MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary A

By: Representative Perry

AN ACT TO CREATE THE "MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW OF 1998"; TO DEFINE CERTAIN TERMS AS USED IN THE ACT; TO PRESCRIBE THE ACT'S APPLICABILITY AND RELATION TO OTHER LAWS; TO PROVIDE FOR THE SUSPENSION OF THE ACT'S PROVISIONS WHEN NECESSARY TO AVOID LOSS OF FEDERAL FUNDS OR SERVICES; TO PRESCRIBE HOW RIGHTS UNDER THE ACT MAY BE WAIVED, HOW MATTERS MAY BE SETTLED INFORMALLY UNDER THE ACT AND HOW PROCEEDINGS UNDER THE ACT MAY BE CONVERTED TO ANOTHER TYPE OF AGENCY PROCEEDING; TO PROVIDE FOR THE PUBLICATION, COMPILATION, INDEXING AND PUBLIC INSPECTION OF AGENCY RULES; TO ESTABLISH A RIGHT AND PRESCRIBE THE PROCEDURE FOR REQUESTING DECLARATORY ORDERS FROM STATE AGENCIES WITH REGARD TO THE APPLICABILITY AND EFFECT OF AGENCY RULES; TO REQUIRE EVERY AGENCY TO ADOPT CERTAIN RULES RELATING TO THE AGENCY'S ORGANIZATIONAL STRUCTURE; TO REQUIRE THE SECRETARY OF STATE TO ADOPT MODEL RULES OF PROCEDURE FOR USE BY STATE AGENCIES; TO PROVIDE FOR NOTICE OF PROPOSED RULES BEFORE THEIR ADOPTION; TO ALLOW PUBLIC PARTICIPATION IN THE RULE-MAKING PROCESS; TO PROVIDE FOR A PUBLIC RULE-MAKING DOCKET; TO REQUIRE SUBMISSION OF A REGULATORY ANALYSIS OF PROPOSED RULES IN CERTAIN SITUATIONS; TO PROVIDE FOR THE TIME AND MANNER OF RULE ADOPTION; TO PROHIBIT ANY VARIANCE BETWEEN AN ADOPTED RULE AND PUBLISHED NOTICE OF THE RULE'S ADOPTION; TO EXEMPT CERTAIN RULES FROM PROCEDURES PROVIDED IN THE ACT; TO PRESCRIBE THE CONTENTS, STYLE AND FORM OF RULES; TO REQUIRE AGENCIES TO MAINTAIN A RULE-MAKING RECORD AND TO FILE RULES IN THE OFFICE OF THE SECRETARY OF STATE; TO PRESCRIBE THE METHOD FOR CONTESTING THE VALIDITY OF RULES; TO PROVIDE FOR THE EFFECTIVE DATE OF RULES; TO PROVIDE THAT THE ACT SHALL BE INAPPLICABLE TO CERTAIN CLASSES OF RULES; TO AUTHORIZE PETITIONS FOR THE ADOPTION, AMENDMENT, REPEAL OR WAIVER OF A RULE; TO REQUIRE AGENCIES TO PERIODICALLY REVIEW ITS RULES; TO REQUIRE A LICENSEE TO BE GIVEN NOTICE OF ANY INTENDED REVOCATION, SUSPENSION, ANNULMENT OR WITHDRAWAL OF HIS LICENSE EXCEPT IN CASE OF EMERGENCY; TO PROVIDE THAT STATUTORY PROVISIONS THAT CONFLICT WITH THE PROVISIONS OF THIS ACT SHALL GOVERN TO THE EXTENT OF SUCH CONFLICT; TO PRESCRIBE THE PROCEEDINGS TO WHICH THIS ACT IS APPLICABLE; TO REPEAL SECTIONS 25-43-1, 25-43-3, 25-43-5, 25-43-6, 25-43-7, 25-43-9, 25-43-11, 25-43-13, 25-43-15, 25-43-17 AND 25-43-19, MISSISSIPPI CODE OF 1972, WHICH CREATE THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW, PROVIDE DEFINITIONS FOR TERMS USED IN SUCH LAW, PRESCRIBE PROCEDURES THAT MUST BE FOLLOWED BY AGENCIES IN THE ADOPTION, AMENDMENT AND REPEAL OF AGENCY RULES, REQUIRE FILING AND NOTICE BEFORE SUCH RULES MAY BECOME EFFECTIVE, REQUIRE AGENCIES TO INDEX ALL EFFECTIVE RULES ADOPTED, PROVIDE THAT REVOCATION OR SUSPENSION OF ANY LICENSE SHALL NOT BE EFFECTIVE UNLESS NOTICE OF SUCH INTENDED ACTION IS GIVEN TO THE LICENSEE, AND REQUIRE AGENCIES TO ADOPT PROCEDURES TO ASSURE THAT OPPONENTS OF PROPOSED RULES HAVE THE OPPORTUNITY TO PRESENT THEIR VIEWS AND REVIEW ADVERSE RULINGS; TO CREATE AN ADMINISTRATIVE PROCEDURES STUDY COMMITTEE TO REPORT AND RECOMMEND TO THE LEGISLATURE THE NEED FOR ANY ADDITIONAL LEGISLATION REGARDING ADMINISTRATIVE ADJUDICATIVE PROCEEDINGS AND APPELLATE PROCEDURES; AND FOR RELATED PURPOSES.

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

SECTION 1. The following shall be codified as Section 25-43-1.101, Mississippi Code of 1972:

25-43-1.101. Legislative Purpose.

This act may be cited as the "Mississippi Administrative Procedures Law of 1998."

SECTION 2. The following shall be codified as Section 25-43-1.102, Mississippi Code of 1972:

25-43-1.102. Definitions.

As used in this chapter the following terms shall have the meanings ascribed to them in this section unless the context otherwise requires:

(a) "Agency" means a board, commission, department, officer or other administrative unit of this state, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head. The term does not include the Legislature, the courts or the Governor. The term does not include a political subdivision of the state or any of the administrative units of a political subdivision, but it does include a board, commission, department, officer or other administrative unit created or appointed by joint or concerted action of an agency and one or more political subdivisions of the state or any of their units. To the extent it purports to exercise authority subject to any provision of this chapter, an administrative unit otherwise qualifying as an "agency" must be treated as a separate agency even if the unit is located within or subordinate to another agency.

(b) "Agency action" means:

(i) The whole or a part of a rule or an order; or

(ii) The failure to issue a rule or an order.

(c) "Agency head" or "head of the agency" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.

(d) "Agency proceeding" means the process by which an agency considers (i) a declaratory order pursuant to Section 25-43-2.103; (ii) a rule pursuant to Article III of this chapter; or (iii) any form of adjudicative proceeding.

(e) "License" means a franchise, permit, certification, approval, registration, charter or similar form of authorization required by law.

(f) "Order" means an agency action in writing of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons. The term does not include an executive order issued by the Governor pursuant to Section 25-43-1.104, an opinion issued by the Attorney General pursuant to Section 7-5-25 or an opinion issued by the Ethics Commission pursuant to Section 25-4-17.

(g) "Party to agency proceedings," or "party" in context so indicating, means:

(i) A person to whom the agency action is specifically directed; or

(ii) A person named as a party to an agency proceeding or allowed to intervene or participate as a party in the proceeding.

(h) "Party to judicial review or civil enforcement proceedings," or "party" in a context so indicating, means:

(i) A person who files a notice for judicial review or a complaint for civil enforcement, or

(ii) A person named as a party in a proceeding for judicial review or civil enforcement or allowed to participate as a party in the proceeding.

(i) "Person" means an individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.

(j) "Provision of law" or "law" means the whole or a part of the federal or state Constitution, or of any federal or state (i) statute, (ii) case law or common law, (iii) rule of court, (iv) executive order, or (v) rule of an administrative agency.

(k) "Rule" means the whole or a part of an agency regulation or other statement of general applicability that implements, interprets, or prescribes (i) law or policy, or (ii) the organization, procedure or practice requirements of an agency. The term includes the amendment, repeal or suspension of an existing rule.

(l) "Rule making" means the process for formulation and adoption of a rule.

SECTION 3. The following shall be codified as Section 25-43-1.103, Mississippi Code of 1972:

25-43-1.103. Applicability and Relation to Other Law.

(1) This chapter applies to all agencies and all proceedings not expressly exempted under this chapter.

(2) This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.

(3) An agency may grant procedural rights to persons in addition to those conferred by this chapter so long as rights conferred upon other persons by any provision of law are not substantially prejudiced.

SECTION 4. The following shall be codified as Section 25-43-1.104, Mississippi Code of 1972:

25-43-1.104. Suspension of Chapter's Provisions When Necessary to Avoid Loss of Federal Funds or Services.

(1) To the extent necessary to avoid a denial of funds or services from the United States which would otherwise be available to the state, the Governor, by executive order, may suspend, in whole or in part, one or more provisions of this chapter. The Governor, by executive order, shall declare the termination of a suspension as soon as it is no longer necessary to prevent the loss of funds or services from the United States.

(2) If any provision of this chapter is suspended pursuant to this section, the Governor shall promptly report the suspension to the Legislature. The report must include recommendations concerning any desirable legislation that may be necessary to conform this chapter to federal law.

SECTION 5. The following shall be codified as Section 25-43-1.105, Mississippi Code of 1972:

25-43-1.105. Waiver of Rights.

Except to the extent precluded by another provision of law, a person may waive any right conferred upon that person by this chapter, or by any rule made pursuant to this chapter.

SECTION 6. The following shall be codified as Section 25-43-1.106, Mississippi Code of 1972:

25-43-1.106. Informal Settlements.

Except to the extent precluded by another provision of law, informal settlement of matters that may make unnecessary more elaborate proceedings under this chapter is encouraged. Agencies may establish by rule specific procedures to facilitate informal settlement of matters. This section does not require any party or other person to settle a matter pursuant to informal procedures.

SECTION 7. The following shall be codified as Section 25-43-1.107, Mississippi Code of 1972:

25-43-1.107. Conversion of Proceedings.

(1) At any point in an agency proceeding the presiding officer or other agency official responsible for the proceeding:

(a) May convert the proceeding to another type of agency proceeding provided for by this chapter if the conversion is appropriate, is in the public interest and does not substantially prejudice the rights of any party; or

(b) If required by any provision of law, shall convert the proceeding to another type of agency proceeding provided for by this chapter.

(2) A conversion of a proceeding of one type to a proceeding of another type may be effected only upon prior notice to all parties to the original proceeding and opportunity to be heard with regard to the proposed conversion.

(3) If the presiding officer or other agency official responsible for the original proceeding would not have authority over the new proceeding to which it is to be converted, that officer or official, in accordance with agency rules, shall secure the appointment of a successor to preside over or be responsible for the new proceeding.

(4) To the extent feasible and consistent with the rights of parties and the requirements of this chapter pertaining to the new proceeding, the record of the original agency proceeding must be used in the new agency proceeding.

(5) After a proceeding is converted from one type to another, the presiding officer or other agency official responsible for the new proceeding shall:

(a) Give such additional notice to parties or other persons as is necessary to satisfy the requirements of this chapter pertaining to those proceedings;

(b) Dispose of the matters involved without further proceedings if sufficient proceedings have already been held to satisfy the requirements of this chapter pertaining to the new proceedings; and

(c) Conduct or cause to be conducted any additional proceedings necessary to satisfy the requirements of this chapter pertaining to those proceedings.

(6) Each agency shall adopt rules to govern the conversion of one type of proceeding to another. Those rules must include an enumeration of the factors to be considered in determining whether and under what circumstances one type of proceeding will be converted to another.

SECTION 8. The following shall be codified as Section 25-43-2.101, Mississippi Code of 1972:

25-43-2.101. Publication, Compilation, Indexing and Public Inspection of Rules.

(1) Subject to the provisions of this chapter, the Secretary of State shall prescribe a uniform numbering system, form and style for all proposed and adopted rules caused to be published by him and, with notice to the agency, may edit rules for publication and codification without changing the meaning or effect of any rule.

(2) The Secretary of State shall cause an administrative bulletin to be published in a format and at such regular intervals as the Secretary of State shall prescribe by rule. The administrative bulletin must contain:

(a) Notices of proposed rule adoption prepared so that the text of the proposed rule shows the text of any existing rule proposed to be changed and the change proposed;

(b) Newly filed adopted rules prepared so that the text of the newly filed adopted rule shows the text of any existing rule being changed and the change being made;

(c) Any other notices and materials designated by law or by the Secretary of State for publication therein; and

(d) An index to its contents by subject.

(3) The Secretary of State shall cause an administrative code to be compiled, indexed by subject and published in a format prescribed by the Secretary of State by rule. All of the effective rules of each agency must be published and indexed in that publication. The Secretary of State shall also cause supplements to the administrative code to be published in a format and at such regular intervals as the Secretary of State shall prescribe by rule.

(4) The Secretary of State may omit from the administrative bulletin or code any proposed or filed adopted rule the publication of which would be unduly cumbersome, expensive or otherwise inexpedient, if:

(a) Knowledge of the rule is likely to be important to only a small class of persons;

(b) On application to the issuing agency, the proposed or adopted rule in printed or processed form is made available at no more than its cost of reproduction; and

(c) The administrative bulletin or code contains a notice stating in detail the specific subject matter of the omitted proposed or adopted rule and how a copy of the omitted material may be obtained.

(5) The administrative bulletin and administrative code with supplements must be furnished to designated officials without charge and to all subscribers at a reasonable cost to be determined by the Secretary of State. Each agency shall also make available for public inspection and copying those portions of the administrative bulletin and administrative code containing all rules adopted or used by the agency in the discharge of its functions, and the index to those rules.

(6) Except as otherwise required by a provision of law, subsections (3) through (5) of this section do not apply to rules governed by Section 25-43-3.116, and the following provisions apply instead:

(a) Each agency shall maintain an official, current and dated compilation that is indexed by subject, containing all of its rules within the scope of Section 25-43-3.116. Each addition to, change in, or deletion from the official compilation must also be dated, indexed and a record thereof kept. Except for those portions containing rules governed by Section 25-43-3.116(b), the compilation must be made available for public inspection and copying. Certified copies of the full compilation must also be furnished to the Secretary of State and be kept current by the agency at least every thirty (30) days.

(b) A rule subject to the requirements of this subsection may not be relied on by an agency to the detriment of any person who does not have actual, timely knowledge of the contents of the rule until the requirements of paragraph (a) of this subsection are satisfied. The burden of proving that knowledge is on the agency. This provision is also inapplicable to the extent necessary to avoid imminent peril to the public health, safety or welfare.

SECTION 9. The following shall be codified as Section 25-43-2.102, Mississippi Code of 1972:

25-43-2.102. Public Inspection and Indexing of Agency Orders.

(1) In addition to other requirements imposed by any provision of law, each agency shall make all written final orders available for public inspection and copying and index them by name and subject. An agency shall delete from those orders identifying details to the extent required by any provision of law or necessary to prevent a clearly unwarranted invasion of privacy or release of trade secrets. In each case the justification for the deletion must be explained in writing and attached to the order.

(2) A written final order may not be relied on as precedent by an agency to the detriment of any person until it has been made available for public inspection and indexed in the manner described in subsection (1) of this section. This provision is inapplicable to any person who has actual, timely knowledge of the order. The burden of proving that knowledge is on the agency.

SECTION 10. The following shall be codified as Section 25-43-2.103, Mississippi Code of 1972:

25-43-2.103. Declaratory Orders.

(1) Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule or order within the primary jurisdiction of the agency. An agency may issue a declaratory order in response to a petition for that order unless the agency determines that issuance of the order under the circumstances would be contrary to a rule adopted in accordance with subsection (2) of this section. However, an agency shall not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.

(2) Each agency shall issue rules that provide for: (a) the form, contents and filing of petitions for declaratory orders; (b) the procedural rights of persons in relation to the petitions and (c) the disposition of the petitions. Those rules must describe the classes of circumstances in which the agency will not issue a declaratory order and must be consistent with the public interest and with the general policy of this chapter to facilitate and encourage agency issuance of reliable advice.

(3) Within fifteen (15) days after receipt of a petition for a declaratory order, an agency shall give notice of the petition to all persons to whom notice is required by any provision of law and may give notice to any other persons.

(4) Persons who file timely petitions for intervention according to agency rules may intervene in proceedings for declaratory orders.

(5) Within thirty (30) days after receipt of a petition for a declaratory order an agency, in writing, shall:

(a) Issue an order declaring the applicability of the statute, rule or order in question to the specified circumstances;

(b) Set the matter for specified proceedings;

(c) Agree to issue a declaratory order by a specified time; or

(d) Decline to issue a declaratory order, stating the reasons for its action.

(6) A copy of all orders issued in response to a petition for a declaratory order must be mailed promptly to petitioner and any other parties.

(7) A declaratory order has the same status and binding effect as any other order issued in an agency adjudicative proceeding. A declaratory order must contain the names of all parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusion.

(8) If an agency has not issued a declaratory order within sixty (60) days after receipt of a petition therefor, the petition is deemed to have been denied.

SECTION 11. The following shall be codified as Section 25-43-2.104, Mississippi Code of 1972:

25-43-2.104. Required Rule Making.

In addition to other rule-making requirements imposed by law, each agency shall:

(a) Adopt as a rule a description of the organization of the agency which states the general course and method of its operations and where and how the public may obtain information or make submissions or requests;

(b) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available to the public, including a description of all forms and instructions that are to be used by the public in dealing with the agency; and

(c) As soon as feasible and to the extent practicable, adopt rules, in addition to those otherwise required by this chapter, embodying appropriate standards, principles and procedural safeguards that the agency will apply to the law it administers.

SECTION 12. The following shall be codified as Section 25-43-2.105, Mississippi Code of 1972:

25-43-2.105. Model Rules of Procedure.

In accordance with the rule-making requirements of this chapter, the Secretary of State shall adopt model rules of procedure appropriate for use by as many agencies as possible. The model rules must deal with all general functions and duties performed in common by several agencies. Each agency shall adopt as much of the model rules as is practicable under its circumstances. To the extent an agency adopts the model rules, it shall do so in accordance with the rule-making requirements of this chapter. Any agency adopting a rule of procedure that differs from the model rules shall include in the rule a finding stating the reasons why the relevant portions of the model rules were impracticable under the circumstances.

SECTION 13. The following shall be codified as Section 25-43-3.101, Mississippi Code of 1972:

25-43-3.101. Advice on Possible Rules before Notice of Proposed Rule Adoption.

(1) In addition to seeking information by other methods, an agency, before publication of a notice of proposed rule adoption under Section 25-43-3.103, may solicit comments from the public on a subject matter of possible rule making under active consideration within the agency by causing notice to be published in the administrative bulletin of the subject matter and indicating where, when and how persons may comment.

(2) Each agency may also appoint committees to comment, before publication of a notice of proposed rule adoption under Section 25-43-3.103, on the subject matter of a possible rule making under active consideration within the agency. The membership of those committees must be published in the administrative bulletin.

SECTION 14. The following shall be codified as Section 25-43-3.102, Mississippi Code of 1972:

25-43-3.102. Public Rule-making Docket.

(1) Each agency shall maintain a current, public rule-making docket.

(2) The rule-making docket may contain a listing of the precise subject matter of possible rules currently under active consideration within the agency for proposal under Section 25-43-3.103, the name and address of agency personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the agency of that possible rule.

(3) The rule-making docket must list each pending rule-making proceeding. A rule-making proceeding is pending from the time it is commenced, by publication of a notice of proposed rule adoption, to the time it is terminated by publication of notice of termination or the rule becoming effective. For each pending rule-making proceeding, the docket must indicate:

(a) The subject matter of the proposed rule;

(b) A citation to all published notices relating to the proceeding;

(c) Where written submissions on the proposed rule may be inspected;

(d) The time during which written submissions may be made;

(e) The names of persons who have made written requests for an opportunity to make oral presentations on the proposed rule, where those requests may be inspected, and where and when oral presentations may be made;

(f) Whether a written request for the issuance of a regulatory analysis of the proposed rule has been filed, whether the agency believes that no such regulatory analysis is required due to the exception(s) contained in Section 25-43-3.105(7), whether that analysis has been issued, and where the written request and analysis may be inspected;

(g) The current status of the proposed rule and any agency determinations with respect thereto;

(h) Any known timetable for agency decisions or other action in the proceeding;

(i) The date of the rule's adoption;

(j) The date of the rule's filing, indexing and publication; and

(k) When the rule will become effective.

SECTION 15. The following shall be codified as Section 25-43-3.103, Mississippi Code of 1972:

25-43-3.103. Notice of Proposed Rule Adoption.

(1) At least thirty (30) days before the adoption of a rule an agency shall cause notice of its contemplated action to be

published in the administrative bulletin. The notice of proposed rule adoption must include:

(a) A short explanation of the purpose of the proposed rule;

(b) The specific legal authority authorizing the proposed rule;

(c) Subject to Section 25-43-2.101(4), the text of the proposed rule;

(d) Where, when and how persons may present their views on the proposed rule; and

(e) Where, when and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.

(2) Within three (3) days after its publication in the administrative bulletin, the agency shall cause a copy of the notice of proposed rule adoption to be mailed to each person who has made a timely request to the agency to be placed on the mailing list maintained by the agency of persons who have requested notices of proposed rule adoptions. An agency may charge persons a reasonable fee for such service, which fee may be in excess of the actual cost of providing persons with mailed copies.

SECTION 16. The following shall be codified as Section 25-43-3.104, Mississippi Code of 1972:

25-43-3.104. Public Participation.

(1) For at least thirty (30) days after publication of the notice of proposed rule adoption, an agency shall afford persons the opportunity to submit, in writing, argument, data and views on the proposed rule.

(2) (a) An agency may schedule an oral proceeding on any proposed rule. However, an agency shall schedule an oral proceeding on a proposed rule if, within twenty (20) days after the published notice of proposed rule adoption, a written request for an oral proceeding is submitted by a political subdivision, an agency, or ten (10) persons. At that proceeding, persons may present oral or written argument, data, and views on the proposed rule.

(b) An oral proceeding on a proposed rule, if required, may not be held earlier than twenty (20) days after notice of its location and time is published in the administrative bulletin. Within three (3) days after its publication in the administrative bulletin, the agency shall cause a copy of the notice of the location and time of the oral proceeding to be mailed to each person who has made a timely request to the agency to be placed on the mailing list maintained by the agency of persons who have requested notices of proposed rule adoptions.

(c) The agency, a member of the agency, or another presiding officer designated by the agency shall preside at a required oral proceeding on a proposed rule. Oral proceedings must be open to the public and may be recorded by stenographic or other means.

(d) An agency may issue rules for the conduct of oral rule-making proceedings or prepare reasonable guidelines or procedures for the conduct of any such proceedings. Those rules may include, but not be limited to, provisions calculated to prevent undue repetition in the oral proceedings.

SECTION 17. The following shall be codified as Section 25-43-3.105, Mississippi Code of 1972:

25-43-3.105. Regulatory Analysis.

(1) Except as provided in subsection (7) of this section, an agency shall issue a regulatory analysis of a proposed rule if, within thirty (30) days after the published notice of proposed rule adoption, a written request for the analysis is filed in the office of the agency head and Secretary of State by the Governor, a political subdivision, an agency or fifty (50) interested persons signing the request.

(2) Except to the extent that the written request expressly waives one or more of the following, the regulatory analysis must contain:

(a) A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;

(b) A description of the probable quantitative and qualitative impact of the proposed rule, economic or otherwise, upon affected classes of persons;

(c) The probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;

(d) A comparison of the probable costs and benefits of the proposed rule to the probable costs and benefits of inaction;

(e) A determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule; and

(f) A description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule.

(3) Each regulatory analysis must include quantification of the data to the extent practicable and must take account of both short-term and long-term consequences.

(4) A concise summary of the regulatory analysis must be published in the administrative bulletin at least ten (10) days before the end of the period during which persons may make written submissions on the proposed rule.

(5) The published summary of the regulatory analysis must also indicate where persons may obtain copies of the full text of the regulatory analysis and where, when, and how persons may present their views on the proposed rule and demand an oral proceeding on the proposed rule if one is not already provided.

(6) If the agency has made a good faith effort to comply with the requirements of subsections (1) through (3) of this section, the rule may not be invalidated on the ground that the contents of the regulatory analysis are insufficient or inaccurate.

(7) This section does not apply to the adoption of:

(a) Any rule which is required by the federal government pursuant to a state/federal program delegation agreement or contract;

(b) Any rule which is expressly required by state law;

(c) An emergency rule adopted pursuant to Section 25-43-3.108; and

(d) Any rule for which the notice required in Section 25-43-3.103 has been given before July 1, 1999.

SECTION 18. The following shall be codified as Section 25-43-3.106, Mississippi Code of 1972:

25-43-3.106. Time and Manner of Rule Adoption.

(1) An agency may not adopt a rule until the period for making written submissions and oral presentations has expired.

(2) Within one hundred eighty (180) days after the later of (a) the publication of the notice of proposed rule adoption, or (b) the end of oral proceedings thereon, an agency shall adopt a rule pursuant to the rule-making proceeding or terminate the proceeding by publication of a notice to that effect in the administrative bulletin.

(3) Before the adoption of a rule, an agency shall consider the written submissions, oral submissions or any memorandum summarizing oral submissions, and any regulatory analysis, provided for by this article.

(4) Within the scope of its delegated authority, an agency may use its own experience, technical competence, specialized knowledge and judgment in the adoption of a rule.

SECTION 19. The following shall be codified as Section 25-43-3.107, Mississippi Code of 1972:

25-43-3.107. Variance between Adopted Rule and Published Notice of Proposed Rule Adoption.

(1) An agency shall not adopt a rule that differs from the rule proposed in the notice of proposed rule adoption on which the rule is based unless all of the following apply:

(a) The differences are within the scope of the matter announced in the notice of proposed rule adoption and are in character with the issues raised in that notice;

(b) The differences are a logical outgrowth of the contents of that notice of proposed rule adoption and the comments submitted in response thereto; and

(c) The notice of proposed rule adoption provided fair warning that the outcome of that rule-making proceeding could be the rule in question.

(2) In determining whether the notice of proposed rule adoption provided fair warning that the outcome of that rule-making proceeding could be the rule in question an agency shall consider all of the following factors:

(a) The extent to which persons who will be affected by the rule should have understood that the rule-making proceeding on which it is based could affect their interests;

(b) The extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of proposed rule adoption; and

(c) The extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of proposed rule adoption.

SECTION 20. The following shall be codified as Section 25-43-3.108, Mississippi Code of 1972:

25-43-3.108. General Exemption from Public Rule-making Procedures.

(1) To the extent an agency for good cause finds that any requirements of Sections 25-43-3.103 through 25-43-3.107 are unnecessary, impracticable or contrary to the public interest in the process of adopting a particular rule, those requirements do not apply. The agency shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subsection.

(2) In an action contesting a rule adopted under subsection (1) of this section, the burden is upon the agency to demonstrate that any omitted requirements of Sections 25-43-3.103 through 25-43-3.107 were impracticable, unnecessary or contrary to the public interest in the particular circumstances involved.

SECTION 21. The following shall be codified as Section 25-43-3.109, Mississippi Code of 1972:

25-43-3.109. Exemption for Certain Rules.

(1) An agency need not follow the provisions of Sections 25-43-3.103 through 25-43-3.108 in the adoption of a rule that only defines the meaning of a provision of law if the agency does not possess delegated authority to bind the courts to any extent with its definition. A rule adopted under this subsection must include a statement that it was adopted under this subsection when it is published in the administrative bulletin, and there must be an indication to that effect adjacent to the rule when it is published in the administrative code.

(2) A reviewing court shall determine wholly de novo the validity of a rule within the scope of subsection (1) of this section that is adopted without complying with the provisions of Sections 25-43-3.103 through 25-43-3.108.

SECTION 22. The following shall be codified as Section 25-43-3.110, Mississippi Code of 1972:

25-43-3.110. Concise Explanatory Statement.

At the time it adopts a rule, an agency shall issue a concise explanatory statement containing:

(a) Its reasons for adopting the rule; and

(b) An indication of any change between the text of the proposed rule contained in the published notice of proposed rule adoption and the text of the rule as finally adopted, with the reasons for any substantive change.

SECTION 23. The following shall be codified as Section 25-43-3.111, Mississippi Code of 1972:

25-43-3.111. Contents, Style, and Form of Rule.

(1) Each rule adopted by an agency must contain the text of the rule and:

(a) The date the agency adopted the rule;

(b) A concise statement of the purpose of the rule;

(c) A reference to all rules repealed, amended or suspended by the rule;

(d) A reference to the specific statutory or other authority authorizing adoption of the rule;

(e) Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule; and

(f) The effective date of the rule if other than that specified in Section 25-43-3.115(1).

(2) To the extent feasible, each rule should be written in clear and concise language understandable to persons who may be affected by it.

(3) An agency may incorporate, by reference in its rules and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation that has been adopted by an agency of the United States or of this state, another state or by a nationally recognized organization or association, if incorporation of its text in agency rules would be unduly cumbersome, expensive or otherwise inexpedient. The reference in the agency rules must fully identify the incorporated matter by location, date and otherwise. An agency may incorporate by reference such matter in its rules only if the agency, organization or association originally issuing that matter makes copies of it readily available to the public. The rules must state if copies of the incorporated matter are available from the agency issuing the rule or where copies of the incorporated matter are available from the agency of the United States, this state, another state or the organization or association originally issuing that matter.

(4) In preparing its rules pursuant to this article, each agency shall follow the uniform numbering system, form and style prescribed by the Secretary of State.

SECTION 24. The following shall be codified as Section 25-43-3.112, Mississippi Code of 1972:

25-43-3.112. Agency Rule-making Record.

(1) An agency shall maintain an official rule-making record for each rule it (a) proposes by publication in the administrative bulletin of a notice of proposed rule adoption, or (b) adopts. The record must be available for public inspection.

(2) The agency rule-making record must contain:

(a) Copies of all 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 petitions, 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;

(e) A copy of any regulatory analysis prepared for the proceeding upon which the rule is based;

(f) A copy of the rule and explanatory statement filed in the Office of the Secretary of State; and

(g) All petitions for exceptions to, amendments of, or repeal or suspension of, the rule.

(3) 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 25. The following shall be codified as Section 25-43-3.113, Mississippi Code of 1972:

25-43-3.113. Invalidity of Rules Not Adopted According to Article; Time Limitation.

(1) A rule adopted after July 1, 1999, is invalid unless adopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.108 and Sections 25-43-3.110 through 25-43-3.112. However, inadvertent failure to mail a notice of proposed rule adoption to any person as required by Section 24-43-3.103(2) does not invalidate a rule.

(2) An action to contest the validity of a rule on the grounds of its noncompliance with any provision of Sections 25-43-3.102 through 25-43-3.108 or Sections 25-43-3.110 through 25-43-3.112 must be commenced within two (2) years after the effective date of the rule.

SECTION 26. The following shall be codified as Section 25-43-3.114, Mississippi Code of 1972:

25-43-3.114. Filing of Rules.

An agency shall file in the Office of the Secretary of State each rule it adopts and all rules existing on July 1, 1999, 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, 1999, must have attached to it the explanatory statement required by Section 25-43-3.110. 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 explanatory statements. In filing a rule, each agency shall use a standard format prescribed by the Secretary of State.

SECTION 27. The following shall be codified as Section 25-43-3.115, Mississippi Code of 1972:

25-43-3.115. Effective Date of Rules.

(1) Except to the extent subsection (2) or (3) of this section provides otherwise, each rule adopted after July 1, 1999, becomes effective thirty (30) days after its 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) 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) 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 28. The following shall be codified as Section 25-43-3.116, Mississippi Code of 1972:

25-43-3.116. Special Provision for Certain Classes of Rules.

Except to the extent otherwise provided by any provision of law, Sections 25-43-3.102 through 25-43-3.115 are inapplicable to:

(a) A rule concerning only the internal management of an agency which does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public;

(b) A rule that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations or inspections, settling commercial disputes, negotiating commercial arrangements or in the defense, prosecution or settlement of cases, if disclosure of the criteria or guidelines would:

(i) Enable law violators to avoid detection;

(ii) Facilitate disregard of requirements imposed by law; or

(iii) Give a clearly improper advantage to persons who are in an adverse position to the state;

(c) A rule that only establishes specific prices to be charged for particular goods or services sold by an agency;

(d) A rule concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property;

(e) A rule relating only to the use of a particular facility or property owned, operated or maintained by the state or any of its subdivisions, if the substance of the rule is adequately indicated by means of signs or signals to persons who use the facility or property;

(f) A rule concerning only inmates of a correctional or detention facility, students enrolled in an educational institution or patients admitted to a hospital, if adopted by that facility, institution or hospital;

(g) A form whose contents or substantive requirements are prescribed by rule or statute, and instructions for the execution or use of the form;

(h) An agency budget; or

(i) An opinion of the Attorney General pursuant to Section 7-5-25, an opinion of the Mississippi Ethics Commission pursuant to Section 25-4-17, or an executive order of the Governor.

SECTION 29. The following shall be codified as Section 25-43-3.117, Mississippi Code of 1972:

25-43-3.117. Petition For Adoption of Rule.

Any person may petition an agency requesting the adoption, amendment or repeal of a rule. Each agency shall prescribe by rule the form of the petition and the procedure for its submission, consideration and disposition. Within ninety (90) days after submission of a petition, the agency shall either (a) deny the petition in writing, stating its reasons therefor, (b) initiate rule-making proceedings in accordance with this chapter, or (c) if otherwise lawful, adopt a rule.

SECTION 30. The following shall be codified as Section 25-43-3.118, Mississippi Code of 1972:

25-43-3.118. Petition for Waiver of Rule.

(1) A person may file a petition with an agency requesting a waiver, in whole or in part, of a rule of that agency on the ground that the application of the rule to the particular circumstances of that person would qualify for a waiver under subsection (5) of this section. A petition filed under this provision must specify the rule in question, the precise scope of the waiver requested, the specific facts that would justify a waiver for petitioner and the reasons why the particular application of the rule to petitioner for which the waiver is requested would qualify for a waiver under subsection (5) of this section.

(2) Each agency shall issue rules consistent with this section concerning all of the following:

(a) Governing the form, contents and filing of petitions for the waiver of rules.

(b) Specifying the procedural rights of persons in relation to such petitions.

(c) Providing for the disposition of those petitions.

(3) Within fifteen (15) days after receipt of a petition for waiver of a rule, the agency shall cause to be published in the administrative bulletin notice of the pendency of the petition, including a concise summary of its contents, and shall give such notice of the petition to all persons to whom notice is required by any provision of law. In addition, the agency may give notice to any other persons. Persons who file timely petitions for intervention according to agency rules may intervene in proceedings for waiver of a rule. Other provisions of this article apply to agency proceedings for waiver of a rule only to the extent an agency so provides by rule or order.

(4) An order granting or denying such petition shall be in writing and shall contain a statement of the relevant facts and reasons supporting that action. An agency shall grant or deny such a petition within ninety (90) days of its receipt, however, the petitioner shall have the right to specify some longer period of time within which the agency shall act. Failure of an agency to grant or deny such a petition within ninety (90) days of its receipt shall be deemed a denial of that petition by the agency.

(5) Unless otherwise prohibited by statute, an agency shall issue an order granting a petition for a waiver of a rule, in whole or in part, if application of the rule to the petitioner on the basis of the particular facts specified in the petition would not serve any of the purposes of the rule. Unless otherwise prohibited by statute, an agency may issue an order granting a petition for waiver of a rule, in whole or in part, if application of the rule to the petitioner would result in undue hardship, waiver of the rule on the basis of the facts specified in the petition would be consistent with the public interest and waiver of the rule as to petitioner would not prejudice the substantial rights of any other person. An order granting such a petition shall constitute a defense in any subsequent proceeding where the applicability of that rule to petitioner is at issue if petitioner proves in that subsequent proceeding all of the relevant facts pertaining to petitioner upon which that waiver order was based and that the particular application of the rule at issue was within the scope of the waiver order in question.

(6) In an agency proceeding to enforce a rule of that agency, a person resisting the enforcement of the rule may defend successfully upon a demonstration that application of the rule to the person would not serve any of the purposes of the rule.

(7) An agency, on its own motion, may waive the application of one or more of its rules, in whole or in part, to a specified person on the ground that the relevant facts pertaining to that person would qualify that person for a waiver under the provisions of subsection (5) of this section, by issuing an order containing the facts and reasons justifying that waiver. An order granting such a waiver on an agency's own motion shall constitute a defense in any subsequent proceeding where the applicability of that rule is at issue if petitioner proves in that subsequent proceeding all of the relevant facts pertaining to petitioner upon which that waiver order was based and that the particular application of the rule at issue was within the scope of the waiver order in question.

(8) Any order issued under this section shall be transmitted to petitioner or to the person to whom the waiver order pertains and to the Secretary of State, within seven (7) days of its issuance.

(9) An agency shall maintain a file for each of its rules for which a waiver order has been issued containing all orders waiving the application to any person of that rule.

(10) This section does not apply to a rule that only defines the meaning of a provision of law if the agency does not possess delegated authority to bind the courts to any extent with its definition and does not authorize an agency to waive any requirement created or duty imposed by statute.

SECTION 31. The following shall be codified as Section 25-43-3.119, Mississippi Code of 1972:

25-43-3.119. Review by Agency.

At least every five (5) years, each agency shall review all of its rules to determine whether any rule should be repealed, amended or a new rule adopted. In conducting that review, each agency shall prepare a written report summarizing its findings, its supporting reasons and any proposed course of action. A copy of the written report must be available for public inspection.

SECTION 32. The following shall be codified as Section 25-43-3.120, Mississippi Code of 1972:

25-43-3.120. Proceedings to Which Chapter Applicable.

This chapter shall not apply to proceedings pending on July 1, 1999, but shall apply to all agencies and agency proceedings begun after such date but not expressly exempted from this chapter.

SECTION 33. The following shall be codified as Section 25-43-3.121, Mississippi Code of 1972:

25-43-3.121. Notice of Revocation or Suspension of License.

No revocation, suspension, annulment or withdrawal of any license is lawful unless prior to the institution of agency proceedings the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

SECTION 34. The following shall be codified as Section 25-43-3.122, Mississippi Code of 1972:

25-43-3.122. Application of Conflicting Statutes Governing Agency Procedures.

Specific statutory provisions which govern agency procedures and which are in conflict with the provisions of this chapter shall continue to be applied to all proceedings of any such agency to the extent of such conflict only.

SECTION 35. The following shall be codified as Section 25-43-3.123, Mississippi Code of 1972:

25-43-3.123. Severability.

If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and for this purpose the provisions of this act are severable.

SECTION 36. Sections 25-43-1, 25-43-3, 25-43-5, 25-43-6, 25-43-7, 25-43-9, 25-43-11, 25-43-13, 25-43-15, 25-43-17 and 25-43-19, Mississippi Code of 1972, which create the Mississippi Administrative Procedures Law, provide definitions for terms used in such law, prescribe procedures that must be followed by agencies in the adoption, amendment and repeal of agency rules, require filing and notice before such rules may become effective, require agencies to index all effective rules adopted, provide that revocation or suspension of any license shall not be effective unless notice of such intended action is given to the licensee, and require agencies to adopt procedures to assure that opponents of proposed rules have the opportunity to present their views and review adverse rulings, shall stand repealed on July 1, 1999.

SECTION 37. From and after July 1, 1999, any reference in the Mississippi Code of 1972 to the Mississippi Administrative Procedures Law or to Sections 25-43-1 through 25-43-19 shall be construed to mean the Mississippi Administrative Procedures Law of 1998, as enacted by House Bill No. ______, 1998 Regular Session.

SECTION 38. There is created an Administrative Procedures Study Committee to consist of ten (10) members to be appointed by the Secretary of State. The committee shall study the need for and feasibility of additional legislation to address uniform and consistent state agency adjudicative proceedings and appellate procedures to be included as a part of this Mississippi Administrative Procedures Law of 1998.

The committee shall conduct its study with the goal of recommending legislative action, as appropriate, that will serve the interests of government efficiency, impartial and fair adjudications and judicial economy. The work of the committee shall include representatives of state agencies, boards and commissions to inform and assist the committee and such agencies, boards and commissions shall provide assistance in the form of staff input into the committee's work as requested.

The committee shall hold regular meetings beginning immediately after passage of House Bill No. _______, 1998 Regular Session, with the committee to report to the Legislature on or before December 1, 1998, with its recommendations for proposed legislation.

The work of the committee shall not be funded by any additional legislative appropriation and committee members shall receive no per diem for their work.

SECTION 39. This act shall take effect and be in force from and after July 1, 1999; however, Section 38 of this act shall take effect and be in force from and after its passage.