March 17, 2011, Introduced by Senators ROBERTSON, NOFS, COLBECK, MARLEAU, EMMONS, BOOHER, PROOS, KAHN and SCHUITMAKER and referred to the Committee on Economic Development.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 3, 39, and 122 (MCL 24.203, 24.239, and
24.322), section 3 as amended by 1988 PA 277, section 39 as amended
by 2004 PA 23, and section 122 as added by 1984 PA 196, and by
adding section 45b.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. (1) "Adoption of a rule" means that step in the
processing of a rule consisting of the formal action of an agency
establishing a rule before its promulgation.
(2) "Advisory committee" means any advisory committee or other
advisory entity that develops and recommends specific language to
an agency for proposed rules.
(3) (2)
"Agency" means a state
department, bureau, division,
section, board, commission, trustee, authority or officer, created
by the constitution, statute, or agency action. Agency does not
include an agency in the legislative or judicial branch of state
government, the governor, an agency having direct governing control
over an institution of higher education, the state civil service
commission, or an association of insurers created under the
insurance
code of 1956, Act No. 218 of the Public Acts of 1956,
being
sections 500.100 to 500.8302 of the Michigan Compiled Laws
1956 PA 218, MCL 500.100 to 500.8302, or other association or
facility
formed under Act No. 218 of the Public Acts of 1956 that
act as a nonprofit organization of insurer members.
(4) (3)
"Contested case" means a
proceeding, including rate-
making, price-fixing, and licensing, in which a determination of
the legal rights, duties, or privileges of a named party is
required by law to be made by an agency after an opportunity for an
evidentiary hearing. When a hearing is held before an agency and an
appeal from its decision is taken to another agency, the hearing
and
the appeal are deemed to be considered
a continuous proceeding
as though before a single agency.
(5) (4)
"Committee" means the
joint committee on
administrative rules.
(6) (5)
"Court" means the circuit
court.
(7) "Decision record" means, if an advisory committee has made
recommendations or comments to an agency in regard to a request for
rule-making, all of the following:
(a) The minutes of all meetings of the advisory committee
related to the request for rule-making.
(b) The votes of members of the advisory committee.
(c) A summary of the discussion and reasoning in support of
the advisory committee's recommendations or comments.
(8) (6)
"Guideline" means an
agency statement or declaration
of
policy which that the agency intends to follow, which that does
not
have the force or effect of law, and which that binds
the
agency but does not bind any other person.
Sec. 39. (1) Before initiating any changes or additions to
rules, an agency shall electronically file with the state office of
regulatory
reform administrative
hearings and rules a request for
rule-making in a format prescribed by the state office of
regulatory
reform administrative
hearings and rules. The request
for rule-making shall include the following:
(a) The state or federal statutory or regulatory basis for the
rule.
(b) The problem the rule intends to address.
(c) An assessment of the significance of the problem.
(d) If applicable, the decision record.
(2) If an agency receives recommendations or comments by any
advisory committee, the advisory committee shall issue to the
agency the decision record. The decision record shall be posted on
an agency website not less than 60 days before the request for
rule-making is submitted to the state office of administrative
hearings and rules.
(3) (2)
An agency shall not proceed with the processing of a
rule
outlined in this chapter unless the state
office of regulatory
reform
administrative hearings and
rules has approved the request
for rule-making. The state office of administrative hearings and
rules is not required to approve a request for rule-making and
shall do so only after it has indicated in its response to the
request for rule-making submitted by an agency that there are
appropriate and necessary policy and legal bases for approving the
request for rule-making.
(4) (3)
The state office of regulatory reform administrative
hearings and rules shall record the receipt of all requests for
rule-making on the internet and shall make electronic or paper
copies of approved requests for rule-making available to members of
the
general public. upon request. The state office of
administrative hearings and rules shall issue a written or
electronic response to the request for rule-making that
specifically addresses whether there are appropriate and necessary
policy and legal bases for approving the request for rule-making.
(5) (4)
The state office of regulatory reform administrative
hearings and rules shall immediately make available to the
committee electronic copies of the request for rule-making
submitted
to the state office of regulatory reform administrative
hearings and rules. On a weekly basis, the state office of
regulatory
reform administrative
hearings and rules shall
electronically provide to the committee a listing of all requests
for rule-making approved or denied during the previous week. The
committee shall electronically provide a copy of the approved and
denied requests for rule-making, not later than the next business
day
after receipt of the notice from the state
office of regulatory
reform
administrative hearings and
rules, 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. 45b. (1) The state office of administrative hearings and
rules shall post the following on its website within 2 business
days after transmittal pursuant to section 45:
(a) The regulatory impact statement required under section
45(3).
(b) Instructions on any existing administrative remedies or
appeals available to the public.
(c) Instructions regarding the method of complying with the
rules, if available.
(d) Any rules filed with the secretary of state and the
effective date of those rules.
(2) The state office of administrative hearings and rules
shall facilitate linking the information posted under subsection
(1) to the department or agency website.
Sec. 122. (1) "Contested case" means a contested case as
defined
in section 3(3) 3 but does not include a case that is
settled
or a case in which a consent agreement is entered into or a
proceeding for establishing a rate or approving, disapproving, or
withdrawing approval of a form.
(2) "Costs and fees" means the normal costs incurred, after a
party
has received notice of an initial hearing under section 71(2)
71, in being a party in a contested case under this act and include
all of the following:
(a) The reasonable and necessary expenses of expert witnesses
as determined by the presiding officer.
(b) The reasonable cost of any study, analysis, engineering
report,
test, or project which that
is determined by the presiding
officer to have been necessary for the preparation of a party's
case.
(c) Reasonable and necessary attorney or agent fees including
those for purposes of appeal.
(3)
"Party" means a party as defined in section 5(4) 5, but
does not include any of the following:
(a) An individual whose net worth was more than $500,000.00 at
the time the contested case was initiated.
(b) The sole owner of an unincorporated business or any
partnership, corporation, association, or organization whose net
worth exceeded $3,000,000.00 at the time the contested case was
initiated
and which that is not either exempt from taxation
pursuant to section 501(c)(3) of the internal revenue code, 26 USC
501, or a cooperative association as defined in section 15(a) of
the
agricultural marketing act, 12 U.S.C. USC 1141j(a).
(c) The sole owner of an unincorporated business or any
partnership, corporation, association, or organization that had
more than 250 full-time equivalent employees, as determined by the
total number of employees multiplied by their working hours divided
by 40, at the time the contested case was initiated.
(d) As used in this subsection "net worth" means the amount
remaining after the deduction of liabilities from assets as
determined according to generally accepted accounting principles.
(4) "Presiding officer" means an agency, 1 or more members of
the agency, a person designated by statute to conduct a contested
case, or a hearing officer designated and authorized by the agency
to conduct a contested case.
(5)
"Prevailing party" means as follows either of the
following, as applicable:
(a) In an action involving several remedies, or issues or
counts
which that state different causes of actions or defenses,
the party prevailing as to each remedy, issue, or count.
(b) In an action involving only 1 issue or count stating only
1 cause of action or defense, the party prevailing on the entire
record.