536.025. Emergency rule powers--procedure--definitions.
Emergency rule powers--procedure--definitions.
536.025. 1. A rule may be made, amended or rescinded by a stateagency without following the provisions of section 536.021, only if thestate agency:
(1) Finds that an immediate danger to the public health, safety orwelfare requires emergency action or the rule is necessary to preserve acompelling governmental interest that requires an early effective date aspermitted pursuant to this section;
(2) Follows procedures best calculated to assure fairness to allinterested persons and parties under the circumstances;
(3) Follows procedures which comply with the protections extended bythe Missouri and United States Constitutions; and
(4) Limits the scope of such rule to the circumstances creating anemergency and requiring emergency action.
2. At the time of or prior to the adoption of such rule, the agencyshall file with the secretary of state and the joint committee onadministrative rules the text of the rule together with the specific facts,reasons, and findings which support the agency's conclusion that the agencyhas fully complied with the requirements of subsection 1 of this section.If an agency finds that a rule is necessary to preserve a compellinggovernmental interest that requires an early effective date, the agencyshall certify in writing the reasons therefor.
3. Material filed with the secretary of state and the joint committeeon administrative rules under the provisions of subsection 2 of thissection shall be published in the Missouri Register by the secretary ofstate as soon as practicable after the filing thereof. Any rule adoptedpursuant to this section shall be reviewed by the secretary of state todetermine compliance with the requirements for its publication and adoptionestablished in this section, and in the event that the secretary of statedetermines that such proposed material does not meet those requirements,the secretary of state shall not publish the rule. The secretary of stateshall inform the agency of its determination, and offer the agency a chanceto 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 orrecommendations that the committee has concerning a proposed or final orderof rulemaking. Such comments shall be published in the Missouri Register.
5. The committee may refer comments or recommendations concerningsuch rule to the appropriations and budget committee of the house ofrepresentatives and the appropriations committee of the senate for furtheraction.
6. Rules adopted under the provisions of this section shall be knownas "emergency rules" and shall, along with the findings and conclusions ofthe state agency in support of its employment of emergency procedures, bejudicially reviewable under section 536.050 or other appropriate form ofjudicial review. The secretary of state and any employee thereof, actingin the scope of employment, shall be immune from suit in actions regardingthe adoption of rules pursuant to this section.
7. A rule adopted under the provisions of this section shall clearlystate the interval during which it will be in effect. Emergency rulesshall not be in effect for a period exceeding one hundred eighty calendardays or thirty legislative days, whichever period is longer. For thepurposes of this section, a "legislative day" is each Monday, Tuesday,Wednesday and Thursday beginning the first Wednesday after the first Mondayin 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 berenewable, nor shall an agency adopt consecutive emergency rules that havesubstantially 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 beeffective not less than ten days after the filing thereof in the office ofthe secretary of state, or at such later date as may be specified in therule, and may be terminated at any time by the state agency by filing anorder with the secretary of state fixing the date of such termination,which order shall be published by the secretary of state in the MissouriRegister as soon as practicable after the filing thereof.
10. If it is found in a contested case by an administrative orjudicial fact finder that an agency rule should not have been adopted as anemergency rule as provided by subsection 1 of this section, then theadministrative or judicial fact finder shall award the nonstate party whoprevails, as defined in this section, its reasonable fees and expenses, asdefined in this section. This award shall constitute a reviewable order.If a state agency in a contested case grants the relief sought by the partyprior to a finding by an administrative or judicial fact finder that thestate agency's action was based on a statement of general applicabilitywhich should not have been adopted as an emergency rule, but was in factadopted as an emergency rule pursuant to this section, then the affectedparty may bring an action in circuit court of Cole County for the nonstateparty'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 ordismissal in a civil action or agency proceeding;
(2) "Reasonable fees and expenses" includes the reasonable expensesof expert witnesses, the reasonable cost of any study, analysis,engineering report, test or project which is found by the court or agencyto be necessary for the preparation of the party's case, and reasonableattorney or agent fees.
(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)Effective 6-27-97
CROSS REFERENCE:
Workers' compensation cases, this section not deemed to govern discovery between parties, RSMo 287.811