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1.3.204    RULEMAKING, INTRODUCTION

(1) Title 2, chapter 4, part 3, MCA prescribes procedures to be followed by agencies when adopting, amending or repealing rules.

(2) See 2-4-102, MCA for the definition of "rule".  Because of the difficulty in determining whether an agency action falls within the definition of rule, construe the exceptions narrowly and if in doubt, consult legal counsel.  Interpretative rules are statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.  Interpretive rules may be made under the express or implied authority of a statute, but are advisory only and do not have force of law.

(3) Substantive rules must implement either:

(a) a statute which clearly and specifically includes the subject matter of the rule as a subject upon which rules can be adopted;

(b) subject matter which is clearly and specifically included in a statute to which the agency's rulemaking authority extends; or

(c) an agency function which is clearly and specifically included in a statute to which the agency's rulemaking authority extends.   2-4-305(3) , MCA.

(4) Rulemaking checklist .  Rulemaking under the Administrative Procedure Act involves three steps.

(a) Notice of proposed agency action.  Model Rule 3.

(i) notice in the register;

(ii) notice to sponsor as required;

(iii) notice to interested persons; and

(iv) statement of reasonable necessity for the proposed action.

(b) Opportunity to be heard.

(i) The agency shall allow at least 28 days from the publication of the original notice of proposed action for interested persons to submit comments in writing to the agency. The agency may extend the response time in the event an amended or supplemental notice is filed;

(ii) The agency shall schedule an oral hearing at least 20 days from the publication of the notice of proposed action if the proposed rules affect matters which are of significant interest to the public as defined at 2-4-102(12) , MCA;

(iii) Except where the proposed rules affect matters which are of significant interest to the public or otherwise required by law, a public hearing must be held only if the agency's proposed action affects a substantive rule and a hearing is requested by either:

(A) 10% or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(B) a governmental subdivision or agency;

(C) an association having not less than 25 members who will be directly affected; or

(D) the appropriate administrative rule review committee of the legislature.  Model Rule 4.

(c) Agency action.  Model Rule 5.

(5) Pursuant to 2-4-302, MCA, the agency shall create and maintain a list of interested persons and the subject(s) of their interest.  Persons submitting a written comment or attending a hearing must be informed by the agency of the list and be provided an opportunity to place their names on the list.

(6) In the event of imminent peril to the public health, safety, or welfare, temporary emergency rules may be adopted without prior notice or hearing or after abbreviated procedures.  However, special notice must be given the appropriate administrative rule review committee.  Model Rule 6.

(7) In the event a statute is effective prior to October 1 of the year of enactment, temporary rules may be adopted with abbreviated notice or hearing, but with at least 30 days notice, and are effective through October 1 of that year.  Model Rule 6.

History: 2-4-202, MCA; IMP, 2-4-202, 2-4-302, 2-4-303, 2-4-305, MCA; Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1204, Eff. 10/12/79; AMD, 1999 MAR p. 1225, Eff. 6/4/99.

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