Although not part of the Michigan Compiled Laws, an administrative rule promulgated in accordance with the Administrative Procedures Act of 1969 (APA), MCL 24.201 et seq., or applicable law has the force and effect of law once filed with the Office of the Great Seal within the Secretary of State, and administrative rules play an integral role in the regulatory aspect of Michigan’s government by providing the detail and substance often missing from statute. State agencies are granted permissive or mandatory rule promulgation authority via their governing statutes. The rulemaking process is governed by Chapter 3 of the APA, MCL 24.231 to MCL 24.266. A “rule” is defined in the APA as “an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies laws enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or rescission of the law enforced or administered by the agency.”¹

The Office of Regulatory Reform, initially created through Executive Reorganization Order 1995-5 and later codified in MCL 10.151, was charged with the duty to “review proposed rules, coordinate processing of rules by agencies, work with agencies to streamline the rule-making process, and … improve public access to the rule-making process.”² While a series of ensuing executive reorganization orders moved the office to various state departments and renamed it, its core functions have remained the same. Most recently, Executive Reorganization Order No. 2019-1 created the Michigan Office of Administrative Hearings and Rules (MOAHR) as an agency within the Department of Licensing and Regulatory Affairs.³ MOAHR, charged with overseeing the rule promulgation process for all state agencies, is the successor to the Office of Regulatory Reinvention, formerly known as the State Office of Administrative Hearings and Rules and the Office of Regulatory Reform.

There are five ways to promulgate administrative rules in Michigan:

• The full process;

• The shortened process under section 44(1) of the APA;

• Emergency rules;

• The Michigan Occupational Safety and Health Administration process under section 44(2) of the APA; and

• The Department of Environment, Great Lakes, and Energy process through the Environmental Rules Review Committee.

THE FULL PROCESS

The full process is the most frequently utilized method by which agencies amend, add, or rescind rules. It begins with the state agency submitting to MOAHR a request for rulemaking, which must include the statutory authority for the proposed rule or change; the problem that the rule will focus on and its significance; and, if applicable, the decision record.⁴ Once MOAHR has approved the request for rulemaking, the agency submits draft rules to MOAHR.⁵ MOAHR reviews the proposed rules to ensure the agency is within its statutory authority and edits the rules to conform to rulemaking style guide standards.⁶

Next, the agency submits the regulatory impact statement (RIS) and cost benefit analysis, which includes a small business impact statement. The RIS must contemplate, among other things, the economic impact of the proposed rule, any burdens placed on the regulated community, and the expected benefits.⁷ Following the approval of the RIS by MOAHR and after giving proper notice, the agency holds a public hearing where individuals may offer written or verbal comment regarding the proposed rules.⁸

Once the public hearing has been held and the public comment period has ended, the agency’s final rules, which may incorporate any suggested edits provided in public comment, are sent to the Legislative Service Bureau (LSB) for formal certification and then to MOAHR for legal certification.⁹ The rules are then sent to the Joint Committee on Administrative Rules (JCAR), a bipartisan state legislative committee made up of five members from each chamber. JCAR has 15 session days to consider the proposed rules; the committee may object to the rule, propose that it be changed, introduce bills to enact the subject of the rule into law, or waive any remaining session days.¹⁰ If JCAR does not object to the rules, propose changes, or introduce bills, MOAHR may file the rules with the Office of the Great Seal within the Secretary of State once the 15 session days have expired.¹¹

THE SHORTENED PROCESS

Alternatively, if certain conditions are met, agencies may promulgate rules under the shortened process provided for in section 44(1) of the APA.¹² It provides that “[s]ections 41, 42, and 66 do not apply to an amendment or rescission of a rule that is obsolete or superseded, or that is required to make obviously needed corrections to make the rule conform to an amended or new statute or to accomplish any other solely formal purpose, if a statement to that effect is included in the Legislative Service Bureau certificate of approval of the rule.”¹³

Under this shortened process, agencies are exempt from submitting a regulatory impact statement and JCAR report, holding a public hearing, and submitting the rules to JCAR.¹⁴ Instead, agencies are only required to submit a request for rulemaking and draft rules for approval by MOAHR. Once MOAHR has approved the request for rulemaking and the draft rules, the proposed rules are sent to the LSB for formal certification. MOAHR may then legally certify the rules, and they may be filed with the Office of the Great Seal.¹⁵

EMERGENCY RULES

On average, the full promulgation process takes one year from the submission of the request for rulemaking to the filing of the rules. Prior to the COVID-19 pandemic, there were occasional instances where immediate development of emergency rules was necessary to protect the health, safety, and welfare of Michigan citizens. The current global health threat has proven how vital this process is to state agencies in emergent situations.

Section 48 of the APA provides, in part, that, “(i)f an agency finds that the preservation of the public health, safety, or welfare requires promulgation of an emergency rule without following the notice and participation procedures required by sections 41 and 42 and states in the rule the agency’s reasons for that finding, and the governor concurs in the finding of emergency, the agency may dispense with all or part of the procedures and file in the office of the secretary of state the copies prescribed by section 46 endorsed as an emergency rule.” The emergency rule process requires agencies to draft a finding of emergency explaining why the rules are necessary immediately and how the public health, safety, and welfare would be jeopardized by following the full rulemaking process. The governor must concur with the finding of emergency. The emergency rules are sent to the LSB for formal certification, legally certified by MOAHR, and filed with the Secretary of State.¹⁶

Emergency rules are effective immediately and remain in effect until a date fixed in the rules or six months after the filing, whichever is earlier. A one-time extension of up to six months is possible if the governor concurs that the emergency continues to exist. If the agency desires to have the emergency rules remain effective beyond the final expiration date, it must promulgate an identical or similar rule in the customary manner.¹⁷

MIOSHA RULES

Section 44(2) of the APA provides that the Michigan Occupational Safety and Health Administration (MIOSHA) may enact rules that are “substantially similar” to federal regulations adopted under the Occupational Safety and Health Act¹⁸ without following the notice and participation requirements of the APA. MIOSHA must submit a request for rulemaking and draft rules to MOAHR.¹⁹ After MOAHR’s initial approval, the rules must be published in the Michigan Register at least 35 days prior to being filed with the Secretary of State.²⁰

Once the proposed rules are published, MIOSHA must allow no more than 21 days for the submission of written comments regarding the proposed rules. Once these timelines have been met and MIOSHA has incorporated any desired changes to the rules based on public comment, the rules must be formally certified by the LSB and MOAHR, respectively. The rules may then be filed with the Secretary of State.²¹

ENVIRONMENTAL RULES REVIEW COMMITTEE

2018 PA 267 amended the APA and created the Environmental Rules Review Committee (ERRC). Executive Reorganization Order No. 2019-1 transferred the ERRC as an independent body to the Department of Environment, Great Lakes, and Energy (EGLE). The purpose of the ERRC is overseeing all rulemaking for EGLE. The ERRC is comprised of four ex officio department heads and 12 members, appointed by the governor, who represent various industries and organizations from across the state.²²

The rule promulgation process through the ERRC is like the full process, with additional review and input permissible by the ERRC. Once a request for rulemaking is approved by MOAHR, the ERRC chair and vice chair may determine that no further action by the ERRC is necessary, and the rules continue through the full process. However, members may vote to override that determination, or the chair and vice chair may determine the rules should continue to be reviewed by the ERRC. In that case, the draft rules are sent to the ERRC members for review.²³

The APA requires the ERRC to determine whether EGLE’s proposed draft rules meet the following criteria:

• The rules do not exceed the rulemaking authority provided in statute;

• The rules “reasonably implement and apply the statute ... and are consistent with all other applicable law”;

• The rules are “necessary and suitable to achieve their purposes in proportion to the burdens they place on individuals and businesses”;

• The rules are “as clear and unambiguous as reasonably appropriate considering the subject matter of the proposed rules and the individuals and businesses that will be required to comply with the proposed rules”; and

• The rules are “based on sound and objective scientific reasoning.”²⁴

Within 35 days of receiving the draft rules, and after considering these five criteria, the ERRC members must vote to allow the rules to proceed through the full process instead of continuing to undergo ERRC review; determine that the proposed draft rules meet the five criteria and may be presented at public hearing; or decide that the rules do not meet the five criteria. If the ERRC fails to decide within 35 days, the proposed rules may proceed to public hearing.²⁵ If the members determine the proposed rules do not meet the five criteria, the ERRC must notify EGLE in writing and include an explanation as to why the rules do not meet the criteria or why additional review is necessary. EGLE, in response to this determination, must meet with stakeholders, provide additional information to the members, or revise the proposed draft rules. If the ERRC makes no determination on revised proposed draft rules or additional information supplied by EGLE within 90 days (a period which may be extended up to 180 days) of providing notice to EGLE, the proposed rules may proceed to public hearing.²⁶

After holding a public hearing, EGLE must submit to the ERRC within 120 days a report that includes a summary of the comments received from the public hearing and, if it submits modifications to the draft rules in response to the comments, an explanation for any changes EGLE proposes. If EGLE does not submit this report within 120 days, the rules must be withdrawn.²⁷ If EGLE submits the rules to the ERRC in a timely manner, the ERRC must then meet; after considering the report and the public comments, ERRC votes to approve the proposed rules with modifications it suggested, approve the proposed rules as submitted by EGLE, or reject the rules. If the ERRC does not decide within 120 days or if the ERRC approves the draft rules, MOAHR must, within one year, send the rules to JCAR along with a JCAR report containing the request for rulemaking, a summary of the public comments, a description of the changes made to the rules after public hearing, LSB’s formal certification, and MOAHR’s legal certification.²⁸

If the ERRC either approves the draft rules with modifications or rejects the draft rules within 120 days, it must submit a notice of objection to the EGLE director and the governor explaining the reason for its decision. EGLE must then attempt to resolve any ERRC concerns and may submit a revised draft of the rules. If the ERRC and EGLE can resolve all concerns, the draft rules are submitted to JCAR.²⁹ If, after 15 session days, JCAR does not object to the rules, propose changes, or introduce bills, MOAHR may file the rules with the Office of the Great Seal.³⁰

CONCLUSION

Although the rulemaking process can seem daunting and laborious, the APA and executive orders and reorganizations provide detailed guidance for state agencies to navigate the process. In doing so, the rulemaking process allows for agencies, with input from interested stakeholders, to close statutory gaps — often left intentionally open to allow for agency and public input — with specific regulations that provide guidance to both the regulated communities and the regulators themselves.