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.




     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 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




     (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) An agency shall not promulgate or adopt a rule more


stringent than the applicable federal standard unless specifically


authorized by statute.


     (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




     (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 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.


     (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




     (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




     (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 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 liable for damages as awarded


in an action brought 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 that


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 if 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 or her 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 may bring an action for damages in the circuit


court of the county in which the plaintiff resides or in the


circuit court for Ingham county. 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 incurred


for witness and attorney fees.