Bill Text: MI SB0434 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Administrative procedure; rules; use of certain orders, bulletins, and guidelines; establish limit and provide for regulatory flexibility for small businesses. Amends secs. 3, 32, 39, 40, 43, 45, 61 & 64 of 1969 PA 306 (MCL 24.203 et seq.). TIE BAR WITH: SB 0013'09, SB 0431'09
Spectrum: Partisan Bill (Republican 11-0)
Status: (Engrossed - Dead) 2009-06-17 - Referred To Committee On Great Lakes And Environment [SB0434 Detail]
Download: Michigan-2009-SB0434-Engrossed.html
SB-0434, As Passed Senate, June 17, 2009
SUBSTITUTE FOR
SENATE BILL NO. 434
(As amended, June 17, 2009)
<<A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 32, 40, 43, 61, and 64 (MCL 24.232, 24.240,
24.243, 24.261, and 24.264), section 40 as amended by 1999 PA 262,
section 43 as amended by 1989 PA 288, and section 61 as amended by
1982 PA 413.>>
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 32. (1) Definitions of words and phrases and rules of
construction
prescribed in any statute , and which that are made
applicable
to all statutes of this state , also shall apply to
rules unless clearly indicated to the contrary.
(2) A rule or exception to a rule shall not discriminate in
favor
of or against any person. , and a 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 provided by
statute.
A Unless provided for by
statute, a rule shall not make an
act
or omission to act a crime or designate
an act or omission as a
crime and shall not 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 which that has been adopted by an agency of
the United States or by a nationally recognized organization or
association. The reference shall fully identify the adopted matter
by date and otherwise. The reference shall 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 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 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 thereof as of the time the rule is adopted.
(5) The agency is prohibited from promulgating or adopting a
rule more stringent than the applicable federal standard unless
specifically authorized by statute to do otherwise.
(6) If an agency adopts rules in order to implement a
federally delegated program, the agency shall adopt the rules and
standards as promulgated or adopted by the federal government
unless a more efficient process is specifically authorized by
statute.
(7) A guideline, operational memorandum, bulletin,
interpretive statement, or form with instructions is considered
merely advisory and shall 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 an 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 such an agency
decision.
(8) Where 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 order shall not be given general applicability to
persons who were not parties to the proceeding or contested case
prior to the issuance of the order.
(9) A rule shall not exceed the rule-making delegation
contained in the statute authorizing the rule-making.
Sec. 40. (1) When an agency proposes to adopt a rule that will
apply to a small business and the rule will have a disproportionate
impact on small businesses because of the size of those businesses,
the agency shall consider exempting small businesses and, if not
exempted, the agency proposing to adopt the rule shall reduce the
economic
impact of the rule on small businesses by doing 1 or more
all of the following when it is lawful and feasible in meeting the
objectives of the act authorizing the promulgation of the rule:
(a) Identify and estimate the number of small businesses
affected by the proposed rule and its probable effect on small
businesses.
(b) (a)
Establish differing compliance or reporting
requirements or timetables for small businesses under the rule
after projecting the required reporting, record-keeping, and other
administrative costs.
(c) (b)
Consolidate, or simplify, or eliminate the
compliance
and reporting requirements for small businesses under the rule and
identify the skills necessary to comply with the reporting
requirements.
(d) (c)
Establish performance rather than design standards,
when
appropriate standards to
replace design or operational
standards required in the proposed rule.
(d)
Exempt small businesses from any or all of the
requirements
of the rule.
(2) The factors described in subsection (1)(a) through (d)
shall be specifically addressed in the small business impact
statement.
(3) (2)
If appropriate in In reducing the disproportionate
economic impact on small business of a rule as provided in
subsection
(1), an agency may shall use the following
classifications of small business:
(a) 0-9 full-time employees.
(b) 10-49 full-time employees.
(c) 50-249 full-time employees.
(4) (3)
For purposes of subsection (2) (3), an agency may
include a small business with a greater number of full-time
employees in a classification that applies to a business with fewer
full-time employees.
(5) (4)
This section and section 45(3) do not apply to a rule
which
that is required by federal law and which that
an agency
promulgates without imposing standards more stringent than those
required by the federal law.
Sec. 43. (1) Except in the case of an emergency rule
promulgated in the manner described in section 48, a rule is not
valid
unless processed in compliance with section 42 sections 39,
40, 42, and 45(3) and unless in substantial compliance with section
41(2), (3), (4), and (5).
(2) A proceeding to contest the validity of the processing of
a rule on the ground of noncompliance with the requirements of
sections
section 39, 40, 41, and 42, or 45(3), or any combination
thereof, shall be commenced within 2 years after the effective date
of the rule.
(3) An agency determined to have violated this chapter
regarding the processing of a rule is subject to damages as a
result of an action brought by a person under section 64(2).
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, the
Michigan administrative code, or in an annual supplement to the
code raises a rebuttable presumption that the following occurred:
(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
becomes effective under this act.
Sec. 64. (1) 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 when 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
be filed in the circuit court of the county where the plaintiff
resides or has his principal place of business in this state or in
the circuit court for Ingham county. The agency shall 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 it expeditiously. This
section shall not be construed to 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.
(2) A person alleging a violation of chapter 3 regarding the
processing of a rule, as described in section 43(3), may bring an
action for award of damages in the circuit court of the county in
which the plaintiff resides or in the circuit court for Ingham
county for an award of damages. If the court determines that such a
violation has occurred, it may award up to 10 times the cost of any
permit fees as well as the actual and reasonable costs relating to
witness and attorney fees.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 13.
(b) Senate Bill No. 431.
