Bill Text: MI SB0962 | 2015-2016 | 98th Legislature | Engrossed
Bill Title: Administrative procedure; rules; joint committee; provide for power to suggest changes to proposed rules. Amends secs. 5, 44, 45 & 45a of 1969 PA 306 (MCL 24.205 et seq.) & adds sec. 45c.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-12-30 - Assigned Pa 0513'16 [SB0962 Detail]
Download: Michigan-2015-SB0962-Engrossed.html
SB-0962, As Passed House, December 15, 2016
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 962
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 5, 44, 45, and 45a (MCL 24.205, 24.244,
24.245, and 24.245a), section 5 as amended by 2006 PA 460, section
44 as amended by 2004 PA 23, section 45 as amended by 2013 PA 200,
and section 45a as amended by 2011 PA 245, and by adding section
45c.
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" 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.
(g) "Office of regulatory reform", "state office of
administrative hearings and rules", 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. 44. (1) Sections 41 and 42 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 the rule.
(2) Sections 41 and 42 do not apply to a rule that is
promulgated under the Michigan occupational safety and health act,
1974 PA 154, MCL 408.1001 to 408.1094, 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. However, notice of the proposed
rule
shall must be published in the Michigan 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, not to exceed
21
days, shall must be provided for the submission of written or
electronic comments and views following publication in the Michigan
register.
(3) Sections 41 and 42 do not apply to a change to a proposed
rule by an agency during processing of the rule if the office
determines under section 45c(3) that the regulatory impact and
impact on small businesses of the changed proposed rule are not
more burdensome than the regulatory impact and impact on small
businesses of the original proposed rule.
(4) (3)
For purposes of subsection (2),
"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 section
45(1).
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
After resubmission, 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).
(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 on
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 under subsection (3) to the office of
regulatory
reinvention at least 28 days before
the public hearing
required
under section 42. Before 41.
The agency shall not hold the
public
hearing can be held, until
the regulatory impact statement
must
be has been 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 shall publish the
regulatory impact statement on its website at least 10 days before
the date of the public hearing.
(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 (4) do not apply to a rule that
is
promulgated under section 33 , 44, or
48 or a rule to which
sections 41 and 42 do not apply as provided in section 44.
Sec.
45a. (1) Except as otherwise provided in subsections (7)
to
(9), (10) to (12), after the committee has received the a notice
of
transmittal specified in under
section 45(2), the committee has
15
session days in which to consider the rule and to object do 1 of
the following:
(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 the
under subsection (2) and filing the notice with the office.
(b) Propose that the rule be changed. If the committee
proposes that a rule be changed under this subdivision, section 45c
applies.
(c) Decide to introduce bills under subsection (5) to enact
the subject of the rule into law.
(d) Waive any 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
(2) To approve a notice of objection under subsection (1)(a),
a
concurrent majority of the committee, may
only approve a notice
of
objection if the committee as
provided in section 35, 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.
(3) (2)
If the committee does not file approve a
notice of
objection, propose that the rule be changed, or decide to introduce
bills under subsection (5) within the time period prescribed in
subsection (1), or if the committee waives the remaining session
days
by concurrent majority, under
subsection (1), 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.
(4) (3)
If the committee files a notice of
objection within
the
time period prescribed in under
subsection (1), (1)(a), 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 rule upon 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.
(5) If the committee decides to proceed under this subsection
as provided in subsection (1)(c), the committee chair and the
alternate chair shall, as soon as the bills have been prepared,
introduce or cause to be introduced in both houses of the
legislature bills to enact into law the subject of the proposed
rule. The language of a bill introduced under this subsection is
not required to be identical to the language of the proposed rule.
The legislative service bureau shall give priority to the
preparation of the bills.
(6) (4)
The notice of objection filed
under subsection (3)
stays
the ability of the office of
regulatory reinvention to shall
not
file the rule with the secretary
of state a rule as to which
the committee has filed a notice of objection under subsection
(1)(a)
until the earlier after whichever of the following applies:
(a)
Fifteen Unless subdivision
(b) applies, 15 session days
after
the date the notice of objection is filed. under
subsection
(3).
(b)
The date of the a rescission of the issuance of the notice
Senate Bill No. 962 as amended December 15, 2016
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 under this
subdivision.
filed under subsection
(1)(a). 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) If the committee decides to introduce bills under
subsection (5) with respect to the subject of a rule, the office
shall not file the rule with the secretary of state until [270 days]
after the bills were introduced.
(8) (5)
If the legislation
introduced under subsection (3) (4)
or (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) (4) or (5) is not adopted by both houses within the
time
applicable period specified in subsection (4), (6) or (7), 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.
(9) (6)
If the legislation
introduced under subsection (3) (4)
or (5) is enacted by the legislature and presented to the governor
within the 15-session-day period under subsection (6) or before the
expiration of [270 days] under subsection (7), 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.
(10) (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 to change the rule and
resubmit it as changed. If permission to withdraw is granted, the
15-session-day
time period described in subsection (1) 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 (1) is extended to give the committee the 6 days.
(b) Without permission of the committee chair and alternate
chair, the agency may withdraw the rule to change the rule and
resubmit it as changed. If permission to withdraw is not granted, a
new and untolled 15-session-day time period described in subsection
(1)
shall begin upon begins on
resubmission of the rule to the
committee for consideration.
(11) (8)
Subsections (1) to (5) do This
section does not apply
to
rules adopted under sections section
33 , 44, and or 48 or a
rule to which sections 41 and 42 do not apply as provided in
section 44(1) or (2).
(12) (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 period described in subsection (1) shall begin
upon
begins on resubmission of the rule to the committee for
consideration.
(13) (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. 45c. (1) If the committee proposes that a proposed rule
be changed under section 45a(1), the agency shall, within 30 days,
do 1 of the following:
(a) Decide to change the rule and, within the 30 days,
resubmit the rule, as changed, to the committee. If the agency
decides to change the rule, subsections (2) to (5) apply.
(b) Decide to not change the rule. If the agency decides to
not change the rule, subsection (6) applies.
(2) If an agency decides to change a proposed rule under
subsection (1), the agency shall withdraw the rule. A withdrawal
under this subsection is a withdrawal with permission under section
45a(10). After withdrawing the rule under this subsection, the
agency shall give notice to the office for publication of the
proposed rule, as changed, under section 8. The notice must include
the text of the rule as changed.
(3) After receiving the text of a proposed rule as changed
under subsection (2), the office shall review the rule as changed
and determine whether the regulatory impact or the impact on small
businesses of the rule as changed would be more burdensome than the
regulatory impact or the impact on small businesses of the rule as
originally proposed. If the language of the rule as changed is
identical to the language of the corresponding rule promulgated and
in effect at the time of the review, the regulatory impact and
impact on small businesses of the rule as changed are not more
burdensome. The office shall notify the agency of its determination
under this subsection.
(4) If the office's determination under subsection (3) is that
the regulatory impact and the impact on small businesses of the
rule as changed would not be more burdensome, the agency is not
required to prepare a new agency report under section 45(2) or
conduct a new public hearing on the rule as changed. If the
determination is that the regulatory impact and the impact on small
businesses of the rule as changed would be more burdensome, the
agency shall prepare a new agency report under section 45(2) and
conduct a new public hearing.
(5) After receiving the office's determination under
subsection (3), the agency shall submit a supplement to the agency
report under section 45(2) that includes all of the following:
(a) A statement of the determination of the office under
subsection (3) and whether a new agency report under section 45(2)
and public hearing are required.
(b) An explanation for the proposed changed rule.
(6) If an agency decides to not change a rule under subsection
(1), the agency shall within the 30-day period under subsection (1)
notify the committee of the decision and the reasons for the
decision and file the notice with the office. After the notice is
filed, the committee has 15 session days in which to consider the
agency's decision and take 1 of the actions listed in section
45a(1).
Enacting section 1. This amendatory act takes effect January
1, 2017.
