(1) Montana statutes are referred to collectively as the Montana Code Annotated (MCA).

(2) Section 2-3-103, MCA, directs each agency to adopt procedural rules to facilitate public participation in agency actions that are of significant interest to the public, with exceptions listed in 2-3-112, MCA.

(3) "Agency" is defined by 2-3-102, MCA. Note that exceptions to the term "agency" are fewer under this section than under the Montana Administrative Procedure Act, 2-4-102, MCA.

(4) "Agency action" is defined by 2-3-102, MCA.

(5) "Register" refers to the Montana Administrative Register.

(6) "Sample form" is defined as an Attorney General's Office reference guide that depicts standard boilerplate language and layout for contested cases and declaratory rulings. An appendix of Attorney General sample forms follows the text of the rules in subchapter 2.

(7) "Template" refers to the Secretary of State's online forms depicting standard boilerplate language and layout for rulemaking petitions and notices published in the register. The templates are available at https://sosmt.gov/arm/templates.

(a) The templates illustrate the Secretary of State's model rules in subchapter 3. The template number corresponds to the model rule number; for example, template 309b is connected to ARM 1.3.309.

(b) Hard copies of templates may be obtained from the Secretary of State's Office, Administrative Rules Services, P.O. Box 202801, Helena MT 59620-2801, telephone (406) 444-2055.

(a) any of the agency actions allowed pursuant to 2-3-104, MCA; or

(b) a notice of the proposed agency action published in the register in accordance with template 102a (https://sosmt.gov/arm/templates). The agency may grant or deny an opportunity for hearing, except a hearing is required if the proposed action is the adoption of rules in an area of significant interest to the public.

(2) For purposes of (1)(b) only, significant interest to the public is defined at 2-4-102, MCA, as matters an agency knows to be of widespread citizen interest.

(3) Public comment on any public matter within the jurisdiction of an agency must be allowed at any public meeting. See 2-3-103(1)(b), 2-3-202, and 2-3-203, MCA, for definitions of "public matter" and "meeting" and for the requirements applicable to opening and closing meetings to the public. The opportunity for public comment must be reflected on the meeting agenda and incorporated into the official minutes of the meeting. For purposes of this rule and 2-3-103(1)(b), MCA, contested case is defined at 2-4-102(4), MCA.

(1) Montana statutes are referred to collectively as the Montana Code Annotated (MCA).

(2) The Montana Administrative Procedure Act is referred to as "MAPA" and includes 2-4-101 through 2-4-711, MCA. MAPA outlines procedures that agencies must follow when:

(a) adopting, amending, or repealing agency rules;

(b) hearing contested cases; or

(c) issuing declaratory rulings.

(3) Each agency subject to MAPA must adopt rules describing its organization and procedures, per 2-4-201, MCA. Section 2-4-202, MCA, directs the Secretary of State to prepare a model form for a rule describing the organization of agencies and model rules of practice for agency guidance in fulfilling these requirements. It directs the Attorney General to prepare model rules of practice for agencies to use as a guide for contested case hearings and declaratory rulings. The model rules have been adopted for that purpose. Agencies may adopt the model rules by incorporating them by reference. Subsequent amendments may be adopted only by following the rulemaking procedure of MAPA. See 2-4-307, MCA.

(4) The term "register" refers to the Montana Administrative Register.

(1) MAPA applies to all state agencies as defined in 2-4-102, MCA. Note that the state Board of Pardons and Parole is subject to only the sections enumerated in 2-4-103, 2-4-201, 2-4-202, and 2-4-306, MCA, and the requirement that its rules be published.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

This rule has been transferred.

(1) A rule is an agency statement of general applicability that interprets law or describes agency requirements. It applies to all persons who are subject to the requirements or regulations of the agency and comes within the terms of the rule. A contested case involves an agency determination that affects the rights or responsibilities of a specifically named party. "Contested case" and "party" are defined by 2-4-102, MCA.

(1) All parties to contested cases must be provided notice of hearing. As illustrated by sample form 212a, the notice must include:

(a) the time, place, and nature of the hearing;

(b) the legal authority and jurisdiction under which the hearing is being

conducted;

(c) a citation to the statutes and rules involved;

(d) a short and plain statement of the issues involved;

(e) notice that formal proceedings may be waived pursuant to 2-4-603, MCA;

(f) a statement advising parties of their right to be represented by counsel at the hearing; and

(g) if applicable, a statement staying the agency action or detailing at what point the party's legal rights, duties, or privileges will be revoked or imposed.

                          Sample Form 212a:  Notice of Contested Case Hearing

                          BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [summary - for example:    )        NOTICE OF HEARING ON
the Insurance Producer's License of             )        REVOCATION OF LICENSE
John Doe]                                                     )       

            TO:         [name of party]

            At [time], [date], at [address], a hearing will be held for the [subject - for example:  revocation of the insurance producer's license of John Doe]. 

            The [agency] will make reasonable accommodations for persons with disabilities who wish to participate in this hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact [agency] no later than 5:00 p.m. on [date - no requirement specified in MAPA], to advise of the nature of the accommodation that is needed.  Please contact [name, address, telephone, TTD number, fax, e-mail]. 

            This hearing is held under the authority of [MCA section or agency regulation].  Violation of [MCA section or agency regulation] is alleged in that [statement of facts constituting alleged violation - for example:  (Option 1:  [Name] misappropriated to his own use money belonging to a policyholder, specifically the sum of $500 from Mary Smith on or about the 1st day of March, 2008); or (Option 2:  [Name] misappropriated to his own use money belonging to a policyholder.  A more definite and detailed statement of the allegation may be obtained by applying to [name, address].) 

            You are entitled to attend this hearing and respond and present evidence and arguments on all issues involved in this action. 

            You have a right to be represented by counsel at the hearing.  If you desire to contest the proposed agency action, or to waive formal proceedings pursuant to 2-4-603, MCA, you must notify [name, address] in writing within [number of days which provides reasonable opportunity to prepare] days of service of this notice on you.  Failure to notify [name] will result in [proposed agency action - for example:  revocation] on the date of this hearing. 

            Dated this _________ day of ___________________, 20___.

  
                                                                                     (must be signed by:)
                                                                          By         [authorized person's signature]   

(1) Pursuant to 2-4-631(3), MCA, if an agency makes a determination that public health, safety, or welfare requires emergency action, the agency may order immediate suspension of a license. The order must include findings justifying emergency action, and revocation proceedings must be promptly instituted and determined.

(a) See sample form 213a.

          Sample Form 213a:  Notice of Immediate Suspension or Revocation of a License

                          BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [type of license and         )        NOTICE OF [action taken - for ex:
name of holder (for example:  Insurance  )        SUSPENSION OF PRODUCER'S
Producer's License of John Doe)]             )        LICENSE] AND HEARING FOR
                                                                  )        [SUSPENSION OR REVOCATION]
                                                                  )        OF [TYPE OF LICENSE]

            TO:  [name of license holder]

            At [time, date], at [room, building, address], a hearing will be held for the [suspension or revocation] of the [type of license] of [name of license holder]. 

            Dated this ______ day of _____________________, 20___.

(1) In a contested case, if a party does not appear to contest an intended agency action, the agency may enter a default order. If a default is entered, pursuant to 2-4-623, MCA, the order must be in writing and include findings of fact and conclusions of law.

(a) See sample form 214a.

Sample Form 214a: Default Order

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as original                       )

Notice]                                                                   )                DEFAULT ORDER

                                                                               )

          On [date], a Notice of Proposed [agency action - for example: Revocation of Agent's License] was served on [name, address], by the sheriff of [county], Montana. A copy of the sheriff's return is attached to this order and marked Exhibit A. A copy of the notice is attached to this order and marked Exhibit B.

          The notice provided an opportunity for hearing if requested within [number] days. More than [number] days have elapsed since service of the order and no request for hearing has been received. The [agency official] considered the evidence and exhibits and makes the following determinations:

FINDINGS OF FACT

         [For example: On the 1st day of March, 2008, John Doe appropriated to his own use money belonging to a policyholder, specifically $500 from Mary Smith, as is indicated by sworn statements by two witnesses, Mary Jones and Robert Jones, both being competent to testify and having personal knowledge of the transaction under consideration.]

CONCLUSIONS OF LAW

          [For example: Section 33-17-1001(1), MCA, provides that the commissioner may revoke an insurance producer's license if he finds that the licensee has misappropriated or converted to his own use money belonging to policyholders. The commissioner has so found; thus cause exists under 33-17-1001(1)(d), MCA, for the revocation of the insurance producer's license of John Doe.]

ORDER

          [For example: The insurance producer's license of John Doe is revoked effective August 1, 2008.]

          Dated this _________ day of ___________________, 20___.

                                                                                                   (must be signed by:)

                                                                                           By    [authorized person's signature]    

(1) Informal disposition of contested cases is permissible pursuant to 2-4-603, MCA.

(2) Informal proceedings in contested cases must give the parties an opportunity to present to the agency or the hearing examiner written or oral evidence challenging the agency's actions, its refusal to act, its justifications for determination, or other evidence relating to the contested case.

(3) An informal conference may be conducted prior to the proceedings in order to define issues, determine witnesses, and agree upon stipulations.

(4) A record of proceedings conducted under this part must be made in accordance with 2-4-604, MCA.

(1) A party who has been given notice of a contested case hearing may apply to the agency or the designated hearing examiner for a more definite and detailed statement of the issues involved in the hearing.

(1) In all contested cases, discovery is available to the parties in accordance with Rules 26 through 37 of the Montana Rules of Civil Procedure. However, Rule 27 and Rule 37(b)(1) and 37(b)(2)(D) shall not apply. All references to the "court" shall be considered to refer to the appropriate "agency"; all references to the use of the subpoena power shall be considered references to ARM 1.3.230; all references to "trial" shall be considered references to "hearing"; all references to "plaintiff" shall be considered references to "a party"; all references to "clerk of court" shall be considered references to the person designated by the department head to keep documents filed in a contested case.

(2) If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the agency in which the action is pending, the refusal to obey the agency order shall be enforced as provided in ARM 1.3.230.

(3) If a party seeking discovery from the agency in which the action is pending believes he has been prejudiced by a protective order issued by the agency under Rule 26(c), M.R.Civ.P., or, if the agency refuses to make discovery, that party may petition the district court for review of the intermediate agency action under 2-4-701, MCA.

(1) An agency may appoint a hearing examiner to conduct a hearing in a contested case.

(2) A hearing examiner appointed under this part may:

(a) administer oaths or affirmations;

(b) issue subpoenas;

(c) provide for the taking of testimony and depositions;

(d) set the time and place for hearing;

(e) set motion and briefing schedules; and

(f) by mutual consent of the parties, hold conferences to consider narrowing or simplifying the issues.

(3) If a defending party notifies the agency that the party will appear at the hearing to contest the intended action, the agency must advise all parties of the appointment of either an agency member or a hearing examiner to manage the case, as illustrated by sample form 218a.

(4) Pursuant to 2-4-611(4), MCA, an agency may disqualify a hearing examiner if the agency determines personal bias, lack of independence, disqualification by law, or other disqualification criteria exist. A motion to disqualify filed by a party must be supported by affidavit.

Sample Form 218a: Order Appointing a Hearing Examiner 

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as                                           )      APPOINTMENT OF HEARING

original notice]                                                            )      EXAMINER

                                                                                     )

          TO: All Interested Persons

          On [date], a notice of hearing for [for example: revocation of insurance producer's license] was served on [name]. On [date], the agency received written notice that [name] will appear at the hearing to contest the intended agency action. [Name] is appointed the hearing examiner in the above action. All correspondence and motions in the above matter should be directed to the hearing examiner at [address].

          The [agency] will make reasonable accommodations for persons with disabilities who wish to participate in this process and need an alternative accessible format of this notice. If you require an accommodation, contact [agency] no later than 5:00 p.m. on [date - no requirement specified in MAPA], to advise us of the nature of the accommodation needed. Please contact [name, address, telephone, TTD number, fax, e-mail].

          Dated this _________ day of ___________________, 20___.

                                                                                              (must be signed by:)

                                                                                      By    [authorized person's signature]    

(1) The contested case hearing shall be conducted before the decision making authority of the agency or a hearing officer designated in accordance with ARM 1.3.218.

(2) The presiding officer must ensure that all parties are afforded the opportunity to respond and present evidence and argument on all issues involved.

(3) Absent a determination by the presiding officer that the interests of justice require otherwise, the order of hearing is as follows:

(a) any opening statements requested or allowed by the presiding officer;

(b) presentation of evidence by the party asserting a claim for relief (the challenging party);

(c) cross examination by the opposing party;

(d) presentation of evidence by the opposing party;

(e) cross examination by the challenging party; and

(f) rebuttal testimony.

(4) All testimony must be given under oath or affirmation.

(5) Exhibits must be marked and must identify the person offering the exhibits. The exhibits shall be preserved by the agency as part of the record of the proceedings.

(6) The presiding officer may hear closing arguments, request written argument, or order a schedule for parties to submit proposed findings of fact and conclusions of law.

(7) The presiding officer may grant recesses or continue the hearing.

(1) The record in a contested case must include:

(a) all pleadings, motions, and rulings;

(b) all evidence, either written or oral, received, or considered by the presiding officer;

(c) a statement of matters officially noticed;

(d) questions and offers of proof, objections, and rulings on objections;

(e) proposed findings and exceptions; and

(f) any decision, opinion, or report by the presiding officer which must be in writing.

(2) At the request of any party, the record must be transcribed. The cost of transcription is the responsibility of the requesting party.

(1) Unless otherwise provided by statute, all evidence introduced in a contested case hearing shall be received and evaluated in conformance with common law and statutory rules of evidence.

(1) Pursuant to 2-4-613, MCA, ex parte communications with the presiding officer or any person authorized to participate in the decision of the contested case are prohibited unless otherwise authorized by law.

(1) If a majority of the officials of the agency who are to render the final decision have not heard the case, a decision that is adverse to a party (other than the agency itself) may not be made until a proposed decision is served upon the parties and the parties are given an opportunity to file exceptions and briefs, and present oral argument to the officials responsible for making a final decision.

(2) All parties should be informed of any appeal or review procedures provided by the agency.

(3) The parties may waive compliance with this rule by written stipulation.

(4) The agency may adopt the proposed decision as the agency's final order.

(1) A final decision or order adverse to a party in a contested case must be in writing and must include findings of fact and conclusions of law.

(2) See sample form 224a.

(3) Parties and their attorneys must be served with a copy of a final decision or order.

Sample Form 224a: Final Order

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [same as original Notice]               )      FINDINGS OF FACT,

                                                                                )      CONCLUSIONS OF LAW, ORDER

                                                                                )      AND NOTICE OF OPPORTUNITY

                                                                                )      FOR JUDICIAL REVIEW

          After notice and hearing on the proposed revocation of the insurance producer's license of John Doe, for appropriation of policyholder's money, the insurance commissioner considered the evidence and exhibits and makes the following disposition of this contested case:

PROPOSED FINDINGS OF FACT

          Counsel for John Doe proposed that the commissioner find that: The personal check of Mary Smith was deposited to a trust account maintained by agent Doe. The commissioner does not accept this proposed finding of fact because it was contradicted by two witnesses, both maintaining that the bank account was used for personal purposes by John Doe.

FINDINGS OF FACT

          The licensee, John Doe, received the personal check of Mary Smith in the amount of $500 on the 1st day of March, 2008. The licensee, John Doe, maintained two checking accounts, one designated John Doe Insurance, Trust Account, the other a joint checking account between John Doe and Jane Doe. The joint checking account had a mailing address which was 100 Main Street, Anytown, Montana. 100 Main Street is the residence of John and Jane Doe. Thereafter, over a period of two weeks, John and Jane Doe drew checks for rent, cash, and groceries against the $500 deposited. On March 1, 2008, John Doe gave to Mary Smith a receipt which read:

          Received of Mary Smith the sum of $500 in payment of initial premium of life insurance policy to be issued by the Sandy Bottom Life Insurance Company of North Dakota in the amount of $150,000 insuring the life of Mary Smith.

                                                                                                     /s/ John Doe, Producer

                                                                                                     Sandy Bottom Life Insurance

                                                                                                     Company of North Dakota

          The commissioner finds that John Doe appropriated to his own use money belonging to a policyholder.

CONCLUSIONS OF LAW

          Section 33-17-1001(1)(2), MCA, provides that the commissioner may revoke an insurance producer's license if he finds that the licensee has misappropriated or converted to his own use money belonging to policyholders. The commissioner has so found; thus cause exists under 33-17-1001(1)(d), MCA, for the revocation of the insurance producer's license of John Doe.

ORDER

          The insurance producer's license of John Doe is revoked effective August 1, 2008.

          Dated this _________ day of ___________________, 20___.

                                                                                              (must be signed by:)

                                                                                      By    [authorized person's signature]    

NOTICE: You are entitled to judicial review of this Order in accordance with Section 2-4-702, MCA. Judicial review may be obtained by filing a petition in district court within thirty days after the service of this Order.

This rule has been repealed.

(1) A party may seek a declaratory ruling from the agency when doubt exists as to how a statute or rule administered by an agency affects the party's legal rights.

(1) A petition for declaratory ruling must be typewritten or printed.

(2) The petition must include:

(a) the name and address of petitioner;

(b) a detailed statement of the facts upon which petitioner requests the agency to base its declaratory ruling;

(c) sufficient facts to show that petitioner will be affected by the requested ruling;

(d) the rule or statute for which petitioner seeks a declaratory ruling;

(e) the questions presented;

(f) propositions of law asserted by petitioner;

(g) the specific relief requested; and

(h) the name and address of any person known by petitioner to be interested in the requested declaratory ruling.

(3) See sample form 227a.

(4) The record in a declaratory ruling proceeding shall include:

(a) the petition;

(b) a statement of matters officially noticed;

(c) if for good cause shown the agency has held hearings on the petition, a stenographic record of the proceedings when demanded by a party; and

(d) the ruling.

Sample Form 227a: Petition for Declaratory Ruling

BEFORE THE [agency] OF THE STATE OF MONTANA

In the matter of [summary; for example:                                        )

Application of John Doe, an insurance                                         )      PETITION FOR

producer, for a declaratory ruling on the                                       )      DECLARATORY RULING

applicability of 33-17-1001(1)(d), MCA,                                      )

to his trust account]                                                                         )

          1. Petitioner's name and address is [name, address].

          2. [Facts, for example: Petitioner maintains an insurance office in his residence in Anytown, Montana. As part of his business, petitioner maintains a trust account and a joint checking account under one number. Petitioner regularly deposits checks received from clients into the checking account for future transmittal to petitioner's employer, Sandy Bottom Insurance Company of North Dakota. The insurance commissioner has threatened to bring proceedings under 33-17-1001(1)(d), MCA, for revocation of petitioner's license.]

          3. The [statute, regulation, order] as to which petitioner requests a declaratory ruling is [number], which provides that [pertinent provisions].

          4. The question presented for declaratory ruling by the agency is [for example: whether the above statute makes the producer's license subject to revocation for maintaining a combination trust account and private account].

          5. Petitioner contends that [for example: his activity is not an illegal withholding, because he does not use any of the deposited money in trust for his own use].

          6. Petitioner requests a declaratory rule that [for example: he maintains one checking account for both trust and private moneys without violation of 33-17-1001(1)(d), MCA].

          7. (Option 1): Petitioner knows of no other party similarly affected; or (Option 2): Petitioner knows of the following parties who are similarly affected: [names].

          Dated this _________ day of ___________________, 20___.

                                                                                         _____________________________

                                                                                         [name] 

(2) An order denying a petition must include a statement of the grounds for denial.

(1) A declaratory ruling is binding between the agency and the petitioner concerning the set of facts presented in the petition.

(2) A declaratory ruling or notice of refusal to issue a ruling is a final agency decision subject to judicial review in the same manner as decisions or orders in contested cases.

(1) An agency conducting contested case or declaratory ruling proceedings may require the furnishing of information, attendance of witnesses, and production of evidence through subpoena and subpoena duces tecum.

(a) Subpoenas must be issued and served pursuant to the rules of civil procedure. Except as otherwise provided by law, costs associated with the subpoena must be paid by the party who requested it.

(b) In case of disobedience, an agency or other party may petition a district court to compel compliance with a subpoena or the giving of testimony.

(1) A person appearing before the agency has the right to be accompanied, represented, and advised by counsel. The agency should advise a party to a contested case of the right to counsel.

(2) A corporation appearing before an agency is considered a separate legal entity and may not appear on its own behalf through an agent other than an attorney.

(1) Unless otherwise provided by law and these rules, all motions and pleadings must be served in accordance with the Montana Rules of Civil Procedure.

(1) Agencies must maintain an index of all final orders and decisions in contested cases and declaratory rulings. All final decisions and orders must be available for public inspection on request. Copies of final decisions and orders must be given to the public on request after payment of the cost of duplication. 

(2) The Montana Administrative Procedure Act is referred to as "MAPA" and includes 2-4-101 through 2-4-711, MCA. MAPA states procedures that agencies must follow when:

(a) adopting, amending, or repealing agency rules;

(b) hearing contested cases; or

(c) issuing declaratory rulings.

(3) Each agency subject to MAPA must adopt rules describing its organization and procedures, per 2-4-201, MCA. Section 2-4-202, MCA, directs the Secretary of State to prepare a model form for a rule describing the organization of agencies and model rules of practice for agency guidance in fulfilling these requirements. The model rules have been adopted for that purpose. Agencies may adopt the model rules by incorporating them by reference. Subsequent amendments may be adopted only by following the rulemaking procedure of MAPA. See 2-4-307, MCA.

(4) "Register" refers to the Montana Administrative Register.

(5) "Template" refers to the Secretary of State's online forms depicting standard boilerplate language and layout for rulemaking petitions and notices published in the register. The forms are available at https://sosmt.gov/arm/templates. The templates illustrate the Secretary of State's model rules in this subchapter.

(a) The template number corresponds to the model rule number; for example, template 309b is connected to ARM 1.3.309.

(b) Hard copies of templates may be obtained from the Secretary of State's Office, Administrative Rules Services, P.O. Box 202801, Helena MT 59620-2801, telephone (406) 444-2055.

(1) Each agency shall at least biennially review its rules to determine whether any rule should be adopted or any existing rule should be modified or repealed, per 2-4-314, MCA.

(2) An organizational rule must be reviewed biennially to determine whether it should be modified, per 2-4-314, MCA.

(3) An organizational rule should contain the following as illustrated by template 305a (https://sosmt.gov/arm/templates):

(a) the items required by 2-4-201(1), MCA;

(b) charts showing both the organization of the agency and the functions of each division, indicating those divisions without rulemaking authority; and

(c) a personnel roster of agency heads, division heads, and other key personnel should be included in the rule.

(1) Title 2, chapter 4, part 3, MCA, prescribes procedures to be followed by agencies when adopting, amending, or repealing rules.

(2) See 2-4-102, MCA, for the definition of "rule." Because of the difficulty in determining whether an agency action meets the definition of rule, construe the exceptions narrowly and if in doubt, consult legal counsel. Interpretive rules are statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers. Interpretive rules may be made under the express or implied authority of a statute, but are advisory only and do not have the force of law.

(a) Among other limitations in 2-4-102, MCA, "rule" does not include statements concerning only the internal management of an agency or state government and not affecting private rights or procedures available to the public, including rules implementing the state personnel classification plan, the state wage and salary plan, or the statewide budgeting and accounting system.

(3) Substantive rules must implement either:

(a) a statute which clearly and specifically includes the subject matter of the rule as a subject upon which rules can be adopted;

(b) subject matter which is clearly and specifically included in a statute to which the agency's rulemaking authority extends; or

(c) an agency function which is clearly and specifically included in a statute to which the agency's rulemaking authority extends, per 2-4-305, MCA.

(4) Rulemaking under MAPA involves five steps.

(a) Contact with the primary sponsor. When an agency begins to work on the substantive content and the wording of a proposal notice for a rule that initially implements legislation, the agency shall contact the legislator who was the primary sponsor of the legislation. See 2-4-302, MCA.

(b) Notice of proposed agency action. See ARM 1.3.309 regarding the following components:

(i) notice in the register;

(ii) contact with sponsor as required;

(iii) notice to interested persons;

(iv) statement of reasonable necessity for the proposed action; and

(v) a statement as to whether a proposed rule significantly and directly impacts small businesses.

(c) Notice to the appropriate administrative rule review committee pursuant to 2-4-302, MCA. 

(d) Opportunity to be heard.

(i) The agency shall allow at least 28 days from the publication of the original notice of proposed action for interested persons to submit comments in writing via regular mail, e-mail, or fax to the agency. The agency shall extend the response time in the event an amended or supplemental notice is filed to amend a statement of reasonable necessity, pursuant to 2-4-305, MCA.

(ii) The agency shall schedule a hearing to be held at least 20 days from the publication of the notice of proposed action if the proposed rules affect matters which are of significant interest to the public as defined at 2-4-102, MCA.

(iii) Except where the proposed rules affect matters which are of significant interest to the public or unless a hearing is otherwise required by law, a public hearing must be held only if the agency's proposed action affects a substantive rule and a hearing is requested by either:

(A) 10 percent or 25, whichever is less, of the persons who will be directly affected by the proposed action;

(B) a governmental subdivision or agency;

(C) an association having not less than 25 members who will be directly affected; or

(D) the appropriate administrative rule review committee of the Legislature. See ARM 1.3.311.

(e) Agency notice of final action. See ARM 1.3.312.

(5) Pursuant to 2-4-302, MCA, the agency shall create and maintain a list of interested persons and the subject(s) of their interest. Persons submitting a written comment or attending a hearing must be informed by the agency of the list and be provided an opportunity to place their names on the list.

(6) In the event of imminent peril to the public health, safety, or welfare, temporary emergency rules may be adopted without prior notice or hearing or after abbreviated procedures. However, special notice must be given to the appropriate administrative rule review committee. See ARM 1.3.313.

(7) If a statute becomes effective prior to October 1 of the year of enactment, temporary rules may be adopted with abbreviated notice or hearing, and with at least 30 days' notice, but are effective only through October 1 of that year. See ARM 1.3.313.

(1) Section 2-4-315, MCA, authorizes an interested person or member of the Legislature acting on behalf of an interested person when the Legislature is not in session, to petition an agency to adopt, amend, or repeal a rule.

(a) The petition shall be in writing, signed by or on behalf of the petitioner, and shall contain, as illustrated by template 308a (https://sosmt.gov/arm/templates), a detailed statement of:

(i) the name and address of petitioner and of any other person known by petitioner to be interested in the rule sought to be adopted, amended, or repealed;

(ii) sufficient facts to show how petitioner will be affected by adoption, amendment, or repeal of the rule;

(iii) the rule that the petitioner requests the agency adopt, amend, or repeal. Where amendment of an existing rule is sought, the rule shall be set forth in the petition with proposed deletions interlined and proposed additions underlined; and

(iv) facts and propositions of law in sufficient detail to show the reasons for adoption, amendment, or repeal of the rule.

(b) Legislators may petition an agency on behalf of interested parties through an informal letter or memorandum. The petition should include the name of the person or a description of the class of persons on whose behalf the legislator acts. Petitions filed by the appropriate administrative rule review committee of the Legislature need not be brought on the behalf of any specifically interested party. Any petition from the Legislature or its members should comply with (1)(a)(iii) and (iv).

(2) The petition shall be considered filed when received by the agency.

(3) Upon receipt of the petition, the agency:

(a) may, but is not required to, schedule a hearing or oral presentation of petitioner's or interested person's views to assist in developing the record;

(b) shall, within 60 days after date of submission of the petition, either:

(i) issue an order denying the petition; or

(ii) initiate rulemaking proceedings in accordance with MAPA.

(4) A decision to deny a petition or to initiate rulemaking proceedings must:

(a) be in writing;

(b) be based on record evidence, including any information submitted by petitioner, the agency, and interested persons; and

(c) include the reasons for the decision.

(1) Per 2-4-302, MCA, a notice of proposed rulemaking involves the following:

(a) An agency shall contact the primary sponsor of any legislation when the agency begins work on the initial rule proposal implementing one or more sections of that legislation. If a proposed rule implements more than one bill, the primary sponsor of each bill must be contacted. If the legislation affected more than one program, contact must be made with the primary sponsor each time that a rule is being proposed to initially implement the legislation for a program, even if another agency has previously initiated rulemaking under that legislation.

(i) When the bill sponsor contact requirements apply, the proposal notice must state the date on which and the manner in which contact was made with the primary sponsor, per 2-4-302, MCA.

(b) An agency shall file with the Secretary of State a notice of intent to adopt, amend, or repeal a rule. On the same day, the agency shall send each member of the staff of the appropriate administrative rule review committee an electronic copy of the notice in accordance with 2-4-302, MCA.

(c) An agency shall post the notice on the state electronic access system or other available electronic communications system available to the public. Posting on the agency's home page is adequate.

(d) Within three days of publication pursuant to this rule, an agency shall send copies of the notice to:

(i) all interested persons; and

(ii) the primary sponsor of the legislation being implemented, if the notice is the initial rule proposal regarding that legislation. If a proposed rule implements more than one bill, the primary sponsor of each bill must receive a copy of the notice.

(e) Current or former legislators who wish to be contacted regarding initial proposals must keep their name, address, e-mail address, and telephone number on file with the Secretary of State. Agencies proposing rules shall consult that listing.

(f) An agency may send a copy of the notice to a statewide wire service and any other news media it considers appropriate, per 2-3-105, MCA.

(g) Whenever practicable and appropriate, the agency may send written notice to licensees of the agency, per 2-4-631, MCA.

(2) Notice of agency action must be published within six months of the date on which notice of the proposed action was published, per 2-4-305, MCA.

(3) The contents of the notice shall include the following:

(a) The notice of public hearing, as illustrated by template 309a (https://sosmt.gov/arm/templates), must include all notice items required by 2-4-111, 2-4-302, and 2-4-305, MCA, summarized as follows:

(i) The agency may issue a single public notice that it intends to adopt, amend, or repeal several rules dealing with the same subject matter in a single proceeding.

(ii) Where amendment of an existing rule is sought, the rule shall be set forth with proposed deletions interlined and proposed additions underlined. Unchanged sections and subsections may be referred to by the earmark and summarized as "remains the same." Numbered tables may be referred to by the number and summarized as "remains the same."

(iii) If an agency is proposing to adopt a rule that it determines will significantly and directly impact small businesses, the agency shall include a statement of that determination in its proposal notice.

(iv) The agency shall include in its notice an easily understood statement of reasonable necessity which contains the principal reasons and the rationale for each proposed rule. One statement may cover several proposed rules if appropriate, and if the language of the statement clearly indicates which rules it covers. An inadequate statement of reasonable necessity cannot be corrected in an adoption notice. The corrected statement of reasonable necessity must be included in a new notice or supplemental notice of proposed action. If an agency uses an amended proposal notice to amend a statement of reasonable necessity, the agency shall allow additional response time as required in 2-4-305, MCA.

(A) The statement of reasonable necessity must be more substantive than stating the statute that authorizes rulemaking. A statute mandating that the agency adopt rules establishes the necessity for rules but does not, standing alone, constitute reasonable necessity for a rule.

(B) When an agency proposes to change or introduce a monetary amount that a person shall pay or will receive, such as a fee, cost, or benefit, the statement of reasonable necessity must state an estimate, if known, of the number of persons affected and the cumulative amount of the change for all persons.

(v) The agency shall include in its notice information describing the interested persons list and explaining how persons may be placed on that list, per 2-4-302, MCA.

(vi) An agency may adopt a rule which adopts by reference any model code, federal agency rule, rule of any agency of this state, or other similar publication if the publication of the model code, rule, or other publication would be unduly cumbersome, expensive, or otherwise inexpedient. The notice must contain a citation to the material adopted by reference, a statement of its general subject matter content, and where a copy of the material may be obtained. Amendments to incorporated material are not effective unless adopted pursuant to 2-4-307, MCA.

(vii) The agency shall include, at the end of each rule noticed, a citation to the authority for the proposed rule, and citation to the MCA section(s) or session laws being implemented. When an amendment to a rule is proposed, any new citations that constitute authority or implementation for the amendment must be underlined and any stricken citations must be interlined. If a proposed action implements a policy of a governing board or commission, the notice must include a citation to and description of the policy implemented.

(viii) The agency shall include a designation of the officer or authority who will preside at and conduct the hearing.

(b) When an agency does not plan to hold a public hearing, as illustrated by template 309b (https://sosmt.gov/arm/templates), the notice must include:

(i) all notice items required by 2-4-111, 2-4-302 and 2-4-305, MCA, as summarized above;

(ii) a statement that any interested person desiring to express or submit data, views, or arguments at a public hearing must request the opportunity to do so, and that if 10% or 25, whichever is less, of the persons directly affected; or a governmental subdivision or agency; or an association having not less than 25 members who will be directly affected; or the Legislature's appropriate administrative rule review committee request a hearing, a hearing will be held after appropriate notice is given. Reference to the appropriate administrative rule review committee is unnecessary if the full Legislature, by joint resolution, has ordered the repeal of a rule;

(iii) a statement of the number of persons which constitutes 10% of those directly affected; and

(iv) the name and address of the person to whom a request for public hearing must be submitted, and the date by which a request must be submitted.

(4) When a hearing has been properly requested per 2-4-302, MCA, the agency shall send notice of the hearing to persons who have requested a public hearing. Also, notice must be published in the register, per 2-4-302, MCA.

(a) As illustrated by template 309c (https://sosmt.gov/arm/templates), the notice shall state that the hearing is being held upon request of the requisite number of persons designated in the original notice, per 2-4-302, MCA, or the appropriate administrative rule review committee of the Legislature, 2-4-402, MCA, or a governmental agency or subdivision, or an association.

(1) When the subject matter of a proposed rule is not of significant interest to the public, or an agency is not otherwise required and does not wish to hold a public hearing, the opportunity to submit written comments must be provided.

(a) The person designated in the notice to receive written comments from interested persons shall review all submissions within a reasonable time after the period for comment has ended. That person then shall prepare and submit a written summary of the comments to the rulemaker.

(b) The agency shall notify all persons who submit written comments that a list of interested persons exists and provide each commenter the opportunity to have the commenter's name added to that list.

(2) Except as otherwise provided by statute, public hearings shall be conducted in the following manner:

(a) The hearing shall be conducted by and under the control of a presiding officer. The presiding officer shall be appointed by the rulemaker; that is, the department, board, or administrative officer authorized by law to make rules for the agency. The rulemaker retains the ultimate authority and responsibility to ensure that the hearing is conducted in accordance with MAPA.

(b) At the commencement of the hearing, the presiding officer shall ask that any persons wishing to submit data, views, or arguments orally or in writing submit their name, address, affiliation, whether they favor or oppose the proposed action, and such other information as may be required by the presiding officer for the efficient conduct of the hearing. The presiding officer shall provide an appropriate form for submittal of this information. The presiding officer may allow telephonic testimony at the hearing.

(c) At the opening of the hearing, the presiding officer shall:

(i) read or summarize the notice that has been given in accordance with ARM 1.3.309;

(ii) read the "Notice of Function of Administrative Rule Review Committee" appearing in the register and on www.rules.mt.gov; and

(iii) inform persons at the hearing of the interested persons list and provide interested parties the opportunity to have their names placed on that list.

(d) Subject to the discretion of the presiding officer, the order of presentation may be:

(i) statement of proponents;

(ii) statement of opponents;

(iii) statements of any other witnesses present and wishing to be heard.

(e) The presiding officer or rulemaker has the right to examine any witnesses making a statement at the hearing. The presiding officer may, in the officer's discretion, permit other persons to examine witnesses.

(f) There shall be no rebuttal or additional statements given by any witness unless requested by the presiding officer, or granted for good cause. If such statement is given, the presiding officer shall allow an equal opportunity for reply.

(g) The hearing may be continued with recesses as determined by the presiding officer until all witnesses present and wishing to make a statement have had an opportunity to do so.

(h) The presiding officer shall, where practicable, receive all relevant physical and documentary evidence presented by witnesses. Exhibits shall be marked and shall identify the witness offering the exhibits. In the discretion of the agency the exhibits may be preserved for one year after adoption of the rule or returned to the party submitting the exhibits, but in any event the agency shall preserve the exhibits until at least 30 days after the adoption of the rule.

(i) The presiding officer may set reasonable time limits for oral presentation.

(j) A record must be made of all the proceedings, either in the form of minutes or a verbatim written, electronic, or mechanical record.

(k) The presiding officer shall, within a reasonable time after the hearing, provide the rulemaker with a written summary of statements given and exhibits received and a report of the officer's observations of physical experiments, demonstrations, and exhibits.

(3) In addition to the required rulemaking procedures, an agency may obtain viewpoints and advice concerning proposed rulemaking through informal conferences and consultations or by creating committees of experts or interested persons or representatives of the general public, per 2-4-304(2), MCA.

(a) An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the agency director determines that the use of the negotiated rulemaking procedure is in the public interest, per 2-5-104, MCA.

(1) Thirty days after publication of the proposal notice and following receipt of the presiding officer's report, the rulemaker may adopt, amend, or repeal rules covered by the notice of intended action.

(2) Upon adoption, amendment, or repeal of a rule, the agency shall file notice of its rulemaking action with the Secretary of State, per 2-4-306, MCA.

(a) As illustrated by templates 312a, 312b, and 312c (https://sosmt.gov/arm/templates), the adoption notice must include:

(i) the text of the rule adopted or amended, or reference to the notice of proposed agency action in which the text of the proposed rule or rule as proposed to be amended was printed in full;

(ii) if the rule adopts a model code, rule, or other publication by reference, a citation to the material adopted, its year, a statement of its general subject matter, and where a copy of the material may be obtained. The material adopted by reference need not be published if publication would be unduly cumbersome, expensive, or otherwise inexpedient. Upon request of the Secretary of State, a copy of the omitted material must be filed with the Secretary of State, per 2-4-307(2), MCA;

(iii) a statement of the principal reasons presented by interested persons for and against the adoption, amendment, or repeal of a rule. The statement also must include the agency's reasons for overruling any considerations urged against the agency action. If substantial differences exist between the rule as proposed and as adopted, and the differences have not been described or set forth in the adopted rule, the differences must be described in the statement of reasons for and against the agency action. The statement may be omitted if no written or oral submissions were presented, per 2-4-305(1), MCA. See Patterson v. Montana Department of Revenue, 557 P.2d 798 (1976);

(iv) an accompanying Administrative Order. See ARM 1.2.404 and template 312g (https://sosmt.gov/arm/templates).

(3) Objection by an administrative rule review committee made pursuant to 2-4-305(9), 2-4-306(4), or 2-4-406(1), MCA.

(a) If the appropriate administrative rule review committee objects to a proposed notice of adoption, the proposed rules cannot be adopted until either:

(i) notification of withdrawal of the objection; or

(ii) publication of the last issue of the register before expiration of the six-month period during which the adoption notice must be published.

(b) If the agency adopts the rule to which the appropriate administrative rule review committee objects, the adopted rule cannot become effective until either:

(i) withdrawal of the objection;

(ii) amendment of the rule to meet the concerns of the committee; or

(iii) the day after final adjournment of the regular session of the Legislature that begins after the notice proposing the rule was published.

(4) Absent an objection of the type referred to in (3) by an administrative rule review committee, the agency action is effective on the day following publication of the notice in the register, unless a later date is required by statute or specified in the notice.

(5) If an agency decides not to adopt, amend, or repeal the rules covered by the notice of intended action, the agency can publish a notice of agency decision stating why the action will not be finalized at that time, and whether the agency intends to repropose the changes in a subsequent rulemaking cycle. See template 312d (https://sosmt.gov/arm/templates).

(6)  An agency may not adopt, amend, or repeal rules from October 1 to December 31 in the year that precedes the year in which the legislature meets in regular session, except as provided in 2-4-305, MCA.

(7) Notice of agency action must be published within six months of the date on which notice of the proposed action was published, per 2-4-305(7), MCA.

(1) If an agency finds that circumstances exist that truly and clearly constitute an imminent peril to the public health, safety, or welfare, that the circumstances cannot be averted or remedied by any other administrative act, and that the circumstances require a rulemaking action upon fewer than 30 days' notice, it may adopt a temporary emergency rule without prior notice or hearing or, as illustrated by template 313a (https://sosmt.gov/arm/templates), upon any abbreviated notice and hearing that it finds practicable, per 2-4-303(1), MCA.

(a) To adopt an emergency rule the agency must:

(i) provide special notice of its intent to the members and staff of the appropriate administrative rule review committee prior to adoption of an emergency rule pursuant to 2-4-303, MCA; 

(ii) file with the Secretary of State an adoption notice for the emergency rule containing a statement in writing of its reasons for finding that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice, per 2-4-306(4), MCA, and details of the special notice provided in (i), per 2-4-303(1)(c)(ii), MCA; and

(iii) take appropriate and extraordinary measures to make emergency rules known to persons who may be affected by them, per 2-4-306(4), MCA, including delivery of copies of the rule to a state wire service and to any other news media the agency considers appropriate. Extraordinary measures include, but are not limited to, immediate personal delivery of copies of the rule to affected parties, and immediate delivery of copies of the rule to associations whose members are affected, per 2-3-105, MCA.

(b) An agency's reasons for adopting a temporary emergency rule are subject to judicial review. In order to pass judicial review, the notice of adoption shall, standing on its own, provide compelling reasons for the emergency rule.

(c) A temporary emergency rule becomes effective immediately upon filing a copy with the Secretary of State or on a stated date following publication in the register, per 2-4-306(4), MCA.

(d) An emergency rule may be effective for a period not longer than 120 days, and may not be renewed. The agency may, however, adopt an identical, permanent rule after notice and hearing in accordance with ARM 1.3.308, 1.3.309, 1.3.311, and 1.3.312, per 2-4-303(1), MCA.

(e) If no longer necessary, an emergency rule may be repealed before the end of the 120-day effectiveness period. See template 313b (https://sosmt.gov/arm/templates).

(2) Temporary rules implementing a statute which becomes effective prior to October 1 of the year of enactment may be adopted through abbreviated procedures determined practicable by the agency, as illustrated by templates 313c and 313d (https://sosmt.gov/arm/templates).

(a) The temporary rules cannot become effective until at least 30 days after the notice of proposal to adopt is published. Per 2-4-306, MCA, temporary rules can be effective upon filing the adoption notice, or at a stated date following publication.

(b) Temporary rules expire October 1 of the year adopted.

(c) Permanent rules can be adopted during the period that the temporary rules are effective.