Effective 28 Aug 2019

536.025. Emergency rule powers — procedure — definitions. — 1. A rule may be made, amended or rescinded by a state agency without following the provisions of section 536.021, only if the state agency:

(1) Finds that an immediate danger to the public health, safety or welfare requires emergency action or the rule is necessary to preserve a compelling governmental interest that requires an early effective date as permitted pursuant to this section;

(2) Follows procedures best calculated to assure fairness to all interested persons and parties under the circumstances;

(3) Follows procedures which comply with the protections extended by the Missouri and United States Constitutions; and

(4) Limits the scope of such rule to the circumstances creating an emergency and requiring emergency action.

2. At the time of or prior to the adoption of such rule, the agency shall file with the secretary of state and the joint committee on administrative rules the text of the rule and the fiscal note required by sections 536.200 and 536.205 together with the specific facts, reasons, and findings which support the agency's conclusion that the agency has fully complied with the requirements of subsection 1 of this section. If an agency finds that a rule is necessary to preserve a compelling governmental interest that requires an early effective date, the agency shall certify in writing the reasons therefor.

3. After a filing by an agency of materials under subsection 2 of this section, the secretary of state shall:

(1) As soon as practicable, publish such materials in the Missouri Register;

(2) Within three business days, email such materials to persons who have registered to be notified of the agency's actions through the secretary of state's administrative rules notification system; and

(3) Within three business days, publish such materials on the official website of the secretary of state.

­­Any rule adopted pursuant to this section shall be reviewed by the secretary of state to determine compliance with the requirements for its publication and adoption established in this section, and in the event that the secretary of state determines that such proposed material does not meet those requirements, the secretary of state shall not publish the rule. The secretary of state shall inform the agency of its determination, and offer the agency a chance to either withdraw the rule or to have it published as a proposed rule.

4. The committee may file with the secretary of state any comments or recommendations that the committee has concerning a proposed or final order of rulemaking. Such comments shall be published in the Missouri Register.

5. The committee may refer comments or recommendations concerning such rule to the appropriations and budget committee of the house of representatives and the appropriations committee of the senate for further action.

6. Rules adopted under the provisions of this section shall be known as "emergency rules" and shall, along with the findings and conclusions of the state agency in support of its employment of emergency procedures, be judicially reviewable under section 536.050 or other appropriate form of judicial review. The secretary of state and any employee thereof, acting in the scope of employment, shall be immune from suit in actions regarding the adoption of rules pursuant to this section.

7. A rule adopted under the provisions of this section shall clearly state the interval during which it will be in effect. Emergency rules shall not be in effect for a period exceeding one hundred eighty calendar days or thirty legislative days, whichever period is longer. For the purposes of this section, a "legislative day" is each Monday, Tuesday, Wednesday and Thursday beginning the first Wednesday after the first Monday in January and ending the first Friday after the second Monday in May, regardless of whether the legislature meets.

8. A rule adopted under the provisions of this section shall not be renewable, nor shall an agency adopt consecutive emergency rules that have substantially the same effect, although a state agency may, at any time, adopt an identical rule under normal rulemaking procedures.

9. A rule adopted under the provisions of this section may be effective not less than ten business days after the filing thereof in the office of the secretary of state, or at such later date as may be specified in the rule, and may be terminated at any time by the state agency by filing an order with the secretary of state fixing the date of such termination, which order shall be published by the secretary of state in the Missouri Register as soon as practicable after the filing thereof.

10. If it is found in a contested case by an administrative or judicial fact finder that an agency rule should not have been adopted as an emergency rule as provided by subsection 1 of this section, then the administrative or judicial fact finder shall award the nonstate party who prevails, as defined in this section, its reasonable fees and expenses, as defined in this section. This award shall constitute a reviewable order. If a state agency in a contested case grants the relief sought by the party prior to a finding by an administrative or judicial fact finder that the state agency's action was based on a statement of general applicability which should not have been adopted as an emergency rule, but was in fact adopted as an emergency rule pursuant to this section, then the affected party may bring an action in circuit court of Cole County for the nonstate party's reasonable fees and expenses, as defined in this section.

11. For the purposes of this section, the following terms mean:

(1) "Prevails", obtains a favorable order, decision, judgment or dismissal in a civil action or agency proceeding;

(2) "Reasonable fees and expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court or agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees.

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(L. 1975 S.B. 58, A.L. 1976 S.B. 478, A.L. 1993 S.B. 52, A.L. 1995 S.B. 3, A.L. 1997 H.B. 850, A.L. 2019 H.B. 1088)

CROSS REFERENCE:

Workers' compensation cases, this section not deemed to govern discovery between parties, 287.811