Section 536.028

Title XXXVI STATUTORY ACTIONS AND TORTS

Chapter 536

Effective - 28 Aug 1997, highlighted 1    

  *536.028.  Contingent delegation of rulemaking power — effective date of rules — notice to be filed with joint committee — committee's powers — disapproval or annulment of rules, grounds, procedure, effect — publishing of rules, when — nonseverable — contingent effective date. — 1.  Notwithstanding provisions of this chapter to the contrary, the delegation of authority to any state agency to propose to the general assembly rules as provided under this section is contingent upon the agency complying with the provisions of this chapter and this delegation of legislative power to the agency to propose a final order of rulemaking containing a rule or portion thereof that has the effect of substantive law, other than a rule relating to the agency's organization and internal management, is contingent and dependent upon the power of the general assembly to review such proposed order of rulemaking, to delay the effective date of such proposed order of rulemaking until the expiration of at least thirty legislative days of a regular session after such order is filed with the general assembly and the secretary of state, and to disapprove and annul any rule or portion thereof contained in such order of rulemaking.

  2.  No rule or portion of a rule that has the effect of substantive law shall become effective until the final order of rulemaking has been reviewed by the general assembly in accordance with the procedures provided pursuant to this chapter.  Any agency's authority to propose an order of rulemaking is dependent upon the power of the general assembly to disapprove and annul any such proposed rule or portion thereof.

  3.  In order for the general assembly to have an effective opportunity to be advised of rules proposed by any state agency, an agency shall propose a rule or order of rulemaking by complying with the procedures provided in this chapter, except that the notice of proposed rulemaking shall first be filed with the general assembly by providing a copy thereof to the joint committee on administrative rules, which may hold hearings upon any proposed rule, order of rulemaking or portion thereof at any time.  The agency shall cooperate with the joint committee on administrative rules by providing any witnesses, documents or information within the control of the agency as may be requested.

  4.  Such proposed order of rulemaking shall not become effective prior to the expiration of thirty legislative days of a regular session after such order is filed with the secretary of state and the joint committee on administrative rules.

  5.  The committee may, by majority vote of its members, recommend that the general assembly disapprove and annul any rule or portion thereof contained in an order of rulemaking after hearings thereon and upon a finding that such rule or portion thereof should be disapproved and annulled.  Grounds upon which the committee may recommend such action include, but are not limited to:

  (1)  Such rule is substantive in nature in that it creates rights or liabilities or provides for sanctions as to any person, corporation or other legal entity; and

  (2)  Such rule or portion thereof is not in the public interest or is not authorized by the general assembly for one or more of the following grounds:

  (a)  An absence of statutory authority for the proposed rule;

  (b)  The proposed rule is in conflict with state law;

  (c)  Such proposed rule is likely to substantially endanger the public health, safety or welfare;

  (d)  The rule exceeds the purpose, or is more restrictive than is necessary to carry out the purpose, of the statute granting rulemaking authority;

  (e)  A substantial change in circumstance has occurred since enactment of the law upon which the proposed rule is based as to result in a conflict between the purpose of the law and the proposed rule, or as to create a substantial danger to public health and welfare; or

  (f)  The proposed rule is so arbitrary and capricious as to create such substantial inequity as to be unreasonably burdensome on persons affected.

  6.  Any recommendation or report issued by the committee pursuant to subsection 5 of this section shall be admissible as evidence in any judicial proceeding and entitled to judicial notice without further proof.

  7.  The general assembly may adopt a concurrent resolution in accordance with the provisions of Article IV, Section 8 of the Missouri Constitution to disapprove and annul any rule or portion thereof.

  8.  Any rule or portion thereof not disapproved within thirty legislative days of a regular session pursuant to subsection 7 of this section shall be deemed approved by the general assembly and the secretary of state may publish such final order of rulemaking as soon as practicable upon the expiration of thirty legislative days of a regular session after the final order of rulemaking was filed with the secretary of state and the joint committee on administrative rules.

  9.  Upon adoption of such concurrent resolution as provided in subsection 7 of this section, the secretary of state shall not publish the order of rulemaking until the expiration of time necessary for such resolution to be signed by the governor, or vetoed and subsequently acted upon by the general assembly pursuant to Article III, Section 32 of the Missouri Constitution.  If such concurrent resolution is adopted and signed by the governor or otherwise reconsidered pursuant to Article III, Section 32, the secretary of state shall publish in the Missouri Register, as soon as practicable, the order of rulemaking along with notice of the proposed rules or portions thereof which are disapproved and annulled by the general assembly.

  10.  Notwithstanding the provisions of section 1.140, the provisions of this section, section 536.021 and section 536.025 are nonseverable and the delegation of legislative authority to an agency to propose orders of rulemaking is essentially dependent upon the powers vested with the general assembly as provided herein.  If any of the powers vested with the general assembly or the joint committee on administrative rules to review, to hold in abeyance the rule pending action by the general assembly, to delay the effective date or to disapprove and annul a rule or portion of a rule contained in an order of rulemaking, are held unconstitutional or invalid, the purported grant of rulemaking authority and any rule so proposed and contained in the order of rulemaking shall be revoked and shall be null, void and unenforceable.

  11.  Nothing in this section shall prevent the general assembly from adopting by concurrent resolution or bill within thirty legislative days of a regular session the rules or portions thereof, or as the same may be amended or annulled, as contained in a proposed order of rulemaking.  In that event, the proposed order of rulemaking shall have been superseded and the order and any rule proposed therein shall be null, void and unenforceable.  The secretary of state shall not publish a proposed order of rulemaking acted upon as described herein.

  12.  Upon adoption of any rule now or hereafter in effect, such rule or portion thereof may be revoked by the general assembly either by bill or by concurrent resolution pursuant to Article IV, Section 8 of the Constitution on recommendation of the joint committee on administrative rules.  The secretary of state shall publish in the Missouri Register, as soon as practicable, notice of the revocation.

  13.  This section shall become effective only upon the expiration of twenty calendar days following the:

  (1)  Failure of the executive to sign executive order number 97-97; or

  (2)  Modification, amendment or rescission of executive order number 97-97; or

  (3)  An agency's failure to hold the rule in abeyance as required by executive order number 97-97; or

  (4)  Declaration by a court with jurisdiction that section 536.024 or any portion of executive order number 97-97 is unconstitutional or invalid for any reason.  Notwithstanding the provisions of this subsection to the contrary, no modification, amendment or rescission of executive order number 97-97 or failure to hold a rule in abeyance shall make this section effective if the modification, amendment or rescission of the executive order or failure to hold the rule in abeyance is approved by the general assembly by concurrent resolution.

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(L. 1997 H.B. 335, Repealed 1997 H.B. 600 & 388, A.L. 1997 H.B. 850)

*Contingent effective date, see subsection 13 of this section.

*Revisor's Note:  To date, the contingencies contained in this section regarding Executive Order 97-97 have not occurred.