SS SCS HS HB 850 -- ADMINISTRATIVE RULEMAKING

The bill contains several provisions related to administrative
rulemaking.  The bill:

(1)  Permits the Joint Committee on Administrative Rules to file
comments on any proposed, emergency, or final rule with the
Secretary of State to be printed in the Missouri Register.
Comments may also be filed with the appropriations and budget
committees of the House and Senate;

(2)  Allows a party who prevails against an agency in a law suit
challenging the validity of a rule or the threatened application
of a rule to be awarded reasonable fees and expenses, including
attorneys fees;

(3)  Allows an agency to promulgate an emergency rule if the
rule is necessary to preserve a compelling governmental interest;

(4)  Prohibits agencies from adopting consecutive emergency
rules that have substantially the same effect;

(5)  Prohibits the Secretary of State from publishing any
proposed order of rulemaking or final order of rulemaking when
the agency has not filed the rule with the Joint Committee;

(6)  Requires the Joint Committee to report its disapproval of a
rule to the House of Representatives and the Senate; and

(7)  Repeals certain procedures relating to administrative
rulemaking, some of which have been declared unconstitutional.

Several of the sections in the bill have a conditional effective
date.  These sections become effective 20 days after: the
Governor fails to sign executive order 97-97; the Governor
modifies, amends or rescinds executive order 97-97; an agency
fails to hold a rule in abeyance as required by executive order
97-97; executive order 97-97 is declared unconstitutional or the
section of law which requires agencies to file with the Joint
Committee on Administrative Rules is declared unconstitutional.
These sections:

(1)  Prohibit rules from becoming effective prior to expiration
of 30 legislative days after the rule has been filed with the
General Assembly;

(2)  Require agencies to prove that the agency's action was not
required to be preceded by the adoption of a rule when the
action is challenged;

(3)  Require agencies to propose rules based upon substantial
evidence on the record and a finding that the rule is necessary
to implement the statute;

(4)  Require rules to be based on reasonably available empirical
data; and

(5)  Require rules to be based on an assessment of the
effectiveness and the cost of the rule to any private or public
person or entity affected by the rule.

The provisions of the bill are contained in SB 386 & 372.

The bill has an emergency clause.

HS HB 850 -- ADMINISTRATIVE RULEMAKING (Kelly, 27)

Under this substitute state agencies are permitted to promulgate
only procedural and emergency rules.  Substantive rules may be
enacted only by a bill passed by the General Assembly and
approved by the Governor.  The General Assembly is required to
propose a bill each session to implement law (substantive
rules).  Agencies are permitted to make recommendations for this
bill.    If passed, the bill will be printed in the Code of
State Regulations and not in the Revised Statutes.  This section
becomes effective only after the expiration of 20 calendar days
following the rescission of the Governor's Executive Order 97-97.

Procedural rules are defined as rules which prescribe the manner
in which substantive rights and responsibilities may be
exercised and enforced.  If a procedural rule is contested, the
burden of proof will be on the agency to prove that it is
procedural and not substantive. If the contested rule is found
by a court to be substantive, it will be void and the court will
award reasonable fees and expenses to a party which prevails
against the state.  This section becomes effective only after
the expiration of 20 calendar days following the rescission of
the Governor's Executive Order 97-97.

This bill does not apply to rules in effect prior to the
effective date of the bill.

In addition, the bill:

(1)  Permits agencies to seek comments on subject matter they
are considering proposing by notice in the Missouri Register and
by appointing committees to comment;

(2)  Prohibits the Secretary of State from publishing any
proposed order of rulemaking or final order of rulemaking that
has not been filed with the Joint Committee on Administrative
Rules;

(3)  Permits the Joint Committee to file comments on any
proposed or final rule with the Secretary of State.  The
comments will be published in the Missouri Register and the Code
of State Regulations.  Comments may also be filed with the
appropriations and budget committees of the House and Senate;

(4)  Permits agencies to maintain a public rulemaking docket
listing the precise subject matter of each rule that the agency
is considering proposing;

(5)  Requires the awarding of reasonable fees and expenses as
defined in section 536.085 to any party who prevails in an
action challenging rulemaking procedures; and

(6)  Repeals certain procedures relating to administrative
rulemaking, some of which have been declared unconstitutional.

The bill has an emergency clause and a conditional effective
date for certain sections.

FISCAL NOTE:  No impact on state funds.

HB 850 -- ADMINISTRATIVE RULES

CO-SPONSORS:  Kelly (27), Smith

COMMITTEE ACTION:  Voted "do pass" by the Committee on Civil and
Administrative Law by a vote of 16 to 0.

Under this bill state agencies are permitted to promulgate only
procedural and emergency rules.  Substantive rules may be
enacted only by a bill passed by the General Assembly and
approved by the Governor.  The General Assembly is required to
propose a bill each session to implement law (substantive
rules).  Agencies are permitted to make recommendations for this
bill.  If passed, the bill will be printed in the Code of State
Regulations and not in the Revised Statutes.

Procedural rules are defined as rules which prescribe the manner
in which substantive rights and responsibilities may be
exercised and enforced.  If a procedural rule is contested, the
burden of proof will be on the agency to prove that it is
procedural and not substantive. If the contested rule is found
by a court to be substantive, it will be void and the court will
award reasonable fees and expenses to a party which prevails
against the state.

This bill does not apply to rules in effect prior to the
effective date of the bill.

In addition, the bill:

(1)  Permits agencies to seek comments on subject matter they
are considering proposing by notice in the Missouri Register and
by appointing committees to comment;

(2)  Prohibits the Secretary of State from publishing any
proposed order of rulemaking or final order of rulemaking that
has not been filed with the Joint Committee on Administrative
Rules;

(3)  Permits the Joint Committee to file comments on any
proposed or final rule with the Secretary of State.  The
comments will be published in the Missouri Register and the Code
of State Regulations.  Comments may also be filed with the
appropriations and budget committees of the House and Senate;

(4)  Permits agencies to maintain a public rulemaking docket
listing the precise subject matter of each rule that the agency
is considering proposing;

(5)  Changes the standard for awarding reasonable fees and
expenses in a contested case against an agency; and

(6)  Repeals certain procedures relating to administrative
rulemaking, some of which have been declared unconstitutional.

The bill has an emergency clause.

FISCAL NOTE:  No impact on state funds.

PROPONENTS:  Supporters say that the bill provides a needed
safeguard for legislative review of rulemaking authority by
administrative agencies.

Testifying for the bill were Representative Kelly; Missouri
Chamber of Commerce; Associated Industries of Missouri; National
Federation of Independent Businesses; and Missouri State Medical
Association.

OPPONENTS:  There was no opposition voiced to the committee.

Michael Warrick, Research Analyst

HB 850 -- Administrative Rulemaking

Co-Sponsors:  Kelly (27), Smith

Under this bill state agencies are permitted to promulgate only
procedural and emergency rules.  Substantive rules may be
enacted only by a bill passed by the General Assembly and
approved by the Governor.  The General Assembly is required to
propose a bill each session to implement law (substantive
rules).  Agencies are permitted to make recommendations for this
bill.  If passed, the bill will be printed in the Code of State
Regulations and not in the Revised Statutes.

Procedural rules are defined as rules which prescribe the manner
in which substantive rights and responsibilities may be
exercised and enforced.  If a procedural rule is contested, the
burden of proof will be on the agency to prove that it is
procedural and not substantive. If the contested rule is found
by a court to be substantive, it will be void and the court will
award reasonable fees and expenses to a party which prevails
against the state.

This bill does not apply to rules in effect prior to the
effective date of the bill.

In addition, the bill:

(1)  Permits agencies to seek comments on subject matter they
are considering proposing by notice in the Missouri Register and
by appointing committees to comment;

(2)  Prohibits the Secretary of State from publishing any
proposed order of rulemaking or final order of rulemaking that
has not been filed with the Joint Committee on Administrative
Rules;

(3)  Permits the Joint Committee to file comments on any
proposed or final rule with the Secretary of State.  The
comments will be published in the Missouri Register and the Code
of State Regulations.  Comments may also be filed with the
appropriations and budget committees of the House and Senate;

(4)  Permits agencies to maintain a public rulemaking docket
listing the precise subject matter of each rule that the agency
is considering proposing;

(5)  Changes the standard for awarding reasonable fees and
expenses in a contested case against an agency; and

(6)  Repeals certain procedures relating to administrative
rulemaking, some of which have been declared unconstitutional.

The bill has an emergency clause.