1.3.309 RULEMAKING, PROPOSAL NOTICE
(1) Per 2-4-302, MCA, a notice of proposed rulemaking involves the following:
(a) An agency shall contact the primary sponsor of any legislation when the agency begins work on the initial rule proposal implementing one or more sections of that legislation. If a proposed rule implements more than one bill, the primary sponsor of each bill must be contacted. If the legislation affected more than one program, contact must be made with the primary sponsor each time that a rule is being proposed to initially implement the legislation for a program, even if another agency has previously initiated rulemaking under that legislation.
(i) When the bill sponsor contact requirements apply, the proposal notice must state the date on which and the manner in which contact was made with the primary sponsor, per 2-4-302, MCA.
(b) An agency shall file with the Secretary of State a notice of intent to adopt, amend, or repeal a rule. On the same day, the agency shall send each member of the staff of the appropriate administrative rule review committee an electronic copy of the notice in accordance with 2-4-302, MCA.
(c) An agency shall post the notice on the state electronic access system or other available electronic communications system available to the public. Posting on the agency's home page is adequate.
(d) Within three days of publication pursuant to this rule, an agency shall send copies of the notice to:
(i) all interested persons; and
(ii) the primary sponsor of the legislation being implemented, if the notice is the initial rule proposal regarding that legislation. If a proposed rule implements more than one bill, the primary sponsor of each bill must receive a copy of the notice.
(e) Current or former legislators who wish to be contacted regarding initial proposals must keep their name, address, e-mail address, and telephone number on file with the Secretary of State. Agencies proposing rules shall consult that listing.
(f) An agency may send a copy of the notice to a statewide wire service and any other news media it considers appropriate, per 2-3-105, MCA.
(g) Whenever practicable and appropriate, the agency may send written notice to licensees of the agency, per 2-4-631, MCA.
(2) Notice of agency action must be published within six months of the date on which notice of the proposed action was published, per 2-4-305, MCA.
(3) The contents of the notice shall include the following:
(a) The notice of public hearing, as illustrated by template 309a (https://sosmt.gov/arm/templates), must include all notice items required by 2-4-111, 2-4-302, and 2-4-305, MCA, summarized as follows:
(i) The agency may issue a single public notice that it intends to adopt, amend, or repeal several rules dealing with the same subject matter in a single proceeding.
(ii) Where amendment of an existing rule is sought, the rule shall be set forth with proposed deletions interlined and proposed additions underlined. Unchanged sections and subsections may be referred to by the earmark and summarized as "remains the same." Numbered tables may be referred to by the number and summarized as "remains the same."
(iii) If an agency is proposing to adopt a rule that it determines will significantly and directly impact small businesses, the agency shall include a statement of that determination in its proposal notice.
(iv) The agency shall include in its notice an easily understood statement of reasonable necessity which contains the principal reasons and the rationale for each proposed rule. One statement may cover several proposed rules if appropriate, and if the language of the statement clearly indicates which rules it covers. An inadequate statement of reasonable necessity cannot be corrected in an adoption notice. The corrected statement of reasonable necessity must be included in a new notice or supplemental notice of proposed action. If an agency uses an amended proposal notice to amend a statement of reasonable necessity, the agency shall allow additional response time as required in 2-4-305, MCA.
(A) The statement of reasonable necessity must be more substantive than stating the statute that authorizes rulemaking. A statute mandating that the agency adopt rules establishes the necessity for rules but does not, standing alone, constitute reasonable necessity for a rule.
(B) When an agency proposes to change or introduce a monetary amount that a person shall pay or will receive, such as a fee, cost, or benefit, the statement of reasonable necessity must state an estimate, if known, of the number of persons affected and the cumulative amount of the change for all persons.
(v) The agency shall include in its notice information describing the interested persons list and explaining how persons may be placed on that list, per 2-4-302, MCA.
(vi) An agency may adopt a rule which adopts by reference any model code, federal agency rule, rule of any agency of this state, or other similar publication if the publication of the model code, rule, or other publication would be unduly cumbersome, expensive, or otherwise inexpedient. The notice must contain a citation to the material adopted by reference, a statement of its general subject matter content, and where a copy of the material may be obtained. Amendments to incorporated material are not effective unless adopted pursuant to 2-4-307, MCA.
(vii) The agency shall include, at the end of each rule noticed, a citation to the authority for the proposed rule, and citation to the MCA section(s) or session laws being implemented. When an amendment to a rule is proposed, any new citations that constitute authority or implementation for the amendment must be underlined and any stricken citations must be interlined. If a proposed action implements a policy of a governing board or commission, the notice must include a citation to and description of the policy implemented.
(viii) The agency shall include a designation of the officer or authority who will preside at and conduct the hearing.
(b) When an agency does not plan to hold a public hearing, as illustrated by template 309b (https://sosmt.gov/arm/templates), the notice must include:
(i) all notice items required by 2-4-111, 2-4-302 and 2-4-305, MCA, as summarized above;
(ii) a statement that any interested person desiring to express or submit data, views, or arguments at a public hearing must request the opportunity to do so, and that if 10% or 25, whichever is less, of the persons directly affected; or a governmental subdivision or agency; or an association having not less than 25 members who will be directly affected; or the Legislature's appropriate administrative rule review committee request a hearing, a hearing will be held after appropriate notice is given. Reference to the appropriate administrative rule review committee is unnecessary if the full Legislature, by joint resolution, has ordered the repeal of a rule;
(iii) a statement of the number of persons which constitutes 10% of those directly affected; and
(iv) the name and address of the person to whom a request for public hearing must be submitted, and the date by which a request must be submitted.
(4) When a hearing has been properly requested per 2-4-302, MCA, the agency shall send notice of the hearing to persons who have requested a public hearing. Also, notice must be published in the register, per 2-4-302, MCA.
(a) As illustrated by template 309c (https://sosmt.gov/arm/templates), the notice shall state that the hearing is being held upon request of the requisite number of persons designated in the original notice, per 2-4-302, MCA, or the appropriate administrative rule review committee of the Legislature, 2-4-402, MCA, or a governmental agency or subdivision, or an association.
History: 2-4-202, 2-15-401, MCA; IMP, 2-4-111, 2-4-202, 2-4-302, 2-4-305, 2-4-307, MCA; Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1219, Eff. 10/12/79; AMD, 1981 MAR p. 1196, Eff. 10/16/81; AMD, 1992 MAR p. 1242, Eff. 6/12/92; AMD, 1999 MAR p. 1225, Eff. 6/4/99; AMD & TRANS, from ARM 1.3.206, 2008 MAR p. 1593, Eff. 8/1/08; AMD, 2009 MAR p. 1809, Eff. 10/16/09; AMD, 2013 MAR p. 1537, Eff. 8/23/13; AMD, 2015 MAR p. 2098, Eff. 11/26/15; AMD, 2021 MAR p. 1687, Eff. 11/20/21.