March 9, 2006, Introduced by Reps. Baxter, Amos, Mortimer, Marleau and Sheltrown and referred to the Committee on Commerce.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 7a, 40, 43, 45, 61, and 64 (MCL 24.207a,
24.240, 24.243, 24.245, 24.261, and 24.264), sections 7a and 40 as
amended by 1999 PA 262, section 43 as amended by 1989 PA 288,
section 45 as amended by 2004 PA 491, and section 61 as amended by
1982 PA 413.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7a. "Small business" means a business concern
incorporated or doing business in this state, including the
affiliates of the business concern, which is independently owned
and
operated and which employs fewer than
250 500
full-time
employees or which has gross annual sales of less than
$6,000,000.00.
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 proposing to adopt the rule shall reduce the economic
impact of the rule on small businesses by doing 1 or more of the
following when it is lawful and feasible in meeting the objectives
of
the act authorizing the promulgation of the rule delegating
rule-making authority:
(a) Establish differing compliance or reporting requirements
or timetables for small businesses under the rule.
(b) Consolidate or simplify the compliance and reporting
requirements for small businesses under the rule.
(c) Establish performance rather than design standards, when
appropriate.
(d) Exempt small businesses from any or all of the
requirements of the rule.
(2) The factors described in subsection (1)(a) through (d)
shall be specifically addressed in the regulatory impact statement
required to be filed by the agency under section 45(3).
(3) (2)
If appropriate in reducing the disproportionate
economic impact on small business of a rule as provided in
subsection (1), an agency may 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.
(d) 250-500 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 is required by federal law and which 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 sections 40(1),
42, and 45(3) 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 40,
41, and 42,
and 45 shall be commenced within 2 years after the effective date
of the rule.
Sec. 45. (1) Except as otherwise provided for in this
subsection, the agency shall submit the proposed rule to the
legislative service bureau for its formal certification. The
submission to the legislative service bureau for formal
certification shall be in the form of electronic transmission. If
requested by the legislative service bureau, the state office of
regulatory
reform administrative
hearings and rules shall also
transmit up to 4 paper copies of the proposed rule. The legislative
service bureau shall promptly issue a certificate of approval
indicating a determination that a 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 state office of
regulatory reform
administrative hearings and rules may issue a certificate of
approval. If the submission to the legislative service bureau is
returned by the legislative service bureau 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.
The remainder of the 21-calendar-day time period or 6 calendar
days, whichever is longer, shall be available for consideration by
the legislative service bureau for formal certification of the
rule.
The state office of
regulatory reform administrative
hearings and rules may approve a proposed rule if it considers the
proposed rule to be legal.
(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 and a copy of 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 state
office of
regulatory
reform administrative
hearings and rules shall transmit
by notice of transmittal to the committee copies of the rule, the
agency reports, a copy of the regulatory impact statement, and
certificates of approval from the legislative service bureau and
the
state office of
regulatory reform administrative hearings and
rules. The state
office of regulatory reform administrative
hearings and rules shall also electronically submit 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) to the
committee. 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
unless the proposed rule is a resubmission under section 45a(7).
(3) Except for a rule promulgated under sections 33, 44, and
48, the agency shall prepare and include with the notice of
transmittal a regulatory impact statement containing 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) An identification of the behavior and frequency of
behavior that the rule is designed to alter.
(c) 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.
(d) An estimate of the change in the frequency of the targeted
behavior expected from the rule.
(e) An identification of the businesses, groups, or
individuals who will be directly affected by, bear the cost of, or
directly benefit from the rule.
(f) An identification of any reasonable alternatives to
regulation pursuant to the proposed rule that would achieve the
same or similar goals.
(g) A discussion of the feasibility of establishing a
regulatory program similar to that proposed in the rule that would
operate through market-based mechanisms.
(h) An estimate of the cost of rule imposition on the agency
promulgating the rule.
(i) An estimate of the actual statewide compliance costs of
the proposed rule on individuals.
(j) An estimate of the actual statewide compliance costs of
the proposed rule on businesses and other groups.
(k) An identification of any disproportionate impact the
proposed rule may have on small businesses because of their size.
(l) An identification of the nature of any report and the
estimated cost of its preparation by small business required to
comply with the proposed rule.
(m) 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.
(n) 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.
(o) An estimate of the ability of small businesses to absorb
the costs estimated under subdivisions (l) through (n) without
suffering economic harm and without adversely affecting competition
in the marketplace.
(p) 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.
(q) An identification of the impact on the public interest of
exempting or setting lesser standards of compliance for small
businesses.
(r) 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.
(s) A statement describing whether and how the agency has
involved small businesses in the development of the rule.
(t) An estimate of the primary and direct benefits of the
rule.
(u) An estimate of any cost reductions to businesses,
individuals, groups of individuals, or governmental units as a
result of the rule.
(v) An estimate of any increase in revenues to state or local
governmental units as a result of the rule.
(w) An estimate of any secondary or indirect benefits of the
rule.
(x) An identification of the sources the agency relied upon in
compiling the regulatory impact statement.
(y) A detailed recitation of the efforts of the agency to
comply with the mandate to reduce the disproportionate impact of
the rule upon small businesses as described in section 40(1)(a)
through (d).
(z) (y)
Any other information required by the state office
of regulatory
reform administrative
hearings and rules.
(4) The agency shall electronically transmit the regulatory
impact statement required under subsection (3) to the state office
of regulatory
reform administrative
hearings and rules at least
28 days before the public hearing required pursuant to section 42.
Before the public hearing can be held, the regulatory impact
statement
must be reviewed and approved by the state
office of
regulatory
reform administrative
hearings and rules. 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 and
publish it 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, as well as 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 sections 33, 44, and 48.
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
becomes effective under this act.
Sec. 64. 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 assess the impact of
the rule on small businesses in its regulatory impact statement,
may be determined in an action for declaratory judgment when 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 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.