MiMfg Magazine February 2020 | Page 13

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 13