HB-4240, As Passed House, June 16, 2011

SUBSTITUTE FOR

HOUSE BILL NO. 4240

     A bill to amend 1969 PA 306, entitled

"Administrative procedures act of 1969,"

by amending sections 32 and 40 (MCL 24.232 and 24.240), section 40

as amended by 1999 PA 262.

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 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 rule shall not make an act or omission to act 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 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 of a copy as of the time the rule is adopted.

     (5) A guideline, operational memorandum, bulletin,

interpretive statement, or form with instructions is considered

merely advisory and shall not be binding on anyone other than the

agency or 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.

     (6) 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

before the issuance of the order.

     (7) 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) to (d) shall be

specifically addressed in the regulatory impact statement required

under section 45.

(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.