Montana State Legislature

legislative poll: Mar notice no. 97-923

Status of Poll

The presiding and vice presiding officers of the committee canceled the planned mailing of a legislative poll regarding MAR Notice No. 37-923 on Aug. 18 after the Department of Public Health and Human Services formally filed notice that it was withdrawing its proposal rule banning flavored vaping products. Rep. Eric Moore and Sen. Diane Sands noted in a memo that the poll was moot given the department's action "and would have no effect under 2-4-404, MCA, which provides that the results of a legislative poll are admissible in litigation involving the validity of a proposed rule or adopted rule."

• Poll Cancellation Memo
• DPHHS Notice of Withdrawal
  • DPHHS Letter on Withdrawal of Rule

Background of Poll Request and Process

As of July 27, 2020, the committee received letters from 20 legislators objecting to MAR Notice No. 37-923, a proposed Department of Public Health and Human Services administrative rule that would ban flavored vaping products. The objections triggered a requirement under the Montana Administrative Procedure Act (MAPA) for the committee to poll the members of the Legislature to determine if the proposed rules are consistent with or contrary to legislative intent.

The committee met Aug. 12, 2020, to review proposed poll materials and take public comment on the polling process. At the conclusion of the meeting, Presiding Officer Eric Moore directed that:

• the poll be mailed to legislators no later than Aug. 17 and that ballots be postmarked no later than Sept. 8;
• poll materials include an explanation letter, a ballot, the proposed rules, the statutory citation for the rules, and the DPHHS letter justifying the rules;
• other relevant polling materials be posted on the committee's website; and
• the poll results be sent to the Secretary of State for publication in the Montana Administrative Register.

The presiding officer delayed mailing of the poll after committee members were notified on Aug. 14 that DPHHS intended to withdraw the proposed rule. When the agency formally filed the withdrawal notice with the Secretary of State's Office on Aug. 18, the presiding officer and vice presiding officer determined the poll did not need to proceed.

Approved Poll Materials

• Poll Explanation Letter
• Ballot
• Attachment A: MAR Notice No. 37-923
• Attachment B: 50-1-202 (Statutory Citation for Rule)
• Attachment C: DPHHS Justification Letter

Other Relevant Materials

• Montana Administrative Procedure Act: Legislative Polling Statutes
• Objection Letters:
  • General Objection Letter
  • Rep. Bedey Letter
• Notification Letter to DPHHS
  • DPHHS Response
• Economic Affairs Interim Committee Objection Letter*
  • DPHHS Response

The Economic Affairs Interim Committee voted to formally object to the rule at its June 30, 2020, meeting.