February 2020
S
tudents are taught from an early age how bills
become laws. During tours of the Capitol and
in social studies classes, they are told about a bill moving
through the Senate and the House and how, once
passed, the Governor signs the legislation into law.
Rarely, however, do people talk about another equally
important element — the administrative rules process.
Because laws may not address the fine details of
day-to-day implementation, these administrative
rules are developed to clarify process and procedure
and operate with the force and effect of law.
“In many ways, legislatively passed laws represent
the skeleton of what manufacturers and everyday citizens
need to follow; the rulemaking process is there to
put flesh on the bone,” explained Mike Johnston,
MMA vice president of government affairs. “But the
process of rulemaking is a lot more complicated for
MMA. We focus a great deal of attention on the
rules process, working with state agencies to ensure
the rules being developed remain fair, cost-effective
and, ultimately, allow Michigan to compete
effectively with other states and around the world.”
As with most everything in the American political
system, both the Executive and Legislative branches
of government have their own powers, advantages
and limitations and will use the avenues available to
them to achieve their goals. In Michigan, the
Governor holds broad authority over rulemaking.
“One of the Governor’s strongest tools is the
authority to promulgate rules,” said Johnston.
“Ironically, that power was delegated to the executive
branch by the Legislature. We frequently see
regulations that the Legislature would likely reject,
but does not currently have the authority to stop.”
Tens of thousands of rules exist in Michigan and
plenty more are handed down at the federal level.
Each regulation represents a restriction. Overly strict
regulations can mean significant constraints on the
economy by forcing Michigan manufacturers to deal
with red tape, regulatory overreach, unreasonable
barriers and an overabundance of restrictions that
don’t exist in other states.
The Lost Check on Administrative
Rulemaking Authority
When the Legislature originally shifted rulemaking
authority to state agencies, they retained the authority to
immediately reject any specific proposed rule through
an oversight committee known as the Joint Committee
on the Administrative Rules (JCAR). However, this
check on the executive branch was significantly
weakened when a 1990s Michigan Supreme Court
ruling said the legislative JCAR committee’s veto
power was unconstitutional. Consequently, JCAR
has been unable to veto agency-proposed rules for
over 20 years, leaving legislative bill passage as the
MiMfg Magazine
Administrative Rules Process Summary
The process for creating, amending, and rescinding administrative
rules is governed by the Administrative Procedures Act, 1969 PA 306,
MCL 24.201 to 24.328.
Starting Out: Request for Rulemaking (RFR)
• Request for rulemaking submitted by a state department to the
Michigan Office of Administrative Hearings and Rules (MOAHR)
Draft Rules: Prior to the Public Hearing
• Rules are drafted by state department
• Draft rules are reviewed by MOAHR and Legislative Service
Bureau (LSB)
Public Hearing & Public Comment
• A Regulatory Impact Statement (RIS) & Cost-Benefit
Analysis (CBA) is prepared by the department
• A public hearing notice is published in 3 newspapers,
including 1 in the UP, 10-60 days prior to the hearing and is
published in the Michigan Register
• Public hearing is held and public comment period provided
Post-Hearing Draft Rules
• Following the hearing and public comment, any changes
needed are made to draft rule
• Final draft rules and JCAR Report is sent to the MOAHR and LSB
Joint Committee on Administrative Rules (JCAR)
• Within 1 year of the public hearing a report must be
submitted to JCAR summarizing the purpose of the draft
rules and any public comments submitted
• JCAR has 15 session days to review the rules or waive its
ability to review
• During those 15 days, JCAR may object to the rules but then
must pass legislation to stop or delay the rules
Department Adopts Rules & Files
• Files the final rules and a Certificate of Adoption to the
MOAHR and the Office of the Great Seal.
• The rules become effective immediately upon filing, or
at a later specified date.
Source: www.michigan.gov/documents/lara/
Admin_Rules_Process_353271_7_651981_7.pdf
sole path to a veto of overly onerous rules, which
hasn’t happened a single time in those 20 years.
“MMA works diligently with our manufacturing
members and regulatory agencies to impact the
ultimate product of the rulemaking process,”
Delaney McKinley, MMA senior director of
government affairs and membership.
MMA and the ORR: Reducing
Regulatory Red Tape
Former Governor Rick Snyder recognized
the impact of unnecessarily burdensome
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