Bill Text: MS HB163 | 2022 | Regular Session | Introduced
Bill Title: Administrative Procedures Act; amend to require proposed agency rules to be approved by the state auditor.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2022-02-01 - Died In Committee [HB163 Detail]
Download: Mississippi-2022-HB163-Introduced.html
MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Accountability, Efficiency, Transparency
By: Representative Zuber
House Bill 163
AN ACT TO AMEND SECTIONS 25-43-3.112 AND 25-43-3.113, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO AGENCY RULE OR REGULATION THAT AFFECTS THE GENERAL PUBLIC SHALL BECOME EFFECTIVE UNTIL IT HAS BEEN APPROVED BY THE STATE AUDITOR OR HIS OR HER DESIGNEE; TO PROVIDE THE MINIMUM CRITERIA FOR THE STATE AUDITOR OR HIS OR HER DESIGNEE TO USE WHEN DETERMINING WHETHER TO OBJECT TO OR APPROVE ANY PROPOSED RULE; TO AMEND SECTIONS 25-43-3.108 AND 25-43-3.110, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-43-3.112, Mississippi Code of 1972, is amended as follows:
25-43-3.112. An agency shall file in the Office of the Secretary of State each rule it adopts and all rules existing on July 1, 2005, that have not previously been filed. The filing must be done as soon after adoption of the rule as is practicable. At the time of filing, each rule adopted after July 1, 2005, must have included in or attached to it the material set out in Section 25-43-3.109. The Secretary of State shall affix to each rule and statement a certification of the date of filing and keep a permanent register open to public inspection of all filed rules and attached material. In filing a rule, each agency shall use a standard format prescribed by the Secretary of State. The Secretary of State shall file a copy of each rule filed with him, along with his statement and certification, with the Office of the State Auditor.
SECTION 2. Section 25-43-3.113, Mississippi Code of 1972, is amended as follows:
25-43-3.113. (1) Except to
the extent subsection (2) * * * or, (3) or (4) of this section provides
otherwise, each rule adopted after July 1, 2005, becomes effective thirty (30)
days after its proper filing in the Office of the Secretary of State.
(2) (a) A rule becomes effective on a date later than that established by subsection (1) of this section if a later date is required by another statute or specified in the rule.
(b) A rule may become effective immediately upon its filing or on any subsequent date earlier than that established by subsection (1) of this section if the agency establishes such an effective date and finds that:
(i) It is required by Constitution, statute or court order;
(ii) The rule only confers a benefit or removes a restriction on the public or some segment thereof;
(iii) The rule only delays the effective date of another rule that is not yet effective; or
(iv) The earlier effective date is necessary because of imminent peril to the public health, safety or welfare.
(c) The finding and a brief statement of the reasons therefor required by paragraph (b) of this subsection must be made a part of the rule. In any action contesting the effective date of a rule made effective under paragraph (b) of this subsection, the burden is on the agency to justify its finding.
(d) A temporary rule may become effective immediately upon its filing or on any subsequent date earlier than that established by subsection (1) of this section.
(e) Each agency shall make a reasonable effort to make known to persons who may be affected by it a rule made effective before any date established by subsection (1) of this section.
(3) Except as otherwise provided in subsection (2) of this section, no agency rule or regulation that affects the general public shall become effective until it has been approved by the State Auditor or his or her designee. In determining whether to object to or approve any proposed rule, the State Auditor or his or her designee shall consider, at a minimum, the following criteria:
(a) Would the absence of the rule significantly harm or endanger the public health, safety or welfare?
(b) Is there a reasonable relationship between the state's police power and the protection of the public health, safety or welfare?
(c) Is there another, less restrictive method of regulation available that could adequately protect the public?
(d) Does the rule have the effect of directly or indirectly increasing the costs of any goods or services involved and, if so, to what degree?
(e) Is the increase in cost, if any, more harmful to the public than the harm that might result from the absence of the rule?
(f) Are all facets of the rulemaking process designed solely for the purpose of, and do they have as their primary effect, the protection of the public?
(g) Any other criteria the committee may deem appropriate.
( * * *4) This section does not relieve an
agency from compliance with any provision of law requiring that some or all of
its rules be approved by other designated officials or bodies before they
become effective.
SECTION 3. Section 25-43-3.108, Mississippi Code of 1972, is amended as follows:
25-43-3.108. If an agency
finds that an imminent peril to the public health, safety or welfare requires
adoption of a rule upon fewer than twenty-five (25) days' notice and without
the approval of the State Auditor or his or her designee and states in
writing its reasons for that finding, it may proceed without prior notice of
hearing or upon any abbreviated notice and hearing and without approval of
the State Auditor or his or her designee that it finds practicable to adopt
an emergency rule. The rule may be effective for a period of not longer than
one hundred twenty (120) days, renewable once for a period not exceeding ninety
(90) days, but the adoption of an identical rule under * * * this Article
III is not precluded.
SECTION 4. Section 25-43-3.110, Mississippi Code of 1972, is amended as follows:
25-43-3.110. Agency rule-making record.
(1) An agency shall maintain an official rule-making record for each rule it (a) proposes or (b) adopts. The agency has the exclusive authority to prepare and exclusive authority to certify the record or any part thereof, including, but not limited to, any transcript of the proceedings, and the agency's certificate shall be accepted by the court and by any other agency. The record must be available for public inspection.
(2) The agency rule-making record must contain:
(a) Copies of all notices of proposed rule-making or oral proceedings or other publications in the administrative bulletin with respect to the rule or the proceeding upon which the rule is based;
(b) Copies of any portions of the agency's public rule-making docket containing entries relating to the rule or the proceeding upon which the rule is based;
(c) All written requests, submissions and comments received by the agency and all other written materials considered by the agency in connection with the formulation, proposal or adoption of the rule or the proceeding upon which the rule is based;
(d) Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, any tape recording or stenographic record of those presentations, and any memorandum prepared by a presiding official summarizing the contents of those presentations. The word "transcript" includes a written transcript, a printed transcript, an audible audiotape or videotape that is indexed and annotated so that it is readily accessible and any other means that the agency may have by rule provided for the reliable and accessible preservation of the proceeding;
(e) A copy of any
economic impact statement prepared for the proceeding upon which the rule is
based; * * *
(f) A copy of the rule
and related information set out in Section 25-43-3.109 as filed in the Office
of the Secretary of State * * *.; and
(g) The approval of the State Auditor, or his or her designee, or, if the rule was not approved by the State Auditor upon first application, the reasons therefore.
(3) The agency shall have authority to engage such persons and acquire such equipment as may be reasonably necessary to record and preserve in any technically and practicably feasible manner all matters and all proceedings had at any rule-making proceeding.
(4) Upon judicial review, the record required by this section constitutes the official agency rule-making record with respect to a rule. Except as otherwise required by a provision of law, the agency rule-making record need not constitute the exclusive basis for agency action on that rule or for judicial review thereof.
SECTION 5. This act shall take effect and be in force from and after July 1, 2022.
