To repeal sections 3.040, 536.021, 536.022, 536.023 and 536.031, RSMo 1994, and sections 536.024, 536.025 and 536.050, RSMo Supp. 1996, relating to administrative rules, and to enact in lieu thereof twelve new sections relating to the same subject, with an emergency clause and a conditional effective date for certain sections.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

Section A. Sections 3.040, 536.021, 536.022, 536.023 and 536.031, RSMo 1994, and sections 536.024, 536.025 and 536.050, RSMo Supp. 1996, are repealed and twelve new sections enacted in lieu thereof, to be known as sections 3.040, 21.800, 536.019, 536.020, 536.021, 536.022, 536.023, 536.024, 536.025, 536.031, 536.046 and 536.050, to read as follows:

3.040. No law relating to the bonded indebtedness of the state, no law of incorporation, no law for the appropriation of money, no memorial or joint resolution, no law or part of law of a private, local or temporary nature and no law enacted pursuant to section 21.800, RSMo, shall be published in the revised statutes or supplements or pocket parts thereto, but all such laws and provisions not expressly repealed shall continue in force or expire, according to their respective provisions or limitations.

21.800. 1. Each regular legislative session, the house of representatives and senate shall propose a bill titled, "an act relating to the implementation of law existing prior to the effective date of this legislation".

2. Such bill shall contain subject matter to implement the provisions of existing law. An agency may make recommendations to the general assembly to implement the provisions of law.

3. Such legislation if it becomes actual law shall be printed pursuant to the provisions of section 3.040, RSMo, and section 536.031, RSMo.

4. This section shall become effective only upon the expiration of twenty calendar days following the rescission of the governor's executive order number 97-97.

536.019. 1. Notwithstanding any provision of law to the contrary, including any law passed during the 1997 legislative session, except as provided by subsection 2 of this section, all rulemaking authority to state agencies is hereby rescinded.

2. Any agency may promulgate procedural or emergency rules if such agency files such rules with the joint committee on administrative rules pursuant to the provisions of section 536.024 or 536.025 and complies with the provisions of this chapter.

3. In a contested case involving procedural rules, the court shall award reasonable fees and expenses to any person who prevails against the state. The burden of proof in any court proceeding shall be on the agency to prove that such rules are procedural and not substantive.

4. A rule promulgated as a procedural rule is void if a court determines that the rule is, in fact, substantive.

5. The provisions of this section shall not be construed to rescind rules which have been promulgated before August 28, 1997.

6. For the purposes of this section, the following terms mean:

(1) "Prevails", obtains a favorable order, decision, judgment or dismissal in a civil action or agency proceeding;

(2) "Procedural rule", rules which prescribe the manner in which substantive rights and responsibilities may be exercised and enforced;

(3) "Reasonable fees and expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court or agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees.

7. This section shall become effective only upon the expiration of twenty calendar days following the rescission of the governor's executive order number 97-97.

536.020. 1. In addition to seeking information by other methods, an agency may solicit comments from the public on the subject matter of a rule that the agency is considering proposing. The agency may file a notice of the rule under consideration as a proposed rulemaking with the secretary of state for publication in the Missouri Register as soon as practicable after the filing thereof in the secretary's office. The notice may contain the number and the subject matter of the rule as well as a statement indicating where, when, and how persons may comment.

2. Each agency may also appoint committees to comment on the subject matter of a rule that the agency is considering proposing. The membership of those committees must be published at least annually in the Missouri Register.

536.021. 1. No rule shall hereafter be made, amended or rescinded by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking, both of which shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof in [his] that office; except that a notice of proposed rulemaking is not required for the establishment of hunting or fishing seasons and limits or for the establishment of state program plans required under federal education acts or regulations. The secretary of state shall not publish any proposed rulemaking or final order of rulemaking that has not been filed with the joint committee on administrative rules in accordance with section 536.024.

2. A notice of proposed rulemaking shall contain:

(1) An explanation of any new rule or any change in an existing rule, and the reasons therefor;

(2) The legal authority pursuant to which the rule is proposed to be made;

(3) The text of the entire rule proposed to be made or the entire text of any affected section or subsection of a rule which is proposed to be amended, with all new matter underlined or printed in boldface type and with all deleted matter placed in brackets, except that when a proposed rule consists of material so extensive that the publication thereof would be unduly cumbersome or expensive, the secretary of state need publish only a summary and description of the substance of the rule so long as a complete copy of the rule is made immediately available to any interested person upon application to the adopting state agency at a cost not to exceed the actual cost of reproduction. A proposed rule may incorporate by reference only if the material so incorporated is retained at the headquarters of the state agency and made available to any interested person at a cost not to exceed the actual cost of the reproduction of a copy. When a proposed amendment is to correct a typographical or printing error, or merely to make a technical change not affecting substantive matters, the amendment may be described in general terms without reprinting the entire rule, section or subsection;

(4) The number and general subject matter of any rule proposed to be rescinded;

(5) Notice that anyone may file a statement in support of or in opposition to the proposed rulemaking at a specified place and within a specified time not less than thirty days after publication of the notice of proposed rulemaking in the Missouri Register;

(6) Notice of the time and place of a hearing on the proposed rulemaking if a hearing is ordered, which hearing shall be not less than thirty days after publication of the notice of proposed rulemaking in the Missouri Register; or a statement that no hearing has been ordered if such is the case.

3. Any state agency issuing a notice of proposed rulemaking may order a hearing thereon, but no such hearing shall be necessary unless otherwise required by law.

4. Any state agency which has issued in the Missouri Register a notice of proposed rulemaking to be made without a hearing, but which thereafter concludes that a hearing is desirable, shall withdraw the earlier notice and file a new notice of proposed rulemaking which fully complies with the provisions of subdivision (6) of subsection 2 of this section, and the state agency shall not schedule the hearing for a time less than thirty days following the publication of the new notice.

5. Within ninety days after the expiration of the time for filing statements in support of or in opposition to the proposed rulemaking, or within ninety days after the hearing on such proposed rulemaking if a hearing is held thereon, the state agency proposing the rule shall file with the secretary of state [an] a final order of rulemaking either adopting the proposed rule, with or without further changes, or withdrawing the proposed rule, which order shall be published in the Missouri Register. Such ninety days shall be tolled for any rule held under abeyance pursuant to an executive order. If the agency fails to file the final order of rulemaking with the secretary of state within the time period specified within this subsection, the proposed rule shall lapse. The order of rulemaking shall contain:

(1) Reference to the date and page or pages where the notice of proposed rulemaking was published in the Missouri Register;

(2) An explanation of any change between the text of the rule as contained in the notice of proposed rulemaking and the text of the rule as finally adopted, together with the reason for any such change;

(3) The full text of any section or subsection of the rule as adopted which has been changed from that contained in the notice of proposed rulemaking;

(4) A brief summary of the general nature and extent of comments submitted in support of or in opposition to the proposed rule and a concise summary of the testimony presented at the hearing, if any, held in connection with said rulemaking, together with a concise summary of the state agency's findings with respect to the merits of any such testimony or comments which are opposed in whole or in part to the proposed rule.

6. Except as provided [in subsection 4 of section 536.023 and] in section 536.025, any rule, or amendment or rescission thereof, made after January 1, 1976, shall be void unless made in accordance with the provisions of this section.

7. Except as provided in subsection 1 of this section, all rules shall be published in full in the Missouri code of state regulations. No rule, except an emergency rule, may become effective prior to the thirtieth day after the date of publication of the revision to the Missouri code of state regulations. The secretary of state shall distribute revisions of the Missouri code of state regulations to all subscribers of the Missouri code of state regulations on or before the date of publication of such revision. The publication date of each rule shall be printed below the rule in the Missouri code of state regulations, provided further, that rules pertaining to changes in hunting or fishing seasons and limits that must comply with federal requirements or that are necessary because of documented changes in fish and game populations may become effective no earlier than on the tenth day after the filing of the order of rulemaking.

8. Effective September 1, 1990, if it is found in a contested case by an administrative or judicial fact finder that a state agency's action was based upon a statement of general applicability which should have been promulgated as a rule, as required by sections 536.010 to 536.050, and that agency was put on notice of such deficiency prior to the administrative or judicial hearing on such matter, then the administrative or judicial fact finder shall award the prevailing nonstate agency party its reasonable attorney's fees incurred prior to the award, not to exceed the amount in controversy in the original action. This award shall constitute a reviewable order. If a state agency in a contested case grants the relief sought by the nonstate party prior to a finding by an administrative or judicial fact finder that the agency's action was based on a statement of general applicability which should have been promulgated as a rule, but was not, then the affected party may bring an action in the circuit court of Cole County for [his] such party's reasonable attorney's fees incurred prior to the relief being granted, not to exceed the amount in controversy in the original action.

9. The actions authorized by subsection 8 of this section shall not apply to the department of revenue if that department implements the authorization hereby granted to the director or [his] the director's duly authorized agents to issue letter rulings which shall bind [him or his] the director or such agents and their successors for a minimum of three years, subject to the terms and conditions set forth in properly published regulations. An unfavorable letter ruling shall not bind the applicant and shall not be appealable to any forum. Subject to appropriations, letter rulings shall be published periodically with information identifying the taxpayer deleted. For the purposes of this subsection, the term "letter ruling" means a written interpretation of law by the director to a specific set of facts provided by a nonstate party.

536.022. 1. If any rule or portion of a rule of a state agency is suspended or terminated by action of [the general assembly,] the governor, a court or other authority, the state agency shall immediately file a notice of such action with the secretary of state.

2. The notice, in a format for publication designed by the secretary of state, shall contain the title and number of the rule; shall describe briefly the action taken with regard to the rule and the parties affected by the suspension or termination; shall state the effective date of the suspension or termination; shall state the duration of the suspension; and shall contain such other information deemed necessary by the secretary of state to provide adequate public information.

3. If any action has the effect of changing the information in the initial notice, the state agency shall immediately file a new notice with the secretary of state in the same manner as the original notice.

4. Notices shall be printed by the secretary of state in the Missouri Register as soon as practicable. The secretary of state shall insert in the code of state regulations material regarding the suspension or termination of rules, and [he] the secretary of state may remove rules which have terminated.

536.023. 1. The secretary of state shall prescribe, in writing, uniform procedures for the numbering, indexing, form and publication of all rules, notices of rulemaking and orders of rulemaking. Copies of the procedures [shall be furnished by the secretary of state to each state agency on or before January 1, 1976, and copies thereof] shall be permanently maintained in the office of the secretary of state and shall be available for public inspection at all reasonable times.

2. No rule, notice of proposed rulemaking or final order of rulemaking shall be accepted for filing with the secretary of state unless it conforms to said uniform procedures.

3. Each state agency shall adopt as a rule a description of its organization and general courses and methods of its operation and the methods and procedures whereby the public may obtain information or make submissions or requests. Substantial changes in any matter covered by the foregoing description shall be made only in accordance with the procedures set forth in sections 536.021 or 536.025.

[4. All rules on file with the secretary of state upon January 1, 1976, which do not conform to said uniform procedures, shall be rewritten so as to conform thereto and shall be refiled with the secretary of state not later than ninety days after January 1, 1976, and no rule shall be promulgated, amended or rescinded during said ninety-day period except pursuant to section 536.025. The original rules shall remain in effect until rewritten and refiled, and the rewritten rules shall become effective immediately upon refiling without following the provisions of section 536.021; provided, however, that any rule which is not so rewritten and refiled within ninety days after January 1, 1976, shall then lapse and be of no further force and effect unless and until it shall be promulgated in accordance with the provisions of section 536.021.]

536.024. 1. When the general assembly authorizes any state agency to adopt administrative rules or regulations pursuant to this section, the granting of such rulemaking authority and the validity of such rules and regulations is contingent upon the agency complying with the provisions of this section in promulgating such rules after June 3, 1994.

2. [No rule or portion of a rule promulgated under the authority of any provision of Missouri statutes shall become effective until it has been approved by the joint committee on administrative rules in accordance with the procedures provided herein, and the delegation of the legislative authority to enact law by the adoption of such rules is dependent upon the power of the joint committee on administrative rules to review and suspend rules pending ratification by the senate and the house of representatives as provided herein.

3.] Upon filing any proposed rule with the secretary of state, the filing agency shall concurrently submit such proposed rule to the joint committee on administrative rules, which may hold hearings upon any proposed rule or portion thereof at any time.

[4.] 3. A final order of rulemaking shall not be filed with the secretary of state until thirty days after such final order of rulemaking has been received by the committee. The committee may hold one or more hearings upon such final order of rulemaking during the thirty-day period. [If the committee does not disapprove such order of rulemaking within the thirty-day period, the filing agency may file such order of rulemaking with the secretary of state and the order of rulemaking shall be deemed approved.

5. The committee may, by majority vote of the members, suspend the order of rulemaking or portion thereof by action taken prior to the filing of the final order of rulemaking only for one or more of the following grounds:

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

(2) An emergency relating to public health, safety or welfare;

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

(4) A substantial change in circumstance since enactment of the law upon which the proposed rule is based;

(5) The proposed rule is arbitrary and capricious.

6. If the committee disapproves any rule or portion thereof, the filing agency shall not file such disapproved portion of any rule with the secretary of state and the secretary of state shall not publish in the Missouri Register any final order of rulemaking containing the disapproved portion.

7. If the committee disapproves any rule or portion thereof, the committee shall report its findings to the senate and the house of representatives. No rule or portion thereof disapproved by the committee shall take effect so long as the senate and the house of representatives ratify the act of the joint committee by resolution adopted in each house within thirty legislative days after such rule or portion thereof has been disapproved by the joint committee.

8. Upon adoption of a rule as provided herein, any such rule or portion thereof may be suspended or revoked by the general assembly either by bill or, pursuant to section 8, article IV of the constitution, by concurrent resolution upon recommendation of the joint committee on administrative rules. The committee shall be authorized to hold hearings and make recommendations pursuant to the provisions of section 536.037. The secretary of state shall publish in the Missouri Register, as soon as practicable, notice of the suspension or revocation.

9.] 4. The committee may file with the secretary of state any comments that the committee has concerning a proposed or final order of rulemaking. Such comments shall be published in the Missouri Register.

5. The committee may refer comments concerning such rule to the appropriations and budget committee of the house of representatives and the appropriations committee of the senate for further action.

6. The provisions of this section shall not apply to rules promulgated by the public service commission and the labor and industrial relations commission.

536.025. 1. A rule may be made, amended or rescinded by a state agency without following the provisions of section 536.021 [and subsection 5 of section 536.027], only if the state agency:

(1) Finds that an immediate danger to the public health, safety or welfare requires emergency action or that the rule is necessary to preserve a compelling governmental interest;

(2) Follows procedures best calculated to assure fairness to all interested persons and parties under the circumstances;

(3) Follows procedures which comply with the protections extended by the Missouri and United States Constitutions;

(4) Limits the scope of such rule to the circumstances creating an emergency and requiring emergency procedure; and

(5) At the time of or prior to the adoption of such rule files with the secretary of state and the joint committee on administrative rules the text of the rule together with the specific facts, reasons, and findings which support its conclusion that there is an immediate danger to the public health, safety or welfare or that the rule is necessary to preserve a compelling governmental interest which can be met only through the adoption of such rule and its reasons for concluding that the procedure employed is fair to all interested persons and parties under the circumstances.

2. Material filed with the secretary of state and the joint committee on administrative rules under the provisions of subdivision (5) of subsection 1 of this section shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof. Any [emergency] rule promulgated pursuant to this section shall be reviewed by the secretary of state to determine compliance with the requirements for its publication and adoption established in this section, and in the event that the secretary of state determines that such proposed material does not meet those requirements, the secretary of state shall not publish the [emergency] rule. The secretary of state shall inform the agency of its determination, and offer the agency a chance to either withdraw the emergency rule or to have the emergency rule published as a proposed rule.

3. [If the joint committee disapproves any emergency rule or portion thereof, the committee shall report its findings to the senate and the house of representatives. No emergency rule or portion thereof disapproved by the committee shall take effect unless the senate and the house of representatives fail to ratify the action of the joint committee by resolution adopted in each house within thirty legislative days after such rule or portion thereof has been disapproved by the joint committee.

4.] Rules adopted under the provisions of this section shall be known as "emergency rules" and shall, along with the findings and conclusions of the state agency in support of its employment of emergency procedures, be judicially reviewable under section 536.050 or other appropriate form of judicial review. The secretary of state and any employee thereof, acting in the scope of employment, shall be immune from suit in actions regarding the adoption of rules pursuant to this section.

[5.] 4. A rule adopted under the provisions of this section shall clearly state the interval during which it will be in effect [and which, in no case, may be for a period exceeding one hundred eighty days]. Emergency rules shall not be in effect for a period exceeding one hundred eighty calendar days or thirty legislative days, whichever period is longer. For the purposes of this section, a "legislative day" is each Monday, Tuesday, Wednesday and Thursday beginning the first Wednesday after the first Monday in January and ending the first Friday after the second Monday in May, regardless of whether the legislature meets.

[6.] 5. A rule adopted under the provisions of this section shall not be renewable, although a state agency may, at any time, adopt an identical rule under normal rulemaking procedures.

[7.] 6. A rule adopted under the provisions of this section may be effective not less than ten days after the filing thereof in the office of the secretary of state, or at such later date as may be specified in the rule, and may be terminated at any time by the state agency by filing an order with the secretary of state fixing the date of such termination, which order shall be published by the secretary of state in the Missouri Register as soon as practicable after the filing thereof.

[8.] 7. Effective September 1, 1994, if it is found in a contested case by an administrative or judicial fact finder that a state agency's rule should not have been promulgated as an emergency rule as provided by this section, but was in fact promulgated as an emergency rule pursuant to this section, then the administrative or judicial fact finder shall award the [prevailing] party who prevails, as defined in section 536.019, its reasonable [attorney's fees incurred prior to the award, not to exceed the amount in controversy, if any, in the original action] fees and expenses, as defined in section 536.019. This award shall constitute a reviewable order. If a state agency in a contested case grants the relief sought by the party prior to a finding by an administrative or judicial fact finder that the state agency's action was based on a statement of general applicability which should not have been promulgated as an emergency rule, but was in fact promulgated as an emergency rule pursuant to this section, then the affected party may bring an action in circuit court of Cole County for his reasonable [attorney's fees incurred prior to the relief being granted, not to exceed the amount in controversy in the original action] fees and expenses, as defined in section 536.019.

     536.031. 1. There is established a publication to be known as the "Code of State Regulations", which shall be published by the secretary of state as soon as practicable after ninety days following January 1, 1976, and may be republished from time to time thereafter as determined by the secretary of state.

     2. The code of state regulations shall contain the full text of all rules of state agencies in force and effect upon the effective date of the first publication thereof, and effective September 1, 1990, it shall be revised no less frequently than monthly thereafter so as to include all rules of state agencies subsequently made, amended or rescinded and the full text of any law enacted pursuant to section 21.800, RSMo. The code may also include citations, references, or annotations, prepared by the state agency adopting the rule or by the secretary of state, to any intraagency ruling, attorney general's opinion, determination, decisions, order, or other action of the administrative hearing commission, or any determination, decision, order, or other action of a court interpreting, applying, discussing, distinguishing, or otherwise affecting any rule published in the code.

     3. The code of state regulations shall be published in looseleaf form in one or more volumes and with an appropriate index and cover, and revisions in the text and index may be made by printing additional pages for insertion in the looseleaf cover.

     4. The secretary of state may omit from the code of state regulations such rules and such material incorporated by reference in any rule the publication of which would be unduly cumbersome or expensive, provided that the full text of such rule or the full text of the material incorporated by reference is made available to any interested person at both the office of the secretary of state and the office of the adopting state agency, and copies thereof made available to any interested party at a cost not to exceed the actual cost of copy reproduction.

     5. The courts of this state shall take judicial notice, without proof, of the contents of the code of state regulations.

     536.046. Each agency may maintain a public rulemaking docket. The rulemaking docket may contain a listing of the precise subject matter of each rule that the agency is considering proposing. The docket may also contain the name and address of agency personnel with whom persons may communicate with respect to the matter and an indication of the present status within the agency of the rule the agency is considering proposing. The secretary of state may publish such rulemaking dockets.

     536.050. 1. The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented. The venue of such suits against agencies shall, at the option of the plaintiff, be in the circuit court of Cole County, or in the county of the plaintiff's residence, or if the plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. Nothing herein contained shall be construed as a limitation on the declaratory or other relief which the courts might grant in the absence of this section.

     2. Any person bringing an action under subsection 1 of this section shall not be required to exhaust any administrative remedy if the court determines that:

     (1) The administrative agency has no authority to grant the relief sought or the administrative remedy is otherwise inadequate; or

     (2) The only issue presented for adjudication is a constitutional issue or other question of law; or

     (3) Requiring the person to exhaust any administrative remedy would result in undue prejudice because the person may suffer irreparable harm if unable to secure immediate judicial consideration of the claim. Provided, however, that the provisions of this subsection shall not apply to any matter covered by chapters 288, 302, and 303, RSMo.

     3. A party who prevails in an action brought pursuant to subsection 1 of this section shall be awarded reasonable fees and expenses, as defined in section 536.085, incurred by that party in the action.

     4. A party seeking an award of fees and other expenses shall, within thirty days of a final disposition of an action brought pursuant to subsection 1 of this section, submit to the court which rendered the final disposition or judgment an application which shows that the party is a prevailing party and is eligible to receive an award pursuant to this section, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.

     5. A prevailing party in an agency proceeding shall submit an application for fees and expenses to the court before which the party prevailed. The filing of an application shall not stay the time for appealing the merits of a case. When the state appeals the underlying merits of an adversary proceeding, no decision on the application for fees and other expenses in connection with that adversary proceeding shall be made pursuant to this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.

     6. The court may either reduce the amount to be awarded or deny any award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.

     7. The decision of a court on the application for reasonable fees and expenses shall be in writing, separate from the judgment or order of the court which determined the prevailing party, and shall include written findings and conclusions and the reason or basis therefor. The decision of a court on the application for fees and other expenses shall be final, subject respectively to appeal or judicial review.

     8. If a party or the state is dissatisfied with a determination of fees and other expenses made in an action brought pursuant to subsection 1 of this section, that party or the state may, within the time permitted by law, appeal that order or judgment to the appellate court having jurisdiction to review the merits of that order or judgment. The appellate court's determination shall be based solely on the record made before the court below. The court may modify, reverse or reverse and remand the determination of fees and other expenses if the court finds that the award or failure to make an award of fees and other expenses, or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, or was made contrary to law or in excess of the court's jurisdiction. Awards made pursuant to this section shall be payable from amounts appropriated therefor. The state agency against which the award was made shall request an appropriation to pay for the award.

     Section B. Because immediate action is necessary to properly oversee the laws of this state, section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and section A of this act shall be in full force and effect upon its passage and approval.