Senate Bill 2843

AN ACT TO CREATE THE MISSISSIPPI LEGISLATIVE REGULATORY OVERSIGHT ACT; TO ESTABLISH THE JOINT STANDING COMMITTEE ON LEGISLATIVE REGULATORY OVERSIGHT; TO AMEND SECTIONS 25-43-3.105, 25-43-3.112 AND 25-43-3.113, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

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

SECTION 1. This act may be cited as the "Mississippi Legislative Regulatory Oversight Act."

SECTION 2. It is the intent of the Mississippi Legislature to exercise rigorous oversight of the various administrative agencies to whom rulemaking powers have been delegated in order to ensure accountability to the people of the State of Mississippi. To that end, this act establishes a formal system by which the Legislature shall review, analyze and potentially overturn any agency rulemaking that runs contrary to the will of the people as exercised through the Legislature.

SECTION 3. (1) For the purposes of this act, unless the context requires otherwise, the following terms shall have the meanings ascribed herein:

(a) "Rule" means the whole or 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 "rule" includes the amendment, repeal, or suspension of an existing rule but does not include those regulations or statements enumerated in Section 25-43-1.101, Mississippi Code of 1972.

(b) "Agency" means a board, commission, department, officer or other administrative unit of this state. The term "agency" does not include the Legislature or any of its component units, the judiciary or any of its component units or the Governor. The term "agency" does not include a political subdivision of the state or any of the administrative units of a political subdivision.

SECTION 4. (1) There is hereby established within the Mississippi Legislature a Joint Standing Committee on Legislative Regulatory Oversight. The committee shall consist of nine (9) members, four (4) from the Senate and five (5) from the House of Representatives. The Lieutenant Governor shall select the Senate members, and the Speaker of the House shall select the House members.

(2) (a) Beginning July 1, 2023, the committee shall meet quarterly to review all agency rules that were adopted in the preceding three-month period. If a simple majority of five (5) of the nine (9) committee members object to the rule, then the rule shall be put before the full Legislature to be overturned by general law during the next regular legislative session, with at least one (1) member of the committee serving as the sponsor of the bill.

(b) If the Legislature is not convened in regular session at the time of the committee's initial objection to the rule, the rule shall take effect until such time as it is overturned by the passage of a general law or appropriations bill which is signed by the Governor. If the Legislature is convened in regular session at the time of the committee's initial objection to the rule, the rule shall not take effect unless and until the bill to overturn it should fail.

(c) No agency rule shall be issued the subject matter of which is substantially the same as any bill introduced and pending during the legislative session. Any such rule or regulation shall not be issued until after the conclusion of the legislative session.

(d) If an agency rule is overturned pursuant to this chapter, the agency shall be barred from adopting the same rule in the future. The only way in which the provisions of the overturned rule shall take effect is enactment by general law.

(e) If, in the interim time period between an agency's adoption of a rule and the passage of a general law overturning that rule, a court of law should determine the rule to be invalid under either the Constitution of the United States or the Mississippi Constitution, that court's ruling shall govern, and the Legislature shall not proceed with a general law overturning the rule.

SECTION 5. Section 25-43-3.105, Mississippi Code of 1972, is amended as follows:

25-43-3.105. (1) Prior to giving the notice required in Section 25-43-3.103, 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 (7) 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;

(d) An analysis of the impact of the proposed 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 the agency proceeding. No person, except for the Mississippi Legislature through the Joint Standing Committee on Legislative Regulatory Oversight, 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 an oral proceeding 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 rule-making proceeding.

(4) A concise summary of the economic impact statement must be properly filed with the Secretary of State for publication in the administrative bulletin and the period during which persons may make written submissions on the proposed rule shall not expire until at least twenty (20) days after the date of such proper filing. The summary must be concurrently filed with the Office of the Lieutenant Governor, the Speaker of the House of Representatives, the Secretary of the Senate and the Clerk of the House of Representatives.

(5) The properly filed summary of the economic impact statement must also indicate where persons may obtain copies of the full text of the economic impact statement 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.

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( * * *76) 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; and

SECTION 6. Section 25-43-3.112, Mississippi Code of 1972, is amended as follows:

25-43-3.112. (1) 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.

(2) An agency shall file each rule it adopts beginning on July 1, 2023, with the Joint Standing Committee on Legislative Regulatory Oversight in the Mississippi Legislature by delivering a copy to the Office of the Lieutenant Governor, the Office of the Speaker of the House of Representatives, the Secretary of the Senate and the Clerk of the House of Representatives at the same time the rule is filed with the Secretary of State.

SECTION 7. 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 or the Mississippi Legislative Regulatory Oversight Act 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) 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, including the Joint Standing Committee on Legislative Regulatory Oversight, before they become effective.

SECTION 8. This act shall take effect and be in force from and after July 1, 2023.