Montana State Legislature

Background | Legislative Rule Review | Objections 

 

Interim committees play a significant role in the administrative rulemaking process and are authorized to review administrative rules for compliance with the Montana Administrative Procedure Act (MAPA). More information about administrative rules, legislative rule review, committee objections, legislative oversight committees, and proposed rules may be accessed below.

Background

The Montana Legislature may authorize administrative agencies to implement and carry out legislative enactments through the adoption of administrative rules. An administrative rule is an agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. See 2-4-102(11), MCA. Once adopted, administrative rules carry the full force and effect of law and are subject to judicial challenge.

Administrative agencies are required to follow certain procedures to adopt administrative rules. These procedures are set forth in MAPA. The purpose of MAPA is to ensure that the public receives notice of an agency’s proposed action and is provided with an opportunity to participate in the process. MAPA also establishes uniformity for rulemaking among the various agencies and provides due process safeguards to the public and to the individuals and entities that will be regulated by the administrative rules.

Administrative rules are published in the Administrative Rules of Montana (ARM) and are updated twice a month in the Montana Administrative Register (MAR). The MAR contains rulemaking notices regarding proposed new, amended, or repealed rules. The MAR also contains notices of adopted rules, recently issued attorney general's opinions, and notices of vacancies on state boards. The ARM and MAR are maintained by the Secretary of State's office and may be accessed at http://www.mtrules.org/.

Legislative Rule Review

As part of the rule review process, legal counsel assigned to an interim committee with rule oversight authority will notify the committee of proposed, amended, or repealed administrative rules and of any concerns regarding compliance with MAPA and the rulemaking process.

There are several ways an interim committee may become involved in the rulemaking process. For example, an interim committee may take any one or a combination of the following actions:

• Request an agency's rulemaking records for checking compliance with MAPA. 2-4-402(2)(a), MCA.
• Prepare written recommendations for the adoption, amendment, or rejection of a rule and submit those recommendations to the agency proposing the rule and submit oral or written testimony at a rulemaking hearing. 2-4-402(2)(b), MCA.
• Require that a rulemaking hearing be held in accordance with the provisions of 2-4-302 through 2-4-305, MCA. 2-4-402(2)(c), MCA.
• Institute, intervene in, or otherwise participate in rule review proceedings in the state and federal courts and administrative agencies. 2-4-402(2)(d), MCA.
• Review the incidence and conduct of administrative proceedings. 2-4-402(2)(e), MCA.
• Poll the Legislature by mail to determine whether a proposed rule is consistent with the intent of the Legislature. The results of the poll are admissible in any court proceeding involving the validity of the proposed or adopted rule. 2-4-403 and 2-4-404, MCA.
• Require an economic impact statement relating to the adoption of a rule. 2-4-405, MCA.
• Object to all or some portion of a proposed or adopted rule and delay the adoption of the rule for 6 months or delay the effective date of the rule until the day after final adjournment of the next legislative session. 2-4-305(9), 2-4-306(4)(c), and 2-4-406(4), MCA.
• Recommend a rule adoption or change. 2-4-411, MCA.

Objections

An interim committee may elect to object to a proposed administrative rule. If a majority of the members of an interim committee notify the chair that they object to a proposed administrative rule, the interim committee must notify the agency of the objection and that the interim committee intends to address the objection at the next interim committee meeting. Following notice of the objection, the rule may not be adopted until publication of the last issue of the MAR that is published before the 6-month period during which the adoption notice must be published. The interim committee may withdraw its objection and allow the adoption notice to be published.

If an interim committee meets and objects to all or some portion of a proposed rule before it is adopted because it considers the rule not to have been proposed or adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-306, MCA, the rule or portion of the rule objected to is not effective until the day after final adjournment of the next regular legislative session. The interim committee may withdraw its objection to the administrative rule or the rule may be changed to comply with the interim committee's objections and concerns. However, the failure of the interim committee to object in any manner to the adoption, amendment, or repeal of a rule is inadmissible in court to prove the validity of a rule.

The significance of an objection to an administrative rule is that an interim committee may delay the effective date of the administrative rule for 6 months or until the adjournment of the next legislative session. In addition, following an objection the agency may not enforce or implement the proposed administrative rule in question until the new effective date. Finally, by objecting to an administrative rule, the interim committee may shift the burden to the agency in a court proceeding to prove that the rule or portion of the rule objected to by the interim committee substantially complies with the provisions of MAPA.