be adopted, unless prior to that time, the committee meets and does not make the same objection; providing that an administrative rule objected to by the administrative code committee before the rule is adopted is in some circumstances not effective until after adjournment of the next regular session of the legislature; amending sections 2-4-305 and 2-4-306, mca; and providing an applicability date."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 2-4-305, MCA, is amended to read:

"2-4-305.   Requisites for validity -- authority and statement of reasons. (1) The agency shall 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 it is adopted in substantial compliance with 2-4-302 or 2-4-303 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.

(9) If a majority of the members of the administrative code 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 2.  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 that 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 is 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 is effective immediately upon filing with the secretary of state or at a stated date following publication in the register 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 take appropriate measures to make emergency rules known to every each person who may be affected by them.

(c) if, following written administrative code committee notification to an agency under 2-4-305(9), the committee meets and under 2-4-406(1) objects to all or some portion of a proposed rule before the rule is adopted, the rule or portion of the rule objected to is not effective until the day after final adjournment of the regular session of the legislature that begins after the notice proposing the rule was published by the secretary of state, unless, following the committee's objection under 2-4-406(1):

(i) the committee withdraws its objection under 2-4-406 before the rule is adopted; or

(ii) the rule or portion of a rule objected to is adopted with changes that in the opinion of a majority of the committee members, as communicated in writing to the committee presiding officer and staff, make it comply with the committee's objection and concerns."

NEW SECTION. Section 3.  Applicability. [This act] applies to rules objected to under [this act] after [the effective date of this act].