A Guide to Rulemaking for State of Maine Agencies

A Guide to Rulemaking for State of Maine Agencies
(Last updated September 10, 2026)

On this page:

General Considerations

Rulemaking Stage One: Pre-Proposal Stage

Rulemaking Stage Two: Rule Proposal Stage

Rulemaking Stage Three: Rule Adoption Stage

Link to the Maine Legislature's "Electronic Notification of Agency Rulemaking Application" webpage

Rulemaking Documents

Reference

Printable Version of this Rulemaking Guide (Word) (Updated September 8, 2026) | Printable Rulemaking Guide Checklist (Word) (Updated September 8, 2026)

(The following online version of the Rulemaking Guide was updated on September 10, 2026)

General Considerations

• In accordance with the federal Americans with Disabilities Act, prior to filing with Department of the Secretary of State (“Department”) the electronic version of any proposed rule, adopted rule, provisionally adopted rule, or finally adopted rule, agencies must conduct an electronic check to ensure that the electronic version of the rule – as well as the electronic versions of documents that the Department has historically posted online (such as, for example, annual regulatory agendas) – are accessible to people with a wide range of disabilities. If an agency does not know how to conduct such an accessibility check, the agency must consult with the information technology agency or office with which the agency works.
• When completing rulemaking filing forms, please be sure to provide information in response to each field of the form, even if the response is “Not applicable”, “No fiscal impact”, “None”, “N/A”, etc.
  • This is necessary because if a response to a form field is not given, a person reviewing the public notice based on the information in the form will not know whether the blank field means the field does not apply or if the agency mistakenly did not respond to the field.
     

Rulemaking Stage One: Pre-Proposal Stage

1. Statutory Authority?

Identify the statutory authority for rulemaking to occur. See generally 5 M.R.S. § 8057-A, sub-§ 1 in the Maine Administrative Procedure Act (“MAPA”). In other words, determine the statute or statutes that grant your agency general or specific rulemaking authority to adopt the rule to be proposed.

Note also whether the statute allows or requires the promulgation of the rule.

• Has the statutory authority for the rule to be proposed been identified?
  • Yes
  • No
• Does the statutory authority allow or require the promulgation of the rule to be proposed?
  • Yes
  • No

2. Rule Type?

Determine whether the rule to be proposed is a routine technical rule or major substantive rule. See 5 M.R.S. § 8071, sub-§ 2. Whether a rule is routine technical or major substantive is determined by the Legislature and should be stated the statute enabling the rule.

• Is the rule to be proposed a routine technical (“RT”) rule or major substantive (“MS”) rule?
  • RT
  • MS

3. Emergency Rule?

Determine whether the rule to be proposed will be promulgated on an emergency basis. See generally 5 M.R.S. § 8054.

• If the rule will be promulgated on an emergency basis, the rule “must include, with specificity, the agency's findings with respect to the existence of an emergency, including any modifications of procedures, and such findings are subject to judicial review under [5 M.R.S.] § 8058.” 5 M.R.S. § 8054, sub-§ 2.
• “Such findings must be included in the basis statement for any adopted emergency rule in a section labeled ‘findings of emergency.’ No emergency may be found to exist when the primary cause of the emergency is delay caused by the agency involved.” Id.
• An emergency rule is effective immediately after the rule is filed with the Department. See 5 M.R.S.  § 8002, sub-§ 3-A. The rule remains in effect for up to 90 days if the rule is a routine technical one, and up to 12 months if the rule is a major substantive one. See 5 M.R.S. § 8054. See also 5 M.R.S. § 8073. 
• Will the rule to be proposed be promulgated on an emergency basis?
  • Yes
  • No

4. Included in Regulatory Agenda?

Determine whether the rule to be proposed was listed in the most recent agency annual regulatory agenda.  See generally 5 M.R.S. § 8060.

If the rule was not listed in the agency’s annual regulatory agenda, then an amended annual regulatory agenda must be submitted to the Department and to the Executive Director of the Legislative Council at the time of giving notice of rulemaking. See 5 M.R.S. § 8053-A, sub-§ 1.

• Was the rule to be proposed listed in the most recent agency annual regulatory agenda?
  • Yes
  • No
• If not, has an amended regulatory agenda that lists the rule been prepared for submission to the Department and to the Legislature?
  • Yes
  • No

5. Duplication of or Conflicts with Existing Laws?

Review any applicable statutes and existing regulations to avoid duplication and potential conflicts with the rule to be proposed. Additionally, conduct any preliminary research and consultation that might be needed to draft the rule that is to be proposed.

Agencies must be prepared to cite “up to 3 primary sources of information [the agencies] relied upon in adopting [a] rule.” 5 M.R.S. § 8057-A, sub-§ 4. 

• Does the rule to be proposed duplicate or potentially conflict with any statutes or existing regulations?
  • Yes
  • No
• Have up to three (3) primary sources of information been identified as having been relied upon by the agency in developing the rule to be proposed?
  • Yes
  • No

6. Initial Draft

Prepare an initial draft of the rule to be proposed and circulate the draft for internal review and comment.  

Rules should be formatted and written in a manner consistent with the provisions of the most recent edition of the Maine Legislative Drafting Manual (“Manual”). 

For example, the Manual provides in relevant part as follows with respect to the “Structure of the Maine Revised Statutes”:

… Titles are subdivided into smaller units to assist in arranging subject matter logically and systematically. The usual and preferred structure is as follows, with the method of designation shown in parentheses. …[:]

SECTION (§1, §2, ...) 

SUBSECTION (1, 2, ...) 

PARAGRAPH (A, B, ...) 

SUBPARAGRAPH ((1), (2), ...) 

DIVISION ((a), (b), ...) 

SUBDIVISION ((i), (ii), ...)
 

Thus, rules should be similarly organized structurally. 

• Rules must be “prepared by a person skilled in developing, organizing, and writing rules.” Executive Order 4-A FY 19/20 [sic] (March 29, 2023). See generally Executive Order 4A: An Order Regarding Administrative Rulemaking (Amended, PDF).
• “All rules and any other materials required by [Subchapter 2 of the Maine Administrative Procedure Act] to be provided to the public or to the Legislature shall, to the maximum extent feasible, use plain and clear English, which can readily be understood by the general public. The use of technical language shall be avoided to the greatest possible extent.” 5 M.R.S. § 8061.
• Other matters to consider when drafting a rule include:

1. Whether the rule would result in a taking of private property (see 5 M.R.S. § 8056, sub-§ 6); 
2. Whether the rule would result in an unfunded mandate for any county or municipal government;
3. Whether the rule would raise any concerns under the Maine or United States constitutions, such as equal protection or due process issues;
4. Whether the rule includes provisions that the Legislature specified in the enabling law as needing to be included in the rule.

• Is the rule to be proposed formatted and written in a manner consistent with the most recent edition of the Maine Legislative Drafting Manual?
  • Yes
  • No
• Would the rule result in a taking of private property?
  • Yes
  • No
• Would the rule result in an unfunded mandate for any county or municipal government?
  • Yes
  • No
• Would the rule result in the creation of an equal protection or due process issue?
  • Yes
  • No
• Does the rule include provisions specified by the Legislature?
  • Yes
  • No

7. Legal Pre-Review

Once the draft of the rule is finalized and ready to be proposed, make best efforts “to provide the Department of the Attorney General ("DAG") with the opportunity to perform a legal pre-review of the draft rule prior to issuing notice of rulemaking and submitting [the] proposed rule to the Secretary of State ….”. Executive Order 4-A FY 19/20 [sic] (March 29, 2023), Part I, Sec. B. See generally Executive Order 4A: An Order Regarding Administrative Rulemaking (Amended, PDF).

“If an agency believes a draft rule does not warrant formal pre-review, or determines that circumstances do not allow for formal pre-review, [then] it should discuss this with the [DAG] and seek understanding before proceeding with rulemaking.” Id.

• Has the DAG performed a legal pre-review of the draft rule pursuant to Executive Order 4-A FY 19/20 [sic] (March 29, 2023), Part I, Sec. B?
  • Yes
  • No

8. Public Hearing?

Determine whether the rule to be proposed will be subject to a public hearing.

A public hearing must be held in these circumstances:

1. The proposed rule is a major substantive one; 
2. The statute authorizing rulemaking, or some other law, expressly requires a hearing; or
3. Five or more “interested persons” request a hearing (see below). See 5 M.R.S. § 8052, sub-§ 1.

If a public hearing is to be held, then the hearing must occur within 17 to 24 days after the publication of the "Notice of Rulemaking Proposal" AND at least 17days after the proposed rule is made available to the public and notice is made in accordance with the Maine Administrative Procedure Act (MAPA). See 5 M.R.S. § 8053, sub-§ 3-A, sub-§ 5, ¶ A.

If a public hearing is scheduled, then the deadline for public comments to be submitted regarding the proposed rule must be at least 10 days after the close of the public hearing.  See 5 M.R.S. § 8052, sub-§ 3.

If a public hearing is not to be held, then the deadline for public comments to be submitted about the proposed rule must be at least 30 days after the date of the publication of the "Notice of Rulemaking Proposal" AND at least 17days after the rule is made available to the public and notice is made in accordance with the MAPA.  See 5 M.R.S. § 8053, sub-§ 3-A, sub-§ 5, ¶ A.

If a public hearing for a proposed regulation is not scheduled, but 5 or more interested persons request a hearing, then a public hearing must be held.  See 5 M.R.S. § 8052, sub-§ 1. Consequently, another rulemaking proposal notice that provides information about the proposed rule and the scheduled hearing would need to be published 17 to 24 days before the selected hearing date, and the comment deadline would likely need to be reset.

Note: Rulemaking deadlines in the MAPA are calculated based on calendar days.  Weekends and holidays must be counted as “days” and deadlines falling on a weekend or holiday do not shift to the following business day.  See 1 M.R.S. § 71, sub-§ 12. To avoid confusion, the best practice is for an agency to schedule the public comment deadline to fall on a business day.

• Will there be a public hearing on the rule to be proposed?
  • Yes
  • No
• If a public hearing is to be held, have the date of the hearing and the comment deadline been determined in accordance with the timeframes stated in the MAPA?
  • Yes
  • No
• If a public hearing is not to be held, has the comment deadline been determined in accordance with the timeframe stated in the MAPA?
  • Yes
  • No

9. Approval of Rulemaking Proposal

Prepare and then present to an “authorized representative” (see 5 M.R.S. § 8002, sub-§ 3-B) of the agency (typically, the primary leader of the agency) proposing the rule the following documents in Microsoft (MS) Word (.docx) format for review and approval, which together constitute the “rulemaking proposal packet”:

• One copy of the proposed rule.
  • If the proposed rule is new or is repealing and replacing an existing rule, then a clean copy of the text of the rule is sufficient;
  • If the proposed rule is amending an existing rule, then the submitted text must show all changes to the rule in redline (i.e., with deletions shown with strikethroughs and additions shown with underlining).
  • If the agency is completely repealing a rule without replacing it, then no rule text is required;
• One completed MAPA-3 (“Notice of Rulemaking Proposal”) form (see 5 M.R.S. § 8053, sub-§ 3); and
• One completed “Rulemaking Fact Sheet” (see 5 M.R.S. § 8053-A, sub-§ 1).

Please electronically submit each document as a separate, standalone document. I.e., please do not combine or merge two or more of the documents into one, continuous document.

• Has an authorized representative of the agency proposing the rule approved the rulemaking proposal packet?
  • Yes
  • No

Rulemaking Stage Two: Rule Proposal Stage

10. Rulemaking Proposal Filing

Once approval is received from the authorized representative of the agency proposing the rule, file the completed Notice of Rulemaking Proposal, and the Rulemaking Fact Sheet, and the proposed rule with the Department via email or a filesharing platform used by the State of Maine, such as OneDrive.

The rulemaking proposal filing with the Department must occur by or before 4 PM of the Thursday of the week preceding the desired Wednesday on which the newspapers will publish the notice of the rulemaking proposal.

• For example: If, in a hypothetical year, an agency wants a notice of a rulemaking proposal to be published in the newspapers and posted online on Wednesday, October 9th, then the agency would need to file the proposal with the Department by or before 4 PM Thursday, October 3rd.

11. [This step reserved for possible future content]

12. Legislative Filing

When the rulemaking proposal filing is made with the Department, an agency must also file the Rulemaking Fact Sheet with the Legislature.

The Rulemaking Fact Sheet should be filed electronically through the Legislature’s online rulemaking portal, which can be accessed online.

• Has notification of the proposed rule and any required accompanying documentation been provided to the Office of the Executive Director of the Legislative Council?
  • Yes
  • No

13. Notice

Provide notice of the proposed rule to any person or organization listed in 5 M.R.S § 8053, sub-§ 1 – namely:

• Any person specified by the statute authorizing the rulemaking;
• Any person who has filed within the past year a written or electronic request with the agency for notice of rulemaking; 
• Any trade, industry, professional, interest group, or regional publication that the agency considers effective in reaching the persons affected;
• The primary sponsor of the legislation that was enacted and authorized the rulemaking, as long as the legislation was enacted within the previous 2 years.

Be prepared to make copies of the proposed rule available to members of the public upon request.

• Have all persons and organizations that the agency must notify about the rulemaking proposal pursuant to the MAPA been sent notification?
  • Yes
  • No
• Are copies of the proposed rule available to members of the public who request copies?
  • Yes
  • No

14. Proposed Rule Posted Online?

Post the proposed rule on the agency's web page.  See 5 M.R.S. § 8053, sub-§ 5-A.

• Has the proposed rule been posted on the agency’s web page?
  • Yes
  • No

15. Public Hearing (If Applicable)

If applicable, prepare for and hold the public hearing on the proposed rule.

• Arrange for the public hearing to be audio recorded, if deemed necessary.  
• Draft an opening statement for the representative of the agency who will preside at the hearing to explain hearing procedures. 
• A public hearing “must be held and conducted as follows:
  “In the case of a rule authorized to be adopted by a board or commission consisting of 3 or more members, at least 1/3 of the board or commission members must be present during any hearing on the rule. … In the case of a rule authorized to be adopted by a single agency member, either the agency member, a person in a major policy-influencing position, as listed in [5 M.R.S.,] chapter 71, or a designee who has responsibility over the subject matter to be discussed at the hearing shall hold and conduct the hearing.” 5 M.R.S. § 8052, sub-§ 2.

See also generally 5 M.R.S. § 8052, sub-§§ 1 to 4.

• Was a hearing held on the proposed rule?
  • Yes
  • No
• If so, on what date was the hearing held?

16. Written Comments

Document all spoken comments about the proposed rule that are made during the public hearing (if there is a hearing) and collect and compile all written comments submitted to the agency by the comment deadline.

• Except for spoken testimony provided during a hearing on a proposed rule, comments must be submitted in writing. 
• Comments about a proposed rule may be submitted by e-mail.
• Did the agency collect and compile written comments on the proposed rule?
  • Yes
  • No
• Did the agency collect and compile all testimonial comments on the proposed rule?
  • Yes
  • No

17. Review of Comments

After the close of the public comment period, review all comments that were submitted to the agency (if any were received) and, if applicable and deemed necessary, listen to the audio recording of the hearing.

18. Summary of Comments and Agency Responses

Prepare a document that summarizes the comments on the proposed rule that were submitted to the agency, and then compose written responses to each comment.  

• The document must "list the names of persons whose comments were received, including through testimony at hearings, the organizations the persons represent and summaries of their comments". 5 M.R.S. § 8052, sub-§ 5-B, ¶ B.
• “If the same or similar comments or concerns about a specific issue were expressed by different persons or organizations, the agency may synthesize these comments and concerns into a single comment that accurately reflects the meaning and intent of these comments and concerns to be addressed by the agency, listing the names of the persons who commented and the organizations they represent.” 5 M.R.S. § 8052, sub-§ 5-B, ¶ B, sub-¶ 2.
• Agencies must “maintain a file for each rule adopted by the agency that includes the following information,” “[i]n addition to other documents required by [the] Act”: "[t]estimony submitted during any public hearing held on the rule”; “[w]ritten comments submitted on the rule”; “[t]he names of persons who commented on the rule and the organizations those persons represent”; and “[a]ny other information relevant to the rule and considered by the agency in connection with the formulation, proposal or adoption of the rule.” 5 M.R.S. § 8052, sub-§ 5-D.
• Did the agency summarize and respond to all the comments on the rule that were received by the agency?
  • Yes
  • No
• Has the agency created and is the agency maintaining a file in accordance with 5 M.R.S. § 8052, sub-§ 5-D?
  • Yes
  • No

19. Rule Revisions Based on Comments?

After reviewing the public comments, make any necessary or desired revisions to the proposed rule.

• A proposed rule “may not be adopted unless the adopted rule is consistent with the terms of the proposed rule, except to the extent that the agency determines that it is necessary to address concerns raised in comments about the proposed rule, or specific findings are made supporting changes to the proposed rule.” 5 M.R.S. § 8052, sub-§ 5-C.
• “If an agency determines that a rule that the agency intends to adopt is substantively different from the proposed rule, the agency shall request comments from the public concerning the changes from the proposed rule. The agency may not adopt the rule for a period of 30 days from the date comments are requested pursuant to [5 M.R.S. § 8052, sub-§ 5-C]. Notice of the request for comments must be published by the Secretary of State in the same manner as notice for proposed rules. ” Id.
• Note: If the comment period for a proposed rule is reopened, then the 120-day period within which the rule must be adopted (or provisionally adopted) by the agency proposing the rule restarts, as does the 150-day period within which the adopted (or provisionally adopted) rule must be reviewed by the Department of the Attorney General as to the rule’s form and legality. See Steps 21 and 22, below.
• Did the agency revise the proposed rule in response to comments or at the agency’s own discretion?
  • Yes
  • No
• If so, are the revisions “consistent with the terms of the proposed rule”?
  • Yes
  • No
• Is the revised rule “substantively different” from the proposed rule?
  • Yes
  • No
• If the rule is “substantively different” from the proposed rule, did the agency request comments from the public about the changes to the proposed rule that the agency made?
  • Yes
  • No
• If the agency requested comments from the public about the changes to the proposed rule that the agency made, on what date was the comment deadline?
  • Date: 
• If the agency held a public hearing to receive testimony about the changes to the proposed rule, on what date was the hearing?
  • Date:
• Did the agency compile and respond to all additional comments about the changes to the proposed rule that were received?
  • Yes
  • No

20. Conclusion of Proposal Stage

If, following the public comment period and the agency’s review of and response to comments about a proposed rule, the proposed rule remains substantively the same, then the agency may adopt (or, in the case of a major substantive rule, provisionally adopt) the rule.

An agency must adopt a proposed rule within 120 days after “the final date by which data, views or arguments may be submitted to the agency for consideration in adopting the rule.” 5 M.R.S. § 8052, sub-§ 7, ¶ A.

If a rule may have an adverse impact on small businesses, prior to adopting the rule the agency must prepare an “economic impact statement that includes the following”:

• “An identification of the types and an estimate of the number of the small businesses subject to the proposed rule”;
• “The projected reporting, record-keeping and other administrative costs required for compliance with the proposed rule, including the type of professional skills necessary for preparation of the report or record”;
• “A brief statement of the probable impact on affected small businesses”; and  
• “A description of any less intrusive or less costly, reasonable alternative methods of achieving the purposes of the proposed rule.”

5 M.R.S. § 8052, sub-§ 5-A. For the purposes of this step and the MAPA, a “small business” is a business with 20 or fewer employees. See id.

• If necessary, did the agency prepare a “small business impact statement” pursuant to 5 M.R.S. § 8025, sub-§ 5-A?
  • Yes
  • No

Rulemaking Stage Three: Rule Adoption Stage

21. Rule Adoption/Provisional Adoption

Prepare and then present to an authorized representative of the agency adopting the rule (or, in the case of a major substantive rule, provisionally adopting the rule), the following paper documents for review and approval, which together constitute the “rulemaking adoption packet”:

• One completed copy of the "Rulemaking Cover Sheet" (MAPA-1)  form, which is to bear the electronic signature of the authorized representative of the agency.

  o    The electronic signature may not be typed.
  o    The electronic signature may be given by physically signing a paper copy of the MAPA-1 form and then scanning and saving that form as an Adobe .pdf document, which then must be incorporated into the electronic rulemaking adoption packet. The original signed paper form is to be saved in the agency’s rule file;

• One marked-up copy of the adopted rule showing all changes (including initially proposed changes, if applicable) made to the rule during the rulemaking process;
• One “clean” copy of the adopted rule that incorporates all the changes made to the rule during the rulemaking process;
• One copy of the "Basis Statement" for the rule (see 5 M.R.S. § 8052, sub-§ 5-B, ¶ A), which should be a standalone statement, but may be included in the same document with other information to which the statement relates, such as the agency’s summary of and responses to comments that were submitted about the rule; 
• One copy of the agency’s summary of and responses to comments that were submitted about the rule, if any were (see 5 M.R.S. § 8052, sub-§ 5-B, ¶ B); 
• One copy of the "Rulemaking Fact Sheet" form (see 5 M.R.S. § 8053-A, sub-§ 1); 
• One copy of the “MAPA Checklist” form (see 5 M.R.S. § 8056-A, sub-§ 1); and
• One copy of the "Notice of Rulemaking Adoption" (MAPA-4) form (see 5 M.R.S. §8053, sub-§ 6). 

Please send each document as a separate, standalone document. I.e., please do not combine or merge two or more of the documents into one, continuous document.

If an adopted rule is one that an agency wants included and posted online in a longer document that includes other agency rules that were not subject to rulemaking, then an electronic copy of the longer document with the adopted rule already embedded in it must be filed with the Department.

• Was the rule adopted within 120 days after the comment deadline for the rule?
  • Yes
  • No
• Does the rulemaking adoption packet include all the documentation that must be filed?
  • Yes
  • No
• Has an authorized representative of the agency with jurisdiction over the rule approved the rule (i.e., adopted the rule on behalf of the agency) by electronically signing the Rulemaking Cover Sheet (MAPA-1)?
  • Yes
  • No

22. Presentation of Adopted Rule to the Department of the Attorney General

Once an authorized representative of the agency with jurisdiction over the rule (i.e., once the rule has been adopted by the agency), has electronically signed the MAPA-1 form, the rulemaking adoption packet must be provided to the Department of the Attorney General, which must review the rule as to its form and legality. See 5 M.R.S. § 8056, sub-§ 1, ¶ A.

• “The review [as to form and legality] … may not be performed by any person involved in the formulation or drafting of the proposed rule.” 5 M.R.S. §8056, sub-§ 6.
• “The Attorney General may not approve a rule if it is reasonably expected to result in a taking of private property under the Constitution of Maine unless such a result is directed by law or sufficient procedures exist in law or in the proposed rule to allow for a variance designed to avoid such a taking.” Id.
• The Department of the Attorney General must conduct the review of the form and legality of an adopted rule within 150 days after the “final date by which comments may be submitted” on the rule. 5 M.R.S. § 8052, sub-§ 7, ¶ B.

The agency should consider providing the rulemaking adoption packet to the Department of the Attorney General prior to the 120-day deadline for agency adoption, as some rulemaking errors can be corrected if identified before expiration of that deadline.

• The Assistant Attorney General reviewing the rule as to form and legality must give her or his electronic signature on the Rulemaking Cover Sheet (MAPA-1) form submitted to the office as part of the rulemaking adoption packet. 
  • The AAG’s electronic signature may not be typed.
  • The electronic signature may be given by physically signing a paper copy of the MAPA-1 form and then scanning and saving that form as an Adobe .pdf document, which then must be incorporated into the rulemaking adoption packet. The original signed paper form is to be saved in the agency’s rule file.
• Has the Department of the Attorney General reviewed and approved the adopted rule as to the rule’s form and legality?
  • Yes
  • No
• If so, did the Department of the Attorney General’s review and approval occur within 150 days after the comment deadline for the rule?
  • Yes
  • No

23. Rulemaking Adoption/Provisional Adoption Filing

Once the adopted regulation is approved by the Department of the Attorney General as to form and legality, the agency must electronically file, or cause to be filed, the rulemaking adoption packet with the Department. Each document must be filed as a separate, standalone document. I.e., please do not combine or merge two or more of the documents into one, continuous document.

Prior to filing the rulemaking adoption packet with the Department, agencies must ensure that the rule document to be posted online by the Department is accessible pursuant to the federal Americans with Disabilities Act Web and Mobile Application Accessibility Rule.

In addition to the rulemaking adoption packet, copies of any codes or standards that are incorporated by reference into an adopted rule must be maintained by the agency adopting the rule at its principal office. See 5 M.R.S. §8056, sub-§ 2-A.

• Has the rulemaking adoption packet been emailed to (or shared via a State-approved filesharing platform with) the Department? 
  • Yes
  • No
• If the rule incorporates any codes or standards by reference, does the agency have copies of those codes or standards available at its principal office?
  • Yes
  • No

24. [This step reserved for possible future content.]

25. Effective Date of Routine Technical Rule

If the adopted rule that is filed with the Department is a routine technical rule, then the rule is effective 5 days after the filing, unless otherwise specified by law or the agency specified in a substantive provision of the proposed rule an effective date that is more than 5 days. See 5 M.R.S. § 8052, sub-§ 6.

If the effective date of an adopted rule is contingent upon the occurrence or non-occurence of a future event, then that contingency must be identified in the proposed rule. Further, “[w]hen the effective date of a rule is contingent upon the occurrence or nonoccurrence of an event, notification of the occurrence or nonoccurrence must be filed with the Secretary of State when known.” Id.

If the rule being promulgated is a routine technical one, then STOP HERE.

If the rule being promulgated is a major substantive one, then go to Step 26.

26. Next Steps After Provisional Adoption of a Major Substantive Rule

If a rule is a major substantive one that has been provisionally adopted by an agency, approved by the Department of the Attorney General as to form and legality, and filed with the Department, then the rulemaking adoption filing packet also must be filed with the Office of the Executive Director of the Legislative Council, in accordance with the "Checklist for Major Substantive Rules Filings” and any other requirements of that office. See: https://legislature.maine.gov/doc/1819.

A provisionally adopted rule must be submitted to the Executive Director of the Legislative Council during the “legislative rule acceptance period,” which is defined as the period beginning on the July 1st preceding the convening of a regular session of the Legislature and ending at 5:00 p.m. on the 2nd Friday in January after the convening of that regular session of the Legislature.” 5 M.R.S. § 8071-A, sub-§ 2.

Of note, “[a] provisionally adopted rule or part of a provisionally adopted rule may not be finally adopted by an agency unless [either] … [l]egislation authorizing adoption of the rule or part of the rule is enacted into law” or “[t]he agency submits the rule or part of the rule … during the legislative rule acceptance period and the Legislature fails to act on the rule or part of the rule.” 5 M.R.S. §8072, sub-§ 11. 

By statute, the Legislature “fails to act on a rule or part of a rule” if the Legislature “fails to enact legislation authorizing adoption or disapproving adoption of the rule or part of the rule during the legislative review session or during any subsequent session to which a legislative instrument expressly providing for approval or disapproval of the rule or part of the rule is carried over.”  Id.

Also of note, “[t]he Legislature may act or decline to act upon any [provisionally adopted major substantive] rules submitted outside the legislative rule acceptance period.” 5 M.R.S. §8072, sub-§ 10.

• Has the agency filed the required documentation with the Office of the Executive Director of the Legislative Council in accordance with the Legislature’s “Checklist for Major Substantive Rules Filings”?
  • Yes
  • No
• Has the provisionally adopted rule been submitted to the Executive Director of the Legislative Council by or before the deadline identified in statute?
  • Yes
  • No

27. Final Adoption of a Major Substantive Rule

If the Maine Legislature authorizes final adoption of a provisionally adopted rule in whole or part through the enactment of legislation (typically, a Resolve), or if the Legislature fails to act on the rule within the meaning of 5 M.R.S. §8072 sub-§ 11, then the rulemaking adoption packet must be subsequently presented to an authorized representative of the agency with jurisdiction  over the rule in order for the provisionally adopted rule to be "finally adopted" by the agency.  

The rulemaking adoption packet presented to an authorized representative of that agency must include an updated Rulemaking Cover Sheet (MAPA-1) form (which must be electronically signed in accordance with Step 21, above), a “clean copy” of the finally adopted rule, a Notice of Rulemaking Adoption (MAPA-4) form, and a citation to the legislation that authorized final adoption of the rule. See 5 §8052, sub-§ 5-B, ¶ A.   

• If the rule is being finally adopted because of a failure to act by the Legislature, then the updated MAPA-1 form “must indicate that fact and identify the date the agency filed the rule for review under section 8072.”  5 M.R.S. § 8052, sub-§5-B.

A copy of the authorizing legislation also may be incorporated into the electronic rulemaking adoption packet.

• A provisionally adopted rule that has been legislatively authorized to be finally adopted in whole or part must be finally adopted by the agency within 60 days after the effective date of the authorizing legislation. See 5 M.R.S. § 8072, sub-§ 8.
• If the Legislature declines to act on a provisionally adopted rule (or part of a rule) submitted during the legislative rule acceptance period, and also does not carry over any legislation to approve or disapprove the rule (or part of the rule) to the next legislative session, the agency may finally adopt the rule.
• Final adoption when the Legislature declines to act on a rule or part of a rule must be completed within 60 days after the end of the legislative session during which the Legislature failed to act.  
   
• Did the Legislature authorize final adoption of the provisionally adopted rule in whole or part through the enactment of legislation or, if not, did the Legislature “fail to act” within the meaning of § 8072?
  • Yes
  • No
• Was the rulemaking adoption packet presented to an authorized representative of the agency to “finally adopt” the rule by giving her or his electronic signature? 
  • Yes
  • No
• Was the rule finally adopted by the agency within 60 days after the effective date of the authorizing legislation or the adjournment of the session in which the Legislature failed to act?
  • Yes
  • No

28. Presentation of Finally Adopted Rule to the Department of the Attorney General

Once the provisionally adopted rule has been finally adopted by the agency, the rulemaking adoption packet must be provided to the Department of the Attorney General for review and approval as to form and legality. See generally Step 22, above. The updated MAPA-1 form must be electronically signed by an AAG in accordance with Step 22, above).

The Assistant Attorney General reviewing the rule as to form and legality must electronically sign the updated Rulemaking Cover Sheet (MAPA-1) form submitted to the office as part of the rulemaking final adoption packet. 

• Has the Department of the Attorney General reviewed and approved the finally adopted rule as to form and legality?
  • Yes
  • No

29. Rulemaking Final Adoption Filing

After the Department of the Attorney General has approved the finally adopted rule as to form and legality, the rule must then be filed with the Department via either email or a State-approvied filesharing platform, such as OneDrive.

Prior to filing the rulemaking final adoption packet with the Department, agencies must ensure that the rule document to be posted online by the Department is accessible pursuant to the federal Americans with Disabilities Act Web and Mobile Application Accessibility Rule.

• Was the rulemaking adoption packet emailed to, or shared via a State-approved filesharing platform with, the Department?
  • Yes
  • No

30. Effective Date of Finally Adopted Major Substantive Rule

A major substantive rule is effective 30 days after the final adoption filing is made with the Department, unless otherwise specified by law or the agency specified in a substantive provision of the proposed rule an effective date that is more than 30 days. 5 M.R.S. § 8072, sub-§ 8.

If the effective date of a finally adopted rule is contingent upon the occurrence or non-occurrence of a future event, then that contingency must be identified in the rule. 

Further, “[w]hen the effective date of a rule is contingent upon the occurrence or nonoccurrence of an event, notification of the occurrence or nonoccurrence must be filed with the Secretary of State when known.” 5 M.R.S. § 8052, sub-§ 6.

Rulemaking Documents

• Notice of Agency Rulemaking Proposal (MAPA-3)(Word)
• Rulemaking Fact Sheet (Word)
• Rulemaking Cover Sheet (MAPA-1)(Word)
• Maine Administrative Procedure Act Checklist (Word)
• Notice of Agency Rulemaking Adoption (MAPA-4)(Word)

Rulemaking Petition-related Documents

• Rulemaking Petition Information (Word)
• Rulemaking Petition Cover Sheet (Word)
• Rulemaking Petition Form (Word)

Reference

Link to the Maine Legislature's "Electronic Notification of Agency Rulemaking Application" webpage