2008
BACKGROUND AND ISSUES STATEMENT
history and approach to the
current revision
The
1946
The
1946 Model State Administrative Procedure Act (MSAPA) drew heavily upon the
Federal Administrative Procedure Act (FAPA) that was enacted in the same
year. That MSAPA incorporated basic
principles with only enough detail to support essential features of an
administrative procedure act. The
differences among the states in administrative procedure and the differences
among agency tasks were so great that the drafters purposely adopted this
“model act,” rather than a uniform act, approach.
The
1961
The
MSAPA was revised in 1961 to take into account a “maturing” of thought on
administrative procedure. The 1961 MSAPA
articulated its objectives as fairness to parties and creation of procedure
that was effective from the governmental standpoint. This revision also followed a model act
approach that focused on major features, because, it explained, details must
vary from state. A great deal of the
1961 MSAPA has been adopted by the states.
The
1981
The
MSAPA was revised in 1981 because of the expansion in types of regulation
carried out by the state agencies, such as, for example, workplace safety and
environmental regulation. The 1981
MSAPA approach was “entirely new” with “more detail” than earlier acts. This approach offered guidance to the states
so that they could select the parts of the MSAPA that were suitable for their
particular situation, and took into account the greater experience with
administrative procedure since 1961. There
have been only a few adoptions of provisions from the 1981 MSAPA.
The
Current Proposed Revision
It
has been twenty-seven years since the 1981 revision of the MSAPA. There have been many changes and significant
events since that time. One is the
emergence of the Internet in the mid 1980’s and its explosive growth since that
time. States have discovered that the
Internet furnishes an excellent, efficient and low-cost method for
communication with the public. In the
past two decades, state legislatures have expressed dissatisfaction with agency
rulemaking, and have taken action to assure continuous oversight and creation
of mechanisms and procedures overrule agency action. At the present time, the American Bar
Association has undertaken a major study of the Federal Administrative Procedure
Act and has recommended revisions that draw upon fifty years of experience with
the FAPA, which is similar in many respects to the various revisions of the
MSAPA. Finally, in the past twenty-five
years, there have been a large number of state and federal judicial decisions
that involve the administrative procedure acts of the various states and the
Federal Administrative Procedure Act, a continuous stream of scholarly articles
on federal administrative law, and the emergence of a body of academic writing
on state administrative procedure.
These developments have been taken into account in this revision of the
MSAPA.
The
objectives of the current revision are to conform the Act to current procedures
and practices while enhancing the administrative process to make it more
accessible, efficient and fair.
This reading by the Committee of the Whole will focus
on Articles 1, 2, 3, and 7.
Key issues and the sections
to which they relate include the following:
1. Section 201(b) Publication …of rulemaking documents.
The issue: Electronic versus written publication of documents
by the rules publisher. The current version of section 210(b) has bracketed
[electronic][written] format, giving states the option of which approach to use.
Should this approach be the
one adopted by the conference, or should the section mandate one or the other
type of publication format, or require both electronic and written format?
2. Section 201(k) (l) Publication …of rulemaking
documents.
The issue: Electronic versus written publication of agency
documents by the agency. The current version of section 210(k) requires
electronic distribution but also mandates distribution through regular mail
when requested and the agency may charge a reasonable fee for regular mail
distribution. Section 210(l) permits the agency to use electronic distribution
for rulemaking notices or guidance documents.
Should this approach be the
one adopted by the conference, and should the approach be consistently followed
in all parts of Section 201?
3. Section 301(d) Current Rulemaking Docket
The Issue: Electronic versus written publication of agency
documents by the agency. Section 301(d) provides that the agency shall provide
a written docket upon request. An unstated assumption is that the agency will
maintain an electronic docket as the standard way of compiling and maintaining
the current rulemaking docket.
Should the conference adopt
the written docket upon request approach, or provide only for electronic rulemaking
dockets?
4. Sec. 302 (b)(3)Agency Record in Rulemaking
Proceeding;
The issue: The volume of materials submitted in rulemaking
proceedings in the electronic era can be substantial, and can be burdensome for
agency personnel to deal with. Should all of that material be included in the
rulemaking record, or only the materials relied upon or seriously considered?
5. Section 310 Guidance documents and the definition of
guidance documents in Section 102(12)
Publication and indexing of
guidance documents provides for transparency, avoids secret law known only to
the agency, and limits the circumstances in which parties with matters before
agencies rely to their detriment on an agency position that has not been adopted
as a rule.
Section 310 was extensively
revised from the version presented at the 2007 annual conference. The drafting
committee adopted this current version after substantial discussions.
Key issues include:
• the definition of guidance
documents (Section 310(a), and Section 102(12)),
• the reliance test stated in
Section 310 (b)
• the variance standard stated
in Section 310 (d)
• the publication requirement
stated in Section 310 (e)
• the index requirement stated
in Section 310 (f)
Guidance documents: Should they be binding on the agency? If
not what weight, if any, should they have?
Should the conference adopt
this version of section 310?
6. Section 702 (b) Review by [Rules Review Committee]
The issue: The scope of rules that a
legislative rules review committee must review can be substantial, and may
exceed the committee’s resources and time. The drafting committee proposed to
limit the scope of rules subject to legislative review to include currently
effective rules and newly adopted rules.
Should this approach be adopted by the conference?
Note the current text of Section 702 can be found in the amendments handout prepared for this conference.