SB-0276, As Passed Senate, May 5, 2011

SUBSTITUTE FOR

SENATE BILL NO. 276

     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 office of

regulatory reform reinvention a request for rule-making in a format

prescribed by the office of regulatory reform reinvention. 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 office of regulatory reinvention.

(3) (2) An agency shall not proceed with the processing of a

rule outlined in this chapter unless the office of regulatory

reform reinvention has approved the request for rule-making. The

office of regulatory reinvention 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 office of regulatory reform reinvention 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 office of regulatory reinvention 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 office of regulatory reform reinvention shall

immediately make available to the committee electronic copies of

the request for rule-making submitted to the office of regulatory

reform reinvention. On a weekly basis, the office of regulatory

reform reinvention 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

office of regulatory reform reinvention, 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 office of regulatory reinvention 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 office of regulatory reinvention 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.