An Act To Improve the Maine Administrative Procedure Act
Maine Legislature, Session 127, LD 1354
Committee: State and Local Government
Sponsors: FREDETTE
Amends: 5 MRSA §8052, 5 MRSA §8053, 5 MRSA §8056, 5 MRSA §8057, 5 MRSA §8072, 12 MRSA §12452

Legislative Document 
No. 1354 
H.P. 922 
House of Representatives, April 21, 2015 
An Act To Improve the Maine Administrative Procedure Act 
Reference to the Committee on State and Local Government suggested and ordered printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative FREDETTE of Newport.  (GOVERNOR'S BILL) 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  5 MRSA §8052, sub-§7, as amended by PL 1995, c. 373, §3, is repealed 
and the following enacted in its place: 
7.  Adoption of rule.  A rule may not take effect unless the agency adopts it within 
days of the final date by which data, views or arguments may be submitted to the 
agency for consideration in adopting the rule. 
Sec. 2.  5 MRSA §8052, sub-§9 is enacted to read: 
9.  Adoption of a rule expected to result in taking of private property.  An agency 
may not adopt 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. 
Sec. 3.  5 MRSA §8053, sub-§1, as amended by PL 2011, c. 479, §§1 to 3, is 
further amended to read: 
1.  Notice of rulemaking without hearing.  At least 20 days prior to the comment 
deadline of any rule without hearing, the agency shall deliver or mail written notice or, 
with written or electronic agreement of the party, provide electronic notice to: 
A.  Any person specified by the statute authorizing the rulemaking; 
B.  Any person who has filed within the past year a written or electronic request with 
the agency for notice of rulemaking;  
C.  Any trade, industry, professional, interest group or regional publication that the 
agency considers effective in reaching the persons affected; and 
E.  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. 
Notification to subscribers under paragraph B must be by mail if requested by the 
subscriber or, with written  or electronically submitted agreement of the subscriber, by 
electronic notice or otherwise in writing to the last address provided to the agency by that 
person. Subscribers under paragraph B may request to receive a copy of each proposed 
rule with the written notice.  The agency shall provide the copy at the same time the 
notice is sent. 
Written or electronic notice must also be given to the Secretary of State, by the deadline 
established by the Secretary of State, for publication in accordance with subsection 5.  
This notice must be in a format approved by the Secretary of State. 
Sec. 4.  5 MRSA §8053, sub-§3-A, as amended by PL 2003, c. 207, §2, is further 
amended to read: 
3-A.  Copies of proposed rules available upon request.  At least 20 days prior to 
hearing on any proposed rule and at least 20 days prior to the comment deadline of any 
rule without a hearing, the agency shall make copies of the proposed rule available in 
writing or, with agreement of to persons upon request by mail if so specified by the 
requestor, or electronically to persons upon request. 
Sec. 5.  5 MRSA §8056, sub-§1, ¶A, as enacted by PL 1977, c. 551, §3, is 
amended to read: 
A.  Submit the rule to the Attorney General for approval advice as to form and 
legality; 
Sec. 6.  5 MRSA §8056, sub-§1, ¶B, as amended by PL 1999, c. 261, §1, is 
further amended to read: 
B.  File the original rule as signed by the Attorney General or an assistant attorney 
general and the authorized representative of the agency, and the statement required by 
section 8052, subsection 5, with the Secretary of State in a form prescribed by the 
Secretary of State, which form is susceptible to frequent and easy revision. 
(1)  Through rulemaking, an agency may incorporate by reference all or any part 
of a code, standard, rule or regulation that has been adopted by an agency of the 
United States or of this State or by a nationally recognized organization or 
association. 
(2)  The reference in the agency rules must fully identify the incorporated matter 
by exact title, edition or version and date of publication. 
(3)  The rules must state where copies of the incorporated matter are available at 
cost from the agency issuing the rule or where copies are available from the 
agency of the United States, this State or an organization or association originally 
issuing that matter. 
(4)  An agency incorporating a matter by reference shall submit a copy of the 
incorporated matter to the Secretary of State; 
Sec. 7.  5 MRSA §8056, sub-§1, ¶B-1 is enacted to read: 
B-1.  Notwithstanding paragraph B, an agency may specify that an incorporated code, 
standard, rule or regulation also incorporates any subsequently adopted amendment 
of the incorporated code, standard, rule or regulation.  An agency shall provide notice 
to the Legislature, the Secretary of State and the persons specified in section 8053 of 
any amendment incorporated pursuant to this paragraph. 
Sec. 8.  5 MRSA §8056, sub-§6, as amended by PL 1995, c. 537, §6, is repealed. 
Sec. 9.  5 MRSA §8057, sub-§2, as amended by PL 1979, c. 425, §10, is further 
amended to read: 
2.  Rules not approved.  Rules not approved and filed in the manner prescribed by 
section 8056, subsection 1, paragraphs A and paragraph B, shall be are void and of no 
legal effect.  Rules in effect prior to July 1, 1978, become void and of no legal effect on 
December 31, 1979, unless filed with the Secretary of State in accordance with section 
8056, subsection 1, paragraph B. 
Sec. 10.  5 MRSA §8072, first ¶, as enacted by PL 1995, c. 463, §2, is amended 
to read: 
As provided in section 8071, major substantive rules are subject to an increased level 
of rule-making requirements.  The rule-making requirements of subchapter II 2 for 
routine technical rules apply to the adoption of major substantive rules, except that the 
120-day period for adoption and the 150-day period for approval as to form and legality 
under section 8052, subsection 7, paragraphs A and B apply applies to provisional 
adoption of major substantive rules, not final adoption.  In addition to the other rule-
making requirements, every major substantive rule is also subject to legislative review as 
provided in this section. 
Sec. 11.  5 MRSA §8072, sub-§2, as enacted by PL 1995, c. 463, §2, is amended 
to read: 
2.  Submission of materials.  At the time an agency provisionally adopts a rule, the 
agency shall submit to the Executive Director of the Legislative Council 20 copies one 
electronic copy of: 
A.  The full text of the rule provisionally adopted by the agency with new language 
underlined and with language to be deleted from any existing rule stricken through 
but clearly legible; 
B.  A concise summary of the content of the rule and a description and a copy of any 
existing rule the agency proposes to amend or repeal; 
C.  A statement of the circumstances that require the rule; 
D.  A statement of the economic impact of the rule on the State and its residents; and 
E.  Any other information required by law. 
Sec. 12.  12 MRSA §12452, as amended by PL 2009, c. 214, §1, is further 
amended to read: 
§12452.  Consolidation of rules 
Fishing rules as set forth in the Open Water and Ice Fishing Regulations folder, as 
printed and distributed to the public, are declared to be official consolidations of fishing 
rules upon filing with the Secretary of State, except that the 150-day limit of Title 5, 
section 8052, subsection 7, paragraph B does not apply to this section. 
SUMMARY 
This bill amends the Maine Administrative Procedure Act as follows: 
1.  It repeals a requirement that rules be approved for form and legality by the 
Attorney General and adds a requirement that rules be submitted to the Attorney General 
for advice as to form and legality; 
2.  It changes a statutory provision, which previously provided that the Attorney 
General may not approve a rule if it is reasonably expected to result in a taking of private 
property except under certain conditions, to provide that an agency may not adopt a rule 
if it is reasonably expected to result in such a taking; 
3.  It changes notice requirements, which previously provided that notice and copies 
of proposed rules be provided by mail unless the requestor specified they be provided 
electronically, to provide that notice and copies of proposed rules be provided 
electronically unless the requestor specifies they be provided by mail; 
4.  It allows for electronic submission of certain rule-making information; 
5.  It enacts a provision that allows an agency to choose to incorporate by reference 
subsequent amendments to a code, standard, rule or regulation; and 
6.  This bill also corrects cross-references.