MISSISSIPPI LEGISLATURE
2005 5th Extraordinary Session
To: Judiciary A
By: Representative Brown, Watson
AN ACT TO CREATE NEW SECTION 25-43-1, MISSISSIPPI CODE OF 1972, TO ENACT A SHORT TITLE FOR THE MISSISSIPPI ADMINISTRATIVE PROCEDURES LAW; TO CREATE NEW SECTION 25-43-3, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 25-43-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR AGENCY ADOPTION OF RULES AND FOR PUBLIC INSPECTION OF AGENCY RULES, ORDERS AND DECISIONS; TO CREATE NEW SECTION 25-43-6, MISSISSIPPI CODE OF 1972, TO REQUIRE AN ECONOMIC IMPACT STATEMENT; TO CREATE NEW SECTION 25-43-7, MISSISSIPPI CODE OF 1972, TO REQUIRE NOTICE OF PROPOSED AGENCY ADOPTION, AMENDMENT OR REPEAL OF RULES AND PROVIDE FOR EMERGENCY RULES; TO CREATE NEW SECTION 25-43-9, MISSISSIPPI CODE OF 1972, TO REQUIRE FILING OF AGENCY RULES WITH THE SECRETARY OF STATE AND TO PROVIDE FOR THE EFFECTIVE DATE OF RULES; TO CREATE NEW SECTION 25-43-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR COMPILATION AND INDEXING OF RULES; TO CREATE NEW SECTION 25-43-13, MISSISSIPPI CODE OF 1972, TO REQUIRE NOTICE FOR THE INTENDED REVOCATION, SUSPENSION, ANNULMENT, WITHDRAWAL OR EMERGENCY SUSPENSION OF A LICENSE; TO CREATE NEW SECTION 25-43-15, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EVENT OF CONFLICT OF LAWS; TO CREATE NEW SECTION 25-43-17, MISSISSIPPI CODE OF 1972, TO REQUIRE HEARING FOR OPPONENTS OF RULES; TO AMEND SECTION 28 OF CHAPTER 304, LAWS OF 2003, AND SECTIONS 25-43-1.101, 25-43-3.111, 25-43-3.112 AND 25-43-3.113, MISSISSIPPI CODE OF 1972, TO DELAY THE EFFECTIVE DATE OF THE ADMINISTRATIVE PROCEDURES ACT; TO PROVIDE A SAVINGS CLAUSE FOR MATTERS OCCURRING, ACCRUING OR PENDING IN THE INTERIM BETWEEN JULY 1, 2005, AND THE PASSAGE OF THIS ACT; 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, Mississippi Code of 1972:
25-43-1. This chapter shall be known and may be cited as the "Mississippi Administrative Procedures Law."
SECTION 2. The following shall be codified as Section 25-43-3, Mississippi Code of 1972:
25-43-3. As used in this chapter:
(a) "Agency" means each state board, commission, department or officer, other than the Legislature, the Governor and the courts, authorized by law to make rules or to determine contested cases.
(b) "Contested case" means a proceeding including, but not restricted to, rate-making, price-fixing and licensing in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing, other than disciplinary proceedings or agency action involving only employees of an agency.
(c) "Economic impact statement" means the statement required pursuant to Section 25-43-6 and which estimates the costs of implementation and enforcement of a rule.
(d) "License" includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law, but it does not include a license required solely for revenue purposes, and does not include any order, permit or license issued, granted, revoked, suspended, annulled or withdrawn by any state agency in compliance with statutory procedures or in compliance with published rules and regulations adopted by such agency under statutory authority.
(e) "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
(f) "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than an agency.
(g) "Rule" means each agency statement of general applicability that implements, interprets or prescribes law or policy or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior rule but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; or (ii) declaratory rulings issued pursuant to Section 25-43-17; or (iii) intra-agency memoranda.
SECTION 3. The following shall be codified as Section 25-43-5, Mississippi Code of 1972:
25-43-5. (1) In addition to other rulemaking authority and requirements imposed by law, each agency shall:
(a) Adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby 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, including all requirements respecting the filing of applications for any license and the licensing procedure employed by the agency and the method whereby persons desiring notice of pending applications may obtain such notice and request an opportunity to be heard.
(c) Allow public inspection of all rules and other written statements of policy or interpretations formulated, adopted or used by the agency in the discharge of its functions.
(d) Allow public inspection of all final orders, decisions and opinions.
(2) No agency rule, order or decision is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been made available for public inspection as herein required. This provision is not applicable in favor of any person or party who has actual knowledge thereof.
SECTION 4. The following shall be codified as Section 25-43-6, Mississippi Code of 1972:
25-43-6. (1) Prior to giving the notice required in Section 25-43-7, each agency proposing the adoption of a rule or significant amendment of an existing rule imposing a duty, responsibility or requirement on any person shall consider the economic impact the rule will have on the citizens of our state and the benefits the rule will cause to accrue to those citizens. For purposes of this section, a "significant amendment" means any amendment to a rule for which the total aggregate cost to all persons required to comply with that rule exceeds One Hundred Thousand Dollars ($100,000.00).
(2) Each agency shall prepare a written report providing an economic impact statement for the adoption of a rule or significant amendment to an existing rule imposing a duty, responsibility or requirement on any person, except as provided in subsection (4) of this section. The economic impact statement shall include the following:
(a) A description of the need for and the benefits which will likely accrue as the result of the proposed action;
(b) An estimate of the cost to the agency, and to any other state or local government entities, of implementing and enforcing the proposed action, including the estimated amount of paperwork, and any anticipated effect on state or local revenues;
(c) An estimate of the cost or economic benefit to all persons directly affected by the proposed action;
(d) An analysis of the impact of the rule on small business;
(e) A comparison of the costs and benefits of the proposed rule to the probable costs and benefits of not adopting the proposed rule or significantly amending an existing rule;
(f) A determination of whether less costly methods or less intrusive methods exist for achieving the purpose of the proposed rule where reasonable alternative methods exist which are not precluded by law;
(g) A description of reasonable alternative methods, where applicable, for achieving the purpose of the proposed action which were considered by the agency and a statement of reasons for rejecting those alternatives in favor of the proposed rule; and
(h) A detailed statement of the data and methodology used in making estimates required by this subsection.
(3) No rule or regulation shall be declared invalid based on a challenge to the economic impact statement for the rule unless the issue is raised in administrative proceedings before the agency. No person shall have standing to challenge a rule, based upon the economic impact statement or lack thereof, unless that person provided the agency with information sufficient to make the agency aware of specific concerns regarding the statement in a public meeting or hearing held by the agency or in written comments regarding the rule. The grounds for invalidation of an agency action, based upon the economic impact statement, are limited to the agency's failure to adhere to the procedure for preparation of the economic impact statement as provided in this section, or the agency's failure to consider information submitted to the agency regarding specific concerns about the statement, if that failure substantially impairs the fairness of the rulemaking proceeding.
(4) This section does not apply to the adoption or significant amendment 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 25-43-7(2); and
(d) Any rule for which the notice required in Section 25-43-7 has been given prior to the effective date of this act.
SECTION 5. The following shall be codified as Section 25-43-7, Mississippi Code of 1972:
25-43-7. (1) Prior to the adoption, amendment or repeal of any 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 rulemaking 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.
(2) 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 (1) of this section is not precluded.
(3) 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 6. The following shall be codified as Section 25-43-9, Mississippi Code of 1972:
25-43-9. (1) Each agency shall file in the Office of the Secretary of State a certified copy of each rule adopted by it, including all rules existing on January 1, 1977. The Secretary of State shall keep a permanent register of the rules open to public inspection.
(2) Each rule hereafter adopted is effective thirty (30) days after filing, except that:
(a) If a later date is required by statute or specified in the rule, the later date is the effective date.
(b) Subject to applicable constitutional or statutory provisions, an emergency rule becomes effective immediately upon filing with the Secretary of State, or at a stated date less than thirty (30) days thereafter if the agency finds that this effective date is necessary because of imminent peril to the public health, safety or welfare. The agency's finding and a brief statement of the reasons therefor shall be filed with the rule. The agency shall take appropriate measures to make emergency rules known to the persons who may be affected by them.
SECTION 7. The following shall be codified as Section 25-43-11, Mississippi Code of 1972:
25-43-11. (1) The agency shall compile and index all effective rules adopted and shall furnish the Secretary of State with a copy of such rules and index. Compilations shall be supplemented or revised as often as necessary and at least once every two (2) years.
(2) Copies of bulletins and compilations shall be made available by the Secretary of State upon request to agencies and officials of this state at no cost to the agencies and officials. Other persons may receive copies by requesting them and reimbursing the Secretary of State for publication and mailing cost.
SECTION 8. The following shall be codified as Section 25-43-13, Mississippi Code of 1972:
25-43-13. 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 9. The following shall be codified as Section 25-43-15, Mississippi Code of 1972:
25-43-15. Specific statutory provisions governing agency procedures in contested cases which are in direct conflict with any of 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 10. The following shall be codified as Section 25-43-17, Mississippi Code of 1972:
25-43-17. Each agency shall adopt procedures to assure that persons who give timely notice of their desire to contest the making of any rule shall have an opportunity to present their views and have the opportunity for review of adverse rulings.
SECTION 11. Section 28 of Chapter 304, Laws of 2003, is amended to read as follows:
Section 28. Section 27 of this act shall take effect and be in force from and after its passage. The remainder of this act shall take effect and be in force from and after July 1, 2007.
SECTION 12. Section 25-43-1.101, Mississippi Code of 1972, is amended as follows:
25-43-1.101. (1) This chapter may be cited as the "Mississippi Administrative Procedures Law."
(2) This chapter is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public. Nothing in this chapter shall be construed as invalidating any rule or regulation adopted before July 1, 2007, if such rule or regulation was properly adopted in accordance with the law as it existed at the time of adoption. Nothing in this chapter is meant to discourage agencies from adopting procedures providing greater protections to the public or conferring additional rights upon the public; and save for express provisions of this chapter to the contrary, nothing in this chapter is meant to abrogate in whole or in part any statute prescribing procedural duties for an agency which are greater than or in addition to those provided here. This chapter is meant to apply to all rulemaking that is not specifically excluded from this chapter or some portion thereof by its express terms or by the express terms of another chapter.
The purposes of the Mississippi Administrative Procedures Law are: to provide legislative oversight of powers and duties delegated to administrative agencies; to increase public accountability of administrative agencies; to simplify government by assuring a uniform minimum procedure to which all agencies will be held in the conduct of their most important functions; to increase public access to governmental information; and to increase public participation in the formulation of administrative rules. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration. This chapter is not meant to alter the substantive rights of any person or agency. Its impact is limited to procedural rights with the expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.
(3) From and after July 1, 2007, any reference to the Mississippi Administrative Procedure Act, the Mississippi Administrative Procedures Act, the Mississippi Administrative Procedure Law, or the Mississippi Administrative Procedures Law, being Section 25-43-1 et seq., Mississippi Code of 1972, shall be deemed to mean and refer to this chapter.
SECTION 13. Section 25-43-3.111, Mississippi Code of 1972, is amended as follows:
25-43-3.111. (1) A rule adopted after July 1, 2007, is invalid unlessadopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.110. Inadvertent failure to mail a notice of proposed rule adoption to any person as required by Section 25-43-3.103(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 25-43-3.110 must be commenced within one (1) year after the effective date of the rule.
SECTION 14. 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, 2007, 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, 2007, 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.
SECTION 15. 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) of this section provides otherwise, each rule adopted after July 1, 2007, 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) 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 16. Any action taken pursuant to the Mississippi Administrative Procedures Law on or after July 1, 2005, is hereby ratified and confirmed provided that the action taken was in compliance with the Mississippi Administrative Procedures Law (Chapter 304, Laws of 2003), in effect at the time the action was taken. All further actions and proceedings under the Mississippi Administrative Procedures Law shall conform to this act.
SECTION 17. This act shall take effect and be in force from and after its passage.