Bill Text: MI HB5731 | 2013-2014 | 97th Legislature | Introduced

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Bill Title: Administrative procedure; rules; adoption of rules; enact requirements for rules that are more stringent than federal regulations. Amends secs. 32 & 45 of 1969 PA 306 (MCL 24.232 & 24.245).

Spectrum: Partisan Bill (Republican 7-0)

Status: (Introduced - Dead) 2014-09-09 - Printed Bill Filed 08/28/2014 [HB5731 Detail]

Download: Michigan-2013-HB5731-Introduced.html

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HOUSE BILL No. 5731

 

August 27, 2014, Introduced by Reps. Haveman, Rogers, VerHeulen, Hooker, Leonard, Poleski and Denby and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1969 PA 306, entitled

 

"Administrative procedures act of 1969,"

 

by amending sections 32 and 45 (MCL 24.232 and 24.245), section 32

 

as amended by 2011 PA 270 and section 45 as amended by 2013 PA 200.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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 so if provided by

 

statute. A Unless provided by statute, a rule shall must not make

 

designate an act or omission to act as a crime or prescribe 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 editions of the adopted matter, but if the

 

agency wishes to incorporate them in its rule, it shall amend do so

 

by amending the rule or promulgate promulgating 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 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 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 decision is

 

subject to judicial review. A court shall not rely upon 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 agency proceeds by order in lieu of

 

rule-making, the agency shall not give the order shall 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) A rule shall must not exceed the rule-making delegation

 

contained in the statute authorizing the rule-making.

 

     (8) Except for an emergency rule promulgated under section 48,

 

if the federal government has mandated that this state promulgate

 

rules, an agency shall not adopt or promulgate a rule more

 

stringent than the applicable federally mandated standard unless

 

the director of the agency determines that there is a clear and

 

convincing need to exceed the applicable federal standard.

 

     (9) Except for an emergency rule promulgated under section 48,

 

if the federal government has not mandated that this state

 

promulgate rules, an agency shall not adopt or promulgate a rule

 

more stringent than an applicable federal standard unless the

 

director of the agency determines that there is a clear and

 

convincing need to exceed the applicable federal standard.

 

     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 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), and a regulatory impact statement. The

 

regulatory impact statement shall 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 section 32(8) applies and the proposed rule is more

 

stringent than the applicable federally mandated standard, a

 

statement of the specific facts that establish the clear and

 

convincing need to adopt the more stringent rule and an explanation

 

of the unique characteristics of this state that necessitate the

 

more stringent standard.

 

     (c) If section 32(9) applies and the proposed rule is more

 

stringent than the applicable federal standard, a statement of the

 

specific facts that establish the clear and convincing need to

 

adopt the more stringent rule and an explanation of the unique

 

characteristics of this state that necessitate the more stringent

 

standard.

 

     (d) (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.

 

     (e) (c) An identification of the behavior and frequency of

 

behavior that the rule is designed to alter.

 

     (f) (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.

 

     (g) (e) An estimate of the change in the frequency of the

 

targeted behavior expected from the rule.

 

     (h) (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.

 

     (i) (g) An identification of any reasonable alternatives to

 

regulation pursuant to the proposed rule that would achieve the

 

same or similar goals.

 

     (j) (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.

 

     (k) (i) An estimate of the cost of rule imposition on the

 

agency promulgating the rule.

 

     (l) (j) An estimate of the actual statewide compliance costs of

 

the proposed rule on individuals.

 

     (m) (k) A demonstration that the proposed rule is necessary

 

and suitable to achieve its purpose in proportion to the burdens it

 

places on individuals.

 

     (n) (l) An estimate of the actual statewide compliance costs of

 

the proposed rule on businesses and other groups.

 

     (o) (m) An identification of any disproportionate impact the

 

proposed rule may have on small businesses because of their size.

 

     (p) (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.

 

     (q) (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.

 

     (r) (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.

 

     (s) (q) An estimate of the ability of small businesses to

 

absorb the costs estimated under subdivisions (n) to (p) to (r)

 

without suffering economic harm and without adversely affecting

 

competition in the marketplace.

 

     (t) (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.

 

     (u) (s) An identification of the impact on the public interest

 

of exempting or setting lesser standards of compliance for small

 

businesses.

 

     (v) (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.

 

     (w) (u) A statement describing how the agency has involved

 

small businesses in the development of the rule.

 

     (x) (v) An estimate of the primary and direct benefits of the

 

rule.

 

     (y) (w) An estimate of any cost reductions to businesses,

 

individuals, groups of individuals, or governmental units as a

 

result of the rule.

 

     (z) (x) An estimate of any increase in revenues to state or

 

local governmental units as a result of the rule.

 

     (aa) (y) An estimate of any secondary or indirect benefits of

 

the rule.

 

     (bb) (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.

 

     (cc) (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).

 

     (dd) (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. 41. Before the public hearing can be

 

held, 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 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.

 

     Enacting section 1. This amendatory act takes effect February

 

1, 2015.