In 1995, the 117th Legislature amended the Maine Administrative Procedure Act to establish a new process for the review of major rules proposed by state agencies. This legislation, enacted as P.L. 1995, Chapter 463, became effective January 1, 1996, and proposed rules that are subject to the new law began to be filed in January 1997. This new process is designed to provide the Legislature with an opportunity to review major rules proposed by an agency before they become effective. This increased level of review will allow the Legislature to satisfy itself that executive agencies are developing rules to implement provisions of law that are in keeping with the legislative policy direction, are readily understandable and reasonable, and accomplish the objectives stated in the law.
The Legislative review process, found at Title 5 M.R.S.A. §8701 et seq., establishes two categories of rules: routine technical and major substantive. All rules authorized by the Legislature under rule-making authority granted after January 1, 1996 must be assigned to one of these two categories. Routine technical rules do not require any special action by the Legislature, but fall under the normal rule-making process of the Administrative Procedure Act (APA). The APA requires public notice of a proposed rule, an opportunity for public hearing and comment and preparation of a basis statement that is responsive to public comments. Major substantive rules, however, require a higher degree of oversight by the Legislature, and the law establishes the standards for legislative review.
Major substantive rules are subject to legislative review and authorization prior to their final adoption by an agency. They are subject to all the provisions of the APA up to the point of their adoption by an agency. It is at this stage in the rule-making process that the new legislative oversight mechanism begins. Agencies may adopt major substantive rules only provisionally, and when so adopted the rules must be submitted for legislative review. Provisionally adopted rules are not in effect and may not be enforced. Final adoption and implementation of the rules may occur only after review and authorization by the Legislature.
As mentioned previously, rules authorized under rule-making authority granted to agencies before January 1, 1996 are not affected by the requirements of Title 5 M.R.S.A. §8701 et seq. Those rules may continue to be adopted and amended under the standard requirements of the APA. They are treated essentially as routine technical rules.
What is Considered a Major Substantive Rule?
Title 5 M.R.S.A. §8071 defines "major substantive rules" as those rules that in the judgment of the Legislature :
require the exercise of significant agency discretion or interpretation in drafting; or due to their subject matter or anticipated impact, are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government as defined in the Constitution of Maine, Article IX, Section 21, or other serious burdens on the public or units of local government.
Process for Legislative Review of Major Substantive Rules
For an agency's provisional rule to be reviewed during a legislative session, the agency must submit the rule and its supporting materials at least 45 days before the date established for legislative adjournment. Depending upon the length of the legislative session, a failure to file provisional rules in a timely manner could result in a delay of up to a year before an agency would have a rule reviewed, authorized and finally adopted.
Once a rule and supporting materials are filed with the Legislature, the rule is referred to the joint standing committee having jurisdiction over the policy area related to the rule. The policy committee reviews the proposed rule and makes a recommendation on the rule. The policy committee has until 30 days before statutory adjournment to issue a report to the full legislature.
The Legislature may then enact legislation authorizing all or part of the rule, disapproving it, or authorizing the rule with specified changes. If a provisionally adopted rule is properly filed, but the Legislature fails to act on it, the agency may go forward and adopt the provisional rule. If the Legislature authorizes the rule, the provisional rule must be finally adopted by the agency within 60 days after the effective date of the legislation approving the rule. Adopted rules may take effect no sooner than 30 days after the filing with the Secretary of State. Note: This action by the Legislature does not adopt the rule as law, but merely authorizes an agency to proceed to adopt a rule or make certain changes in a proposed rule before an agency adopts it.
The Policy Committee's Role
Each major substantive rule submitted for legislative review must be reviewed by the appropriate joint standing committee at a public meeting. A committee may review more than one rule and the rules of more than one agency at a meeting. The committee must notify the affected agency of its meeting.
In addition or in conjunction with its public meeting, the committee may hold a public hearing on the provisional rule. The public hearing must be advertised in the same manner as required for public hearings on proposed legislation under the Legislature's Joint Rule 305.
The committee's review of the provisional rule must include at least a determination of the following:
A. That the Legislature authorize final adoption of the rule;
B. That the Legislature authorize final adoption of a specified part of the rule;
C. That the Legislature authorize final adoption of the rule with certain specified amendments; or
D. That the Legislature disapprove final adoption of the rule.
The committee report is in the form of a resolve. The report must include a copy of the rule, the committee's recommendation, the reasons for a recommendation to disapprove or modify the rule and legislation to implement its recommendation. If the Legislature fails to act on a provisional rule before the end of the legislative session in which it is submitted for review, an agency may finally adopt and implement the rule.
If the Legislature authorizes adoption or modification of a major substantive rule, the agency must finally adopt the rule within 60 days of the effective date of the legislation or of adjournment if no legislation is adopted. If finally adopted within 60 days, the rule does not require further rule-making proceedings so long as the final rule reflects the Legislature's decision and is properly filed with the Secretary of State.
Status of Major Substantive Rules filed in the 118th Legislature, First Regular and First Special Sessions
To date, there have been eleven provisional rules filed with the 118th Legislature. The following is a list of the rules and the action taken on them to date.
| LD | Title of Resolve | Status |
| 1134 | Resolve, Regarding Legislative Review of Chapter 21 (21.03), Amendments to License Agent Reporting Requirements (Department of Inland Fisheries and Wildlife) | Enacted, Resolve 15 |
| 1135 | Resolve, Regarding Legislative Review of Chapter 374, Rules Regarding the Traffic Movement Standard of the Site Location of Development Law (Department of Environmental Protection) | Enacted, Resolve 18 |
| 1136 | Resolve, Regarding Legislative Review of Chapter 378, Variance Criteria for the Excavation of Rock, Borrow, Topsoil, Clay or Silt and Performance Standards for the Storage of Petroleum Products (Department of Environmental Protection) | Enacted, Resolve 30 |
| 1190 | Resolve, Regarding Legislative Review of Chapter 840: Private Purchasing Alliances (Department of Professional and Financial Regulation, Bureau of Insurance) | Enacted, Resolve 14 |
| 1191 | Resolve, Regarding Legislative Review of Chapter 850, Health Plan Accountability (Department of Professional and Financial Regulation) | Enacted, Resolve 13 |
| 1252 | Resolve, Regarding Legislative Review of Chapter 380: Planning Permit (Department of Environmental Protection) | Enacted, Resolve 31 |
| 1455 | Resolve, Regarding Legislative Review of Chapter 500: Stormwater Management (Department of Environmental Protection) | Enacted, Resolve 67 |
| 1471 | Resolve, Regarding Legislative Review of Chapter 502: Direct Watersheds of Waterbodies Most at Risk from New Development, and Sensitive or Threatened Regions of Watersheds (Department of Environmental Protection) | Enacted, Resolve 47 |
| 1536 | Resolve, Regarding Legislative Review of Chapter 131: Rules for Learning Results (Department of Education) | Enacted, Resolve 51 |
| 1877 | Resolve, Regarding Legislative Review of Chapter 6: Regulations Relating to Coordination and Oversight of Patient Care Services by Unlicensed Health Care Assistive Personnel | Enacted, Resolve 53 |
| 1881 | Resolve, Regarding Legislative Review of Chapter II, Section 67: Nursing Facilities Services, Maine Medical Assistance Manual | Enacted, Resolve 54 |
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OPLA~Notes
Nonpartisian Quarterly Newsletter
Spring 1997
Maine State Legislature
Publication of the Office of Policy and Legal Analysis
Volume 1, Issue 2