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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6394

October 16, 1986

ADMINISTRATIVE LAW AND PROCEDURES:

Public hearing on proposed rules prior to publication of copy of notice of public hearing in Michigan Register

Computation of time for notice of public hearing

A hearing on rules proposed by a state agency may take place prior to publication of a "copy" of the notice of hearing in the Michigan Register, provided that the agency has given timely notice of the public hearing as specified in MCL 24.242; MSA 3.560(142).

The starting point for computing the 30-day minimum as well as the 90-day maximum period prescribed by the Legislature in MCL 24.241; MSA 3.560(141), to give notice of a public hearing on proposed rules is the date of the public hearing.

Honorable Michael J. Griffin

State Representative

The Capitol

Lansing, Michigan 48913

You have asked two questions concerning the public hearing requirement for rule promulgation contained in the Administrative Procedures Act of 1969, MCL 24.201 et seq; MSA 3.560(101) et seq. Your first question is:

Inasmuch as MCL 24.242; MSA 3.560(142), now requires a state agency to submit a copy of the notice of public hearing to the Legislative Service Bureau for publication in the Michigan Register, must this notice be published in the Register before an agency hearing is held, and if so, how far in advance?

MCL 24.208; MSA 3.560(108), as added by 1982 PA 413, provides for the printing, publishing, and distribution of the Michigan Register. MCL 24.208; MSA 3.560(108), states:

"(1) The legislative service bureau shall publish the Michigan register each month. The Michigan register shall contain all of the following:

"(a) Executive orders and executive reorganization orders issued during the preceding 90 days.

"(b) The numbers and subject matter of the enrolled senate and house bills signed into law by the governor during the preceding 90 days and the corresponding public act number.

"(c) The numbers and subject matter of the enrolled senate and house bills vetoed by the governor during the preceding 90 days.

"(d) Proposed administrative rules.

"(e) Small business economic impact statements on proposed rules as required by section 45.

"(f) Notices of public hearings on proposed administrative rules.

"(g) Administrative rules filed with the secretary of state.

"(h) Emergency rules filed with the secretary of state.

"(i) Notice of proposed and adopted agency guidelines.

"(j) Other official information considered necessary or appropriate by the legislative service bureau.

"(k) Opinion numbers and descriptions of attorney general opinions issued during the preceding 90 days.

"(2) The legislative service bureau shall publish a biannual cumulative index for the Michigan register.

"(3) The Michigan register shall be available for public subscription at a fee reasonably calculated to cover publication and distribution costs.

"(4) If publication of a proposed rule, guideline, or small business economic impact statement would be unreasonably expensive or lengthy, the legislative service bureau may publish a brief synopsis of the proposed rule, guideline, or small business economic impact statement including information on how to obtain a complete copy of the proposed rule, guideline, or small business economic impact statement.

"(5) An agency shall transmit a copy of the small business economic impact statement along with the applicable proposed rules and notice of public hearing to the legislative service bureau for publication in the Michigan register."

A bare reading of these provisions discloses that what is contemplated for publication in the Michigan Register includes copies or reports of events and actions that have taken place in the executive branch of state government. It may not be contended that these events and activities are not to occur prior to publication in the Michigan Register.

The notice requirements for a public hearing for proposed rules are contained in MCL 24.241; MSA 3.560(141), and MCL 24.242; MSA 3.560(142).

MCL 24.241; MSA 3.560(141), provides:

"(1) Before the adoption of a rule, an agency shall give notice of a public hearing and offer a person an opportunity to present data, views, and arguments. The notice shall be given within the time prescribed by an applicable statute, or if none, not less than 30 days nor more than 90 days before the public hearing. The notice shall include all of the following:

"(a) A reference to the statutory authority under which the action is proposed.

"(b) The time and place of the public hearing and a statement of the manner in which data, views, and arguments may be submitted to the agency at other times by a person.

"(c) A statement of the terms or substance of the proposed rule, a description of the subjects and issues involved, and the proposed effective date of the rule.

"(2) The agency shall transmit copies of the notice to the joint committee on administrative rules, the legislative service bureau, the office of the governor, and each person who requested the agency in writing for advance notice of proposed action which may affect the person. The notice shall be by mail, in writing, to the last address specified by the person. A request for notice shall be renewed each December.

"(3) The public hearing shall comply with any applicable statute but is not subject to the provisions of this act governing contested cases.

"(4) The head of the promulgating agency or 1 or more persons designated by the head of the agency, who has knowledge of the subject matter of the proposed rule, shall be present at the public hearing and shall participate in the discussion of the proposed rule."

MCL 24.242; MSA 3.560(142), provides:

"(1) The agency shall publish the notice as prescribed in any applicable statute, or if none, in a manner selected by the agency as best calculated to give notice to persons likely to be affected by the proposed rule. Methods that may be employed by the agency, depending upon the circumstances, include publication of the notice in 1 or more newspapers of general circulation or, if appropriate, in trade, industry, governmental, or professional publications. If the persons likely to be affected by the proposed rule are unorganized or diffuse in character and location, the agency shall publish the notice as a display advertisement in at least 3 newspapers of general circulation in different parts of the state, 1 of which shall be published in the Upper Peninsula.

"(2) In addition to the requirements of subsection (1), the agency shall submit a copy of the notice to the legislative service bureau pursuant to section 41 for publication in the Michigan register."

MCL 24.242(2); MSA 3.560(142)(2), requires that only a "copy" of the notice of the agency's hearing on proposed rules be submitted by the agency to the Legislative Service Bureau for publication in the Michigan Register, whereas the notice requirements for the agency's hearing on its proposed rules are contained in a separate subsection, namely, MCL 24.242(1); MSA 3.560(142)(1), which provides that the notice of hearing must be given either in the manner prescribed in the applicable statute or in the manner best calculated to give notice to persons likely to be affected by the proposed rules. MCL 24.208(3); MSA 3.560(108)(3), provides that the Michigan Register shall be available for public subscription at a fee reasonably calculated to cover publication and distribution costs. Clearly, this falls short of the requirements of MCL 24.242(1); MSA 3.560(142)(1), that publication of the notice of hearing be "in a manner selected by the agency as best calculated to give notice to persons likely to be affected by the proposed rule."

It is my opinion, in answer to your first question, that a hearing on rules proposed by a state agency may take place prior to the publication of a "copy" of the notice of public hearing in the Michigan Register, provided, of course, that the agency has complied with MCL 24.242(1); MSA 3.560(142)(1). It is my further opinion that the principal function of the Michigan Register is to chronicle on a monthly basis events and actions that have taken place in the executive branch of state government.

Your second question is:

Inasmuch as MCL 24.241; MSA 3.560(101), requires that notice of a public hearing be given within the time prescribed by any applicable statute, or if none, not less than 30 days nor more than 90 days before the hearing, when does the clock start running?

MCL 24.241; MSA 3.560(141), in pertinent part, provides:

"(1) Before the adoption of a rule, an agency shall give notice of a public hearing and offer a person an opportunity to present data, views, and arguments. The notice shall be given within the time prescribed by applicable statute, or if none, not less than 30 days nor more than 90 days before the public hearing."

Your question does not relate to instances where the time prescribed for the notice of public hearing is provided in the applicable statute, but, rather, only to those instances where no time-frame is provided by the applicable statute. In such latter instances, the notice of hearing on the proposed rules shall be not less than 30 days before the day set by the agency for the public hearing nor more than 90 days before the day set by the agency for the public hearing. Thus, the starting point for computing the 30-day minimum period as well as the 90-day maximum period is the day of the public hearing. It follows that the notice of hearing may not be earlier than the 90th day before the scheduled date of the public hearing, nor later than the 30th day before the scheduled date of the public hearing.

In making such computation, it is to be kept in mind that MCL 8.6; MSA 2.217, provides:

"This section applies to the statutes and administrative rules. In computing a period of days, the first day is excluded and the last day is included. If the last day of any period or a fixed or final day is a Saturday, Sunday or legal holiday, the period or day is extended to include the next day which is not a Saturday, Sunday or legal holiday."

It is my opinion, in answer to your second question, that the starting point for computing the 30-day minimum period as well as the 90-day maximum period prescribed by the Legislature for a rule-making state agency to give notice of public hearing on proposed rules pursuant to MCL 24.241; MSA 3.560(141), is the date of the public hearing. It is my further opinion that in the context of this somewhat unique statutory provision, the computation is with respect to days which precede the scheduled date of the public hearing.

Frank J. Kelley

Attorney General


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