SENATE BILL No. 272

 

 

March 17, 2011, Introduced by Senators KOWALL, BRANDENBURG, GREEN, ROBERTSON, MARLEAU, EMMONS, ROCCA, CASPERSON, BOOHER, JONES, JANSEN, NOFS, PAPPAGEORGE, PROOS, SCHUITMAKER, MOOLENAAR, CASWELL, HANSEN, COLBECK, RICHARDVILLE and KAHN and referred to the Committee on Economic Development.

 

 

 

     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 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) 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

 

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 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

 

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 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.