May 19, 2016, Introduced by Reps. Goike, Canfield, Victory, Lauwers, Barrett and Cole and referred to the Committee on Oversight and Ethics.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 5, 7a, 8, 32, 39, 39a, 41, 42, 43, 44, 45,
45a, 61, and 64 (MCL 24.205, 24.207a, 24.208, 24.232, 24.239,
24.239a, 24.241, 24.242, 24.243, 24.244, 24.245, 24.245a, 24.261,
and 24.264), section 5 as amended by 2006 PA 460, section 7a as
amended and section 39a as added by 1999 PA 262, sections 8 and 44
as amended by 2004 PA 23, section 32 as amended by 2011 PA 270,
section 39 as amended by 2011 PA 239, sections 41 and 42 as amended
by 2004 PA 491, section 43 as amended by 1989 PA 288, section 45 as
amended by 2013 PA 200, section 45a as amended by 2011 PA 245,
section 61 as amended by 1982 PA 413, and section 64 as amended by
2011 PA 243, and by adding sections 9, 10, 41b, and 44a; and to
repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
5. (1) As used in this
act:
(a) "License" includes the whole or part of an agency permit,
certificate, approval, registration, charter, or similar form of
permission
required by law. , but License
does not include a
license
required solely for revenue purposes, or a license or
registration issued under the Michigan vehicle code, 1949 PA 300,
MCL 257.1 to 257.923.
(b) (2)
"Licensing" includes
agency activity involving the
grant, denial, renewal, suspension, revocation, annulment,
withdrawal, recall, cancellation, or amendment of a license.
(c) (3)
"Michigan register" Register" means the publication
described in section 8.
(d) (4)
"Notice" means a written
or electronic record that
informs a person of past or future action of the person generating
the record.
(e) (5)
"Notice of objection"
means the record adopted by the
committee that indicates the committee's formal objection to a
proposed rule.
(f) "Office" means, unless expressly stated otherwise, the
office of performance and transformation created by Executive
Reorganization Order No. 2016-2, MCL 18.446.
(g) "Office of regulatory reform" and "office of regulatory
reinvention" mean the office.
(h) (6)
"Party" means a person or
agency named, admitted, or
properly seeking and entitled of right to be admitted, as a party
in a contested case. In a contested case regarding an application
for
a license, party includes the applicant for that the license.
(i) (7)
"Person" means an
individual, partnership,
association, corporation, limited liability company, limited
liability partnership, governmental subdivision, or public or
private organization of any kind other than the agency engaged in
the particular processing of a rule, declaratory ruling, or
contested case.
(j) (8)
"Processing of a rule"
means the action required or
authorized by this act regarding a rule that is to be promulgated,
including the rule's adoption, and ending with the rule's
promulgation.
(k) (9)
"Promulgation of a rule"
means that step in the
processing
of a rule consisting of the filing of a the rule with
the secretary of state.
(l) (10)
"Record" means
information that is inscribed on a
paper or electronic medium.
Sec. 7a. As used in this act:
(a) "Session day" means a day on which both the house of
representatives and the senate convene in session and a quorum is
recorded in both houses.
(b) "Small business" means a business concern incorporated or
doing business in this state, including the affiliates of the
business
concern, which that is independently owned and operated
and
which that employs fewer than 250 full-time employees or which
that has gross annual sales of less than $6,000,000.00.
(c) "State office of administrative hearings and rules" means
the office.
Sec.
8. (1) The office of regulatory reform shall publish the
Michigan
register Register free of
charge on the office's Internet
website, updating the website at least once each month. The
Michigan
register shall Register must
contain all of the following:
(a)
Executive orders and executive reorganization orders.
(b)
On a cumulative basis, the numbers and subject matter of
the
enrolled senate and house bills signed into law by the governor
during
the calendar year and the corresponding public act numbers.
(c)
On a cumulative basis, the numbers and subject matter of
the
enrolled senate and house bills vetoed by the governor during
the
calendar year.
(a) (d)
Proposed administrative rules.
(b) (e)
Notices of public hearings on
proposed administrative
rules.
(c) (f)
Administrative rules filed with the
secretary of
state.
(d) (g)
Emergency rules filed with the
secretary of state.
(e) (h)
Notice of proposed and adopted
agency guidelines.
(i)
Other official information considered necessary or
appropriate
by the office of regulatory reform.
(j)
Attorney general opinions.
(f) (k)
All of the items listed in section
7(m) after final
approval by the certificate of need commission under section 22215
of the public health code, 1978 PA 368, MCL 333.22215.
(2)
The office of regulatory reform shall publish include in
the publication under subsection (1) a cumulative index for the
Michigan
register.Register.
(3)
The Michigan register shall be available for public
subscription
at a fee reasonably calculated to cover publication
and
distribution costs.
(3) (4)
If publication of an agency's
proposed rule or
guideline
or an item described in subsection (1)(k) (1)(f) would be
unreasonably
expensive or lengthy, the office of regulatory reform
may publish a brief synopsis of the proposed rule or guideline or
item
described in subsection (1)(k), (1)(f),
including information
on how to obtain a complete copy of the proposed rule or guideline
or
item described in subsection (1)(k) (1)(f) from the agency at no
cost.
(4) (5)
An agency shall electronically
transmit a copy of the
proposed
rules and notice notices of public hearing hearings to
the
office
of regulatory reform for publication in the Michigan
register.Register.
Sec. 9. (1) The office shall publish the Michigan
Administrative Code and the annual supplement to the Michigan
Administrative Code free of charge on the office's Internet
website.
(2) The office may publish the Michigan Administrative Code
and the annual supplement to the Michigan Administrative Code in
printed or other electronic format for public subscription at a
fee, determined by the department of technology, management, and
budget, that is reasonably calculated to cover, but not to exceed,
the publication and distribution costs. The department of
technology, management, and budget shall deposit money collected
from subscriptions into the general fund.
(3) The official Michigan Administrative Code is that
published or made available on the office's Internet website free
of charge.
Sec. 10. (1) The office shall develop an Internet website for
the publication of public notices required under section 42. The
website must be fully operational by December 31, 2021.
(2) The website developed under this section may also be used
for the publication of public notices that this state is required
by other law to publish in newspapers or other print publications.
(3) The website developed under this section may also be used
to allow for public comments on a proposed rule.
(4) The office may contract with a person that is not a
governmental entity to develop the Internet website required by
this section.
(5) An agency or the office that publishes a notice under
section 42 before January 1, 2022 shall include in the notice a
statement that unless another statute requires otherwise, after
December 31, 2021, notices under section 42 will not be published
in any newspaper but will be published on the Internet website
developed under this section. The statement must include the
Internet address of the website developed under this section.
Sec. 32. (1) Definitions of words and phrases and rules of
construction prescribed in any statute that are made applicable to
all statutes of this state also apply to rules unless clearly
indicated to the contrary.
(2)
A rule or exception to a rule shall must not discriminate
in favor of or against any person. A person affected by a rule is
entitled to the same benefits as any other person under the same or
similar circumstances.
(3)
The violation of a rule is a crime when if so provided by
statute.
A An agency shall not
promulgate a rule shall not make
that
makes an act or omission to act a crime
or prescribe that
prescribes a criminal penalty for violation of a rule.
(4) An agency may adopt, by reference in its rules and without
publishing the adopted matter in full, all or any part of a code,
standard or regulation that has been adopted by an agency of the
United States or by a nationally recognized organization or
association.
The reference shall must fully identify the adopted
matter
by date and otherwise. The reference shall must not
cover
any
later amendments and or editions of the adopted matter. ,
but
if
If the agency wishes to incorporate them a later amendment or
edition
in its a rule, it
the agency shall amend the rule or
promulgate
a new rule. therefor. The agency shall have available
copies of the adopted matter for inspection and distribution to the
public
at cost, and the rules shall must state
where copies of the
adopted matter are available from the agency and the agency of the
United States or the national organization or association and the
cost
of a copy as of at the time the rule is adopted.
(5) A guideline, operational memorandum, bulletin,
interpretive statement, or form with instructions is not
enforceable
by an agency, is considered merely advisory, and shall
must not be given the force and effect of law. An agency shall not
rely
upon on a guideline, operational memorandum, bulletin,
interpretive statement, or form with instructions to support the
agency's
decision to act or refuse to act if that the decision is
subject
to judicial review. A court shall not rely upon on a
guideline, operational memorandum, bulletin, interpretive
statement, or form with instructions to uphold an agency decision
to act or refuse to act.
(6)
Where If a statute provides that an agency may proceed by
rule-making
or by order and an the agency proceeds by order in lieu
instead
of rule-making, the order shall must not
be given general
applicability to persons who were not parties to the proceeding or
contested case before the issuance of the order, unless the order
was issued after public notice and a public hearing.
(7) An agency shall not proceed with rule-making unless there
is an express grant of rule-making authority in statute. A rule
shall
must not exceed the rule-making delegation contained in
the
statute
authorizing that
authorizes the rule-making.
Sec. 39. (1) Before initiating any changes or additions to
rules,
an agency shall electronically file with the office of
regulatory
reinvention a request for
rule-making in a format
prescribed
by the office. of regulatory reinvention. The request
for
rule-making shall must include the following:
(a) The state or federal statutory or regulatory basis for the
rule.
(b) The problem the rule intends to address.
(c) An assessment of the significance of the problem.
(d) If applicable, the decision record.
(2)
If an agency receives recommendations or comments by any
an advisory committee or other advisory entity created by statute
regarding a request for rule-making, the advisory committee or
entity shall issue to the agency a decision record.
(3) An agency shall not proceed with the processing of a rule
outlined
in this chapter unless the office of regulatory
reinvention
has approved the request for
rule-making. The office of
regulatory
reinvention is not required to
approve a request for
rule-making
and shall do so only after it has indicated in its
response
to the request for rule-making submitted by an agency if
it determines that there are appropriate and necessary policy and
legal bases for approving the request for rule-making. If the
request for rule-making contains a recommendation under section 44a
that promulgation of the rule be expedited, the office shall
consider the rationale given for expediting promulgation and
determine whether the promulgation should be expedited.
(4)
The office of regulatory reinvention shall record the
receipt
of all requests for rule-making on the internet Internet
and shall make electronic or paper copies of approved requests for
rule-making available to members of the general public. The office
of
regulatory reinvention shall issue
a written or electronic
response
to the request for rule-making that specifically does all
of the following:
(a) Specifically addresses whether the office has determined
under subsection (3) that the request has appropriate and necessary
policy and legal bases for approving the request for rule-making.
(b) If applicable, includes any statement or determination
required under section 44.
(c) If the request for rule-making contains a recommendation
under section 44a that promulgation of the rule be expedited,
includes the office's determination under subsection (3) whether
the promulgation should be expedited.
(5)
The office of regulatory reinvention shall immediately
make
available to the committee electronic copies of the a request
for
rule-making submitted to the office. of regulatory reinvention.
On
a weekly basis, the office of regulatory reinvention shall
electronically provide to the committee a listing of all requests
for rule-making approved or denied during the previous week. If the
request for rule-making contains a recommendation under section 44a
that promulgation of the rule be expedited, the office shall
include in the listing its determination under subsection (3)
whether the promulgation should be expedited.
(6)
The Not later than the next business day after
receipt of
a listing of approved and denied requests for rule-making under
subsection (5), the committee shall electronically provide a copy
of
the approved and denied requests for rule-making, not later than
the
next business day after receipt of the notice from the office
of
regulatory reinvention, listing to
members of the committee and
to members of the standing committees of the senate and house of
representatives that deal with the subject matter of the proposed
rule.
Sec. 39a. (1) An agency may publish the notice of hearing
under
section 42 only if the office of regulatory reform has
received draft proposed rules and has given the agency approval to
proceed with a public hearing.
(2) After a grant of approval to hold a public hearing by the
office
of regulatory reform under subsection (1), the office of
regulatory
reform shall immediately provide a
copy of the proposed
rules to the committee. The committee shall provide a copy of the
proposed rules, not later than the next business day after receipt
of
the notice from the office, of regulatory reform, to members of
the committee and to members of the standing committees of the
senate and house of representatives that deal with the subject
matter of the proposed rule.
(3) An agency shall not change the text of a rule that has
been submitted to and received by the office under subsection (1)
unless the change is allowed under this act.
Sec.
41. (1) Except as provided in section 44, Subject to
subsection (6), before the adoption of a rule, an agency, or the
office, of
regulatory reform, shall give notice of a public hearing
and offer a person an opportunity to present data, views,
questions,
and arguments. The notice shall must
be given within the
time
prescribed by any applicable statute, or, if none, there is no
time prescribed by any applicable statute, in the manner prescribed
in
section 42(1).42.
(2)
The A notice described in under subsection
(1) shall must
include all of the following:
(a) A reference to the statutory authority under which the
action is proposed.
(b) The time and place of the public hearing and a statement
of the manner in which data, views, questions, and arguments may be
submitted by a person to the agency at other times.
(c) A statement of the terms or substance of the proposed
rule, a description of the subjects and issues involved, and the
proposed effective date of the rule.
(3)
The agency, or the office of regulatory reform acting on
behalf of an agency, shall transmit copies of the notice to each
person who requested the agency in writing or electronically for
advance notice of proposed action that may affect the person. If
requested,
the notice shall must be by mail, in writing, or
electronically to the last address specified by the person.
(4)
The A public hearing shall under this section must comply
with any applicable statute, but is not subject to the provisions
governing a contested case.
(5) The head of the promulgating agency or 1 or more persons
designated by the head of the agency who have knowledge of the
subject matter of the proposed rule shall be present at the public
hearing and shall participate in the discussion of the proposed
rule.
(6) This section does not apply to a rule to which section 44
applies, a rule as to which a public hearing is not required
because the promulgation of the rule is being expedited under
section 44a, or an emergency rule promulgated under section 48.
Sec. 41b. (1) After a public hearing under section 41 and
before transmittal to the committee under section 45(2), an agency
may change a proposed rule to correct technical, formal, or
grammatical mistakes as provided in this section.
(2) An agency shall notify the office of the agency's intent
to change a proposed rule under this section with the details of
and reasons for the change. On receipt of the notice from the
agency, the office shall give written notice of the agency's intent
and the details and reasons for the change to the committee chair
and alternate chair.
(3) Within 14 days after receipt of a notice from the office
under subsection (2), the committee chair and alternate chair shall
advise the office whether the agency may make the intended change
to the proposed rule.
(4) If the committee chair and alternate chair advise the
office under subsection (3) that the agency may make the intended
change to the proposed rule, the agency may make the change. If the
committee chair and alternate chair advise the office under
subsection (3) that the agency may not make the intended change to
the proposed rule and the agency wishes to make the intended
change, the agency shall conduct a new public hearing.
Sec.
42. (1) Except as provided in section 44, at At a
minimum,
an agency , or the
office of regulatory reform acting on
behalf
of the agency , shall
publish the a notice of public hearing
required under section 41 as prescribed in any applicable statute
or,
if none, the agency, or the office of regulatory reform acting
on
behalf of the agency, there
is no method of publication
prescribed in any applicable statute, shall publish the notice not
less than 10 days and not more than 60 days before the date of the
public
hearing in as follows:
(a) For a notice required to be published before January 1,
2022, in at least 3 newspapers of general circulation in different
parts
of the this state, 1 of which shall be of general circulation
in the Upper Peninsula.
(b) For a notice required to be published after December 31,
2021, on the Internet website developed by the office under section
10.
(2)
Additional methods that may be employed by the agency , or
the
office of regulatory reform acting on behalf of the agency to
provide
notice of a public hearing, depending upon
on the
circumstances, include publication in trade, industry,
governmental, or professional publications or posting on the
website
of the agency or the office. of regulatory reform.
(3) In addition to the requirements of subsection (1), unless
the office publishes the notice of public hearing on behalf of the
agency,
the agency shall electronically submit
a copy of the a
notice
of public hearing to the office of regulatory reform for
publication
in the Michigan register. If the Register. The office
of
regulatory reform shall
publish the notice of public hearing
submitted by the agency or the notice of public hearing published
by
the office on behalf of the agency ,
the office of regulatory
reform
shall publish the notice of public hearing in the Michigan
register.
An agency's Register. The notice shall must be published
in
the Michigan register Register
before the public hearing. and
the
agency shall electronically file a copy of the notice of public
hearing
with the office of regulatory reform.
(4) Within Not less than 7 days after
receipt of the notice of
before
a public hearing under section 41, the office of regulatory
reform
shall do all of the following
before the public hearing:
(a)
Electronically electronically
transmit a copy of the
notice of public hearing to the committee.
(b)
Provide notice electronically through publicly accessible
internet
media.
(4)
After the office of regulatory reform electronically
transmits
a copy of the notice of public hearing to the committee,
the
The committee shall electronically transmit copies of
the
notice of public hearing, not later than the next business day
after
receipt of the notice from the office, of regulatory reform,
to each member of the committee and to the members of the standing
committees of the senate and house of representatives that deal
with the subject matter of the proposed rule.
(5)
After receipt of the a notice of public hearing filed
transmitted
under subsection (3), (4), the
committee may meet to
consider the proposed rule, take testimony, and provide the agency
with the committee's informal response to the rule.
Sec.
43. (1) Except in the case of an emergency rule
promulgated
in the manner described in section 48, Subject to
subsection (3), a rule is not valid unless processed in compliance
with
section 42 and unless in substantial compliance with section
41(2) ,
(3), (4), and to (5).
(2) A proceeding to contest a rule on the ground of
noncompliance
with the requirements of sections 41 and 42 shall
must be commenced within 2 years after the effective date of the
rule.
(3) This section does not apply to a rule to which section 44
applies, a rule as to which a public hearing is not required
because the promulgation of the rule is being expedited under
section 44a, or an emergency rule promulgated under section 48.
Sec.
44. (1) Sections 41, and 42, and 45(2) to (4) do not
apply
to an amendment or rescission of a rule that is obsolete or
superseded,
or that is required to make obviously needed
corrections to make the rule conform to an amended or new statute
or to accomplish any other solely formal purpose, if a statement to
that
effect is included in the legislative service bureau
certificate
of approval of office's
written or electronic response
to the rule under section 39(4).
(2)
Sections 41, and 42, and 45(2) to (4) do not apply to a
rule
that is required to be promulgated under the Michigan
occupational
safety and health act, 1974 PA 154, MCL 408.1001 to
408.1094,
federal law and that is substantially similar to an
existing
federal standard that has been adopted or promulgated
under
the occupational safety and health act of 1970, Public Law
91-596,
84 Stat. 1590. regulation. However, notice of the proposed
rule
shall must be published in the Michigan register Register at
least 35 days before the submission of the rule to the secretary of
state
pursuant to under section 46(1). A reasonable period , of not
to
exceed more than 21 days
, shall must be
provided for the
submission
of written or electronic comments and views following
after
publication in the Michigan register.Register.
(3)
For purposes of subsection (2), As
used in this section,
"substantially similar" means identical, with the exception of
style or format differences needed to conform to this or other
state
laws, as determined by the office of regulatory reform
pursuant
to under section 45(1).39(4).
Sec. 44a. (1) This section applies to the following:
(a) Subject to subdivisions (b) and (c), the processing of a
rule, unless the rule is promulgated under an act that is compiled
under 1 of the following chapters of the Michigan Compiled Laws:
(i) Chapter 29.
(ii) Chapter 37.
(iii) Chapter 168.
(iv) Chapter 169.
(v) Chapter 205.
(vi) Chapter 206.
(vii) Chapter 207.
(viii) Chapter 208.
(ix) Chapter 209.
(x) Chapter 211.
(xi) Chapter 213.
(xii) Chapter 288.
(xiii) Chapter 289.
(xiv) Chapter 324.
(xv) Chapter 325.
(xvi) Chapter 336.
(xvii) Chapter 380.
(xviii) Chapter 388.
(xix) Chapter 393.
(xx) Chapter 409.
(xxi) Chapter 432.
(xxii) Chapter 460.
(xxiii) Chapter 483.
(b) The rescission of any rule.
(c) The amendment of any rule to incorporate a later amendment
or edition of a code, standard, or regulation already adopted by
reference in the rule, as described in section 32(4).
(2) If an agency determines that it is unnecessary to hold a
public hearing under section 41 and prepare a regulatory impact
statement under section 45 before a rule to which this section
applies is promulgated, the agency may state in the request for
rule-making for the rule its recommendation that the promulgation
of the rule be expedited under this section and the rationale for
the recommendation. If subsection (1)(c) applies, the agency shall
include in the request for rule-making an explanation of the
material differences between the code, standard, or regulation as
adopted and the later amendment or edition.
(3) Within 6 session days after the committee chair and the
alternate committee chair receive under section 39 a listing of a
request for rule-making the promulgation of which the office has
determined should be expedited under this section, the committee
chair or the alternate committee chair may object to the expedited
promulgation by providing to the office a written or electronic
notice of the objection. The office shall immediately issue a
written or electronic notice that the committee chair or alternate
committee chair has objected to the expedited promulgation of a
rule.
(4) If the office issues a notice under section 39 that it has
determined that the promulgation of a rule should not be expedited
under this section or issues a notice under section 39 that the
committee chair or alternate committee chair has objected to the
expedited promulgation of a rule, the agency shall not proceed with
processing of the rule without holding a public hearing under
section 41 and preparing a regulatory impact statement under
section 45.
(5) If subsection (4) does not apply, an agency may proceed
with processing of the rule without holding a public hearing under
section 41 and preparing a regulatory impact statement under
section 45. When the agency has completed processing the rule, the
agency shall notify the committee.
Sec. 45. (1) Except as otherwise provided in this subsection,
an agency shall electronically submit a proposed rule to the
legislative service bureau for its formal certification. If
requested
by the legislative service bureau, the office of
regulatory
reinvention shall also transmit up
to 4 paper copies of
the proposed rule. The legislative service bureau shall promptly
issue a certificate of approval indicating whether the proposed
rule is proper as to all matters of form, classification, and
arrangement. If the legislative service bureau fails to issue a
certificate of approval within 21 calendar days after receipt of
the
submission for formal certification, the office of regulatory
reinvention
may issue a certificate of
approval. If the legislative
service bureau returns the submission to the agency before the
expiration
of the 21-calendar-day time period, the 21-calendar-day
time
period is tolled until the rule is
resubmitted by the agency.
The
legislative service bureau shall have has the remainder of the
21-calendar-day
time period or 6 calendar days, whichever is
longer, to consider the formal certification of the rule. The
office
of regulatory reinvention may approve a proposed rule if it
considers the proposed rule to be legal and appropriate.
(2) Except as provided in subsection (6), after notice is
given as provided in this act and before the agency proposing the
rule has formally adopted the rule, the agency shall prepare an
agency report containing a synopsis of the comments contained in
the public hearing record, a copy of the request for rule-making,
and the regulatory impact statement required under subsection (3).
In the report, the agency shall describe any changes in the
proposed rules that were made by the agency after the public
hearing.
The office of regulatory reinvention shall transmit by
notice of transmittal to the committee copies of the rule, the
agency reports containing the request for rule-making, a copy of
the regulatory impact statement, and certificates of approval from
the
legislative service bureau and the office. of regulatory
reinvention.
The office of regulatory
reinvention shall also
electronically submit to the committee a copy of the rule, any
agency reports required under this subsection, any regulatory
impact statements required under subsection (3), and any
certificates of approval required under subsection (1). The agency
shall electronically transmit to the committee the records
described in this subsection within 1 year after the date of the
last public hearing on the proposed rule unless the proposed rule
is
a resubmission under section 45a(7).45a(9).
(3) Except as provided in subsection (6), an agency shall
prepare and include with a notice of transmittal under subsection
(2) the request for rule-making and the response from the office,
of
regulatory reinvention, a small
business impact statement
prepared
under section 40(1), 40, and a regulatory impact
statement.
The regulatory impact statement shall must contain all
of the following information:
(a) A comparison of the proposed rule to parallel federal
rules or standards set by a state or national licensing agency or
accreditation association, if any exist.
(b)
If requested by the office of regulatory reinvention or
the committee, a comparison of the proposed rule to standards in
similarly situated states, based on geographic location,
topography, natural resources, commonalities, or economic
similarities.
(c) An identification of the behavior and frequency of
behavior that the rule is designed to alter.
(d) An identification of the harm resulting from the behavior
that the rule is designed to alter and the likelihood that the harm
will occur in the absence of the rule.
(e) An estimate of the change in the frequency of the targeted
behavior expected from the rule.
(f) An identification of the businesses, groups, or
individuals who will be directly affected by, bear the cost of, or
directly benefit from the rule.
(g) An identification of any reasonable alternatives to
regulation pursuant to the proposed rule that would achieve the
same or similar goals.
(h) A discussion of the feasibility of establishing a
regulatory program similar to that proposed in the rule that would
operate through market-based mechanisms.
(i) An estimate of the cost of rule imposition on the agency
promulgating the rule.
(j) An estimate of the actual statewide compliance costs of
the proposed rule on individuals.
(k) A demonstration that the proposed rule is necessary and
suitable to achieve its purpose in proportion to the burdens it
places on individuals.
(l) An estimate of the actual statewide compliance costs of
the proposed rule on businesses and other groups.
(m) An identification of any disproportionate impact the
proposed rule may have on small businesses because of their size.
(n) An identification of the nature of any report required and
the estimated cost of its preparation by small businesses required
to comply with the proposed rule.
(o) An analysis of the costs of compliance for all small
businesses affected by the proposed rule, including costs of
equipment, supplies, labor, and increased administrative costs.
(p) An identification of the nature and estimated cost of any
legal consulting and accounting services that small businesses
would incur in complying with the proposed rule.
(q) An estimate of the ability of small businesses to absorb
the costs estimated under subdivisions (n) to (p) without suffering
economic harm and without adversely affecting competition in the
marketplace.
(r) An estimate of the cost, if any, to the agency of
administering or enforcing a rule that exempts or sets lesser
standards for compliance by small businesses.
(s) An identification of the impact on the public interest of
exempting or setting lesser standards of compliance for small
businesses.
(t) A statement describing the manner in which the agency
reduced the economic impact of the rule on small businesses or a
statement describing the reasons such a reduction was not feasible.
(u) A statement describing how the agency has involved small
businesses in the development of the rule.
(v) An estimate of the primary and direct benefits of the
rule.
(w) An estimate of any cost reductions to businesses,
individuals, groups of individuals, or governmental units as a
result of the rule.
(x) An estimate of any increase in revenues to state or local
governmental units as a result of the rule.
(y) An estimate of any secondary or indirect benefits of the
rule.
(z) An identification of the sources the agency relied upon in
compiling the regulatory impact statement, including the
methodology utilized in determining the existence and extent of the
impact of a proposed rule and a cost-benefit analysis of the
proposed rule.
(aa) A detailed recitation of the efforts of the agency to
comply with the mandate to reduce the disproportionate impact of
the rule upon small businesses as described in section 40(1)(a) to
(d).
(bb)
Any other information required by the office. of
regulatory
reinvention.
(4) The agency shall electronically transmit the regulatory
impact
statement required prepared
under subsection (3) to the
office
of regulatory reinvention at least 28 days before the public
hearing
required under section 42. Before the 41. The agency shall
not
hold the public hearing can be held,
until after the office
reviews
and approves the regulatory impact
statement. must be
reviewed
and approved by the office of regulatory reinvention. The
agency shall also electronically transmit a copy of the regulatory
impact
statement to the committee before the public hearing and the
agency
shall make copies available to the
public at the public
hearing.
The agency At least 10
days before the date of the public
hearing,
the office shall publish post the
regulatory impact
statement
on its website at least 10 days before the date of the
public
hearing and the agency shall
place a link to the office's
post on the agency's website.
(5) The committee shall electronically transmit to the senate
fiscal agency and the house fiscal agency a copy of each rule and
regulatory impact statement filed with the committee and a copy of
the agenda identifying the proposed rules to be considered by the
committee. The senate fiscal agency and the house fiscal agency
shall analyze each proposed rule for possible fiscal implications
that, if the rule were adopted, would result in additional
appropriations in the current fiscal year or commit the legislature
to an appropriation in a future fiscal year. The senate fiscal
agency and the house fiscal agency shall electronically report
their findings to the senate and house appropriations committees
and to the committee before the date of consideration of the
proposed rule by the committee.
(6)
Subsections (2) , (3), and to (4) do not apply to a
rule
that
is promulgated under section 33, 44, or 48.a rule to which
section 44 applies, a rule as to which a public hearing is not
required because the promulgation of the rule is being expedited
under section 44a, or an emergency rule promulgated under section
48.
Sec.
45a. (1) Except as otherwise provided in subsections (7)
to
(9), after the committee has received the notice of transmittal
specified
in section 45(2), (9) to
(11), the committee has 15 the
applicable number of session days under subsection (2) in which to
consider
the rule and to object do either
of the following, by
concurrent majority as provided in section 35:
(a)
Object to the rule by filing approving a notice of
objection
approved by a concurrent majority of the committee
members
or the committee may, by concurrent majority, waive under
subsection (3).
(b) Waive the remaining session days. If the committee waives
the remaining session days, the clerk of the committee shall
promptly
notify the office of regulatory reinvention of the waiver
by
electronic transmission. The committee may only
(2) The committee has whichever of the following number of
days is applicable to consider a rule and take 1 of the actions
allowed under subsection (1):
(a) Unless subdivision (b) applies, 21 session days after the
committee receives a notice of transmittal under section 45(2)
regarding the rule.
(b) If the rule is being expedited under section 44a, 9
session days after the committee receives a notice under section
44a(5) regarding the rule.
(3)
To approve a notice of objection if under subsection (1),
the
committee must affirmatively determines by a concurrent
majority
determine that 1 or more of the following conditions
exist:
(a) The agency lacks statutory authority for the rule.
(b) The agency is exceeding the statutory scope of its rule-
making authority.
(c) There exists an emergency relating to the public health,
safety, and welfare that would warrant disapproval of the rule.
(d) The rule conflicts with state law.
(e) A substantial change in circumstances has occurred since
enactment
of the law upon on which the proposed rule is based.
(f) The rule is arbitrary or capricious.
(g) The rule is unduly burdensome to the public or to a
licensee
licensed by under the rule.
(4) (2)
If the committee does not file approve a
notice of
objection
within the time period prescribed in under subsection (1)
(1)(a)
or if the committee waives the
remaining session days by
concurrent
majority, under subsection
(1)(b), the office of
regulatory
reinvention may immediately file
the rule, with the
certificate of approval required under section 45(1), with the
secretary
of state. The rule takes effect immediately upon its
filing
on being filed with the secretary of state unless a later
date
is indicated within in the rule.
(5) (3)
If the committee files approves a
notice of objection
within
the time period prescribed in under
subsection (1), the
committee chair, the alternate chair, or any member of the
committee
shall cause introduce bills to be introduced in both
houses of the legislature, simultaneously to the extent
practicable. Each house shall place the bill or bills directly on
its
calendar. The bills shall must
contain 1 or more of the
following:
(a)
A rescission of a the rule upon on its effective date.
(b) A repeal of the statutory provision under which the rule
was authorized.
(c)
A bill staying the effective date of the proposed rule for
up to 1 year.
(6) (4)
The notice of objection filed under subsection (3)
stays
the ability of the The office of regulatory reinvention to
shall
not file the rule with the
secretary of state a rule as to
which the committee has approved a notice of objection under
subsection (1) until the earlier of the following:
(a) Fifteen session days after the notice of objection is
filed
under subsection (3).approved.
(b)
The date of the a rescission of the issuance of the notice
of
objection , approved by a concurrent majority of the committee
members.
as provided in this
subdivision. The committee may meet
to
rescind
the issuance of the a notice of objection approved under
this
subdivision. subsection (1). If the committee rescinds the
issuance
of a notice of objection under this
subdivision, the clerk
of
the committee shall promptly notify the office of regulatory
reinvention
by electronic transmission of the recission.
rescission.
(7) (5)
If the legislation
introduced under subsection (3) (5)
is defeated in either house and if the vote by which the
legislation failed to pass is not reconsidered in compliance with
the rules of that house, or if legislation introduced under
subsection
(3) (5) is not adopted by both houses within the time
period
specified in subsection (4), (6), the
office of regulatory
reinvention
may file the rule with the
secretary of state. The rule
takes
effect immediately upon its filing on being filed with the
secretary
of state unless a later date is specified within in the
rule.
(8) (6)
If the legislation introduced
under subsection (3) (5)
is enacted by the legislature and presented to the governor within
the
15-session-day period, time
specified in subsection (6), the
rule does not take effect unless the legislation is vetoed by the
governor as provided by law. If the governor vetoes the
legislation,
the office of regulatory reinvention may file the rule
with the secretary of state immediately. The rule takes effect 7
days
after the date of its filing it
is filed with the secretary of
state
unless a later effective date is indicated within in the
rule.
(9) (7)
An agency may withdraw a proposed
rule under the
following conditions:
(a) With permission of the committee chair and alternate
chair, the agency may withdraw the rule and resubmit it. If
permission
to withdraw is granted, the 15-session-day time 21-
session-day
or 9-session-day period described in
subsection (1)
(2),
as applicable, is tolled until the rule
is resubmitted. ,
except
that However, the committee shall must have
at least 6
session days after resubmission to consider the resubmitted rule,
and if necessary, the period under subsection (2) is extended to
provide the 6 session days.
(b) Without permission of the committee chair and alternate
chair, the agency may withdraw the rule and resubmit it. If
permission
to withdraw is not granted, a new and untolled 15-
session-day
time 21-session-day or
9-session-day period described
in
subsection (1) shall begin upon (2),
as applicable, begins on
resubmission of the rule to the committee for consideration.
(10) (8)
Subsections (1) to (5) do This
section does not apply
to
rules adopted under sections section
33 , 44, and or 48 or rules
as to which sections 41, 42, and 45(2) to (4) do not apply as
provided in section 44.
(11) (9)
An agency shall withdraw any rule
pending before the
committee at the final adjournment of a regular session held in an
even-numbered
year and resubmit that the
rule. A new and untolled
15-session-day
time 21-session-day or
9-session-day period
described
in subsection (1) shall begin upon (2), as applicable,
begins on resubmission of the rule to the committee for
consideration.
(10)
As used in this section only, "session day" means a day
in
which both the house of representatives and the senate convene
in
session and a quorum is recorded.
Sec. 61. (1) The filing of a rule under this act raises a
rebuttable presumption that the rule was adopted, filed with the
secretary of state, and made available for public inspection as
required by this act.
(2)
The publication of a rule in the Michigan register,
Register,
the Michigan administrative code, Administrative Code, or
in an annual supplement to the code raises a rebuttable presumption
that all of the following are true:
(a) The rule was adopted, filed with the secretary of state,
and made available for public inspection as required by this act.
(b) The rule printed in the publication is a true and correct
copy of the promulgated rule.
(c) All requirements of this act relative to the rule have
been complied with.
(3)
The courts shall take judicial notice of a rule which that
becomes effective under this act.
(4) On publication of a rule in the Michigan Register or
Michigan Administrative Code, the rule is only subject to challenge
on 1 or more of the following bases:
(a) The rule is not authorized by law.
(b) The rule is not within the subject matter of the enabling
statute.
(c) The rule is arbitrary or capricious.
(d) The rule is unconstitutional or otherwise contrary to law.
Sec. 64. Unless an exclusive procedure or remedy is provided
by a statute governing the agency, the validity or applicability of
a
rule , including the failure of an agency to accurately
assess
the
impact of the rule on businesses, including small businesses,
in
its regulatory impact statement, may
be determined in an action
for declaratory judgment if the court finds that the rule or its
threatened application interferes with or impairs, or imminently
threatens to interfere with or impair, the legal rights or
privileges
of the plaintiff. The action shall must be filed in the
circuit court of the county where the plaintiff resides or has his
or her principal place of business in this state or in the circuit
court
for Ingham county. County.
The agency shall must be
made a
party to the action. An action for declaratory judgment may not be
commenced under this section unless the plaintiff has first
requested the agency for a declaratory ruling and the agency has
denied
the request or failed to act upon on it expeditiously. This
section
shall not be construed to does
not prohibit the
determination of the validity or applicability of the rule in any
other action or proceeding in which its invalidity or
inapplicability is asserted.
Enacting section 1. Section 59 of the administrative
procedures act of 1969, 1969 PA 306, MCL 24.259, is repealed.
Enacting section 2. This amendatory act takes effect January
1, 2017.