MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Malone

AN ACT TO AMEND SECTION 25-43-7, MISSISSIPPI CODE OF 1972, TO REQUIRE ANY AGENCY THAT PROPOSES TO ADOPT, AMEND OR REPEAL ANY RULE TO SUBMIT A COPY OF THE PROPOSED RULE TO THE ATTORNEY GENERAL; TO PROVIDE THAT THE ATTORNEY GENERAL SHALL REVIEW ANY SUCH PROPOSED RULE AND SHALL ISSUE HIS OPINION AS TO WHETHER THE AGENCY HAS THE CONSTITUTIONAL AND STATUTORY AUTHORITY TO ADOPT THE PROPOSED RULE; TO PROVIDE THAT A PROPOSED RULE MAY NOT BE ADOPTED IF THE ATTORNEY GENERAL FINDS THAT THE AGENCY LACKS THE AUTHORITY TO ADOPT THE RULE; AND FOR RELATED PURPOSES.  

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 25-43-7, Mississippi Code of 1972, is amended as follows:

25-43-7. (1) From and after July 1, 1997, any agency that proposes to adopt, amend or repeal any rule shall submit a copy of the complete text of the proposed rule to the Attorney General. The Attorney General shall review the proposed rule and, within thirty (30) days of its receipt, shall respond in writing to the submitting agency by giving his written opinion as to whether or not the authority to adopt the rule is expressly granted or necessarily implied from the constitutional and statutory authority granted to the agency. If the Attorney General, in his opinion, finds that the agency is without authority to adopt the rule, then the proposed rule may not be adopted. Whenever an existing rule of an agency is proposed to be amended, then the entire rule, including those portions of the rule not proposed for change, shall be subject to review by the Attorney General under the provisions of this section.

(2) After an agency has complied with the provisions of subsection (1) of this section and the Attorney General has issued his opinion that the agency has the authority to adopt, amend or repeal the rule as proposed, then before the adoption, amendment or repeal of the rule, the agency shall give at least thirty (30) days' notice of its intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the manner in which interested persons may present their views thereon. The notice shall be filed with the office of the Secretary of State and mailed by the agency to all persons who have made timely request of the agency for advance notice of its rule-making proceedings. The Secretary of State shall furnish copies at the request of any person and shall be reimbursed by the requesting person for the expense of providing such service.

(3) If an agency finds that an imminent peril to the public health, safety or welfare requires adoption of a rule upon fewer than thirty (30) days' notice and states in writing its reasons for that finding, it may proceed without prior notice of hearing or upon any abbreviated notice and hearing 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 subsection (2) of this section is not precluded.

(4) No rule hereafter adopted is valid unless adopted in substantial compliance with this section. A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this section must be commenced within one (1) year from the effective date of the rule.

SECTION 2. This act shall take effect and be in force from and after July 1, 1997.