SS/SCS/HS/HB 850 - This act makes various revisions to the rules review provisions contained in Chapter 536, RSMo.

No rules will be valid where there is an absence of statutory authority, the rule conflicts with state law or the rule is so arbitrary and capricious it creates substantial inequity as to be unreasonably burdensome.

Agencies are allowed to solicit comments on considered subject matters of future rulemaking. Committees may also be formed to evaluate proposed areas of rulemaking; however, the membership of any committee must be published in the Missouri Register.

Notices of proposed rulemaking and final orders of rulemaking must be filed with the Secretary of State and published in the Missouri Register. The Secretary shall not publish any notice that fails to comply with section 536.024 or Executive Order 97-97. If the Joint Committee on Administrative Rules (JCAR) disapproves of the proposed rule, or a portion thereof, the committee shall report its findings to the General Assembly for adoption of a concurrent resolution disapproving the rule. The General Assembly will have thirty legislative days of a regular session to act on the JCAR report and, where applicable, the Secretary is prohibited from publishing a rule so impacted until sufficient time has passed to allow the General Assembly to override a veto of the resolution.

Upon the completion of the public notice and comment period on a proposed rule, the agency has ninety days to file a final order of rulemaking. This time period will be tolled for any time the rule is held in abeyance pursuant to the Executive Order. Failure to timely file the final order shall result in a lapse of the proposed rule. A final order of rulemaking shall be effective thirty days after publication in the Register unless provided otherwise in the chapter. If an agency action was taken without utilizing rulemaking procedures, that action may be judicially reviewable and a prevailing nonstate party is entitled to attorney fees the party has incurred.

JCAR may file any comments or recommendations on an order of rulemaking with the Secretary of State and the appropriations committees of each legislative body. The Committee's comments shall be published in the Register.

An emergency rule may only be adopted if the agency finds that an immediate danger to public health, safety or welfare exists or that a compelling governmental interest requires an early effective date of the rule. Further, the agency must follow procedures that assure constitutional fairness to all affected parties and that limit the scope of the rule to only those circumstances creating an emergency. If the agency utilizes the compelling governmental interest justification for an emergency rule, the agency must certify in writing the reasons for concluding the interest deserves protection by emergency action.

Emergency rules are only effective for the longer of one hundred eighty days or thirty legislative days. Agencies are prevented from adopting consecutive emergency rules on the same subject matter. These rules may be reviewed by JCAR in the same manner as other rules. A nonstate party that prevails upon a judicial challenge that a rule was improperly adopted as an emergency rule, shall be entitled to recover the party's attorney fees and expenses incurred.

Agency action may be challenged in the form of a declaratory judgment in circuit court. A prevailing nonstate party in such an action is entitled to recovery of attorney fees and expenses upon an award of the court. The court's determination of the amount of fees awarded is subject to appeal. The General Assembly is given standing to intervene in any action in the name of the members of JCAR.

Additional provisions outlined below only become effective if one of the following events occurs:

1. Failure of the Executive to sign Executive Order 97-97 (orders executive branches to give force and effect to 1994 statutory powers of JCAR);

2. Modification, amendment or rescission of the executive order that is not approved by the General Assembly;

3. An agency's failure to hold a rule in abeyance that is not subsequently approved by the General Assembly; or

4. Declaration by a court that any portion of section 536.024 or the Executive Order is unconstitutional.

Rules must be premised by a finding on the record that the rule is necessary to carry out the purposes of the underlying statute. Such finding shall be based upon empirical data and include an assessment of the effectiveness and the cost to the state or any party affected by the rule. If an agency action is challenged, the burden of proving that the action was not required to be taken pursuant to rulemaking procedures will be on the agency taking such action.

A final order of rulemaking shall not be effective until the expiration of thirty legislative days of a regular session after the order has been filed with JCAR and the Secretary of State.

The ability of an agency to adopt rules on matters of substantive law is contingent upon the power of the general assembly to review, disapprove and delay the effective date of rules for thirty legislative days. Agencies are required to cooperate with JCAR by providing any witnesses, documents or information within the control of the agency.

The Committee may recommend that the General Assembly disapprove a rule or portion thereof by concurrent resolution and the Secretary of State shall not publish any rule so impacted until the expiration of time necessary for the General Assembly to override any veto of the resolution. Any report generated by JCAR shall be entitled to judicial notice.

Agencies may maintain public rulemaking dockets listing the subject matters of rules that the agency is considered proposing. The docket should list how, where and when comments on the subject matter may be directed. JAMES KLAHR/DENISE GARNIER