November 9, 2017, Introduced by Senators CASPERSON and ROBERTSON and referred to the Committee on Natural Resources.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 33, 39a, 40, 41, 42, 43, 44, 45, and 47 (MCL
24.233, 24.239a, 24.240, 24.241, 24.242, 24.243, 24.244, 24.245,
and 24.247), sections 33 and 47 as amended and section 39a as added
by 1999 PA 262, section 40 as amended by 2011 PA 243, sections 41
and 42 as amended by 2004 PA 491, section 43 as amended by 1989 PA
288, and sections 44 and 45 as amended by 2016 PA 513, and by
adding sections 65 and 66.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 33. (1) An agency shall promulgate rules describing its
organization and stating the general course and method of its
operations. and
The agency may include therein in the rules forms
with
instructions. Sections 41, 42, 45, and 45a, and 66 do
not
apply
to such promulgation of the
rules.
(2) An agency shall promulgate rules prescribing its
procedures available to the public and the methods by which the
public may obtain information and submit requests.
(3)
An agency may promulgate rules not inconsistent
prescribing procedures for contested cases. The rules must be
consistent
with this act or and other
applicable statutes.
prescribing
procedures for contested cases.
Sec.
39a. (1) An Subject to
section 66, an agency may publish
the
notice of hearing under section 42 only if the office of
regulatory
reform has received draft proposed
rules and has given
the agency approval to proceed with a public hearing.
(2) After a grant of approval to hold a public hearing by the
office
of regulatory reform under subsection (1), the office of
regulatory
reform shall immediately provide a
copy of the proposed
rules to the committee. The committee shall provide a copy of the
proposed rules, not later than the next business day after receipt
of
the notice from the office, of regulatory reform, to members of
the committee and to members of the standing committees of the
senate and house of representatives that deal with the subject
matter of the proposed rule.
Sec.
40. (1) When If 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 all of the following when if 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) 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) Consolidate, 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) Establish performance standards to replace design or
operational standards required in the proposed rule.
(2) The agency proposing the rule shall specifically address
the
factors described in subsection (1)(a)
to (d) shall be
specifically
addressed in the a small
business impact statement.
(3) In reducing the disproportionate economic impact on small
business of a rule as provided in subsection (1), an agency 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) For purposes of subsection (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)
This section and section 45(3) do not apply to a either of
the following:
(a) A rule that is required by federal law and that an agency
promulgates without imposing standards more stringent than those
required by the federal law.
(b) A rule promulgated by the department of environmental
quality.
Sec.
41. (1) Except as provided in section sections 44 and 66,
before
the adoption of a rule, an agency, or the office, of
regulatory
reform, shall give notice of a
public hearing and offer
a person an opportunity to present data, views, questions, and
arguments.
The notice shall must be given within the time
prescribed by any applicable statute, or if none, in the manner
prescribed in section 42(1).
(2)
The notice described in subsection (1) shall must include
all of the following:
(a) A reference to the statutory authority under which the
action is proposed.
(b) The time and place of the public hearing and a statement
of the manner in which data, views, questions, and arguments may be
submitted by a person to the agency at other times.
(c) A statement of the terms or substance of the proposed
rule, a description of the subjects and issues involved, and the
proposed effective date of the rule.
(3)
The agency, or the office of regulatory reform acting on
behalf of an agency, shall transmit copies of the notice described
in subsection (1) to each person who requested the agency in
writing or electronically for advance notice of proposed action
that
may affect the person. If requested, the notice shall must be
by mail, in writing, or electronically to the last address
specified by the person.
(4)
The public hearing shall must
comply with any applicable
statute, but is not subject to the provisions governing a contested
case.
(5) The head of the promulgating agency or 1 or more persons
designated by the head of the agency who have knowledge of the
subject matter of the proposed rule shall be present at the public
hearing and shall participate in the discussion of the proposed
rule.
Sec.
42. (1) Except as provided in section sections 44 and 66,
at
a minimum, an agency, or the office of regulatory reform acting
on behalf of the agency, shall publish the notice of public hearing
as prescribed in any applicable statute or, if none, the agency, or
the
office of regulatory reform acting on behalf of the agency,
shall publish the notice not less than 10 days and not more than 60
days before the date of the public hearing in at least 3 newspapers
of
general circulation in different parts of the this state,
1 of
which
shall must be in the Upper Peninsula.
(2)
Additional methods that may be employed by the agency, or
the
office of regulatory reform acting on behalf of the agency,
depending
upon the circumstances, to
provide notice of the public
hearing include publication in trade, industry, governmental, or
professional publications or posting on the website of the agency
or
the office. of regulatory reform.
(3) In addition to the requirements of subsection (1) and
except as provided in section 66, the agency shall electronically
submit
a copy of the notice of public hearing to the office of
regulatory
reform for publication in the
Michigan register. If the
office
of regulatory reform submitted the notice of public hearing
on
behalf of the agency, the office of regulatory reform shall
publish the notice of public hearing in the Michigan register. An
agency's
notice shall must be published in the Michigan register
before the public hearing and the agency shall electronically file
a
copy of the notice of public hearing with the office. of
regulatory
reform. Within 7 days after receipt
of the notice of
public
hearing and before the public
hearing, the office of
regulatory
reform shall do all of the
following: before the public
hearing:
(a) Electronically transmit a copy of the notice of public
hearing to the committee.
(b) Provide notice electronically through publicly accessible
internet media.
(4)
After the office of regulatory reform electronically
transmits a copy of the notice of public hearing to the committee,
the committee shall electronically transmit copies of the notice of
public hearing, not later than the next business day after receipt
of
the notice from the office, of regulatory reform, to each member
of the committee and to the members of the standing committees of
the senate and house of representatives that deal with the subject
matter of the proposed rule.
(5) After receipt of the notice of public hearing filed under
subsection (3), the committee may meet to consider the proposed
rule, take testimony, and provide the agency with the committee's
informal response to the rule.
Sec.
43. (1) Except in the case of for
an emergency rule
promulgated in the manner described in section 48, a rule is not
valid unless it is processed in compliance with section 66, if
applicable,
section 42, and unless
in substantial compliance with
section 41(2), (3), (4), and (5).
(2) A proceeding to contest a rule on the ground of
noncompliance
with the requirements of sections 41 and 42 shall or
section 66 must be commenced within 2 years after the effective
date of the rule.
Sec.
44. (1) Sections 41, and 42, and 66 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. However, notice of the proposed rule must be
published
in the Michigan register at least 35 days before the
submission
of the rule to is filed with the secretary of state
under section 46(1). A reasonable period, not to exceed 21 days,
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) 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.
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 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 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.
After resubmission, the legislative service bureau 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 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 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. The office 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.
(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, a
small business impact statement prepared under section 40, and a
regulatory impact statement. The regulatory impact statement 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 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 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 on small businesses as described in section 40(1)(a)
to (d).
(bb) Any other information required by the office.
(4) The agency shall electronically transmit the regulatory
impact statement required under subsection (3) to the office at
least 28 days before the public hearing required under section 41.
The agency shall not hold the public hearing until the regulatory
impact statement has been reviewed and approved by the office. 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, or 48, or 66 or a rule to which
sections 41 and 42 do not apply as provided in section 44.
Sec.
47. (1) Except in case of for
a rule processed under
section 48, a rule becomes effective on the date fixed in the rule,
which
shall must not be earlier than 7 days after the date of its
promulgation,
or, if a date is not so fixed then in the rule, 7
days after the date of promulgation.
(2)
Except in case of for a rule processed under section 48 or
66, an agency may withdraw a promulgated rule which
that has not
become effective by filing a written request stating reasons for
withdrawal to the secretary of state on or before the last day for
filing rules for the interim period in which the rules were first
filed, or by filing a written request for withdrawal to the
secretary
of state and the office, of regulatory reform, within a
reasonable
time, as determined by the office, of
regulatory reform,
after the last day for filing and before publication of the rule in
the
next supplement to the code. In any other case circumstances,
an
agency may abrogate its rule only by rescission. When If an
agency has withdrawn a promulgated rule, it shall give notice,
stating reasons, to the committee that the rule has been withdrawn.
(3) Sections 45 and 45a apply to rules for which a public
hearing has not been held by April 1, 2000.
Sec. 65. (1) The environmental rules review committee is
created as an independent body in the office.
(2) The environmental rules review committee consists of the
director of the department of environmental quality, or his or her
designee, the director of the department of health and human
services, or his or her designee, and the chief executive officer
of the Michigan economic development corporation, or his or her
designee, all of whom serve as nonvoting members, and the following
voting members appointed by the governor by and with the advice and
consent of the senate:
(a) One individual who represents the solid waste management
industry.
(b) One individual who represents a statewide manufacturing
organization.
(c) One individual who represents a statewide organization
that represents small businesses.
(d) One individual who represents public utilities that engage
in the generation, transmission, and distribution of electricity.
(e) One individual who represents a statewide environmental
organization.
(f) One individual who represents the oil and gas industry.
(g) One individual who represents a statewide agricultural
organization.
(h) One individual who represents local governments.
(i) One individual who represents a statewide land conservancy
organization.
(j) One individual who represents the general public.
(k) One individual who is a medical professional.
(3) A voting member of the environmental rules review
committee must possess knowledge, experience, or education that
qualifies him or her to represent the represented constituency.
(4) An individual may not serve as a voting member of the
environmental rules review committee if any of the following apply:
(a) The individual is a current employee of any office,
department, or agency of this state.
(b) The individual was employed by the department of
environmental quality within the preceding 3 years.
(5) An individual who is a lobbyist agent under 1978 PA 472,
MCL 4.411 to 4.431, may serve as a member of the environmental
rules review committee only if the individual does not
simultaneously receive compensation or reimbursement of actual
expenses for lobbying from more than 1 person while serving as a
member of the committee.
(6) Not more than 6 of the voting members of the environmental
rules review committee may be members of the same political party.
(7) Subject to subsection (8), a voting member of the
environmental rules review committee shall serve a term of 4 years,
except that of the members first appointed, 4 shall each serve a
term of 4 years, 4 shall each serve a term of 3 years, and 3 shall
each serve a term of 2 years. A voting member of the environmental
rules review committee must not be appointed to serve more than 3
consecutive 4-year terms but may be appointed again after not
serving on the environmental rules review committee for 1 full
term.
(8) The term of a voting member of the environmental rules
review committee continues until a successor is appointed.
(9) The governor may remove a voting member of the
environmental rules review committee for cause. Cause includes, but
is not limited to, repeated failure to attend meetings.
(10) The governor shall appoint, by and with the advice and
consent of the senate, a member to fill a vacancy in the voting
membership of the environmental rules review committee created by
either of the following:
(a) The death, resignation, or removal of a member before the
member's term has expired. A member appointed under this
subdivision shall serve for the remainder of the unexpired term.
(b) The expiration of a member's term.
(11) The environmental rules review committee shall not
conduct any business or perform any duties while there is a vacancy
in the voting membership of the committee.
(12) The voting members of the environmental rules review
committee shall serve without compensation but may be reimbursed by
the office for actual and necessary expenses incurred in the
performance of their official duties as members.
(13) The director of the department of environmental quality
and the director of the department of health and human services
shall each select a science advisor to participate in meetings of
the environmental rules review committee and provide expert advice
to environmental rules review committee members on relevant
science-based issues that come before the environmental rules
review committee. To serve as an environmental rules review
committee science advisor, an individual must possess the proper
educational credentials and background to provide science-based
expert advice. An individual may not serve as a science advisor if
he or she is a state employee or contract employee of this state.
(14) The business that the environmental rules review
committee may perform must be conducted at a public meeting of the
environmental rules review committee held in compliance with the
open meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(15) Nine voting members of the environmental rules review
committee constitute a quorum. A quorum must be present to transact
any business at a meeting of the committee. Decisions by the
environmental rules review committee at a meeting must be made by a
majority vote of the members present at the meeting.
(16) The environmental rules review committee shall select a
chairperson and vice-chairperson from its voting members. The
chairperson shall preside over all meetings of the committee and
ensure that the decisions of the committee are implemented. The
vice-chairperson shall perform the duties of the chairperson in the
chairperson's absence. The chairperson and vice-chairperson shall
serve for a term of 2 years and may be selected to serve for
additional terms.
(17) The chairperson or a majority of the members of the
environmental rules review committee may call a meeting of the
committee. However, a meeting may not be called on less than 10
days' notice unless all the voting members of the environmental
rules review committee agree in writing or by electronic means to a
shorter notice period.
(18) The environmental rules review committee may engage
administrative, technical, or legal consultants, in addition to
advisors selected under subsection (13), to assist the committee in
the performance of its duties. If requested by the environmental
rules review committee, a department, agency, or office of this
state may provide administrative, technical, or legal staff, in
addition to advisors selected under subsection (13), to assist the
environmental rules review committee in the performance of its
duties.
(19) The purpose of the environmental rules review committee
is to oversee all rule-making of the department of environmental
quality as provided in this act. For purposes of this act, the
department of environmental quality includes any department,
agency, commission, or other person to whom the rule-making
authority of the department of environmental quality on the
effective date of the amendatory act that added this section is
transferred after the effective date of the amendatory act that
added this section.
Sec. 66. (1) The office shall promptly transmit to the
environmental rules review committee electronic copies of a request
for rule-making submitted to the office by the department of
environmental quality. The department of environmental quality is
strongly encouraged to create a stakeholder review process before
beginning the rule promulgation process to ensure that all
viewpoints are adequately represented in the proposed rule.
(2) If 6 voting members of the environmental rules review
committee vote that a request for rule-making should not be
required to proceed under subsections (3) to (11), subsections (3)
to (11) do not apply to the request for rule-making.
(3) The department of environmental quality shall provide
copies of draft proposed rules to the office and the environmental
rules review committee.
(4) After receiving draft proposed rules under subsection (3),
the environmental rules review committee shall meet 1 or more times
to determine whether the draft proposed rules meet all of the
following criteria:
(a) The draft proposed rules do not exceed the rule-making
delegation contained in the statute authorizing the rule-making.
(b) The draft proposed rules reasonably implement and apply
the statute authorizing the rule-making and are consistent with all
other applicable law.
(c) The draft proposed rules are necessary and suitable to
achieve their purposes in proportion to the burdens they place on
individuals and businesses.
(d) The draft proposed rules are as clear and unambiguous as
reasonably appropriate considering the subject matter of the
proposed rules and the individuals and businesses that will be
required to comply with the proposed rules.
(e) The draft proposed rules are based on sound and objective
scientific reasoning.
(5) The department of environmental quality may submit revised
draft proposed rules to the office and the environmental rules
review committee.
(6) If the environmental rules review committee determines
that draft proposed rules do not meet the criteria in subsection
(4), the department of environmental quality shall not proceed with
the request for rule-making.
(7) If the environmental rules review committee determines
that draft proposed rules meet the criteria in subsection (4), the
public hearing under sections 41 and 42 must be held, except that
the environmental rules review committee shall give notice of and
conduct the public hearing, and the department of environmental
quality is not required to prepare a small business impact
statement under section 40(2) or a regulatory impact statement
under section 45(3).
(8) After a public hearing conducted by the environmental
rules review committee under subsection (7), the environmental
rules review committee shall meet 1 or more times to discuss
comments made and testimony given at the public hearing and
determine if any revisions to the draft proposed rules are
appropriate. At that meeting, the director of the department of
environmental quality or his or her designee shall provide a
synopsis of the comments contained in the public hearing record. If
the environmental rules review committee determines that revisions
are not appropriate, the draft proposed rules must be processed as
provided in subsection (10). If the environmental rules review
committee determines that 1 or more revisions are appropriate, the
environmental rules review committee may approve the draft proposed
rules subject to the revisions being made. The legislative service
bureau shall draft the revisions to the draft proposed rules.
(9) If fewer than 6 voting members of the environmental rules
review committee object to the proposed revisions drafted by the
legislative service bureau, the rules must be processed as provided
in subsection (10). If 6 or more voting members of the
environmental rules review committee object to the proposed
revisions, the environmental rules review committee shall meet 1 or
more times to approve revisions to the draft proposed rules.
(10) If the environmental rules review committee approves
draft proposed rules, the office shall transmit by notice of
transmittal to the committee copies of the rules, the request for
rule-making, the synopsis of the comments contained in the public
hearing record, a description of any revisions to the proposed
rules that were made by the environmental rules review committee
after the public hearing, and certificates of approval from the
legislative service bureau and the office. The office shall also
electronically submit to the environmental rules review committee a
copy of the rule and any certificates of approval from the
legislative service bureau and the office. The office shall
electronically transmit to the environmental rules review committee
the information described in this subsection within 1 year after
the date of the last public hearing.
(11) The environmental rules review committee shall make a
final decision regarding draft proposed rules and any revisions to
draft proposed rules within 12 calendar months after receiving
electronic copies of the request for rule-making submitted by the
department of environmental quality to the office under subsection
(1).
Enacting section 1. This amendatory act takes effect January
1, 2018.