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Montana Administrative Procedure Act
| Administrative State |
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| •Agency control • Executive control • Judicial control •Legislative control • Public Control |
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The Montana Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in Montana. It can be found in Title 2, Chapter 4 of the Montana Code.[1]
Part 1: General provisions
2-4-101: Short title, purpose, exception
Text of 2-4-101:
| (1) This chapter is known and may be cited as the "Montana Administrative Procedure Act".
(2) The purposes of the Montana Administrative Procedure Act are to: (a) generally give notice to the public of governmental action and to provide for public participation in that action; (b) establish general uniformity and due process safeguards in agency rulemaking, legislative review of rules, and contested case proceedings; (c) establish standards for judicial review of agency rules and final agency decisions; and (d) provide the executive and judicial branches of government with statutory directives. (3) Effective July 1, 2016, this chapter does not apply to the operations of the state compensation insurance fund provided for in Title 39, chapter 71, part 23. Administrative rules adopted by the state fund board of directors prior to July 1, 2016, apply to new and renewal policies issued by the state fund that are effective prior to July 1, 2016. The state fund is subject to rules adopted by any agency that by law apply to the state fund. History: En. Sec. 1, Ch. 2, Ex. L. 1971; amd. Sec. 1, Ch. 285, L. 1977; R.C.M. 1947, 82-4201; amd. Sec. 1, Ch. 152, L. 2009; amd. Sec. 2, Ch. 320, L. 2015.[2] |
2-4-102: Definitions
Text of 2-4-102:
| For purposes of this chapter, the following definitions apply:
(1) "Administrative rule review committee" or "committee" means the appropriate committee assigned subject matter jurisdiction in Title 5, chapter 5, part 2. (2) (a) "Agency" means an agency, as defined in 2-3-102, of state government, except that the provisions of this chapter do not apply to the following: (i) the state board of pardons and parole, which is exempt from the contested case and judicial review of contested cases provisions contained in this chapter. However, the board is subject to the remainder of the provisions of this chapter. (ii) the supervision and administration of a penal institution with regard to the institutional supervision, custody, control, care, or treatment of youth or prisoners; (iii) the board of regents and the Montana university system; (iv) the financing, construction, and maintenance of public works; (v) the public service commission when conducting arbitration proceedings pursuant to 47 U.S.C. 252 and 69-3-837. (b) The term does not include a school district, a unit of local government, or any other political subdivision of the state. (3) "ARM" means the Administrative Rules of Montana. (4) "Contested case" means a proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. The term includes but is not restricted to ratemaking, price fixing, and licensing. (5) (a) "Interested person" means a person who has expressed to the agency an interest concerning agency actions under this chapter and has requested to be placed on the agency's list of interested persons as to matters of which the person desires to be given notice. (b) The term does not extend to contested cases. (6) "License" includes the whole or part of an agency permit, certificate, approval, registration, charter, or other form of permission required by law but does not include a license required solely for revenue purposes. (7) "Licensing" includes an agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, transfer, or amendment of a license. (8) "Party" means a person named or admitted as a party or properly seeking and entitled as of right to be admitted as a party, but this chapter may not be construed to prevent an agency from admitting any person as a party for limited purposes. (9) "Person" means an individual, partnership, corporation, association, governmental subdivision, agency, or public organization of any character. (10) "Register" means the Montana Administrative Register. (11) (a) "Rule" means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency. The term includes the amendment or repeal of a prior rule. (b) The term does not include: (i) 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 accounting, budgeting, and human resource system; (ii) formal opinions of the attorney general and declaratory rulings issued pursuant to 2-4-501; (iii) rules relating to the use of public works, facilities, streets, and highways when the substance of the rules is indicated to the public by means of signs or signals; (iv) seasonal rules adopted annually or biennially relating to hunting, fishing, and trapping when there is a statutory requirement for the publication of the rules and rules adopted annually or biennially relating to the seasonal recreational use of lands and waters owned or controlled by the state when the substance of the rules is indicated to the public by means of signs or signals; (v) uniform rules adopted pursuant to interstate compact, except that the rules must be filed in accordance with 2-4-306 and must be published in the ARM. (vi) game parameters approved by the state lottery commission relating to a specific lottery game. This subsection (11)(b)(vi) does not exempt generally applicable policies governing the state lottery that are otherwise subject to the Montana Administrative Procedure Act. (12) (a) "Significant interest to the public" means agency actions under this chapter regarding matters that the agency knows to be of widespread citizen interest. These matters include issues involving a substantial fiscal impact to or controversy involving a particular class or group of individuals. (b) The term does not extend to contested cases. (13) "Small business" means a business entity, including its affiliates, that is independently owned and operated and that employs fewer than 50 full-time employees. (14) "Substantive rules" are either: (a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or (b) adjective or interpretive rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. The interpretation lacks the force of law. (15) "Supplemental notice" means a notice that amends the proposed rules or changes the timeline for public participation. History: (1), (3), (9)En. by Code Commissioner, 1979; (2), (4) thru (8), (10), (11)En. Sec. 2, Ch. 2, Ex. L. 1971; amd. Sec. 2, Ch. 285, L. 1977; Sec. 82-4202, R.C.M. 1947; R.C.M. 1947, 82-4202; amd. Sec. 4, Ch. 184, L. 1979; amd. Sec. 2, Ch. 243, L. 1979; amd. Sec. 1, Ch. 671, L. 1985; amd. Sec. 1, Ch. 340, L. 1991; amd. Sec. 6, Ch. 546, L. 1995; amd. Sec. 28, Ch. 349, L. 1997; amd. Sec. 1, Ch. 489, L. 1997; amd. Sec. 1, Ch. 19, L. 1999; amd. Sec. 1, Ch. 181, L. 2003; amd. Sec. 1, Ch. 2, L. 2009; amd. Sec. 2, Ch. 318, L. 2013; amd. Sec. 1, Ch. 64, L. 2015; amd. Sec. 1, Ch. 100, L. 2019; amd. Sec. 1, Ch. 144, L. 2019.[3] |
2-4-103: Rules and statements to be made available to public
Text of 2-4-103:
| (1) Each agency shall:
(a) make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions; (b) upon request of any person, provide a copy of any rule. (2) Unless otherwise provided by statute, an agency may require the payment of the cost of providing such copies. (3) No agency rule is valid or effective against any person or party whose rights have been substantially prejudiced by an agency's failure to comply with the public inspection requirement herein. History: En. Sec. 3, Ch. 2, Ex. L. 1971; amd. Sec. 1, Ch. 240, L. 1974; amd. Sec. 3, Ch. 285, L. 1977; R.C.M. 1947, 82-4203(1)(c), (1)(d), (2); amd. Sec. 3, Ch. 243, L. 1979.[4] |
2-4-104: Subpoenas and enforcement, compelling testimony
Text of 2-4-104:
| (1) An agency conducting any proceeding subject to this chapter may require the furnishing of information, the attendance of witnesses, and the production of books, records, papers, documents, and other objects that may be necessary and proper for the purposes of the proceeding. In furtherance of this power, an agency upon its own motion may and, upon request of any party appearing in a contested case, shall issue subpoenas for witnesses or subpoenas duces tecum. The method for service of subpoenas, witness fees, and mileage must be the same as required in civil actions in the district courts of the state. Except as otherwise provided by statute, witness fees and mileage must be paid by the party at whose request the subpoena was issued.
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2-4-105: Representation by counsel
Text of 2-4-105:
| Any person compelled to appear in person or who voluntarily appears before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel. In a proceeding before an agency, every party shall be accorded the right to appear in person or by or with counsel but this chapter shall not be construed as requiring an agency to furnish counsel to any such person.
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2-4-106: Service
Text of 2-4-106:
| Except where a statute expressly provides to the contrary, service in all agency proceedings subject to the provisions of this chapter and in proceedings for judicial review thereof shall be as prescribed for civil actions in the district courts.
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2-4-107: Construction and effect
Text of 2-4-107:
| Nothing in this chapter shall be considered to limit or repeal requirements imposed by statute or otherwise recognized law. No subsequent legislation shall be considered to supersede or modify any provision of this chapter, whether by implication or otherwise, except to the extent that such legislation shall do so expressly.
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2-4-110: Departmental review of rule notices
Text of 2-4-110:
| (1) The head of each department of the executive branch shall appoint an existing attorney, paralegal, or other qualified person from that department to review each departmental rule proposal notice, adoption notice, or other notice relating to administrative rulemaking. Notice of the name of the person appointed under this subsection and of any successor must be given to the secretary of state and the appropriate administrative rule review committee within 10 days of the appointment.
(a) the adequacy of the statement of reasonable necessity for the intended action and whether the intended action is reasonably necessary to effectuate the purpose of the code section or sections implemented; (b) whether the proper statutory authority for the rule is cited; (c) whether the citation of the code section or sections implemented is correct; (d) whether the intended action is contrary to the code section or sections implemented or to other law; and (e) for a rule that initially implements legislation, whether the intended action is contrary to any comments submitted to the department by the primary sponsor of the legislation for the purposes of 2-4-302. (3) The person appointed under subsection (1) shall sign each notice for which this section requires a review. The act of signing is an affirmation that the review required by this section has been performed to the best of the reviewer's ability. The secretary of state may not accept for filing a notice that does not have the signature required by this section. History: En. Sec. 1, Ch. 8, L. 1987; amd. Sec. 1, Ch. 3, L. 1991; amd. Sec. 2, Ch. 19, L. 1999; amd. Sec. 1, Ch. 210, L. 2001; amd. Sec. 1, Ch. 21, L. 2009; amd. Sec. 1, Ch. 99, L. 2011.[9] |
2-4-111: Small business impact analysis, assistance
Text of 2-4-111:
| (1) Prior to the adoption of a proposed rule, the agency that has proposed the rule shall determine if the rule will significantly and directly impact small businesses. If the agency determines that the proposed rule will impact small businesses, the determination must be published in the register when the proposed rule is published. If the agency determines that the proposed rule may have a significant and direct impact on small businesses and if subsection (4) does not apply, the agency shall prepare a small business impact analysis that, at a minimum, must:
(b) include a statement of the probable significant and direct effects of the proposed rule on the small businesses identified in subsection (1)(a); and (c) include a description of any alternative methods that may be reasonably implemented to minimize or eliminate any potential adverse effects of adopting the proposed rule while still achieving the purpose of the proposed rule. (2) The agency shall provide documentation for the estimates, statements, and descriptions required under subsection (1). (3) The office of economic development, established in 2-15-218, shall advise and assist agencies in complying with this section. (4) An agency is not required to prepare a separate small business impact analysis under this section if the agency pursuant to 2-4-405 is preparing or has prepared an economic impact statement regarding adoption, amendment, or repeal of a rule. (5) The final adoption, amendment, or repeal of a rule is not subject to challenge in any court as a result of the inaccuracy or inadequacy of a small business impact analysis required under this section. History: En. Sec. 1, Ch. 318, L. 2013.[10] |
Part 2: Organizational and procedural rules
2-4-201: Rules describing agency organization and procedures
Text of 2-4-201:
| In addition to other rulemaking requirements imposed by law, each agency shall:
(2) adopt rules of practice, not inconsistent with statutory provisions, setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency. History: En. Sec. 3, Ch. 2, Ex. L. 1971; amd. Sec. 1, Ch. 240, L. 1974; amd. Sec. 3, Ch. 285, L. 1977; R.C.M. 1947, 82-4203(1)(a), (1)(b).[11] |
2-4-202: Model rules, title, statement of purpose
Text of 2-4-202:
| (1) The secretary of state shall prepare a model form for a rule describing the organization of agencies and model rules of practice for agencies to use as a guide for the rulemaking process and in fulfilling the requirements of 2-4-201. The attorney general shall prepare model rules of practice for agencies to use as a guide for contested case hearings and declaratory rulings. The secretary of state and attorney general shall add to, amend, or revise the model rules from time to time as necessary for the proper guidance of agencies.
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Part 3: Adoption and publication of rules
2-4-301: Authority to adopt not conferred
Text of 2-4-301:
| Except as provided in part 2, nothing in this chapter confers authority upon or augments the authority of any state agency to adopt, administer, or enforce any rule.
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2-4-302: Notice, hearing, and submission of views
Text of 2-4-302:
| (1) (a) Prior to the adoption, amendment, or repeal of any rule, the agency shall give written notice of its proposed action. The proposal notice must include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, the reasonable necessity for the proposed action, and the time when, place where, and manner in which interested persons may present their views on the proposed action. The reasonable necessity must be written in plain, easily understood language.
(b) The agency shall state in the proposal notice the date on which and the manner in which contact was made with the primary sponsor as required in subsection (2)(e). If the notification to the primary sponsor was given by mail, the date stated in the proposal notice must be the date on which the notification was mailed by the agency. If the proposal notice fails to state the date on which and the manner in which the primary sponsor was contacted, the filing of the proposal notice under subsection (2)(a) is ineffective for the purposes of this part and for the purposes of the law that the agency cites in the proposal notice as the authority for the proposed action. (c) If the agency proposes to adopt, increase, or decrease a monetary amount that a person shall pay or will receive, such as a fee, cost, or benefit, the notice must include an estimate, if known, of: (i) the cumulative amount for all persons of the proposed increase, decrease, or new amount; and (ii) the number of persons affected. (2) (a) The proposal notice must be filed with the secretary of state for publication in the register, as provided in 2-4-312. When the agency files the proposal notice with the secretary of state to prepare it for publication in the register, the agency shall concurrently send an electronic copy of the proposal notice to the appropriate administrative rule review committee. If the secretary of state requires formatting changes to the proposal notice before it may be published, the agency is not required to send another copy of the proposal notice to the committee. The requirement to concurrently send a copy of the proposal notice to the committee is fulfilled if the agency sends an electronic copy to each member of the staff of the appropriate rule review committee on the same day that the notice is filed with the secretary of state. (b) (i) Except as provided in subsection (2)(b)(ii), within 3 days of publication, a copy of the published proposal notice must be sent to interested persons who have made timely requests to the agency to be informed of its rulemaking proceedings, and to the office of any professional, trade, or industrial society or organization or member of those entities who has filed a request with the appropriate administrative rule review committee when the request has been forwarded to the agency as provided in subsection (2)(c). (ii) In lieu of sending a copy of the published proposal notice to an interested person who has requested the notice, the agency may, with the consent of that person, send that person an electronic notification that the proposal notice is available on the agency's website and an electronic link to the part of the agency's website or a description of the means of locating that part of the agency's website where the notice is available. (iii) Each agency shall create and maintain a list of interested persons and the subject or subjects in which each person on the list is interested. A person who submits a written comment or attends a hearing in regard to proposed agency action under this part must be informed of the list by the agency. An agency complies with this subsection (2)(b)(iii) if it includes in the proposal notice an advisement explaining how persons may be placed on the list of interested persons and if it complies with subsection (7). (c) The appropriate administrative rule review committee shall forward a list of all organizations or persons who have submitted a request to be informed of agency actions to the agencies that the committee oversees that publish rulemaking notices in the register. The list must be amended by the agency upon request of any person requesting to be added to or deleted from the list. (d) The proposal notice required by subsection (1) must be published at least 30 days in advance of the agency's proposed action. The agency shall post the proposal notice on a state electronic access system or other electronic communications system available to the public. (e) (i) 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, as provided in subsection (8), the legislator who was the primary sponsor of the legislation to: (A) obtain the legislator's comments; (B) inform the legislator of the known dates by which each step of the rulemaking process must be completed; and (C) provide the legislator with information about the time periods during which the legislator may comment on the proposed rules, including the opportunity to provide comment to the appropriate administrative rule review committee. (ii) If the legislation affected more than one program, the primary sponsor must be contacted pursuant to this subsection (2)(e) each time that a rule is being proposed to initially implement the legislation for a program. (iii) Within 3 days after a proposal notice covered under subsection (2)(e)(i) has been published as required in subsection (2)(a), a copy of the published notice must be sent to the primary sponsor contacted under this subsection (2)(e). (3) If a statute provides for a method of publication different from that provided in subsection (2), the affected agency shall comply with the statute in addition to the requirements contained in this section. However, the notice period may not be less than 30 days or more than 6 months. (4) Prior to the adoption, amendment, or repeal of any rule, the agency shall afford interested persons at least 20 days' notice of a hearing and at least 28 days from the day of the original notice to submit data, views, or arguments, orally or in writing. If an amended or supplemental notice is filed, additional time may be allowed for oral or written submissions. In the case of substantive rules, the notice of proposed rulemaking must state that opportunity for oral hearing must be granted if requested by either 10% or 25, whichever is less, of the persons who will be directly affected by the proposed rule, by a governmental subdivision or agency, by the appropriate administrative rule review committee, or by an association having not less than 25 members who will be directly affected. If the proposed rulemaking involves matters of significant interest to the public, the agency shall schedule an oral hearing. (5) An agency may continue a hearing date for cause. In the discretion of the agency, contested case procedures need not be followed in hearings held pursuant to this section. If a hearing is otherwise required by statute, nothing in this section alters that requirement. (6) If an agency fails to publish a notice of adoption within the time required by 2-4-305(7) and the agency again proposes the same rule for adoption, amendment, or repeal, the proposal must be considered a new proposal for purposes of compliance with this chapter. (7) At the commencement of a hearing on the intended action, the person designated by the agency to preside at the hearing shall: (a) read aloud the "Notice of Function of Administrative Rule Review Committee" appearing in the register; and (b) inform the persons at the hearing of the provisions of subsection (2)(b) and provide them an opportunity to place their names on the list. (8) (a) For purposes of contacting primary sponsors under subsection (2)(e), a current or former legislator who wishes to receive notice shall keep the current or former legislator's name, address, e-mail address, and telephone number on file with the secretary of state. The secretary of state may also use legislator contact information provided by the legislative services division for the purposes of the register. The secretary of state shall update the contact information whenever the secretary of state receives corrected information from the legislator or the legislative services division. An agency proposing rules shall consult the register when providing sponsor contact. (b) An agency has complied with the primary bill sponsor contact requirements of this section when the agency has attempted to reach the primary bill sponsor at the legislator's address, e-mail address, and telephone number on file with the secretary of state pursuant to subsection (8)(a). If the agency is able to contact the primary sponsor by using less than all of these three methods of contact, the other methods need not be used. (9) This section applies to the department of labor and industry adopting a rule relating to a commercial drug formulary as provided in 39-71-704. This section does not apply to the automatic updating of department of labor and industry rules relating to commercial drug formularies as provided in 39-71-704. History: En. Sec. 4, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 410, L. 1975; amd. Sec. 1, Ch. 482, L. 1975; amd. Sec. 8, Ch. 285, L. 1977; R.C.M. 1947, 82-4204(part); amd. Sec. 4, Ch. 243, L. 1979; amd. Sec. 1, Ch. 381, L. 1981; amd. Sec. 1, Ch. 429, L. 1983; amd. Sec. 1, Ch. 152, L. 1997; amd. Sec. 1, Ch. 340, L. 1997; amd. Sec. 2, Ch. 489, L. 1997; amd. Sec. 3, Ch. 19, L. 1999; amd. Sec. 1, Ch. 41, L. 1999; amd. Sec. 2, Ch. 210, L. 2001; amd. Sec. 2, Ch. 88, L. 2007; amd. Sec. 1, Ch. 207, L. 2007; amd. Sec. 2, Ch. 394, L. 2007; amd. Sec. 2, Ch. 21, L. 2009; amd. Sec. 2, Ch. 41, L. 2011; amd. Sec. 1, Ch. 53, L. 2011; amd. Sec. 1, Ch. 433, L. 2017; amd. Sec. 1, Ch. 519, L. 2021.[14] |
2-4-303: Emergency or temporary rules
Text of 2-4-303:
| (1) (a) If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, it may proceed upon special notice filed with the committee, without prior notice or 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 not longer than 120 days, after which a new emergency rule with the same or substantially the same text may not be adopted, but the adoption of an identical rule under 2-4-302 is not precluded. Because the exercise of emergency rulemaking power precludes the people's constitutional right to prior notice and participation in the operations of their government, it constitutes the exercise of extraordinary power requiring extraordinary safeguards against abuse. An emergency rule may be adopted only in circumstances that truly and clearly constitute an existing imminent peril to the public health, safety, or welfare that cannot be averted or remedied by any other administrative act. The sufficiency of the reasons for a finding of imminent peril to the public health, safety, or welfare is subject to judicial review upon petition by any person. The matter must be set for hearing at the earliest possible time and takes precedence over all other matters except older matters of the same character. The sufficiency of the reasons justifying a finding of imminent peril and the necessity for emergency rulemaking must be compelling and, as written in the rule adoption notice, must stand on their own merits for purposes of judicial review. The dissemination of emergency rules required by 2-4-306 must be strictly observed and liberally accomplished.
(b) An emergency rule may not be used to implement an administrative budget reduction. (c) (i) For the purposes of this subsection (1), "special notice" means written notice to each member of the committee and each member of the committee staff using expedient means, such as electronic mail. The special notice must include: (A) the agency's reasons for its findings of imminent peril to the public health, safety, or welfare; (B) the text of the proposed emergency rule or an overview of the rule's substantive changes; and (C) the estimated date of adoption. (ii) Prior to adoption of an emergency rule, the agency shall make a good faith effort to provide special notice to each committee member and each member of the committee staff. The adoption notice of the emergency rule must state the date on which and the manner in which written contact was made or attempted with each person required under this subsection (1). If the adoption notice fails to state the date on which and the manner in which written contact was made or attempted for each person required under this subsection (1), the adoption of the emergency rule is ineffective for the purposes of this part. (2) A statute enacted or amended to be effective prior to October 1 of the year of enactment or amendment may be implemented by a temporary administrative rule, adopted before October 1 of that year, upon any abbreviated notice or hearing that the agency finds practicable, but the rule may not be filed with the secretary of state until at least 30 days have passed since publication of the notice of proposal to adopt the rule. The temporary rule is effective until October 1 of the year of adoption. The adoption of an identical rule under 2-4-302 is not precluded during the period that the temporary rule is effective. History: En. Sec. 4, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 410, L. 1975; amd. Sec. 1, Ch. 482, L. 1975; amd. Sec. 8, Ch. 285, L. 1977; R.C.M. 1947, 82-4204(2); amd. Sec. 5, Ch. 243, L. 1979; amd. Sec. 1, Ch. 261, L. 1987; amd. Sec. 1, Ch. 5, L. 1991; amd. Sec. 3, Ch. 489, L. 1997; amd. Sec. 1, Ch. 265, L. 2005; amd. Sec. 1, Ch. 199, L. 2021.[15] |
2-4-304: Informal conferences and committees
Text of 2-4-304:
| (1) An agency may use informal conferences and consultations as a means of obtaining the viewpoints and advice of interested persons with respect to contemplated rulemaking.
(3) Nothing herein shall relieve the agency from following rulemaking procedures required by this chapter. History: En. Sec. 4, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 410, L. 1975; amd. Sec. 1, Ch. 482, L. 1975; amd. Sec. 8, Ch. 285, L. 1977; R.C.M. 1947, 82-4204(4).[16] |
2-4-305: Requisites for validity, authority and statement of reasons
Text of 2-4-305:
| (1) (a) The agency shall fully consider written and oral submissions respecting the proposed rule, including comments submitted by the primary sponsor of the legislation prior to the drafting of the substantive content and wording of a proposed rule that initially implements legislation.
(b) (i) Upon adoption of a rule, an agency shall issue a concise statement of the principal reasons for and against its adoption, incorporating in the statement the reasons for overruling the considerations urged against its adoption. If substantial differences exist between the rule as proposed and as adopted and the differences have not been described or set forth in the adopted rule as that rule is published in the register, the differences must be described in the statement of reasons for and against agency action. When written or oral submissions have not been received, an agency may omit the statement of reasons. (ii) If an adopted rule that initially implements legislation does not reflect the comments submitted by the primary sponsor, the agency shall provide a statement explaining why the sponsor's comments were not incorporated into the adopted rule. (2) Rules may not unnecessarily repeat statutory language. Whenever it is necessary to refer to statutory language in order to convey the meaning of a rule interpreting the language, the reference must clearly indicate the portion of the language that is statutory and the portion that is an amplification of the language. (3) Each proposed and adopted rule must include a citation to the specific grant of rulemaking authority pursuant to which the rule or any part of the rule is adopted. In addition, each proposed and adopted rule must include a citation to the specific section or sections in the Montana Code Annotated that the rule purports to implement. A substantive rule may not be proposed or adopted unless: (a) a statute granting the agency authority to adopt rules clearly and specifically lists the subject matter of the rule as a subject upon which the agency shall or may adopt rules; or (b) the rule implements and relates to a subject matter or an agency function that is clearly and specifically included in a statute to which the grant of rulemaking authority extends. (4) Each rule that is proposed and adopted by an agency and that implements a policy of a governing board or commission must include a citation to and description of the policy implemented. Each agency rule implementing a policy and the policy itself must be based on legal authority and otherwise comply with the requisites for validity of rules established by this chapter. (5) To be effective, each substantive rule adopted must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law. (6) Whenever by the express or implied terms of any statute a state agency has authority to adopt rules to implement, interpret, make specific, or otherwise carry out the provisions of the statute, an adoption, amendment, or repeal of a rule is not valid or effective unless it is: (a) consistent and not in conflict with the statute; and (b) reasonably necessary to effectuate the purpose of the statute. A statute mandating that the agency adopt rules establishes the necessity for rules but does not, standing alone, constitute reasonable necessity for a rule. The agency shall also address the reasonableness component of the reasonable necessity requirement by, as indicated in 2-4-302(1) and subsection (1) of this section, stating the principal reasons and the rationale for its intended action and for the particular approach that it takes in complying with the mandate to adopt rules. Subject to the provisions of subsection (8), reasonable necessity must be clearly and thoroughly demonstrated for each adoption, amendment, or repeal of a rule in the agency's notice of proposed rulemaking and in the written and oral data, views, comments, or testimony submitted by the public or the agency and considered by the agency. A statement that merely explains what the rule provides is not a statement of the reasonable necessity for the rule. (7) A rule is not valid unless notice of it is given and it is adopted in substantial compliance with 2-4-302, 2-4-303, or 2-4-306 and this section, unless notice of adoption of the rule is published within 6 months of the publishing of notice of the proposed rule, and unless the adoption is in compliance with the prohibitions of subsection (11). The measure of whether an agency has adopted a rule in substantial compliance with 2-4-302, 2-4-303, or 2-4-306 and this section is not whether the agency has provided notice of the proposed rule, standing alone, but rather must be based on an analysis of the agency's substantial compliance with 2-4-302, 2-4-303, or 2-4-306 and this section. If an amended or supplemental notice of either proposed or final rulemaking, or both, is published concerning the same rule, the 6-month limit must be determined with reference to the latest notice in all cases. (8) (a) An agency may use an amended proposal notice or the adoption notice to correct deficiencies in citations of authority for rules and in citations of sections implemented by rules. (b) An agency may use an amended proposal notice but, except for clerical corrections, may not use the adoption notice to correct deficiencies in a statement of reasonable necessity. (c) If an agency uses an amended proposal notice to amend a statement of reasonable necessity for reasons other than for corrections in citations of authority, in citations of sections being implemented, or of a clerical nature, the agency shall allow additional time for oral or written comments from the same interested persons who were notified of the original proposal notice, including from a primary sponsor, if primary sponsor notification was required under 2-4-302, and from any other person who offered comments or appeared at a hearing already held on the proposed rule. (9) Subject to 2-4-112, if a majority of the members of the appropriate administrative rule review committee notify the committee presiding officer that those members object to all or a portion of a notice of proposed rulemaking, the committee shall notify the agency in writing that the committee objects to all or a portion of the proposal notice and will address the objections at the next committee meeting. Following notice by the committee to the agency, all or a portion of the proposal notice that the committee objects to may not be adopted until publication of the last issue of the register that is published before expiration of the 6-month period during which the adoption notice must be published, unless prior to that time, the committee meets and does not make the same objection. A copy of the committee's notification to the agency must be included in the committee's records. (10) This section applies to the department of labor and industry adopting a rule relating to a commercial drug formulary as provided in 39-71-704. This section does not apply to the automatic updating of department of labor and industry rules relating to commercial drug formularies as provided in 39-71-704. (11) (a) In the year preceding the year in which the legislature meets in regular session, an agency may not adopt a rule between October 1 through the end of the year. (b) This subsection (11) does not apply to: (i) an emergency rule adopted under 2-4-303; or (ii) a rule adopted for implementation of a program or policy if the unavailability of information, guidance, or notice precluded adoption of the rule before October 1. A rule may only be exempted under this subsection (11)(b)(ii) if the notice required under 2-4-302(1)(a) provides a statement explaining why the unavailability of information, guidance, or notice precluded adoption of the rule before October 1. History: Ap.p. Sec. 4, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 410, L. 1975; amd. Sec. 1, Ch. 482, L. 1975; amd. Sec. 8, Ch. 285, L. 1977; Sec. 82-4204, R.C.M. 1947; Ap.p. 82-4204.1 by Sec. 9, Ch. 285, L. 1977; Sec. 82-4204.1, R.C.M. 1947; R.C.M. 1947, 82-4204(part), 82-4204.1(part); amd. Sec. 6, Ch. 243, L. 1979; amd. Sec. 2, Ch. 381, L. 1981; amd. Sec. 1, Ch. 78, L. 1983; amd. Sec. 1, Ch. 466, L. 1983; amd. Sec. 1, Ch. 420, L. 1989; amd. Sec. 1, Ch. 3, L. 1995; amd. Sec. 2, Ch. 152, L. 1997; amd. Sec. 1, Ch. 335, L. 1997; amd. Sec. 4, Ch. 489, L. 1997; amd. Sec. 4, Ch. 19, L. 1999; amd. Sec. 3, Ch. 210, L. 2001; amd. Sec. 3, Ch. 21, L. 2009; amd. Sec. 2, Ch. 152, L. 2009; amd. Sec. 1, Ch. 270, L. 2009; amd. Sec. 1, Ch. 303, L. 2009; amd. Sec. 2, Ch. 433, L. 2017; amd. Sec. 2, Ch. 100, L. 2019; amd. Sec. 2, Ch. 102, L. 2021; amd. Sec. 2, Ch. 519, L. 2021.[17] |
2-4-306: Filing and format, adoption and effective dates, dissemination of emergency rules
Text of 2-4-306:
| (1) Each agency shall file with the secretary of state a copy of each rule adopted by it or a reference to the rule as contained in the proposal notice. A rule is adopted on the date that the adoption notice is filed with the secretary of state and is effective on the date referred to in subsection (4), except that if the secretary of state requests corrections to the adoption notice, the rule is adopted on the date that the revised notice is filed with the secretary of state.
(2) Pursuant to 2-15-401, the secretary of state may prescribe rules to effectively administer this chapter, including rules regarding the printed or electronic format, style, and arrangement for notices and rules that are filed pursuant to this chapter, and may refuse to accept the filing of any notice or rule that is not in compliance with this chapter and the secretary of state's rules. The secretary of state shall keep and maintain a permanent register of all notices and rules filed, including superseded and repealed rules, that must be open to public inspection and shall provide copies of any notice or rule upon request of any person. Unless otherwise provided by statute, the secretary of state may require the payment of the cost of providing copies. (3) If the appropriate administrative rule review committee has conducted a poll of the legislature in accordance with 2-4-403, the results of the poll must be published with the rule if the rule is adopted by the agency. (4) Each rule is effective after publication in the register, as provided in 2-4-312, 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: (i) a temporary rule is effective immediately upon filing with the secretary of state or at a stated date following publication in the register; and (ii) an emergency rule is effective at a stated date following publication in the register or immediately upon filing with the secretary of state 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 reasons for the finding must be filed with the rule. The agency shall, in addition to the required publication in the register, take appropriate and extraordinary measures to make emergency rules known to each person who may be affected by them. (c) if, following written administrative rule review committee notification to an agency under 2-4-305(9), the committee meets and under 2-4-406(1) objects to all or some portion of a proposed rule before the proposed rule is adopted, the proposed rule or portion of the proposed rule objected to is not effective until the day after final adjournment of the regular session of the legislature that begins after the notice proposing the rule was published by the secretary of state, unless, following the committee's objection under 2-4-406(1) and subject to 2-4-112: (i) the committee withdraws its objection under 2-4-406 before the proposed rule is adopted; or (ii) the rule or portion of a rule objected to is adopted with changes that in the opinion of a majority of the committee members, as communicated in writing to the committee presiding officer and staff, make it comply with the committee's objection and concerns. (5) An agency may not enforce, implement, or otherwise treat as effective a rule proposed or adopted by the agency until the effective date of the rule as provided in this section. Nothing in this subsection prohibits an agency from enforcing an established policy or practice of the agency that existed prior to the proposal or adoption of the rule as long as the policy or practice is within the scope of the agency's lawful authority. (6) This section applies to the department of labor and industry adopting a rule relating to a commercial drug formulary as provided in 39-71-704. This section does not apply to the automatic updating of department of labor and industry rules relating to commercial drug formularies as provided in 39-71-704. History: En. Sec. 5, Ch. 2, Ex. L. 1971; amd. Sec. 10, Ch. 285, L. 1977; amd. Sec. 2, Ch. 561, L. 1977; R.C.M. 1947, 82-4205(part); amd. Sec. 7, Ch. 243, L. 1979; amd. Sec. 12, Ch. 268, L. 1979; amd. Sec. 2, Ch. 261, L. 1987; amd. Sec. 2, Ch. 335, L. 1997; amd. Sec. 5, Ch. 489, L. 1997; amd. Sec. 5, Ch. 19, L. 1999; amd. Sec. 4, Ch. 210, L. 2001; amd. Sec. 1, Ch. 370, L. 2005; amd. Sec. 1, Ch. 87, L. 2007; amd. Sec. 1, Ch. 337, L. 2007; amd. Sec. 2, Ch. 303, L. 2009; amd. Sec. 1, Ch. 489, L. 2009; amd. Sec. 3, Ch. 433, L. 2017; amd. Sec. 3, Ch. 102, L. 2021.[18] |
2-4-307: Omissions from ARM or register
Text of 2-4-307:
| (1) An agency may adopt by reference any model code, federal agency rule, rule of any agency of this state, or other similar publication if:
(b) it is reasonable for the agency to adopt the model code, rule, or other publication for the state of Montana. (2) The model code, rule, or other publication must be adopted by reference in a rule adopted under the rulemaking procedure required by this chapter. The rule must contain a citation to the material adopted by reference and a statement of the general subject matter of the omitted rule and must state where a copy of the omitted material may be obtained. Upon request of the secretary of state, a copy of the omitted material must be filed with the secretary of state. (3) (a) The model code, rule, or other publication to be adopted by an agency pursuant to subsection (1): (i) must be in existence at the time that the agency's notice of proposed rulemaking is published in the register; (ii) must be available to the public for comment, through either publication in the register or publication in an electronic format on the agency's web page, during the time that the rule adopting the model code, rule, or other publication is itself subject to public comment; and (iii) except as provided in subsection (3)(b), may not be altered between the time of publication of the notice of proposed rulemaking and the publication of the notice of adoption by the agency proposing the rule unless the alteration is required in order to respond to comments in the rulemaking record of the adopting agency. (b) If the model code, rule, or other publication is altered by the agency between the time of the publication of the notice of proposed rulemaking and the notice of adoption, the part of the model code, rule, or other publication that is altered by the agency is not adopted unless that part is also subject to a separate process of adoption as provided in this section. (c) If the model code, rule, or other publication is made available on the agency's website, the website may provide either the full text of the model code, rule, or other publication or a link to the source of the official electronic text of the model code, rule, or other publication. (4) A rule originally adopting by reference any model code or rule provided for in subsection (1) may not adopt any later amendments or editions of the material adopted. Except as provided in subsection (6), each later amendment or edition may be adopted by reference only by following the rulemaking procedure required by this chapter. (5) If requested by a three-fourths vote of the appropriate administrative rule review committee, an agency shall immediately publish the full or partial text of any pertinent material adopted by reference under this section. The committee may not require the publication of copyrighted material. Publication of the text of a rule previously adopted does not affect the date of adoption of the rule, but publication of the text of a rule before publication of the notice of final adoption must be in the form of and is considered to be a new notice of proposed rulemaking. (6) Whenever later amendments of federal regulations must be adopted to comply with federal law or to qualify for federal funding, only a notice of incorporation by reference of the later amendments must be filed in the register. This notice must contain the information required by subsection (2) and must state the effective date of the incorporation. The effective date may be no sooner than 30 days after the date upon which the notice is published unless the 30 days causes a delay that jeopardizes compliance with federal law or qualification for federal funding, in which event the effective date may be no sooner than the date of publication. A hearing is not required unless requested under 2-4-315 by either 10% or 25, whichever is less, of the persons who will be directly affected by the incorporation, by a governmental subdivision or agency, or by an association having not less than 25 members who will be directly affected. Further notice of adoption or preparation of a replacement page for the ARM is not required. (7) If a hearing is requested under subsection (6), the petition for hearing must contain a request for an amendment and may contain suggested language, reasons for an amendment, and any other information pertinent to the subject of the rule. (8) This section does not apply to the automatic updating of department of labor and industry rules relating to commercial drug formularies as provided in 39-71-704. History: En. Sec. 6, Ch. 2, Ex. L. 1971; amd. Sec. 11, Ch. 285, L. 1977; R.C.M. 1947, 82-4206(3); amd. Sec. 8, Ch. 243, L. 1979; amd. Sec. 1, Ch. 591, L. 1981; amd. Sec. 6, Ch. 19, L. 1999; amd. Sec. 1, Ch. 333, L. 2011; amd. Sec. 4, Ch. 433, L. 2017.[19] |
2-4-308: Adjective or interpretive rule, statement of implied authority and legal effect
Text of 2-4-308:
| (1) Each adjective or interpretive rule or portion of an adjective or interpretive rule to be adopted under implied rulemaking authority must contain a statement in the historical notations of the rule that the rule is advisory only but may be a correct interpretation of the law. The statement must be placed in the ARM when the rule in question is scheduled for reprinting.
(2) Subject to 2-4-112, the appropriate administrative rule review committee may file with the secretary of state, for publication with any rule or portion of a rule that it considers to be adjective or interpretive, a statement indicating that it is the opinion of the appropriate administrative rule review committee that the rule or portion of a rule is adjective or interpretive and therefore advisory only. If the committee requests the statement to be published for an adopted rule not scheduled for reprinting in the ARM, the cost of publishing the statement in the ARM must be paid by the committee. History: En. Sec. 1, Ch. 637, L. 1983; amd. Sec. 7, Ch. 19, L. 1999; amd. Sec. 4, Ch. 102, L. 2021.[20] |
2-4-309: Rulemaking authority for laws not yet effective, rule not effective until law effective
Text of 2-4-309:
| Unless otherwise provided in the statute, an agency may proceed with rulemaking under this chapter after the enactment of a statute to be implemented by rule, but a rule may not become effective prior to the effective date of the statute.
|
2-4-311: Publication and arrangement of ARM
Text of 2-4-311:
| (1) The secretary of state shall compile, index, arrange, rearrange, correct errors or inconsistencies without changing the meaning, intent, or effect of any rule, and publish all rules filed pursuant to this chapter in the ARM. The secretary of state shall supplement, revise, and publish the ARM or any part of the ARM as often as the secretary of state considers necessary. The secretary of state may include editorial notes, cross-references, and other matter that the secretary of state considers desirable or advantageous. The secretary of state shall publish supplements to the ARM at the times and in the form that the secretary of state considers appropriate.
(3) The ARM must be arranged, indexed, and published or duplicated in a manner that permits separate publication of portions relating to individual agencies. An agency may make arrangements with the secretary of state for the printing or electronic distribution of as many copies of the separate publications as it may require. The secretary of state may charge a fee for any separate printed or electronic publications. The fee must be set and deposited in accordance with 2-15-405 and must be paid by the agency. History: En. Sec. 6, Ch. 2, Ex. L. 1971; amd. Sec. 11, Ch. 285, L. 1977; R.C.M. 1947, 82-4206(part); amd. Sec. 9, Ch. 243, L. 1979; amd. Sec. 8, Ch. 19, L. 1999; amd. Sec. 3, Ch. 396, L. 2001; amd. Sec. 3, Ch. 303, L. 2009; amd. Sec. 1, Ch. 80, L. 2017.[22] |
2-4-312: Publication and arrangement of register
Text of 2-4-312:
| (1) The secretary of state shall publish in the register all notices, rules, and interpretations filed with the secretary of state at least once a month but not more often than twice a month.
(3) The register must contain three sections, including a rules section, a notice section, and an interpretation section, as follows: (a) The rules section of the register must contain all rules filed since the compilation and publication of the preceding issue of the register, together with the statements required under 2-4-305(1). (b) The notice section of the register must contain all rulemaking notices filed with the secretary of state pursuant to 2-4-302 since the compilation and publication of the preceding register. (c) The interpretation section of the register must contain all opinions of the attorney general and all declaratory rulings of agencies issued since the publication of the preceding register. (4) Each issue of the register must contain the issue number and date of the register and a table of contents. Each page of the register must contain the issue number and date of the register of which it is a part. The secretary of state may include with the register information to help the user in relating the register to the ARM. History: En. Sec. 6, Ch. 2, Ex. L. 1971; amd. Sec. 11, Ch. 285, L. 1977; R.C.M. 1947, 82-4206(2), (9); amd. Sec. 10, Ch. 243, L. 1979; amd. Sec. 3, Ch. 277, L. 1983; amd. Sec. 1, Ch. 580, L. 1987; amd. Sec. 9, Ch. 19, L. 1999; amd. Sec. 4, Ch. 396, L. 2001; amd. Sec. 3, Ch. 88, L. 2007; amd. Sec. 4, Ch. 21, L. 2009; amd. Sec. 2, Ch. 80, L. 2017.[23] |
2-4-313: Copies, subscriptions, fees
Text of 2-4-313:
| (1) The secretary of state may make printed copies, subscriptions, supplements, or revisions to the ARM or the register available to any person for a fee set in accordance with subsection (4). Fees are not refundable.
(3) In addition to the fees authorized by 2-4-311 and other fees authorized by this section, the secretary of state may charge fees for internet or other computer-based services requested by state agencies, groups, or individuals. (4) The secretary of state shall set and deposit the fees authorized in this section in accordance with 2-15-405. History: En. Sec. 6, Ch. 2, Ex. L. 1971; amd. Sec. 11, Ch. 285, L. 1977; R.C.M. 1947, 82-4206(5) thru (8), (10), (11); amd. Sec. 11, Ch. 243, L. 1979; amd. Sec. 1, Ch. 163, L. 1983; amd. Sec. 3, Ch. 277, L. 1983; amd. Sec. 1, Ch. 397, L. 1985; amd. Sec. 2, Ch. 580, L. 1987; amd. Sec. 1, Ch. 6, Sp. L. January 1992; amd. Sec. 1, Ch. 411, L. 1993; amd. sec. 36, Ch. 308, L. 1995; amd. Sec. 5, Ch. 42, L. 1997; amd. Sec. 10, Ch. 19, L. 1999; amd. Sec. 5, Ch. 396, L. 2001; amd. Sec. 4, Ch. 88, L. 2007; amd. Sec. 4, Ch. 303, L. 2009; amd. Sec. 3, Ch. 80, L. 2017.[24] |
2-4-314: Biennial review by agencies, recommendations by committee
Text of 2-4-314:
| (1) Each agency shall at least biennially review its rules to determine if any new rule should be adopted or any existing rule should be modified or repealed.
(2) Subject to 2-4-112, the committee may recommend to the legislature those modifications, additions, or deletions of agency rulemaking authority which the committee considers necessary. History: En. Sec. 4, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 410, L. 1975; amd. Sec. 1, Ch. 482, L. 1975; amd. Sec. 8, Ch. 285, L. 1977; R.C.M. 1947, 82-4204(6); amd. Sec. 4, Ch. 600, L. 1979; amd. Sec. 3, Ch. 381, L. 1981; amd. Sec. 1, Ch. 63, L. 1983; amd. Sec. 5, Ch. 102, L. 2021.[25] |
2-4-315: Petition for adoption, amendment, or repeal of rules
Text of 2-4-315:
| An interested person or, when the legislature is not in session, a member of the legislature on behalf of an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall determine and prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 60 days after submission of a petition, the agency either shall deny the petition in writing or shall initiate rulemaking proceedings in accordance with 2-4-302 through 2-4-305. A decision to deny a petition or to initiate rulemaking proceedings must be in writing and based on record evidence. The written decision must include the reasons for the decision. Record evidence must include any evidence submitted by the petitioner on behalf of the petition and by the agency and interested persons in response to the petition. An agency may, but is not required to, conduct a hearing or oral presentation on the petition in order to develop a record and record evidence and to allow the petitioner and interested persons to present their views.
|
Part 4: Legislative review of rules
2-4-402: Powers of committees, duty to review rules
Text of 2-4-402:
| (1) The administrative rule review committees shall review all proposed rules filed with the secretary of state.
(2) Subject to 2-4-112, the appropriate administrative rule review committee may: (a) request and obtain an agency's rulemaking records for the purpose of reviewing compliance with 2-4-305; (b) prepare written recommendations for the adoption, amendment, or rejection of a rule and submit those recommendations to the department proposing the rule and submit oral or written testimony at a rulemaking hearing; (c) require that a rulemaking hearing be held in accordance with the provisions of 2-4-302 through 2-4-305; (d) institute, intervene in, or otherwise participate in proceedings involving this chapter in the state and federal courts and administrative agencies; (e) review the incidence and conduct of administrative proceedings under this chapter. History: En. 82-4203.5 by Sec. 4, Ch. 410, L. 1975; amd. Sec. 7, Ch. 285, L. 1977; amd. Sec. 1, Ch. 561, L. 1977; R.C.M. 1947, 82-4203.5(1)(a) thru (1)(c); amd. Sec. 12, Ch. 243, L. 1979; amd. Sec. 11, Ch. 268, L. 1979; amd. Sec. 4, Ch. 381, L. 1981; amd. Sec. 2, Ch. 78, L. 1983; amd. Sec. 1, Ch. 572, L. 1989; amd. Sec. 11, Ch. 19, L. 1999; amd. Sec. 6, Ch. 102, L. 2021.[27] |
2-4-403: Legislative intent, poll
Text of 2-4-403:
| (1) Subject to 2-4-112, if the legislature is not in session, the committee may poll all members of the legislature by mail to determine whether a proposed rule is consistent with the intent of the legislature.
(2) If 20 or more legislators object to a proposed rule, the committee shall poll the members of the legislature. (3) The poll must include an opportunity for the agency to present a written justification for the proposed rule to the members of the legislature. History: En. 82-4203.5 by Sec. 4, Ch. 410, L. 1975; amd. Sec. 7, Ch. 285, L. 1977; amd. Sec. 1, Ch. 561, L. 1977; R.C.M. 1947, 82-4203.5(1)(d), (1)(e); amd. Sec. 2, Ch. 87, L. 2007; amd. Sec. 7, Ch. 102, L. 2021.[28] |
2-4-404: Evidentiary value of legislative poll
Text of 2-4-404:
| If the appropriate administrative rule review committee has conducted a poll of the legislature in accordance with 2-4-403, the results of the poll must be admissible in any court proceeding involving the validity of the proposed rule or the validity of the adopted rule if the rule was adopted by the agency. If the poll determines that a majority of the members of both houses find that the proposed rule or adopted rule is contrary to the intent of the legislature, the proposed rule or adopted rule must be conclusively presumed to be contrary to the legislative intent in any court proceeding involving its validity.
|
2-4-405: Economic impact statement
Text of 2-4-405:
| (1) Subject to 2-4-112, on written request of the appropriate administrative rule review committee based upon the affirmative request of a majority of the members of the committee at an open meeting, an agency shall prepare a statement of the economic impact of the adoption, amendment, or repeal of a rule as proposed. The agency shall also prepare a statement upon receipt by the agency or the committee of a written request for a statement made by at least 15 legislators. If the request is received by the committee, the committee shall give the agency a copy of the request, and if the request is received by the agency, the agency shall give the committee a copy of the request. As an alternative, the committee may, by contract, prepare the estimate.
(2) Except to the extent that the request expressly waives any one or more of the following, the requested statement must include and the statement prepared by the committee may include: (a) a description of the classes of persons who 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 economic impact of the proposed rule upon affected classes of persons, including but not limited to providers of services under contracts with the state and affected small businesses, and quantifying, to the extent practicable, that impact; (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 revenue; (d) an analysis comparing the costs and benefits of the proposed rule to the costs and benefits of inaction; (e) an analysis that determines whether there are less costly or less intrusive methods for achieving the purpose of the proposed rule; (f) an analysis 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; (g) a determination as to whether the proposed rule represents an efficient allocation of public and private resources; and (h) a quantification or description of the data upon which subsections (2)(a) through (2)(g) are based and an explanation of how the data was gathered. (3) A request to an agency for a statement or a decision to contract for the preparation of a statement must be made prior to the final agency action on the rule. The statement must be filed with the appropriate administrative rule review committee within 3 months of the request or decision. A request or decision for an economic impact statement may be withdrawn at any time. (4) Subject to 2-4-112, on receipt of an impact statement, the committee shall determine the sufficiency of the statement. If the committee determines that the statement is insufficient, the committee may return it to the agency or other person who prepared the statement and request that corrections or amendments be made. If the committee determines that the statement is sufficient, a notice, including a summary of the statement and indicating where a copy of the statement may be obtained, must be filed with the secretary of state for publication in the register by the agency preparing the statement or by the committee, if the statement is prepared under contract by the committee, and must be mailed to persons who have registered advance notice of the agency's rulemaking proceedings. (5) This section does not apply to rulemaking pursuant to 2-4-303. (6) The final adoption, amendment, or repeal of a rule is not subject to challenge in any court as a result of the inaccuracy or inadequacy of a statement required under this section. (7) An environmental impact statement prepared pursuant to 75-1-201 that includes an analysis of the factors listed in this section satisfies the provisions of this section. History: En. Sec. 1, Ch. 480, L. 1979; amd. Sec. 1, Ch. 665, L. 1983; (6)En. Sec. 2, Ch. 665, L. 1983; amd. Sec. 13, Ch. 19, L. 1999; amd. Sec. 1, Ch. 46, L. 1999; amd. Sec. 6, Ch. 339, L. 1999; amd. Sec. 2, Ch. 265, L. 2005; amd. Sec. 1, Ch. 189, L. 2007; amd. Sec. 8, Ch. 102, L. 2021.[30] |
2-4-406: Committee objection to violation of authority for rule, effect
Text of 2-4-406:
| (1) Subject to 2-4-112, if the appropriate administrative rule review committee objects to all or some portion of a proposed or adopted rule because the committee considers it not to have been proposed or adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-305, the committee shall send a written objection to the agency that promulgated the rule. The objection must contain a concise statement of the committee's reasons for its action.
(2) Within 14 days after the mailing of a committee objection to a rule, the agency promulgating the rule shall respond in writing to the committee. After receipt of the response, the committee may withdraw or modify its objection. (3) Subject to 2-4-112, if the committee fails to withdraw or substantially modify its objection to a rule, it may vote to send the objection to the secretary of state, who shall, upon receipt of the objection, publish the objection in the register adjacent to any notice of adoption of the rule and in the ARM adjacent to the rule, provided an agency response must also be published if requested by the agency. Costs of publication of the objection and the agency response must be paid by the committee. (4) If an objection to all or a portion of a rule has been published pursuant to subsection (3), the agency bears the burden, in any action challenging the legality of the rule or portion of a rule objected to by the committee, of proving that the rule or portion of the rule objected to was adopted in substantial compliance with 2-4-302, 2-4-303, and 2-4-305. If a rule is invalidated by court judgment because the agency failed to meet its burden of proof imposed by this subsection and the court finds that the rule was adopted in arbitrary and capricious disregard for the purposes of the authorizing statute, the court may award costs and reasonable attorney fees against the agency. History: En. Sec. 1, Ch. 589, L. 1983; amd. Sec. 14, Ch. 19, L. 1999; amd. Sec. 9, Ch. 102, L. 2021.[31] |
2-4-410: Report of litigation
Text of 2-4-410:
| Each agency shall report to the appropriate administrative rule review committee any judicial proceedings in which the construction or interpretation of any provision of this chapter is in issue and may report to the committee any proceeding in which the construction or interpretation of any rule of the agency is in issue. Subject to 2-4-112, on request of the committee, copies of documents filed in any proceeding in which the construction or interpretation of either this chapter or an agency rule is in issue must be made available to the committee by the agency involved. History: En. Sec. 6, Ch. 381, L. 1981; amd. Sec. 15, Ch. 19, L. 1999; amd. Sec. 10, Ch. 102, L. 2021.[32] |
2-4-411: Report
Text of 2-4-411:
| Subject to 2-4-112, the committee may recommend amendments to the Montana Administrative Procedure Act or the repeal, amendment, or adoption of a rule as provided in 2-4-412 and make other recommendations and reports as it considers advisable. History: En. 82-4203.5 by Sec. 4, Ch. 410, L. 1975; amd. Sec. 7, Ch. 285, L. 1977; amd. Sec. 1, Ch. 561, L. 1977; R.C.M. 1947, 82-4203.5(2); amd. Sec. 3, Ch. 112, L. 1991; amd. Sec. 3, Ch. 349, L. 1993; amd. Sec. 11, Ch. 102, L. 2021.[33] |
2-4-412: Legislative review of rules, effect of failure to object
Text of 2-4-412:
| (1) (a) The legislature may, by bill, repeal any rule in the ARM. If a rule is repealed, the legislature shall in the bill state its objections to the repealed rule. If an agency adopts a new rule to replace the repealed rule, the agency shall adopt the new rule in accordance with the objections stated by the legislature in the bill. If the legislature does not repeal a rule filed with it before the adjournment of that regular session, the rule remains valid.
(b) The legislature may, by joint resolution, repeal a rule or amendment to a rule in the ARM that was adopted after final adjournment of the most recent regular legislative session. If an agency adopts a new rule to replace the repealed rule, the agency shall adopt the new rule in accordance with the objections stated by the legislature in the joint resolution. In order to be effective, the joint resolution must be passed during the regular session and not during a special session. After the regular session adjourns, the rule or the amendment to the rule that was adopted during the period between the two regular legislative sessions remains valid and may not be repealed using a joint resolution. (2) The legislature may also by joint resolution request or advise or by bill direct the adoption, amendment, or repeal of any rule. If a change in a rule or the adoption of an additional rule is advised, requested, or directed to be made, the legislature shall in the joint resolution or bill state the nature of the change or the additional rule to be made and its reasons for the change or addition. The agency shall, in the manner provided in the Montana Administrative Procedure Act, adopt a new rule in accordance with the legislative direction in a bill. (3) Rules and changes in rules made by agencies under subsection (2) must conform and be pursuant to statutory authority. (4) Failure of the legislature or the appropriate administrative rule review committee to object in any manner to the adoption, amendment, or repeal of a rule is inadmissible in the courts of this state to prove the validity of any rule. History: En. 82-4203.1 by Sec. 1, Ch. 239, L. 1973; amd. Sec. 1, Ch. 236, L. 1974; amd. Sec. 4, Ch. 285, L. 1977; R.C.M. 1947, 82-4203.1; amd. Sec. 5, Ch. 381, L. 1981; amd. Sec. 1, Ch. 164, L. 1983; amd. Sec. 16, Ch. 19, L. 1999; amd. Sec. 1, Ch. 288, L. 2021.[34] |
Part 5: Judicial notice and declaratory rulings
2-4-501: Declaratory rulings by agencies
Text of 2-4-501:
| Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency. A copy of a declaratory ruling must be filed with the secretary of state for publication in the register. A declaratory ruling or the refusal to issue such a ruling shall be subject to judicial review in the same manner as decisions or orders in contested cases.
|
2-4-505: Judicial notice of rules
Text of 2-4-505:
| The courts shall take judicial notice of any rule filed and published under the provisions of this chapter.
|
2-4-506: Declaratory judgments on validity or application of rules
Text of 2-4-506:
| (1) A rule may be declared invalid or inapplicable in an action for declaratory judgment if it is found that the rule or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the plaintiff.
(3) A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question. (4) The action may be brought in the district court for the county in which the plaintiff resides or has a principal place of business or in which the agency maintains its principal office. The agency must be made a party to the action. History: En. Sec. 19, Ch. 2, Ex. L. 1971; amd. Sec. 5, Ch. 560, L. 1977; R.C.M. 1947, 82-4219; amd. Sec. 14, Ch. 243, L. 1979; amd. Sec. 2, Ch. 589, L. 1983; amd. Sec. 42, Ch. 61, L. 2007.[37] |
Part 6: Contested cases
2-4-601: Notice
Text of 2-4-601:
| (1) In a contested case, all parties must be afforded an opportunity for hearing after reasonable notice.
(a) a statement of the time, place, and nature of the hearing; (b) a statement of the legal authority and jurisdiction under which the hearing is to be held; (c) a reference to the particular sections of the statutes and rules involved; (d) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement must be furnished. (e) a statement that a formal proceeding may be waived pursuant to 2-4-603. History: En. Sec. 9, Ch. 2, Ex. L. 1971; R.C.M. 1947, 82-4209(1), (2); amd. Sec. 1, Ch. 277, L. 1979.[38] |
2-4-602: Discovery
Text of 2-4-602:
| Each agency shall provide in its rules of practice for discovery prior to a contested case hearing.
|
2-4-603: Informal disposition and hearings, waiver of administrative proceedings, recording and use of settlement proceeds
Text of 2-4-603:
| (1) (a) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. A stipulation, agreed settlement, consent order, or default that disposes of a contested case must be in writing.
(c) If a stipulation, agreed settlement, consent order, or default results in a nonmonetary settlement involving an agency or the state, settlement proceeds, whether received by the state or a third party, must be recorded in a nonstate, nonfederal state special revenue account established pursuant to 17-2-102(1)(b)(i) for the purpose of recording nonmonetary settlements. (2) Except as otherwise provided, parties to a contested case may jointly waive in writing a formal proceeding under this part. The parties may then use informal proceedings under 2-4-604. Parties to contested case proceedings held under Title 37 or under any other provision relating to licensure to pursue a profession or occupation may not waive formal proceedings. (3) If a contested case does not involve a disputed issue of material fact, parties may jointly stipulate in writing to waive contested case proceedings and may directly petition the district court for judicial review pursuant to 2-4-702. The petition must contain an agreed statement of facts and a statement of the legal issues or contentions of the parties upon which the court, together with the additions it may consider necessary to fully present the issues, may make its decision. History: En. Sec. 9, Ch. 2, Ex. L. 1971; R.C.M. 1947, 82-4209(4); amd. Sec. 2, Ch. 277, L. 1979; amd. Sec. 1, Ch. 451, L. 1999; amd. Sec. 1, Ch. 305, L. 2001; amd. Sec. 1, Ch. 347, L. 2005.[40] |
2-4-604: Informal proceedings
Text of 2-4-604:
| (1) In proceedings under this section, the agency shall, in accordance with procedures adopted under 2-4-201:
(i) written or oral evidence in opposition to the agency's action or refusal to act; (ii) a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction; or (iii) other written or oral evidence relating to the contested case; (b) if the objections of the persons or parties are overruled, provide a written explanation within 7 days. (2) The record must consist of: (a) the notice and summary of grounds of the opposition; (b) evidence offered or considered; (c) any objections and rulings on the objections; (d) all matters placed on the record after ex parte communication pursuant to 2-4-613; (e) a recording of any hearing held, together with a statement of the substance of the evidence received or considered, the written or oral statements of the parties or other persons, and the proceedings. A party may object in writing to the statement or may order at that party's cost a transcription of the recording, or both. Objections become a part of the record. (3) Agencies shall give effect to the rules of privilege recognized by law. (4) In agency proceedings under this section, irrelevant, immaterial, or unduly repetitious evidence must be excluded but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs is admissible, whether or not the evidence is admissible in a trial in the courts of Montana. Any part of the evidence may be received in written form, and all testimony of parties and witnesses must be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it is admissible over objection in civil actions. (5) A party may petition for review of an informal agency decision pursuant to part 7 of this chapter. History: En. Sec. 3, Ch. 277, L. 1979; amd. Sec. 43, Ch. 61, L. 2007.[41] |
2-4-611: Hearing examiners, legal services unit, conduct of hearings, disqualification of hearing examiners and agency members
Text of 2-4-611:
| (1) An agency may appoint hearing examiners for the conduct of hearings in contested cases. A hearing examiner must be assigned with due regard to the expertise required for the particular matter.
(3) Agency members or hearing examiners presiding over hearings may administer oaths or affirmations; issue subpoenas pursuant to 2-4-104; provide for the taking of testimony by deposition; regulate the course of hearings, including setting the time and place for continued hearings and fixing the time for filing of briefs or other documents; and direct parties to appear and confer to consider simplification of the issues by consent of the parties. (4) On the filing by a party, hearing examiner, or agency member in good faith of a timely and sufficient affidavit of personal bias, lack of independence, disqualification by law, or other disqualification of a hearing examiner or agency member, the agency shall determine the matter as a part of the record and decision in the case. The agency may disqualify the hearing examiner or agency member and request another hearing examiner pursuant to subsection (2) or assign another hearing examiner from within the agency. The affidavit must state the facts and the reasons for the belief that the hearing examiner should be disqualified and must be filed not less than 10 days before the original date set for the hearing. History: En. Sec. 11, Ch. 2, Ex. L. 1971; R.C.M. 1947, 82-4211(part); amd. Sec. 1, Ch. 467, L. 1979; amd. Sec. 2, Ch. 3, L. 1985.[42] |
2-4-612: Hearing, rules of evidence, cross-examination, judicial notice
Text of 2-4-612:
| (1) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
(3) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original. (4) All testimony shall be given under oath or affirmation. (5) A party shall have the right to conduct cross-examinations required for a full and true disclosure of facts, including the right to cross-examine the author of any document prepared by or on behalf of or for the use of the agency and offered in evidence. (6) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data. They shall be afforded an opportunity to contest the material so noticed. (7) The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of evidence. History: En. Secs. 9, 10, 11, Ch. 2, Ex. L. 1971; R.C.M. 1947, 82-4209(3), 82-4210, 82-4211(part).[43] |
2-4-613: Ex parte consultations
Text of 2-4-613:
| Unless required for disposition of ex parte matters authorized by law, the person or persons who are charged with the duty of rendering a decision or to make findings of fact and conclusions of law in a contested case, after issuance of notice of hearing, may not communicate with any party or a party's representative in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate.
|
2-4-614: Record, transcription
Text of 2-4-614:
| (1) The record in a contested case must include:
(b) all evidence received or considered, including a stenographic record of oral proceedings when demanded by a party; (c) a statement of matters officially noticed; (d) questions and offers of proof, objections, and rulings on those objections; (e) proposed findings and exceptions; (f) any decision, opinion, or report by the hearings examiner or agency member presiding at the hearing, which must be in writing; (g) all staff memoranda or data submitted to the hearings examiner or members of the agency as evidence in connection with their consideration of the case. (2) The stenographic record of oral proceedings or any part of the stenographic record must be transcribed on request of any party. Unless otherwise provided by statute, the cost of the transcription must be paid by the requesting party. History: En. Sec. 9, Ch. 2, Ex. L. 1971; R.C.M. 1947, 82-4209(5), (6); amd. Sec. 2, Ch. 347, L. 2005.[45] |
2-4-621: When absent members render decision, proposal for decision and opportunity to submit findings and conclusions, modification by agency
Text of 2-4-621:
| (1) When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case, the decision, if adverse to a party to the proceeding other than the agency itself, may not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision.
(3) The agency may adopt the proposal for decision as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a proposal for decision but may not increase it without a review of the complete record. (4) A hearings officer who is a member of an agency adjudicative body may participate in the formulation of the agency's final order, provided that the hearings officer has completed all duties as the hearings officer. History: En. Sec. 12, Ch. 2, Ex. L. 1971; amd. Sec. 14, Ch. 285, L. 1977; R.C.M. 1947, 82-4212(part); amd. Sec. 4, Ch. 277, L. 1979; amd. Sec. 45, Ch. 61, L. 2007.[46] |
Text of 2-4-622:
| (1) If the person who conducted the hearing becomes unavailable to the agency, proposed findings of fact may be prepared by a person who has read the record only if the demeanor of witnesses is considered immaterial by all parties.
|
2-4-623: Final orders, notification, availability
Text of 2-4-623:
| (1) (a) A final decision or order adverse to a party in a contested case must be in writing. A final decision must include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Except as provided in 75-2-213 and 75-20-223, a final decision must be issued within 90 days after a contested case is considered to be submitted for a final decision unless, for good cause shown, the period is extended for an additional time not to exceed 30 days.
(2) Findings of fact must be based exclusively on the evidence and on matters officially noticed. (3) Each conclusion of law must be supported by authority or by a reasoned opinion. (4) If, in accordance with agency rules, a party submitted proposed findings of fact, the decision must include a ruling upon each proposed finding. (5) Parties must be notified by mail of any decision or order. Upon request, a copy of the decision or order must be delivered or mailed in a timely manner to each party and to each party's attorney of record. (6) Each agency shall index and make available for public inspection all final decisions and orders, including declaratory rulings under 2-4-501. An agency decision or order is not valid or effective against any person or party, and it may not be invoked by the agency for any purpose until it has been made available for public inspection as required in this section. This provision is not applicable in favor of any person or party who has actual knowledge of the decision or order or when a state statute or federal statute or regulation prohibits public disclosure of the contents of a decision or order. History: (1), (3) thru (6)En. Sec. 13, Ch. 2, Ex. L. 1971; amd. Sec. 15, Ch. 285, L. 1977; Sec. 82-4213, R.C.M. 1947; (2)En. Sec. 9, Ch. 2, Ex. L. 1971; Sec. 82-4209, R.C.M. 1947; R.C.M. 1947, 82-4209(7), 82-4213; amd. Sec. 3, Ch. 347, L. 2005; amd. Sec. 1, Ch. 571, L. 2005; amd. Sec. 2, Ch. 445, L. 2009.[48] |
2-4-631: Licenses
Text of 2-4-631:
| (1) When the grant, denial, renewal, revocation, suspension, annulment, withdrawal, limitation, transfer, or amendment of a license is required by law to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases apply.
(3) Whenever notice is required, no revocation, suspension, annulment, withdrawal, or amendment of any license is lawful unless the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action. 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. History: En. Sec. 15, Ch. 2, Ex. L. 1971; amd. Sec. 16, Ch. 285, L. 1977; R.C.M. 1947, 82-4215; amd. Sec. 1, Ch. 465, L. 1979.[49] |
Part 7: Judicial review of contested cases
2-4-701: Immediate review of agency action
Text of 2-4-701:
| A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
|
2-4-702: (Temporary) Initiating judicial review of contested cases
Text of 2-4-702:
| (1) (a) Except as provided in 75-2-213 and 75-20-223, a person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final written decision in a contested case is entitled to judicial review under this chapter. This section does not limit use of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute.
(b) A party who proceeds before an agency under the terms of a particular statute may not be precluded from questioning the validity of that statute on judicial review, but the party may not raise any other question not raised before the agency unless it is shown to the satisfaction of the court that there was good cause for failure to raise the question before the agency. (2) (a) Except as provided in 75-2-211, 75-2-213, and subsections (2)(c) and (2)(e) of this section, proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final written decision of the agency or, if a rehearing is requested, within 30 days after the written decision is rendered. Except as otherwise provided by statute, subsection (2)(d), or subsection (2)(e), the petition must be filed in the district court for the county where the petitioner resides or has the petitioner's principal place of business or where the agency maintains its principal office. Copies of the petition must be promptly served upon the agency and all parties of record. (b) The petition must include a concise statement of the facts upon which jurisdiction and venue are based, a statement of the manner in which the petitioner is aggrieved, and the ground or grounds specified in 2-4-704(2) upon which the petitioner contends to be entitled to relief. The petition must demand the relief to which the petitioner believes the petitioner is entitled, and the demand for relief may be in the alternative. (c) If a petition for review is filed pursuant to 33-16-1012(2)(c), the workers' compensation court, rather than the district court, has jurisdiction and the provisions of this part apply to the workers' compensation court in the same manner as the provisions of this part apply to the district court. (d) If a petition for review is filed challenging a licensing or permitting decision made pursuant to Title 75 or Title 82, the petition for review must be filed in the county where the facility is located or proposed to be located or where the action is proposed to occur. (e) (i) A party who is aggrieved by a final decision on an application for a permit or change in appropriation right filed under Title 85, chapter 2, part 3, may petition the district court or the water court for judicial review of the decision. If a petition for judicial review is filed in the water court, the water court rather than the district court has jurisdiction and the provisions of this part apply to the water court in the same manner as they apply to the district court. The time for filing a petition is the same as provided in subsection (2)(a). (ii) If more than one party is aggrieved by a final decision on an application for a permit or change in appropriation right filed under Title 85, chapter 2, part 3, the district court where the appropriation right is located has jurisdiction. If more than one aggrieved party files a petition but no aggrieved party files a petition in the district court where the appropriation right is located, the first judicial district, Lewis and Clark County, has jurisdiction. (iii) If a petition for judicial review is filed in the district court, the petition for review must be filed in the district court in the county where the appropriation right is located. (3) Unless otherwise provided by statute, the filing of the petition may not stay enforcement of the agency's decision. The agency may grant or the reviewing court may order a stay upon terms that it considers proper, following notice to the affected parties and an opportunity for hearing. A stay may be issued without notice only if the provisions of 27-19-315 through 27-19-317 are met. (4) Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be required by the court to pay the additional costs. The court may require or permit subsequent corrections or additions to the record. (Terminates September 30, 2025--sec. 6, Ch. 126, L. 2017.) 2-4-702. (Effective October 1, 2025) Initiating judicial review of contested cases. (1) (a) Except as provided in 75-2-213 and 75-20-223, a person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final written decision in a contested case is entitled to judicial review under this chapter. This section does not limit use of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute. (b) A party who proceeds before an agency under the terms of a particular statute may not be precluded from questioning the validity of that statute on judicial review, but the party may not raise any other question not raised before the agency unless it is shown to the satisfaction of the court that there was good cause for failure to raise the question before the agency. (2) (a) Except as provided in 75-2-211, 75-2-213, and subsection (2)(c) of this section, proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final written decision of the agency or, if a rehearing is requested, within 30 days after the written decision is rendered. Except as otherwise provided by statute or subsection (2)(d), the petition must be filed in the district court for the county where the petitioner resides or has the petitioner's principal place of business or where the agency maintains its principal office. Copies of the petition must be promptly served upon the agency and all parties of record. (b) The petition must include a concise statement of the facts upon which jurisdiction and venue are based, a statement of the manner in which the petitioner is aggrieved, and the ground or grounds specified in 2-4-704(2) upon which the petitioner contends to be entitled to relief. The petition must demand the relief to which the petitioner believes the petitioner is entitled, and the demand for relief may be in the alternative. (c) If a petition for review is filed pursuant to 33-16-1012(2)(c), the workers' compensation court, rather than the district court, has jurisdiction and the provisions of this part apply to the workers' compensation court in the same manner as the provisions of this part apply to the district court. (d) If a petition for review is filed challenging a licensing or permitting decision made pursuant to Title 75 or Title 82, the petition for review must be filed in the county where the facility is located or proposed to be located or where the action is proposed to occur. (3) Unless otherwise provided by statute, the filing of the petition may not stay enforcement of the agency's decision. The agency may grant or the reviewing court may order a stay upon terms that it considers proper, following notice to the affected parties and an opportunity for hearing. A stay may be issued without notice only if the provisions of 27-19-315 through 27-19-317 are met. (4) Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be required by the court to pay the additional costs. The court may require or permit subsequent corrections or additions to the record. History: En. Sec. 16, Ch. 2, Ex. L. 1971; amd. Sec. 17, Ch. 285, L. 1977; R.C.M. 1947, 82-4216(part); amd. Sec. 1, Ch. 520, L. 1985; amd. Sec. 1, Ch. 290, L. 1995; amd. Sec. 1, Ch. 361, L. 2003; amd. Sec. 4, Ch. 347, L. 2005; amd. Sec. 3, Ch. 445, L. 2009; amd. Sec. 1, Ch. 126, L. 2017; amd. Sec. 2, Ch. 535, L. 2021.[51] |
2-4-703: Receipt of additional evidence
Text of 2-4-703:
| If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
|
2-4-704: Standards of review
Text of 2-4-704:
| (1) The review must be conducted by the court without a jury and must be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof of the irregularities may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
(a) the administrative findings, inferences, conclusions, or decisions are: (i) in violation of constitutional or statutory provisions; (ii) in excess of the statutory authority of the agency; (iii) made upon unlawful procedure; (iv) affected by other error of law; (v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (b) findings of fact, upon issues essential to the decision, were not made although requested. (3) If a petition for review is filed challenging a licensing or permitting decision made pursuant to Title 75 or Title 82 on the grounds of unconstitutionality, as provided in subsection (2)(a)(i), the petitioner shall first establish the unconstitutionality of the underlying statute. History: En. Sec. 16, Ch. 2, Ex. L. 1971; amd. Sec. 17, Ch. 285, L. 1977; R.C.M. 1947, 82-4216(6), (7); amd. Sec. 2, Ch. 83, L. 1989; amd. Sec. 3, Ch. 361, L. 2003.[53] |
2-4-711: Appeals, staying agency decision
Text of 2-4-711:
| An aggrieved party may obtain review of a final judgment of a district court under this part by appeal to the supreme court within 60 days after entry of judgment. Such appeal shall be taken in the manner provided by law for appeals from district courts in civil cases. Unless otherwise provided by statute or unless the agency has granted a stay through the completion of the judicial review process:
(2) if appeal is taken from a judgment of the district court reversing or modifying an agency decision, the agency decision shall be stayed pending final determination of the appeal unless the supreme court orders otherwise. History: En. Sec. 17, Ch. 2, Ex. L. 1971; amd. Sec. 18, Ch. 285, L. 1977; R.C.M. 1947, 82-4217.[54] |
See also
External links
Footnotes
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Short Title -- Purpose -- Exception," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Definitions," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Rules And Statements To Be Made Available To Public," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Subpoenas And Enforcement -- Compelling Testimony," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Representation By Counsel," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Service" accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Construction And Effect," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Departmental Review Of Rule Notices," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 1. General Provisions, Small Business Impact Analysis -- Assistance," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 2. Organizational and Procedural Rules, Rules Describing Agency Organization And Procedures," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 2. Organizational and Procedural Rules, Model Rules," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Authority To Adopt Not Conferred," accessed June 6, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Notice, Hearing, And Submission Of Views," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Emergency Or Temporary Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Informal Conferences And Committees," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Requisites For Validity -- Authority And Statement Of Reasons," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Filing And Format -- Adoption And Effective Dates -- Dissemination Of Emergency Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Omissions From Arm Or Register," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Adjective Or Interpretive Rule -- Statement Of Implied Authority And Legal Effect," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Rulemaking Authority For Laws Not Yet Effective -- Rule Not Effective Until Law Effective," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Publication And Arrangement Of Arm," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Publication And Arrangement Of Register," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Copies -- Subscriptions -- Fees," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Biennial Review By Agencies -- Recommendations By Committee," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 3. Adoption and Publication of Rules, Petition For Adoption, Amendment, Or Repeal Of Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Powers Of Committees -- Duty To Review Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Legislative Intent -- Poll," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Evidentiary Value Of Legislative Poll," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Economic Impact Statement," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Committee Objection To Violation Of Authority For Rule -- Effect," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Report Of Litigation," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Report," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 4. Legislative Review of Rules, Legislative Review Of Rules -- Effect Of Failure To Object," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 5. Judicial Notice and Declaratory Rulings, Declaratory Rulings By Agencies," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 5. Judicial Notice and Declaratory Rulings, Judicial Notice Of Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 5. Judicial Notice and Declaratory Rulings, Declaratory Judgments On Validity Or Application Of Rules," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Notice," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Discovery," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Informal Disposition And Hearings -- Waiver Of Administrative Proceedings -- Recording And Use Of Settlement Proceeds," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Informal Proceedings," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Hearing Examiners -- Legal Services Unit -- Conduct Of Hearings -- Disqualification Of Hearing Examiners And Agency Members," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Hearing -- Rules Of Evidence, Cross-Examination, Judicial Notice," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Ex Parte Consultations," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Record -- Transcription," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, When Absent Members Render Decision -- Proposal For Decision And Opportunity To Submit Findings And Conclusions -- Modification By Agency," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, When Hearings Officer Unavailable For Decision," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Final Orders -- Notification -- Availability," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 6. Contested Cases, Licenses," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 7. Judicial Review of Contested Cases, Immediate Review Of Agency Action," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2021, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 7. Judicial Review of Contested Cases, Initiating Judicial Review Of Contested Cases," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 7. Judicial Review of Contested Cases, Receipt Of Additional Evidence," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 7. Judicial Review of Contested Cases, Standards Of Review," accessed June 7, 2023
- ↑ Legislature of Montana, "Montana Code Annotated 2017, Title 2. Government Structure and Administration, Chapter 4. Administrative Procedure Act, Part 7. Judicial Review of Contested Cases, Appeals -- Staying Agency Decision," accessed June 7, 2023
