Guide To Rulemaking
Secretary of State - CEC
101 State House Station
Augusta, ME 04333
FAX (207) 287-6545
This office provides certified copies of rules at the statutory rate of 75 cents per photocopy and a $10.00 certification fee. We do not publish a weekly register.
In response to a decades-long concern about regulatory activity, the federal government and many other states have adopted administrative procedure acts. The intent has been to improve public access to agency decision-making and to increase awareness of agency rules.
The Maine Administrative Procedure Act (A.P.A.), 5 MRSA sec. 8001 through 11008, was adopted at the First Session of the 108th Legislature, with some amendments since. It applies uniform requirements to state agencies with rulemaking power, and sets minimum standards for agencies to follow in adopting and implementing rules.
Very generally, the A.P.A. establishes a uniform, comprehensive set of procedures covering:
- The administrative actions of state agencies, including rulemaking, advisory rulings, adjudicatory proceedings, and licensing; and
- Judicial review of those actions.
Agency files 1 copy of the proposal package with the Secretary of State by noon Tuesday of the week prior to newspaper publication date. The package includes the Notice of Rulemaking Proposal Form (MAPA-3), a Fact Sheet, and the text of the proposed language. If possible, the agency should also provide a copy of MAPA-3 in electronic form.
Within a day or two after filing with the Secretary of State, agency files the Fact Sheet with the Executive Director of the Legislative Council using the Legislature's on-line rulemaking system.
The adopted rule package as filed with the APA Office should contain all of the following on paper unless otherwise indicated: one copy of the Notice of Rulemaking Adoption Form (MAPA-4) and one copy in electronic form; two original Cover Sheets (MAPA-1) signed by the agency and the Assistant Attorney General; two copies of the text of the adopted language (for a rule amendment, these show deleted language crossed out and new language underlined, the so-called "legislative format"); one copy of the same text in electronic format with deleted language and underlines removed (i.e., a "clean" text); two copies of the Basis Statement; two copies of the Summary of Comments and Responses (which must include names of commenters and affiliations); two copies of the Fact Sheet; and two copies of the Checklist.
The APA Office reviews the rule and stamps it as "Accepted for Filing", returning a stamped copy to the agency as a means of verifying the completion of the filing.
The rule becomes effective no less than five days after the it is Accepted for Filing by the APA Office. (The agency may designate an effective date anytime after that.)
The statutory definition (5 MRSA sec. 8002 sub-sec. 9) is important because it triggers the application of the rulemaking procedures as described below. There are two parts to the definition of "rule". The first describes a "rule" in broadly inclusive terms:
"...the whole or any part of every regulation, standard, code, statement of policy, or other agency statement of general applicability, including the amendment, suspension or repeal of any prior rule, that is or is intended to be judicially enforceable and implements, interprets or makes specific the law administered by the agency, or describes the procedures or practices of the agency."
What an agency calls its pronouncements is not significant. It is the impact, not the terminology, which determines the existence of a rule. If the statement:
applies generally to persons outside the agency;
is intended to have the same legal force as a statute, so that compliance could be compelled; and
implements the law administered by the agency or describes its procedures,
then it is a rule. Since amendment, suspension or repeal of a rule may have as important an effect as the adoption of a new rule, these actions are also "rules" in the sense that the full provisions of the A.P.A. law apply.
The second part of the statutory definition is a series of exclusions designed to clarify the broader concept. The term "rule" does not include:
Policies or memoranda concerning only the internal management of an agency and not judicially enforceable;
Advisory rulings issued under sub-chapter III of the A.P.A law;
Decisions issued in adjudicatory proceedings; or
Any form, instruction or explanatory statement of policy which is not judicially enforceable, intended solely as advice to persons in determining, exercising or complying with their rights, duties, or privileges.
Consult a staff attorney or the Attorney General in cases where the status of agency statements is uncertain.
Rulemaking includes all of the steps an agency must follow to give a rule legal effect. The process begins when someone decides that a rule is needed. The process is completed when, after the agency has properly performed all the intervening steps, the Secretary accepts the rule for filing.
Prior to beginning the formal process established by the A.P.A., an agency should:
Determine whether the Legislature has granted it authority to make such a rule;
Consider carefully what it wants to accomplish by rulemaking;
Read the rulemaking provisions of the A.P.A. and the electronic filing procedures noted below;
Review existing rules to avoid duplication, and fit the new rule logically within the body of existing rules; and
Draft the proposed new rule in the format established by the Secretary.
Consult with the Attorney General's office to be sure that the proposed rule meets with its approval.
All the forms in Microsoft Word (.doc or .docx) format.
Subchapter II of the A.P.A. describes the steps an agency must take to adopt rules.
The Notice of Rulemaking Proposal (from MAPA-3) must be published 17-24 days prior to the hearing, if one is scheduled (5 MRSA sec. 8053 sub-sec. 5). If no hearing is scheduled, you must allow at least 30 days from the publication date for the public to submit comments.
To accomplish this, you should submit to the Secretary of State 1 copy of the following:
- Rulemaking proposal form (MAPA-3) on paper;
- MAPA-3 in electronic form;
- Copy of the rule text on paper; and
- Copy of the fact sheet on paper.
The Notice of Rulemaking Proposal is published in the Bangor Daily News , Kennebec Journal , Portland Press Herald , Lewiston Sun-Journal and the Central Maine Morning Sentinel every Wednesday. All rulemaking notices must be received by the Secretary of State by noon Tuesday of the week prior to the publication date.
After comments have been received and if the rule which the agency intends to adopt is substantially different from what was proposed, a revised fact sheet must be filed with the Executive Director of the Legislative Council using the Legislature's online rulemaking system (sec. 8053-A). The agency solicits comments from the public on the proposed changes by publishing a notice in the Secretary of State's Rulemaking ad and allowing a thirty day comment period (5 MRSA sec. 8052 sub-sec. 5 par. B). This new comment deadline also triggers new adoption (120 day) and new Attorney General review (150 day) deadlines.
Besides the consolidated newspaper publication, notice of proposed rulemaking must be given to the following at least 20 days before the hearing or before the deadline for comments, if no hearing is scheduled (see 5 MRSA sec. 8053):
Any person specified in the statute authorizing the rulemaking;
Any person who has filed within the past year a written request with the agency for notice of rulemaking. Notice must be by mail to the last address provided to the agency by the person and should include copies of the proposal, if requested. The agency may charge a fee reasonably related to the cost of this service; and
Any trade, industry, professional interest group or regional publication that the agency deems effective in reaching affected persons.
Copies of the proposed rule itself must be available for public distribution at least 20 days prior to the hearing or 20 days prior to the comment deadline, if no hearing is held.
The A.P.A. provides several opportunities for the public to participate in the state's rulemaking process. When an agency proposes to adopt, amend, suspend or repeal a rule, interested persons must have a chance to submit comments for consideration.
Interested persons may also submit comments at a public hearing. When required by other statutes or when requested by 5 persons, an agency must hold a hearing on its proposed rules (5 MRSA sec. 8052 sub-sec. 1). The A.P.A. itself does not otherwise require a hearing; however, an agency always may hold one if it wishes. Since public access and input are major goals of the law, a hearing may be a very useful method of informing and educating the public and for receiving public response.
Notice that the hearing will take place must be provided according to the procedures listed above.
A hearing can only be conducted by someone who is in a "major policy-influencing position" as listed in 5 MRSA c.71 (mainly commissioners, deputies, and bureau chiefs), or a designee who has responsibility over the subject matter to be discussed at the hearing (the designee provision, part of Public Law 1993, c.362, took effect October 13, 1993).
Although the A.P.A. does not have any requirements regarding the conduct of the hearing, the Secretary of State suggests the following:
All persons conducting the hearing should identify themselves and give a brief description of their positions and responsibilities;
The moderator should then give the background of the proposed rule, and state when the hearing was advertised and how (i.e., in which newspapers advertisements appeared, and which groups were notified by mail);
The moderator should then explain the procedures to be followed in conducting the hearing:
- how long each person will have to speak, if any time limit is set at all--15 minutes would seem adequate in most instances;
- what the format will be and how individuals should pose their questions;
- The moderator may then begin, taking comments from:
- anyone opposing the rule;
- anyone approving of the rule;
- anyone else who neither opposes nor approves of the rule.
The moderator should have adequate knowledge and information available to be able to answer any and all questions that might arise. If a question is posed that no one present can answer, the department should send a written reply within a reasonable time after the hearing.
When a hearing is held, the A.P.A. requires the agency to accept comments for at least 10 days thereafter. Following the opportunity for hearing, an agency must consider available relevant information, including public comments, before adoption.
After complying with notice and hearing requirements and after considering the information available, an agency makes a formal decision on the proposed rule. Adoption, if that is the decision, must be by official action of the agency, and must take place within 120 days from the comment deadline (see 5 MRSA sec. 8052 sub-sec. 7.) The definition of adoption is the dated signature of the agency representative at the certification statement in MAPA-1.
Extension of a comment deadline is governed by 5 MRSA sec. 8052 sub-sec. 7: "... The final date for comments may be extended if notice of doing so is published within 14 days after the most recently published comment deadline, in the consolidated notice referred to in section 8053."
The A.P.A. requires an agency, at the time of adoption, to file with the Secretary of State a written statement explaining the factual and policy basis for the rule. When adopting a rule the agency shall also address all comments received and state its rationale for adoption or failing to adopt suggested changes (5 MRSA sec. 8052 sub-sec. 5). The agency may consolidate similar comments instead of addressing each one individually, but a provision of law (Public Law 1993, c.446, affecting 5 MRSA sec. 8052 sub-sec. 5) requires the listing of the names of persons whose comments were received and the organizations they represent, along with summaries of their comments. A record of the vote of agency members in rulemaking decisions must be maintained by each agency and available for public inspection (5 MRSA sec. 8056 sub-sec. 5).
Once an agency adopts a rule, the A.P.A. requires that the agency:
Submit two signed copies to the Attorney General for approval as to form and legality -- such approval takes the form of dated signatures by an assistant attorney general; and
File two certified copies with the Secretary of State in a prescribed form (5 MRSA sec. 8056 sub-sec. 1); this is MAPA-4 on paper and in electronic form, the 2 signed copies of MAPA-1, the rule on paper (2 copies) and in electronic form (1 copy), and 2 paper copies of the Basis Statement, Comments and Responses, Fact Sheet, and Checklist.
The effective depends upon the date of filing with the Secretary of State.
In addition, an agency must supply free or at cost, a copy of each rule adopted to anyone who has filed within the past year a written request for the agency's rules (5 MRSA sec. 8056 sub-sec. sec. 2,4). This requirement is intended to aid the general public and the legal community by providing greater access to current agency rules.
After filing with the Secretary of State, a notice of rule adoption is published by the Secretary in the weekly consolidated newspaper ad (5 MRSA sec. 8056 sub-sec. 1 par. D). The text submitted by the agency on MAPA-4, Notice of Rule Adoption, is used for the notice. Agencies will be billed periodically for their pro rata share of the publication expense.
Public Law 1995, c.463 introduced a new element into the rulemaking process, that of legislative review of major substantive rules. Provisions of the new law require that the Legislature, when assigning rulemaking authority to state agencies, differentiate between minor technical rules and major substantive rules. Minor technical chapters proceed through the process described here. Major substantive chapters, when they reach the adoption stage as described above, are labeled as "Provisionally Adopted" and sent to the Legislature for Committee and final review, including a legislative hearing. Here is a link to the Office of Policy and Legal Analysis pages on major substantive rulemaking.
The introduction of legislative review will be a gradual development as the Legislature rewrites the rulemaking authority provisions for each of the various agencies.
The A.P.A. does not relieve an agency of any requirement imposed by other statutes to provide more detailed notice, to hold a public hearing or to file with or gain approval from other designated persons. Each agency must be aware of such additional requirements.
In emergencies, compliance with the A.P.A. requirements of notice and hearing prior to adoption might result in a dangerous delay, preventing the rules from having the necessary effect. The provisions of 5 MRSA sec. 8054 allow an agency to modify those requirements to avoid an immediate threat to public health, safety and welfare, but only to the minimum extent necessary.
Emergency rules are subject to the filing requirement of 5 MRSA sec. 8056. They may be effective for 90 days or less and must include a statement of findings of the adopting agency describing the emergency. These findings are subject to judicial review to insure that this exception to the A.P.A. is used only for actual emergencies (5 MRSA sec. 8054 sub-sec. 2). Within 10 days from the adoption of the emergency rule, the Fact Sheet must be filed with the Executive Director of the Legislative Council using the Legislature's online rulemaking system (Stn. 115).
In addition to its substantive rules, each agency is required by 5 MRSA sec. 8051 to also adopt rules of practice governing the conduct of adjudicatory proceedings, licensing proceedings and the rendering of advisory rulings by the agency, unless such rules are provided by statute. They indicate what one needs to know in order to present a case before the agency or to obtain an advisory opinion. Rules of practice must be adopted and filed in the same manner as other rules.
Anyone may petition an agency to adopt or change a rule. When a petition is submitted by 150 or more registered voters of the State, the agency must begin rulemaking proceedings within 60 days. The circulator must verify the petitions before a Notary Public and the appropriate registrar(s) of voters must certify that the signatures are of registered voters. It is the responsibility of the petitioners to insure that the requirements are met. An agency need not accept an incomplete or defective petition. The individual should obtain blank copies of the petition forms from the agency. You may also contact the Secretary of State for copies of the standard forms.
When fewer than 150 registered voters petition, the agency has an option. Within 60 days, it must either respond in writing, denying the request and stating its reasons for denial; or initiate rulemaking proceedings to consider the proposed change.
If you need forms or have questions about the Administrative Procedure Act, feel free to call Administrative Rules Coordinator Don Wismer at (207) 624-7647.