1.3.307    RULEMAKING, INTRODUCTION

(1) Title 2, chapter 4, part 3, MCA, prescribes procedures to be followed by agencies when adopting, amending, or repealing rules.

(2) See 2-4-102, MCA, for the definition of "rule." Because of the difficulty in determining whether an agency action meets the definition of rule, construe the exceptions narrowly and if in doubt, consult legal counsel. Interpretive rules are statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. Interpretive rules may be made under the express or implied authority of a statute, but are advisory only and do not have the force of law.

(a) Among other limitations in 2-4-102, MCA, "rule" does not include statements concerning only the internal management of an agency or state government and not affecting private rights or procedures available to the public, including rules implementing the state personnel classification plan, the state wage and salary plan, or the statewide budgeting and accounting system.

(3) Substantive rules must implement either:

(a) a statute which clearly and specifically includes the subject matter of the rule as a subject upon which rules can be adopted;

(b) subject matter which is clearly and specifically included in a statute to which the agency's rulemaking authority extends; or

(c) an agency function which is clearly and specifically included in a statute to which the agency's rulemaking authority extends, per 2-4-305, MCA.

(4) Rulemaking under MAPA involves five steps.

(a) Contact with the primary sponsor. When an agency begins to work on the substantive content and the wording of a proposal notice for a rule that initially implements legislation, the agency shall contact the legislator who was the primary sponsor of the legislation. See 2-4-302, MCA.

(b) Notice of proposed agency action. See ARM 1.3.309 regarding the following components:

(i) notice in the register;

(ii) contact with sponsor as required;

(iii) notice to interested persons;

(iv) statement of reasonable necessity for the proposed action; and

(v) a statement as to whether a proposed rule significantly and directly impacts small businesses.

(c) Notice to the appropriate administrative rule review committee pursuant to 2-4-302, MCA. 

(d) Opportunity to be heard.

(i) The agency shall allow at least 28 days from the publication of the original notice of proposed action for interested persons to submit comments in writing via regular mail, e-mail, or fax to the agency. The agency shall extend the response time in the event an amended or supplemental notice is filed to amend a statement of reasonable necessity, pursuant to 2-4-305, MCA.

(ii) The agency shall schedule a hearing to be held at least 20 days from the publication of the notice of proposed action if the proposed rules affect matters which are of significant interest to the public as defined at 2-4-102, MCA.

(iii) Except where the proposed rules affect matters which are of significant interest to the public or unless a hearing is otherwise required by law, a public hearing must be held only if the agency's proposed action affects a substantive rule and a hearing is requested by either:

(A) 10 percent or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(B) a governmental subdivision or agency;

(C) an association having not less than 25 members who will be directly affected; or

(D) the appropriate administrative rule review committee of the Legislature. See ARM 1.3.311.

(e) Agency notice of final action. See ARM 1.3.312.

(5) Pursuant to 2-4-302, MCA, the agency shall create and maintain a list of interested persons and the subject(s) of their interest. Persons submitting a written comment or attending a hearing must be informed by the agency of the list and be provided an opportunity to place their names on the list.

(6) In the event of imminent peril to the public health, safety, or welfare, temporary emergency rules may be adopted without prior notice or hearing or after abbreviated procedures. However, special notice must be given to the appropriate administrative rule review committee. See ARM 1.3.313.

(7) If a statute becomes effective prior to October 1 of the year of enactment, temporary rules may be adopted with abbreviated notice or hearing, and with at least 30 days' notice, but are effective only through October 1 of that year. See ARM 1.3.313.

History: 2-4-202, 2-15-401, MCA; IMP, 2-4-111, 2-4-202, 2-4-302, 2-4-303, 2-4-305, MCA; Eff. 12/31/72; AMD, 1977 MAR p. 1192, Eff. 12/24/77; AMD, 1979 MAR p. 1204, Eff. 10/12/79; AMD, 1999 MAR p. 1225, Eff. 6/4/99; AMD & TRANS, from ARM 1.3.204, 2008 MAR p. 1593, Eff. 8/1/08; AMD, 2009 MAR p. 1809, Eff. 10/16/09; AMD, 2013 MAR p. 1853, Eff. 10/18/13; AMD, 2015 MAR p. 2098, Eff. 11/26/15; AMD, 2021 MAR p. 1687, Eff. 11/20/21.