Bill Summary – FastDemocracy

67th Legislature                                                                                                    HB 447.1
                                                    HOUSE BILL NO. 447
                                               INTRODUCED BY B. MERCER
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   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO LEGISLATIVE
   OVERSIGHT OF ADMINISTRATIVE RULES; REQUIRING AN AGENCY TO FILE NOTICE OF ITS ACTION
   WITH THE APPROPRIATE ADMINISTRATIVE COMMITTEE 30 DAYS BEFORE PUBLISHING PUBLIC
   NOTICE OF ITS PROPOSED ACTION; PROHIBITING THE ADOPTION OF RULES IN THE LAST QUARTER
   OF A YEAR BEFORE A LEGISLATIVE SESSION; PROVIDING EXCEPTIONS; REVISING RULEMAKING
   AUTHORITY; AMENDING SECTIONS 2-4-302, 2-4-303, 2-4-305, 2-4-306, 2-4-307, 2-4-402, AND 2-4-403,
   MCA; AND PROVIDING AN APPLICABILITY DATE.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              Section 1. Section 2-4-302, MCA, is amended to read:
              "2-4-302.   Notice, hearing, and submission of views. (1) (a) Prior to the adoption, amendment, or
   repeal of any rule, the agency shall give written notice of its proposed action. The proposal notice must include
   a statement of either the terms or substance of the intended action or a description of the subjects and issues
   involved, and the reasonable necessity for the proposed action. The reasonable necessity must be written in
   plain, easily understood language. The agency shall file the written notice with the appropriate administrative
   rule review committee.
              (b)   No less than 30 days after the agency files the notice with the appropriate administrative rule
   review committee, the agency shall give written notice of its proposed action to the public, including the
   substantive statement and the reasonable necessity provided to the committee under subsection (1)(a), along
   with, and the time when, place where, and manner in which interested persons may present their views on the
   proposed action. The reasonable necessity must be written in plain, easily understood language.
              (b)(c) The agency shall state in the proposal notice under subsection (1)(b) the date on which and the
   manner in which contact was made with the primary sponsor as required in subsection (2)(d). If the notification
   to the primary sponsor was given by mail, the date stated in the proposal notice must be the date on which the
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   notification was mailed by the agency. If the proposal notice fails to state the date on which and the manner in
   which the primary sponsor was contacted, the filing of the proposal notice under subsection (2)(a)(i) is
   ineffective for the purposes of this part and for the purposes of the law that the agency cites in the proposal
   notice as the authority for the proposed action.
              (c)(d)   If the agency proposes to adopt, increase, or decrease a monetary amount that a person shall
   pay or will receive, such as a fee, cost, or benefit, the proposal notice under subsection (1)(b) must include an
   estimate, if known, of:
              (i)   the cumulative amount for all persons of the proposed increase, decrease, or new amount; and
              (ii) the number of persons affected.
              (2)   (a) (i) The proposal notice under subsection (1)(b) must be filed with the secretary of state for
   publication in the register, as provided in 2-4-312. Except as provided in subsection (2)(a)(ii), within 3 days of
   publication, a copy of the published proposal notice must be sent to interested persons who have made timely
   requests to the agency to be informed of its rulemaking proceedings, and to the office of any professional,
   trade, or industrial society or organization or member of those entities who has filed a request with the
   appropriate administrative rule review committee when the request has been forwarded to the agency as
   provided in subsection (2)(b).
              (ii) In lieu of sending a copy of the published proposal notice to an interested person who has
   requested the notice, the agency may, with the consent of that person, send that person an electronic
   notification that the proposal notice is available on the agency's website and an electronic link to the part of the
   agency's website or a description of the means of locating that part of the agency's website where the notice is
   available.
              (iii) Each agency shall create and maintain a list of interested persons and the subject or subjects in
   which each person on the list is interested. A person who submits a written comment or attends a hearing in
   regard to proposed agency action under this part must be informed of the list by the agency. An agency
   complies with this subsection if it includes in the proposal notice an advisement explaining how persons may be
   placed on the list of interested persons and if it complies with subsection (7).
              (b)   The appropriate administrative rule review committee shall forward a list of all organizations or
   persons who have submitted a request to be informed of agency actions to the agencies that the committee
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67th Legislature                                                                                                      HB 447.1
   oversees that publish rulemaking notices in the register. The list must be amended by the agency upon request
   of any person requesting to be added to or deleted from the list.
              (c) The proposal notice required by subsection (1)(b) must be published at least 30 days in advance
   of the agency's proposed action. The agency shall post the proposal notice required under subsection (1)(b) on
   a state electronic access system or other electronic communications system available to the public.
              (d)   (i) When an agency begins to work on the substantive content and the wording of a proposal
   notice for a rule that initially implements legislation, the agency shall contact, as provided in subsection (8), the
   legislator who was the primary sponsor of the legislation to:
              (A)   obtain the legislator's comments;
              (B)   inform the legislator of the known dates by which each step of the rulemaking process must be
   completed; and
              (C)   provide the legislator with information about the time periods during which the legislator may
   comment on the proposed rules, including the opportunity to provide comment to the appropriate administrative
   rule review committee.
              (ii) If the legislation affected more than one program, the primary sponsor must be contacted pursuant
   to this subsection (2)(d) each time that a rule is being proposed to initially implement the legislation for a
   program.
              (iii) Within 3 days after a proposal notice covered under subsection (2)(d)(i) has been published as
   required in subsection (2)(a)(i), a copy of the published notice must be sent to the primary sponsor contacted
   under this subsection (2)(d).
              (3)   If a statute provides for a method of publication different from that provided in subsection (2), the
   affected agency shall comply with the statute in addition to the requirements contained in this section. However,
   the notice period for the published notice under subsection (1)(b) may not be less than 30 days or more than 6
   months.
              (4)   Prior to the adoption, amendment, or repeal of any rule, the agency shall afford interested persons
   at least 20 days' notice of a hearing and at least 28 days from the day of the original notice published under
   subsection (1)(b) to submit data, views, or arguments, orally or in writing. If an amended or supplemental notice
   is filed published, additional time may be allowed for oral or written submissions. In the case of substantive
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   rules, the notice of proposed rulemaking under subsection (1)(b) must state that opportunity for oral hearing
   must be granted if requested by either 10% or 25, whichever is less, of the persons who will be directly affected
   by the proposed rule, by a governmental subdivision or agency, by the appropriate administrative rule review
   committee, or by an association having not less than 25 members who will be directly affected. If the proposed
   rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing.
              (5)   An agency may continue a hearing date for cause. In the discretion of the agency, contested case
   procedures need not be followed in hearings held pursuant to this section. If a hearing is otherwise required by
   statute, nothing in this section alters that requirement.
              (6)   If an agency fails to publish a notice of adoption within the time required by 2-4-305(7) and the
   agency again proposes the same rule for adoption, amendment, or repeal, the proposal must be considered a
   new proposal for purposes of compliance with this chapter.
              (7)   At the commencement of a hearing on the intended action, the person designated by the agency
   to preside at the hearing shall:
              (a)   read aloud the "Notice of Function of Administrative Rule Review Committee" appearing in the
   register; and
              (b)   inform the persons at the hearing of the provisions of subsection (2)(a) and provide them an
   opportunity to place their names on the list.
              (8)   (a) For purposes of contacting primary sponsors under subsection (2)(d), a current or former
   legislator who wishes to receive notice shall keep the current or former legislator's name, address, e-mail
   address, and telephone number on file with the secretary of state. The secretary of state may also use
   legislator contact information provided by the legislative services division for the purposes of the register. The
   secretary of state shall update the contact information whenever the secretary of state receives corrected
   information from the legislator or the legislative services division. An agency proposing rules shall consult the
   register when providing sponsor contact.
              (b)   An agency has complied with the primary bill sponsor contact requirements of this section when
   the agency has attempted to reach the primary bill sponsor at the legislator's address, e-mail address, and
   telephone number on file with the secretary of state pursuant to subsection (8)(a). If the agency is able to
   contact the primary sponsor by using less than all of these three methods of contact, the other methods need
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   not be used.
              (9)   This section applies to the department of labor and industry adopting a rule relating to a
   commercial drug formulary as provided in 39-71-704. This section does not apply to the automatic updating of
   department of labor and industry rules relating to commercial drug formularies as provided in 39-71-704."
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              Section 2. Section 2-4-303, MCA, is amended to read:
              "2-4-303.   Emergency or rules -- temporary rules. (1) (a) 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' public notice and
   states in writing its reasons for that finding, it may proceed upon special notice filed with the appropriate
   administrative rule review 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.
              (b)   An emergency rule may not be used to implement an administrative budget reduction.
              (c)   An emergency rule is exempt from the requirement to file the proposed rule with the appropriate
   administrative rule review committee under 2-4-302(1)(a) at least 30 days before publishing notice of the rule,
   but the agency shall give the committee special notice as provided in subsection (1)(a) of this section.
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              (2)   (a) 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.
              (b)   A temporary rule is exempt from the requirement to file the proposed rule with the appropriate
   administrative rule review committee under 2-4-302(1)(a) at least 30 days before publishing notice of the rule."
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              Section 3. Section 2-4-305, MCA, is amended to read:
              "2-4-305.   Requisites for validity -- authority and statement of reasons. (1) (a) The agency shall
   fully consider written and oral submissions respecting the proposed rule, including comments submitted by the
   primary sponsor of the legislation prior to the drafting of the substantive content and wording of a proposed rule
   that initially implements legislation.
              (b)   (i) 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 published 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.
              (ii) If an adopted rule that initially implements legislation does not reflect the comments submitted by
   the primary sponsor, the agency shall provide a statement explaining why the sponsor's comments were not
   incorporated into the adopted rule.
              (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
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   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 subje