REVISED
MODEL STATE ADMINISTRATIVE PROCEDURE ACT
SECTION 101. SHORT TITLE. This [act] may be cited as the [state]
Administrative Procedure Act.
SECTION 102. DEFINITIONS. In this [act]:
(1) “Adjudication” means the process offor
determiningation of
facts or applyingication of
law pursuant to which an agency formulates and issues an order.
(2) “Agency” means a state board, authority,
commission, institution, department, division, office, officer, or other state
entity that is authorized or required by law to make rules or to adjudicate.
The term does not include the Ggovernor, the Llegislature,
and the Jjudiciary.
(3) “Agency action” means:
(A) the whole or part of any agency order or
rule;
(B) the failure to issue an order or rule; or
(C) an agency=s
performingance of,
or failingure
to perform, any duty, function, or activity or to make any determination required
by law.
(4) “Agency head” means the individual in whom, or
one or more members of the body of individuals in which, the ultimate legal
authority of an agency is vested.
(5) “Agency record”
means the agency rulemaking record in rulemaking governed by Section 302, the
emergency rulemaking record in rulemaking governed by Section 309(a), the direct
final rulemaking record in rulemaking governed by Section 309(b), the agency hearing
record in an adjudication governed by Section 4067,
and the agency record in emergency adjudication
governed by Section 4076.
(6) “Contested case” means an adjudication in
which an opportunity for an evidentiary hearing is required by the federal or
state constitution, a
federal or state statute, or a federal or state judicial decision.
(7) “Electronic” means relating to technology
having electrical, digital, magnetic, wireless, optical, electromagnetic, or
similar capabilities.
(8) “Electronic record” means a record created,
generated, sent, communicated, received, or stored by electronic means.
(9) “Emergency adjudication” means an
adjudication in a contested case when the public health, safety, or welfare
requires immediate action.
(10) “Evidentiary hHearing”
means a hearing allowing for the receipt of evidence
on issues onin which a
decision of the presiding officer may be made in a contested case.
(11) “Final order”
means the order issued by the agency head sitting as the presiding officer in a
contested case proceeding.
(12) “Guidance document” means a record
developed by an agency that lacks the force of law but states
the agency’s current approach to, or opinion of, law, including interpretations
and general statements of policy that describe how and when the agency will
exercise discretionary functions.
(13) “Index” means a searchable list of items by
subject and caption in a record with a page number, hyperlink, or any other
connector that links the list with the record to which it refers.
(14) “Initial
order” means an the order which is
subject to further agency review and is issued by a presiding
officer who
has other than the agency head when that presiding
officer has final decisional authority but the initial order is subject
to further agency review.
(15) “Internet website” means an Internet website
that permits the public to search a database that archives materials required
to be published with the [publisher] under this [act].
(16) “Law” means the federal or state constitution,
a federal or state statute, a federal or state judicial decision, a rule of
court, an executive order that rests on statutory or constitutional
authorization, or a rule or order of an agency.
(17) “License” means a permit, certificate,
approval, registration, charter, or similar form of permission required by law and
issued by an agency.
(18) “Licensing” means the grant, denial, renewal,
revocation, suspension, annulment, withdrawal, or amendment of a license.
(19) “Notify” means to take such steps reasonably
required to inform a person in the ordinary course, whether or not
that person actually comes to know of it.
(20) “Order” means an agency decision that
determines or declares the legal rights, duties, privileges, immunities, or
other legal interests of aone or more
specific persons.
(21) “Party” means the agency taking action, the
person against which the action is directed, and any other person named as a
party or permitted to intervene and that does intervene.
(22) “Person” means an individual, corporation,
business trust, estate, trust, , partnership, limited liability
company, association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(23) “Presiding officer” means an individual who
presides over the evidentiary hearing in a contested case.
(24) “Proceeding” means any type of formal or
informal agency process or procedure
commenced or conducted by an agency. The term includes adjudication,
rulemaking, and investigation.
(25) “Recommended order” means the order issued by
a presiding officer other than the agency head when that presiding officer does
not have final decisional authority and the order is subject to review by the
agency head.
(26) “Record” means information that is inscribed
on a tangible medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(27) “Rule” means the whole or a part of an agency
statement of general applicability that implements, interprets, or prescribes
law or policy or the organization, procedure,
or practice requirements of an agency which has the force of law. The term does
not include:
(A) statements
concerning only the internal management of an agency and not affecting private
rights or procedures available to the public;
(B)
an intergovernmental or interagency memorandum, directive, or communication
that does not affect private rights or procedures available to the public;
(C)
an opinion of the Aattorney Ggeneral;
(D)
a statement that establishes criteria or guidelines to be used by the staff of
an agency in performing audits, investigations, or inspections, settling
commercial disputes, negotiating commercial arrangements, or in the defense,
prosecution, or settlement of cases, if disclosure of the criteria or
guidelines would enable law violators to avoid detection, facilitate disregard
of requirements imposed by law, or give an improper advantage to persons that
are in an adverse position to the state;
(E)
forms developed by an agency to implement or interpret agency law or policy;
andor
(F)
guidance documents.
(28) “Rulemaking” means the adoption of a new rule or the
amendment or repeal of an existing process for
adopting, amending, or repealing a rule.
(29) “Rulemaking documents” includes materials in
written or electronic form that are related to an agency rulemaking proceeding,
or that
are guidance documents in written or electronic form.
(30) “Sign” means, with present intent to
authenticate or adopt a record:
(A) to execute or
adopt a tangible symbol; or
(B) to attach to or
logically associate with the record an electronic symbol, sound, or process.
(31) “State” means a state of the United States,
the District of Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the United
States.
(32) “Written” means inscribed on a tangible
medium.
Comment
Adjudication. This definition gives the general meaning of
adjudication that distinguishes it from rulemaking. See California Government Code Section 11405.20.
This Act and the definitions in this Section also identify some categories of
adjudication that require procedure specified in this Act to be used to reach a
decision. For example, the term contested
case, defines a subset of adjudications that must be conducted as prescribed in
Article 4 of this Act.
Agency. The object of this definition is to subject
as many state actors as possible to this definition. See 1981 MSAPA Section
1-102(1). The exception for the governor means the governor personally. The
term “agency” includes the Office of Administrative Hearings provided in
Article 6.
Agency Action. This definition is added for purposes of
identifying those matters subject to judicial review. Failure to issue an order
or rule is not judicially reviewable except as provided in Section 501(a) of
the Act. Failure to issue an order or rule does not include an agency denial of
a petition to initiate rulemaking. See Section 317 of the Act. This definition
is taken from 1981 MSAPA Section 1-102(2).
Agency Head. This definition differentiates between the
agency as an organic whole and the particular persons (commissioners, board
members or the like) in whom final authority is vested. This definition is
taken from 1981 MSAPA Section 1-102(3).
Contested case. This term is similar to the “contested case”
definition of the 1961 MSAPA. Like the 1961 MSAPA, this Act looks to external
sources such as statutes to describe situations in which a party is entitled to
a hearing. However, this term differs
from the 1961 MSAPA=s term “contested
case” because it also includes hearings required by the constitution, federal
or state, and makes provision in Article 4 for the type of hearing to be held
in a case where a constitution creates the right to a hearing. Including constitutionally created rights to
a hearing within the provisions of this Act eliminates the problem of looking
outside the Act to determine the type of hearing required in cases where the
right to the hearing is created by constitution. Hearing rights created by
judicial decisions means constitutional decisions by appellate courts. See
Goldberg v. Kelley, 397 U.S.
254 (1970), and Goss v. Lopez 419 U.S. 565 (1975). Contested cases do
not include investigatory hearings, pure administrative process proceedings
such as tests, elections, or inspections, and situations in which a party has a
right to a de novo administrative or judicial hearing. See Section 401 of the Act.
An agency may by rule make all or part
of article 4 applicable to adjudication that does not fall within the requirements
of Section 401, including hearing rights conferred by agency regulations. See California Government
Code Section 11410.10. The scope of hearing rights is governed by law other
than this act.
Record. Modern electronic-age statutes such as the
Uniform Computer Information Transactions Act and the Uniform Electronic
Transactions Act adopt a broad definition of the term record that includes the
term document. This act follows those definitions.
Electronic. The term “electronic” refers to the use of
electrical, digital, magnetic, wireless, optical, electromagnetic and similar
technologies. It is a descriptive term meant to include all technologies
involving electronic processes. The listing of specific technologies is not
intended to be a limiting one. The definition is intended to assure that this
act will be applied broadly as new technologies develop. For example, biometric identification
technologies would be included if they affect communication and storage of
information by electronic means. As electronic technologies expand and include
other competencies, those competencies should also be included under this
definition. The definition of the term “electronic”
in this act has the same meaning as it has in UETA SECTION 2(5) and in the
Uniform Real Property Electronic Recording Act.
Electronic Record. This definition is identical to ' 2(7) of the Uniform Electronic
Transactions Act. An “electronic record”
is a document that is in an “electronic” form. Documents may be communicated in
electronic form; they may be received in electronic form; they may be recorded
and stored in electronic form; and they may be received in paper copies and
converted into an electronic record. This Act does not limit the type of
electronic documents received by the [publisher]. The purpose of defining and
recognizing electronic documents is to facilitate and encourage agency use of
electronic communication and maintenance of electronic records.
Emergency Adjudication. This definition is designed to be used with
the emergency adjudication procedures provided by Section 408. The danger to
the public health, safety, or welfare standard requiring immediate action is a
strict standard that is defined by law other than this Act. Federal and state
case law have held that in an emergency situation an agency may act rapidly and
postpone any formal hearing without violation, respectively, of federal or
state constitutional law. FDIC v.
Mallen, 486 U.S. 230 (1988);
Gilbert v. Homar (1997) 520 U.S.
924; Dep=t of
Agric. v. Yanes, 755 P.2d 611 (OK. 1987).
Guidance document. This definition is taken from the Michigan
APA, M.C.L.A. 24.203(6), and the Virginia APA, Va. Code Ann. SECTION
2.2-4001. See also the; Idaho I.C.
SECTION 67-5250 and N.Y. McKinneys State Administrative Procedure Act, SECTION
102. This is a definition intended to
recognize that there exist agency statements for the guidance of staff and the
public that differ from, and that do not constitute, rules. Many states recognize such statements under
the label “interpretive statement” or “policy statement.” See Wash. Rev. Code, SECTION 34.05.010(8)
& (15). Later sections of this Act
will provide for the publication and availability of this type of record so
that they are not “secret” records. See:
Michael Asimow, Guidance Documents in the States, 54 Adm. L. Rev. 631 (2002);
Michael Asimow, California
Underground Regulations, 44 Adm. L. Rev. 43 (1992).
Index. The definition of index has been added as a
guide to agencies, [publisher]s and editors about their duties to make records
available and easily accessible to the public in the form of an index, as that
term is used throughout this act.
Internet
website. This definition is designed to
be used by agencies and publishers to comply with the requirements of Sections
201, 316, and 419 of this Act. In many states, the Internet website is
maintained by the [publisher], and in some states, like California, the agency will also maintain
its own Internet website.
Law. Law includes an executive order that rests on
statutory or constitutional authorization. See Kevin M. Stack, “The Statutory
President,” 90 Iowa L. Rev. 539, 550-52 (2005); Jim Rossi,
“State Executive Law making in Crisis,” 56 Duke L. Rev. 237, 261-64 (2006).
License. The definition of license is drawn largely
from the 1961 MSAPA.
Order. Unlike the federal APA which defines rule,
but not order, this section provides a positive definition of order based on
case law and agency experience. The key concept is that an order includes
solely agency legal determinations that are addressed to particular, specific,
identified individuals in particular circumstances. An order may be addressed
to more than one person. Further, the definition is consistent with modern law
in rejecting the right/privilege distinction in constitutional law. The
addition of the language “or other interests” is intended to clarify this
change and to include entitlements. See also Cal.Gov.Code SECTION 11405.50.
Party. This definition includes the agency, any
person against whom agency action is brought and any person who
intervenes. Its terms also include any
person who may participate in a rulemaking proceeding, such as someone who
offers a comment. This section is not
intended to deal with the issue of a person=s
entitlement to review. Standing and
other issues relating to judicial review of agency action are addressed in
Article 5 of this Act.
Presiding Officer. This definition includes an agency staff
member, an administrative law judge or one or more members of the agency head
when designated to preside at a hearing.
Person. The definition of a “person” is the standard
definition for that term used in acts adopted by the National Conference of
Commissioners on Uniform State Laws. It includes individuals, associations of
individuals, and corporate and governmental entities.
Rule. The essential part of this definition is the
requirement of general applicability of the statement. This criterion
distinguishes a rule from an order, which focuses upon particular applicability
to identified parties only. Applicability of a rule may be general, even though
at the time of the adoption of the rule there is only one person or firm
affected: persons or firms in the future who are in the same situation will
also be bound by the standard established by such a rule. It is sometimes
helpful to ask in borderline situations what the effect of the statement will
be in the future. If unnamed parties in the same factual situation in the
future will be bound by the statement, then it is a rule. The word “statement”
has been used to make clear that, regardless of the term that an agency uses to
describe a declaration or publication and whether it is internal or external to
the agency, if the legal operation or effect of the agency action is the same
as a substantive rule, then it meets this definition. The exceptions to the definition are widely
used in state APAs. Subsection 26(A) is drawn from 1981 Model State APA § 3-116(1). Subsection 26(E) is drawn from 1981 Model State APA § 3-116(9). Subsection 26(F) is drawn from 1981 Model State APA § 3-116(2). Subsection 26(H) is based on 1981 Model State APA § 3-116(7).
Written. This definition relates
to the definition of record in Section 102(25) in that written documents are
inscribed on a tangible medium. The definition of record in Section 102(25)
includes both tangible medium (written) and electronic documents.
SECTION 103. APPLICABILITY. This [act] applies to each agency unless the
agency is expressly exempted by a statute statutory law of
this state.
Comment
This section is intended to define
which agencies are subject to the provisions of this act. Many states have made use of an applicability
provision to define the coverage of their Administrative Procedure Act. See:
Iowa, I.C.A. SECTION 17A.23; Kansas, K.S.A. SECTION 77-503; Kentucky, KRS
SECTION 13B.020; Maryland, MD Code, State Government, SECTION 10-203;
Minnesota, M.S.A. SECTION 14.03; Mississippi, Miss. Code Ann. SECTION
25-43-1.103; Washington, West’s RCWA 34.05.020.
SECTION 201. PUBLICATION, COMPILATION, INDEXING, AND
PUBLIC INSPECTION OF RULEMAKING DOCUMENTS; ORDERS.
(a) The [publisher] shall administer this section
and other sections of this [act] that require publication.
Legislative Note: throughout this act the drafting committee has
used the term [publisher] to describe the official or agency to which
substantive publishing functions are assigned.
All states have such an official, but their titles vary. Each state using this act should determine
what that agency is, then insert its title in place of [publisher] throughout
this act. Each state also has an [administrative bulletin] and an [administrative
code]. The bulletin is similar to the federal register, and the code is similar
to the code of federal regulations. The names of the administrative bulletin
and the administrative code vary from state to state. Each state should insert the proper title in place of
[administrative bulletin], and [administrative code].
(b) The [publisher] shall publish all rulemaking documents
in [electronic and written] [electronic or written] [electronic] [written] format.
The [publisher] shall prescribe a uniform numbering system, form, and style for
all proposed, adopted, and amended and adopted
rules.
(c) The [publisher] shall maintain the official
record of adoption, amendment, and repeal for rules that arehave been
adopted, amended, or repealed, including the
text of the rule and any supporting documents, and filed with
the [publisher] by anthe agency. AnThe
agency adopting, amending, or repealing athe
rule shall maintain the rulemaking record required , as defined
in by Section 302(b), for that rule.
(d) The [publisher] shall create and maintain an Internet
website [or other appropriate technology] on which it maintains a searchable
database. The [administrative bulletin
and administrative code] and any guidance document filed with the [publisher]
by an agency must be made available on the Internet website [or other
appropriate technology]. Internet
(e) The
[administrative bulletin] must be published by the [publisher] at least once each
[month].
(f) The
[administrative bulletin] must be provided in written form upon request, for
which the [publisher] may charge a reasonable fee.
(g) The [administrative bulletin] must contain:
(1) notices of proposed adoption of athe
rule prepared so that the text of the proposed rule shows the text of any existing
rule proposed to be changed and the change proposed;
(2) newly filed rules prepared so that the text
of athe
newly filed amended rule shows the text of theany
existing rule changed and the change that ishas been
made;
(3) any other notice and material required to be
published in the [administrative bulletin]; and
(4) an index.
(h) The [administrative code] must be compiled,
indexed by subject, and published in a format and medium as prescribed by the [publisher].
The rules of each agency must be published and indexed in the [administrative
code].
(i) The
[publisher] shall make available for public inspection and copying the
[administrative bulletin] and the [administrative code].
(j) The [publisher]
may make minor nonsubstantive corrections in spelling, grammar, and format in proposed
or adopted rules after notification to the agency. The [publisher] shall make a
record of the corrections.
(k) The [publisher] shall make available on the
[publisher’s] Internet website all of the documents provided by each agency
under subsection (n). The [publisher] may not charge a fee for access to the
[publisher’s] Internet website.
(lk) An agency shall make its rules, declaratory
orders, guidance documents, and orders in contested cases available through
electronic distribution unless exempt from disclosure under law other than this
[act]. An agency shall make these
materials available through regular mail upon request, for which the
agency may charge a reasonable fee.
(ml) An agency may provide for electronic
distribution of notices related to
rulemaking or guidance documents to a person that
requests it. If a notice is distributed
electronically, the agency need not transmit the actual notice form
but must send all the information contained in the notice.
(nm)
Each agency shall provide to the [publisher]:
(1) the notice of the adoption, amendment, or
repeal of a rule;
(2) a summary of the regulatory analysis required
by Ssection
305 for each proposed rule;
(3) each adopted, amended,
or repealed rule;
(4) each guidance document;
(5) each order in a contested case;
(6) an index of final orders
in contested cases
(76)
each declaratory order; and
(87) any other notice or matter that an agency is
required to publish under this [act].
(n) The [publisher] shall make available on the
[publisher’s] Internet website all of the documents provided by each agency
under subsection (m). The [publisher] may not charge a fee for access to the [publisher’s]
Internet website.
Legislative
Note: throughout
this act the drafting committee has used the term [publisher] to describe the
official or agency to which substantive publishing functions are assigned. All states have such an official, but their
titles vary. Each state using this act should
determine what that agency is, then insert its title in place of [publisher]
throughout this act. Each state also has an [administrative bulletin] and an
[administrative code]. The bulletin is similar to the federal register, and the
code is similar to the code of federal regulations. The names of the
administrative bulletin and the administrative code vary from state to state.
Each state should insert the proper
title in place of [administrative bulletin], and [administrative code].
Comment
This section seeks to assure
adequate notice to the public of proposed agency action. It also seeks to assure adequate record
keeping and availability of records for the public. Article 2 is intended to
provide easy public access to agency law and policy that are relevant to agency
process. Article 2 also adds provisions for electronic publication of the
administrative bulletin and code. Section
201 does not address the issue related to what languages rules should be
published in, nor does it address issues related to translation of information
contained in these documents into languages other than English. Rulemaking
documents include materials in written or electronic form that are related to
an agency rulemaking proceeding, or that are guidance documents in written or
electronic form. Subsection (b) provides for publication of rulemaking
documents in alternative written and/or electronic formats. Publishers that
administer the provisions of this subsection must also comply with the
applicable provisions of the federal E-Sign Act (15 U.S.C. Section 7001 to
7031) and the Uniform Electronic Transactions Act (UETA).
The arrival of the Internet and
electronic information transfer, which occurred after the last revision of the
Model State Administrative Procedure Act, has revolutionized
communication. It has made available
rapid, efficient and low cost communication and information transfer. Many states as well as the federal agencies have
found that it is an ideal medium for communication between agencies and the
public, especially in connection with rulemaking. Since the last Model Administrative Procedure
Act was written, many states have adopted various types of statutes that permit
agencies to use electronic technology to communicate with the public. The agencies have found this technology
particularly useful in connection with rulemaking.
Subsection (c) requires that the [publisher]
maintain the official record for adopted rules, including the text of the rules
and any supporting documents, filed by the agency. Subsection (c) also requires
that the agency adopting the rule maintain the rulemaking record for that rule.
Section 302(b) provides the requirements for the rulemaking record.
Subsection (d) requires the [publisher]
to 1) maintain an Internet website, and 2) publish all matters required to be
published under this act on that website. If a state chooses to use subsection (d),
they will create a centralized website for use by all agencies. Subsection (d)
also requires that the [publisher] publish agency guidance documents filed by
the agency with the [publisher]. See section 202(4) and Section 310, below. Subsection
(d) does not address issues related to authentication, preservation and
archival storage of electronic documents published on an Internet website.
Subsection (d) does not address the principles for deciding what rules are in
effect and enforceable at a specific point in time.
Subsection
(f) requires the publisher to provide the administrative bulletin in written
form upon request, for which the publisher may charge a reasonable fee. This
requirement can be satisfied by states making the administrative bulletin
available on the Internet, searchable, and printable.
The bracketed text of subsection (g)(1),
and (g)(2) is included so that agencies may utilize redlining or underlining and
striking of the text of the proposed or adopted rules so that changes from the
existing text of the rule are clearly delineated. Agencies that are proposing or adopting new
rules or that have some other system for showing changes need not use the
bracketed text.
It is possible to go much further
in providing for use of the Internet that the publication adopted here. For example, a state could choose to permit
agencies to operate their own websites, and to accept comments on rules on the
website. They could also provide for
maintenance of a database of all comments received that the public could
access. These provisions are extremely
useful, but may be quite expensive. The
central system adopted here, means only one Internet website is required. In terms of cost benefit, this is an
effective method of providing for electronic communication and agency access.
Subsection (h) requires the
publisher to index the administrative code by subject. States can satisfy this
requirement by providing an administrative code that is searchable by word on
the Internet.
Subsection (j) provides for a
limited non substantive power to edit agency rules provided that the agency is
notified by the rules [publisher] of the changes. Subsection (j) is based on the
Maine Administrative Procedure Act, 5 M.R.S.A. Section 8056(10).
Subsections (k) and (l) are drawn
from the Washington Administrative Procedure Act. See WA
ST 34.05.260.
SECTION 202. REQUIRED AGENCY RULEMAKING AND RECORDKEEPING. In addition to any other
rulemaking requirements imposed by law other than this [act],
each agency shall:
(1) adopt as a
rule a description of its organization, stating the general course and
method of its operations and the methods by which the public may obtain
information or make submissions or requests;
(2) adopt as a rule the nature and requirements
of all formal and informal procedures available, including a description of all
forms and instructions used by the agency;
(3) adopt as a rule a description of the process for application for a license,
available benefits, or other matters for which an application is appropriate,
unless the process is prescribed by law other than this [act];
(4) adopt rules for the conduct of public hearings
[if the default procedural rules adopted under Section 204 do not include
provisions for the conduct of public hearings];
(5) file with the [publisher]
in an electronic format acceptable to the [publisher] the agency’s:
(A) proposed rules;
(B) adopted
rules,
including rules adopted using the emergency process under
Section 309(a) and rules adopted using the direct final process
under Section 309(b);
(C) guidance
documents;
(D) notices;
(E) declaratory
orders; and
(F) orders issued in contested cases; and
(G) indexes
of final orders in contested cases; [and]
(6) maintain [custody of] the agency’s current rulemaking docket
required by Section 302(b)[;]
[(7)
maintain a separate, official, current, and dated index and compilation of
all rules adopted under [Article] 3, make the index and compilation available
at agency offices for public inspection and copying [and online on the [publisher]’s
Internet website], update the index and compilation at least [monthly]every [30
days], and file the index and the compilation and all changes to
both with the [publisher].].
Comment
One object of this section is to
make available to the public all procedures followed by the agency, including
especially how to file for a license or benefit. It is modeled on the 1961 Model State
Administrative Procedure Act, Sections 2(a) (4) & 2(b), the 1981 Model
State APA Sections 2-104(1),(2), and the Kentucky Administrative Procedure Act,
KRS Section 13A.100. Persons seeking licenses or benefits should have a readily
available and understandable reference sources from the agency. A second reason
is to eliminate “secret law” by making all guidance documents used by the agency
available from the agency. Subsections (1),(2),(3), and (4) require the agency
to codify by rule the description of the organization of the agency and the
procedures followed by the agency. Agencies
could use direct final rulemaking procedures under Section 309(b) to adopt some
of the rules required by subsections (1), (2), (3), and (4). Some states
provide more detail in subsection (1) including contact information for agency
officials and organizational charts.
Subsection (5) requires agencies to
file guidance documents with the publisher. Section 310(e) requires that
agencies publish all current guidance documents. In states where the publisher
has the sole responsibility for publishing agency rules and other documents,
including guidance documents, an agency may satisfy the publication requirement
by filing the guidance document with the publisher under subsection (5).
SECTION 203. DECLARATORY ORDER.
(a) Any interested person may petition an agency
for a declaratory order that states whether or in what manner a rule, guidance
document, or order issued by the agency applies to the petitioner.
(b) Each agency shall adopt rules prescribing the
form of a petition for purposes of subsection (a) and the procedure for its
submission, consideration, and prompt disposition. The provisions of this [act] for formal,
informal, or other applicable hearing procedure do not apply to an agency
proceeding for a declaratory order, except to the extent provided in this
[article] or to the extent the agency
provides by rule or order.
(c) Not later than 60 days after receipt of a
petition pursuant to subsection (a), an agency shall issue a declaratory order
in response to the petition, decline to issue a declaratory order, or schedule
the matter for further consideration.
(d) If an agency declines to consider a petition
submitted under subsection (a), it shall promptly notify in a record the petitioner
of its decision and include a brief statement of the reasons for declining. An
agency decision to decline to issue a declaratory order is subject to judicial
review for abuse of discretion.
(e) If an agency issues a declaratory order, the order
must contain the names of all parties to the proceeding, the facts on which it
is based, and the reasons for the agency=s
conclusion. If When
needed to protect confidentiality, an agency may redact confidential
information in the declaratory order. A
declaratory order has the same status and binding effect as an order issued in
an adjudication, and is subject to judicial review under Section 501.
(f) An agency shall publish all currently effective
declaratory
orders.
(g) Aan agency shall
maintain an index of all of its current declaratory orders, file the index with
the [publisher] annuallyon or before January 1 of each
year, make the index
readily available for public inspection, and make available for public
inspection the full text of all declaratory orders to the extent inspection is
permitted by law other than this [act].
Comment
This section embodies a policy of
creating a convenient procedural device that will enable parties to obtain
reliable advice from an agency. Such guidance is valuable to enable citizens to
conform with agency standards as well as to reduce litigation. It is based on
the 1981 MSAPA, Section 2-103 and Hawaii Revised Statutes, Section 91-8.
Subsection (d) provides that agency
decisions to decline to issue a declaratory order are reviewable for abuse of
discretion (See Massachusetts v. EPA 127 S. Ct. 1438 (2007) (EPA decision to
reject rulemaking petition and therefore not to regulate greenhouse gases
associated with global warming was judicially reviewable and decision was
arbitrary and capricious.). limited agency resources may provide a valid basis
for an agency to decline to issue a declaratory order.
Subsection (e) is based on the
California APA, West=s
Ann.Cal.Gov.Code Section 11465.60; and the Washington APA, West=s RCWA 34.05.240. A declaratory decision issued by an agency is
judicially reviewable; is binding on the applicant, other parties to that
declaratory proceeding, and the agency, unless reversed or modified on judicial
review; and has the same precedential effect as other agency adjudications. A
declaratory decision, like other decisions, only determines the legal rights of
the particular parties to the proceeding in which it was issued. The
requirement in subdivision (e) that each declaratory decision issued contain
the facts on which it is based and the reasons for its conclusion will
facilitate any subsequent judicial review of the decision=s legality. It also ensures a clear
record of what occurred for the parties and for persons interested in the
decision because of its possible precedential effect.
Subsections (f), and (g) require
that an agency publish and index all current declaratory orders.
[SECTION
204. DEFAULT PROCEDURAL RULES.
(a) The [governor] [attorney general] [designated
state agency] shall adopt default procedural rules for use by agencies. The
default rules must provide for the procedural functions and duties of as many
agencies as is practicable.
(b) Except as otherwise provided in subsection
(c), an agency shall use the default procedural rules published under
subsection (a).
(c) An agency may adopt a rule of procedure that
differs from the default procedural rules adopted under subsection (a) by
adopting a rule that states with particularity the need and reasons for the
variation from the default procedural rules.]
Comment
This Section is based on Section
2-105 of the 1981 MSAPA. See also the provisions of the California
Administrative Procedure Act, California Government Code Section 11420.20
(adoption of model alternative dispute resolution regulations by California
Office of Administrative Hearings.) One purpose of this provision is to provide
agencies with a set of procedural rules.
This is especially important for smaller agencies. Another purpose of this section is to create
as uniform a set of procedures for all agencies as is realistic, but to
preserve the power of agencies to deviate from the common model where necessary
because the use of the model rules is demonstrated to be impractical for that
particular agency. This section requires
all agencies to use the model rules as the basis for the rules that they are
required to adopt under Section 202. An agency may deviate from the model rules
only for impracticability.
SECTION 301. CURRENT RULEMAKING DOCKET.
(a) InAs used in this section,
“rule” does not include a rule adopted using the emergency process under
Section 309(a) or a rule adopted using the direct final process under Section
309(b).
(b) Each agency shall maintain a current
rulemaking docket that is indexed.
(c) A current rulemaking docket must list each
pending rulemaking proceeding. The docket must state or contain:
(1) the subject matter of the proposed rule;
(2) notices related to the proposed rule;
(3) how comments may be made;
(3) where comments may be inspected;
(4) the time within which comments may be made;
(5) where comments may be inspected;
(65) requests for a public hearing;
(76) appropriate information about a public
hearing, if any, including the names of the persons making the request;
(7) how comments may be made; and
(8) the timetable for action.
(d) Upon request, the agency shall provide a
written rulemaking docket.
Comment
This section is modeled on Minn.
M.S.A. Section 14.366. This section and
the following section, Section 302 state the minimum docketing and rulemaking
record keeping requirements for all agencies.
This section also recognizes that many agencies use electronic recording
and maintenance of dockets and records.
However, for smaller agencies, the use of electronic recording and
maintenance may not be feasible. This
section therefore permits the use of exclusively written, hard copy
dockets. The current rulemaking docket
is a summary list of pending rulemaking proceedings or an agenda referring to
pending rulemaking. This section includes direct final rules governed by
Section 309.
SECTION 302. AGENCY RECORD IN RULEMAKING PROCEEDING.
(a) An agency shall maintain a rulemaking record
for each rule it proposes to adopt. The record and materials incorporated by
reference must be readily available for public inspection in the central office
of the agency and available for public display on the Internet website
maintained by the [publisher], unless the record and materials are privileged
or exempt from disclosure under state
law other than this [act].. If an agency determines that any partortion
of the rulemaking record can not practicably be displayed or is
inappropriate for public display on the Internet website, the
agency shall describe the document, and shall note onin
the public
and Internet websiterecord that the
document is not displayed.
(b) A rulemaking record must contain:
(1) a copy of all publications in the
[administrative bulletin] relatingwith respect to
the rule or the proceeding upon which the rule is based;
(2) a copy of any partportion
of the rulemaking docket containing entries relating to the rule or the
proceeding upon which the rule is based;
(3) a copy or an index of written factual material,
studies, and reports relied on or consulted by agency personnel in formulating
the proposed or final rule;
(4) any official transcript of oral presentations
made in the proceeding upon which the rule is based or, if not transcribed, any
audio recording or verbatim transcript of thethose
presentations, and any memorandum summarizing the contents of
those presentations prepared by the agency official who presided
over the hearing, summarizing the contents of
those presentations;
(5) a copy of the rule and explanatory statement
filed with the [publisher]; and
(6) all petitions for any agency action on the
rule, except for petitions governed
by Section 203.
Comment
Several states have adopted this
type of agency rule-making record provisions: Az., A.R.S. Section 41-1029; Colo., C.R.S.A. Section 24-4-103; Minn.,
M.S.A. Section 14.365; Miss., Miss.
Code Ann. Section 25-43-3.110; Mont.,
MCA 2-4-402; Okl., 75 Okl.St.Ann. Section 302; and Wash., RCWA 34.05.370.
The language of subsection (a) is
based on Section 3-112(a) of the 1981 Model Act. Similar language is found in the
Washington Administrative Procedures Act, RCWA Section 34.05.370. The
requirement of an official agency rulemaking record in subsection (a) should
facilitate a more structured and rational agency and public consideration of
proposed rules. It will also aid the
process of judicial review of the validity of rules. The requirement of an
official agency rulemaking record was suggested for the Federal Act in S. 1291,
the “Administrative Practice and Regulatory Control Act of 1979,” title I,
Section 102(d), [5 U.S.C. 553(d) ], 96 Cong.Rec. S7126 at S7129 (daily ed. Jun. 6, 1979) (Sen.
Kennedy). The second sentence of subsection (a) is intended to exclude
privileged material from disclosure and display. Privileged material includes
confidential business information and trade secrets, as well as internal advice
memoranda. The exemptions in the state open records laws would be examples of
records and materials that are exempt from disclosure and display under law
other than this act. The third sentence in subsection (a) is intended to enable
an agency to decide, for example, that indecent material or copyrighted
material should be available for inspection in hard copy but not posted on the Internet.
It is not intended to authorize exclusion from the Internet record of, for
example, information that reflects adversely on the government.”
Subsection (b) requires all
written submissions made to an agency and all written materials
considered by an agency in connection with a rulemaking proceeding to be
included in the record. It also requires a copy of any existing record of oral
presentations made in the proceeding to be included in the rulemaking record. The
language in Subsection (b) (3) is based on language adopted by the ABA. See ABA Section of
Administrative Law and Regulatory Practice, “A Blackletter Statement of Federal
Administrative Law,” 54 Admin. L. Rev. 1, 34 (2002)
(a) An agency may gather information relevant to
the subject matter of possible rulemaking and may solicit
comments and recommendations from the public by publishing an advanced
notice of proposed rulemaking in the
[administrative bulletin] and indicating where, when, and how persons may
comment.
(b) An agency may engage in negotiated rulemaking
by appointing a committee to comment or make recommendations on the subject
matter of a rulemaking under active consideration within the agency. The
committee, in consultation with one or more agency representatives, may attempt
to reach a consensus on the terms or substance of a proposed rule. In making the
appointments, the agency shall attempt to establish a balance in representation
among persons known to have an interest and members of the
public. The agency shall publish a list of all committees with their membership
at least [annually] in the [administrative bulletin]. Notice of a meeting of a committee appointed
under this subsection must be published in the [administrative bulletin] at
least [15 days] before the meeting. A meeting
of a committee appointed under this section is open to the public.
(c) This section does not prohibit an agency from
obtaining information and opinions from members of the public on the subject of
the rulemaking by any other method or procedure used in rulemaking.
Comment
This section is based upon the
provisions of Section 3-101 of the 1981 MSAPA. Seeking advice before proposing a rule
frequently alerts the agency to potential serious problems that will change the
notice of proposed rulemaking and the rule ultimately adopted. This section is designed to encourage
gathering information. It is not intended
to prohibit any type of reasonable agency information gathering activities;
however, the section seeks to insure that agencies act in a fashion that will
result in a balance among interested groups from whom information is received.
The advanced notice of proposed rulemaking under subsection (a) is a
preliminary step for seeking information and is not the same as the notice of
proposed rulemaking under Section 304, which begins the rulemaking process.
Several states have enacted
provisions of this type in their APAs.
Some of them merely authorize agencies to seek informal input before
proposing a rule; several of them indicate that the purpose of this type of provision
is to promote negotiated rulemaking. Those states are Idaho,
I.C. ' 67-5220;
Minnesota, M.S.A. '
14.101; Montana, MCA 2-4-304; and Wisconsin, W.S.A.
227.13. Subsection (b) is intended to authorize negotiated rulemaking.
Subsection (c) authorizes agencies
to use other methods to obtain information and opinions. Under subsection (c),
agencies may meet informally with specific stakeholders to discuss issues
raised in the negotiated rulemaking process. Negotiated rulemaking under
subsection (b) is an option for agency use but is not required to be used prior
to starting a rulemaking proceeding. Negotiated rulemaking committees are also
used in federal administrative law. See the federal Negotiating Rulemaking Act,
5 U.S.C. Sections 561 to 570.
SECTION 304. NOTICE OF PROPOSED RULEMAKING.
(a) Not later thanAt least [30]
days before the adoption, amendment, or repeal of a rule, an agency shall file with the
[publisher] notice of the proposed action with the [publisher] for
publication in the [administrative bulletin]. The publisher shall publish the
notice in the next issue of the [administrative bulletin].
The notice must include:
(1) a short explanation of the purpose of the proposed
action;
(2) a citation or reference to the specific legal
authority authorizing the proposed action;
(3) the text of any rule proposed to be adopted,
amended, or repealed;
(4) how a copy of the full text of the regulatory
analysis of any rule proposed to be adopted, amended, or repealed may be
obtained;
(5)
where, when, and how a person may comment on the proposed action and request a hearing; and
(6) a concise summary of any regulatory analysis
prepared under Section 305(d)
(b) Not later than three days after publication
of the notice of the proposed rulemaking in the [administrative bulletin], the
agency shall mail or send electronically the notice or send it
electronically to each person that makes a timely request to the
agency for a mailed or electronic copy of the notice. An agency may charge a
reasonable fee for written mailed copies if the person makeshas made
a request for a mailed copy.
Comment
Many states have similar provisions
to provide notice of proposed rulemaking to the public. This section is based
upon the provisions of Section 3-103 of the 1081 MSAPA. Rulemaking is defined in Section 102(28). The
publisher has the responsibility to publish a notice of proposed rulemaking
under Section 201(g)(1). Subsection (b) requires that individual notice of the
proposed rulemaking be provided in written or electronic form to each
individual who has made a timely request to the agency. To be timely under this
subsection, the request would have to be made prior to the publication of the
notice of proposed rulemaking.
SECTION 305. REGULATORY ANALYSIS.
(a) An agency
shall prepare a regulatory analysis for a rule rule
proposed to be adopted, amended, or repealed proposed to be
adopted that has an estimated economic impact of more than [$ ]. The analysis must be completed before the
notice of proposed rulemaking is published. A summary of the analysis must be
published when the notice of proposed rulemaking is given.
(b) If a proposed
rulemaking has an economic impact of less than [$ ], theAn agency shall
prepare a statement of minimal estimated economic impact. for any
rule
proposed to be adopted, amended, or repealed by the agency the adoption,
amendment, or repeal of which has an
economic impact of less than [$ ].
(c) A regulatory analysis must contain:
(1) a description of any class of persons that would be affected by
the proposed rulemakingrule and the cost and benefit to that class of
persons;
(2) an estimate of the probable impact of the proposed
rulemakingrule
upon any affected class;
(3) a comparison of the probable cost and benefit
of the proposed rulemakingrule to the
probable cost and benefit of inaction;
(4) a determination of whether there are less
costly or less intrusive methods for achieving the purpose of the proposed rulemakingrule;
[and]
[(5) a citation
to and summary of each scientific or statistical study, report, or analysis
that served as a basis for the proposed rulemakingrule, together
with an indication of how the full text may be obtained].
(d) An agency preparing a regulatory analysis
under this section shall prepare a concise summary of the analysis.
Legislative Note: State laws vary as to which state agency or body
that an agency preparing the regulatory analysis should submit that analysis
to. In some states, it is the department of finance or revenue, in others it is
a regulatory review agency, or regulatory review committee. The appropriate state agency in each state
should be inserted into the brackets.
(e) An agency preparing a regulatory analysis
under this section shall submit the analysis to the [ appropriate
state agency ].
(f) If the agency
has made a good faith effort to comply with this section, a rule is not
invalidmay not be invalidated on the
ground that solely because the contents of the
regulatory analysis of the rule are insufficient or inaccurate.
Legislative Note: State laws vary as to which state agency or body
that an agency preparing the regulatory analysis should submit that analysis
to. In some states, it is the department of finance or revenue, in others it is
a regulatory review agency, or regulatory review committee. The appropriate state agency in each state
should be inserted into the brackets.
Comment
Regulatory analyses are widely used
as part of the rulemaking process in the states. The subsection also provides for submission
to the rules review entity in the state, if the state has one. States that
already have regulatory analysis laws can utilize the provisions of Section 305
to the extent that this section is not inconsistent with existing law other
than this act. Agencies may rely upon agency staff expertise and information
provided by interested stakeholders and participants in the rulemaking process.
Agencies are not required by this act to hire and pay for private consultants
to complete regulatory impact analysis. The concise summary of the regulatory
analysis required by subsection (d) means a short statement that contains the
major conclusions reached in the regulatory analysis.
Subsection (c)(5) This language is
adapted from N.Y. APA '
202-a. This language also codifies requirements used in federal administrative
law. In the federal cases, disclosure of technical information underlying a
rule has been deemed essential to effective use of the opportunity to
comment. See American Radio Relay
League v. FCC, 2008 WL 1838387 (D.C. Cir. April 25, 2008); Portland
Cement Ass=n v.
Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).
SECTION 306. PUBLIC
PARTICIPATION.
(a) An agency proposing the adoption, amendment or
repeal of a rule shall specify a public comment period of For
at least [30] days after publication of thea
notice of
proposed rulemaking for the adoption, amendment, or repeal of a rule there
shall be a public comment period at during which an agency
shall allow a person mayto submit
information and comment on the rule proposed for adoption, amendment, or repeal. The information or comment may be submitted
electronically or in written form.
(b) An agency shall consider all information and
comment on a rule proposed for adoption, amendment, or repeal whichthat
is submitted within the comment period under subsection (a).
(c) Unless a hearing is required by law other
than this [act], an agency is not required to hold a hearing on a rule proposed
for adoption, amendment, or repeal. If an agency holdsdoes hold
a hearing, the agency may allow a person to make an oral presentation with information
and comment about the rule. Hearings must be open to the public and mustshall
be recorded. A hearing on a rule proposed to
be adopted, amended, or repealed must be held not later than [10]
days before the end of the public comment period.
(d) A hearing on a rule proposed for adoption,
amendment, or repeal may not be held earlier than [30] days after notice of its
location, date, and time is published in the [administrative bulletin]. A hearing on
a proposed rule must be held not less than [10] days before the end of the
public comment period.
(e) An agency representative shall preside at a
hearing on a rule proposed for adoption, amendment, or repeal. If the presiding agency representative is not
the agency head, the representative shall prepare a memorandum summarizing
the contents of the presentations made at the hearing for
consideration by the agency head. summarizing the contents of
the presentations made at the hearing.
Legislative Note: state laws vary on the length of public
comment periods and on whether or not a rulemaking hearing is required. The
bracketed number of days in subsections (a), and (d) should be interpreted to require that if a
rulemaking hearing is held, it will be held before the end of the public
comment period.
Comment
This section gives discretion to
the agency about whether to hold an oral hearing on proposed rules in the
absence of a statutory or constitutional requirement that an oral hearing be
held. The agency representative described in subsection (e) need not be an
officer or employee of the agency unless that is required by law other than
this [act]. In some states, an employee of the state attorney general’s office
will serve as the agency representative presiding on a hearing related to
rulemaking.
SECTION 307. TIME LIMIT ON FINAL ADOPTION, AMENDMENT, OR REPEAL
OF A RULE ..
(a) An agency may not adopt, amend, or repeal a rule until the public comment
period has ended expired.
(b) Not later than [180] days after the close of
the public comment period or after the date of any public hearing, whichever
is later, the agency shall adopt, amend, or repeal the rule
pursuant to the rulemaking proceeding or terminate the proceeding by
publication of a notice of termination in the [administrative bulletin].
(c) AnThe
agency shall file rules adopted, amended, or repealed with the [publisher] not
later than [ ] days after the date of
adoption of the rule.
(dc) A rule is void unless it is not
adopted,
amended, or repealed and filed within the time limits set by this
section
is void.
Comment
This section codifies the final
adoption and filing for publication requirements for rulemaking that is subject
to the procedures provided in Sections 304 through 308 of this Act. Section
702(a) of this act requires that the agency shall file a copy of the adopted
amended or repealed rule with the rules review committee at the same time it is
filed with the publisher. Subsection (c) provides that a rule that is not
properly adopted and filed for publication has no legal effect.
SECTION 308. VARIANCE BETWEEN PROPOSED RULE AND FINAL ACTIONADOPTED RULE. An agency may not take action on a rule proposed to be
adopted, amended, or repealed adopt a rule that
differs from the actionrule proposed in
the notice of proposed rulemakingadoption of a rule
on which the rule is based unless the actionrule being
adopted
is the logical outgrowth of the actionrule proposed in
the notice.
Comment
This
section draws upon provisions from several states. See Mississippi
Administrative Procedure Act, Miss. Code Ann.
Section 25-43-3.107 and the Minn.
Administrative Procedure Act, M.S.A. Section 14.05. The variance test adopted by state and
federal courts is the logical outgrowth test. If the adopted rule is the
logical outgrowth of the proposed rule, no further comment period is required.
If it is not the logical outgrowth, then a further comment period is required.
Courts utilize several factors to apply the logical out growth test including: (1) any person affected by the adopted rule should have reasonably expected that the
published proposed rule would affect the person’s interest; (2) the subject matter of the adopted rule or the issues determined by that rule are
different from the subject matter or issues involved in the published rule
proposed to be adopted; and (3) the
effect of the adopted rule differs from the effect of the rule proposed to be
adopted or amended.
The following cases discuss and analyze the logical outgrowth test and
these factors . These judicial opinions
also convey the wide acceptance and use of the logical outgrowth test in the
states. First Am. Discount Corp. v.
Commodity Futures Trading Comm=n,
222 F.3d 1008, 1015 (D.C.Cir.2000); Arizona
[publisher]. Serv. Co. v. EPA, 211 F.3d 1280, 1300 (D.C.Cir.2000); American
Water Works Ass=n
v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994); Trustees for Alaska v. Dept.
Nat. Resources, ___AK____, 795 P.2d 805 (1990); Sullivan v. Evergreen
Health Care, 678 N.E.2d 129 (Ind. App. 1997); Iowa Citizen Energy
Coalition v. Iowa St. Commerce Comm. ___IA___, 335 N.W.2d 178 (1983); Motor
Veh. Mfrs. Ass=n
v. Jorling, 152 Misc.2d 405, 577 N.Y.S.2d 346 (N.Y.Sup.,1991); Tennessee
Envir. Coun. v. Solid Waste Control Bd., 852 S.W.2d 893 (Tenn.
App. 1992); Workers=
Comp. Comm. v. Patients Advocate, 47 Tex.
607, 136 S.W.3d 643 (2004); Dept. Of [publisher].
Svc. re Small Power Projects, 161 Vt. 97,
632 A.2d 13 73 (1993); Amer. Bankers Life Ins. Co. v. Div. of Consumer
Counsel, 220 Va.
773, 263 S.E.2d 867 (1980).
SECTION 309. EMERGENCY RULEMAKING; DIRECT FINAL RULEMAKING.
(a) If an agency finds that an imminent peril to
the public health, safety, or welfare, including the imminent loss of federal
funding for an agency programs, requires the
immediate adoption, amendment, or repeal of a rule and
states in a record its reasons for that finding, the agency, without prior
notice or hearing or upon any abbreviated notice and hearing that it finds
practicable, may adopt, amend, or repeal a rule without complying with
Sections 304 through 307. The adoption, amendment, or repeal
may be effective for not longer than [180] days [renewable once up to an
additional [180] days]. The adoption, amendment,
or repeal does not preclude the adoption or amendment
of an identical rule, or the repeald of the rule, under Sections 304 through 3088. The agency shall file with the [publisher] a rule
adopted
, amended, or repealed under this
subsection not later than [ ] days after the adoption and shall notify
persons who have requested notice of rules related to that subject matter.
(b) If an agency proposes to adopt, amend, or
repeal a rule the adoption, amendment, or repeal of which is
expected to bethat is noncontroversial, it may use a
direct final rulemaking process in accordance with this subsection and without
complying with Sections 304 through 307. A rule to be adopted, amended,
or repealed under this subsection must be
published in the [administrative bulletin] along with a statement by the agency
that it does not expect the actionrule to be
controversial. If no objection is
received, the actionrule becomes final
under Section 316(a). If an objection to the use of the direct final rulemaking
process is received not later than within [30 ] days of public notice from any person,
the agency shall file notice of the objection with the [publisher] for
publication in the [administrative bulletin], and may proceed with the
rulemaking process under Sections 304 through 308.
Comment
This section is taken from the 1961
MSAPA, Section 3(2)(b), and the Virginia Administrative Procedure Act, Va. Code
Ann. Section 2.2-4012.1. Some state
courts have indicated that any exemption from rulemaking requirements
must be strictly construed to be limited to an emergency or virtual emergency
situation.
Subsection (a) can be used to adopt
program requirements necessary to comply with federal funding requirements, or
to avoid suspension of federal funds for noncompliance with program
requirements.
Subsection (b) is based upon a
recommendation from the Administrative Conference of the United States. Direct final
rulemaking has been recommended by the Administrative Conference of the United States
[ACUS Recommendation 95-4, 60 Fed. Reg. 43110 (1995)]. The study that provided
the basis for the recommendation was prepared by Professor Ron Levin and has
been published [Ronald M. Levin, “Direct Final Rulemaking” 64 George Washington
Law Review 1 (1995)]. [However, recognizing that there may be a few other
justifications for exemption, this section adopts a broader rule for matters
that will be noncontroversial. Thus, a situation where the agency is merely
making a stylistic correction or correcting an error that the agency believes
is noncontroversial may be adopted without formal rulemaking procedures. See
the VA Fast-Track Rule provision at Va. Code Ann. Section 2.2-4012.1.]
In order to prevent misuse of this
procedural device, noncontroversial rule promulgation requires the consent of
elected officials, and may be prevented by the requisite number of persons
filing objections. The public comment period in subsection (b) provides notice
of the noncontroversial rule and the opportunity to object to the adoption of
the rule. If an objection to the direct final rulemaking process is received
within the public comment period, the agency must give notice of the objection
and then the agency may proceed with the normal rulemaking process, including
the public comment provisions of Section 306.
SECTION 310. GUIDANCE DOCUMENTS.
(a) An agency may issue a guidance document
without following the procedures set forth in Sections 304 through 308. A gGuidance documents do not
have the force of law and do does not
constitute an exercise of an agency’s delegated authority, if any, to establish
the rights or duties of any person.
(b) An agency that proposes to rely on a guidance
document to the detriment of a person in any administrative proceeding must
afford theat person a fair
opportunity to contest the legality or wisdom of positions taken in the
document. The agency may not use a guidance
document to foreclose consideration of issues raised in the document.
(c) A guidance document may contain binding
instructions to agency staff members if at an appropriate stage in the
administrative process, the agency’s procedures provide affected persons an
adequate opportunity to contest positions taken in the document.
(d)
If When
an agency proposes to act at variance with a position expressed in a guidance
document, it shall provide a reasonable explanation for the variancedeparture. If
an affected person may have reasonably relied on the agency’s position, the
explanation must include a reasonable justification for the agency’s conclusion
that the need for the variancedeparture
outweighs the affected person’s reliance interests.
(e) An agency shall publish all
current guidance documents.
(f) An agency shall maintain an
index of all of its currently effective current
guidance documents, file the index with the [publisher] annuallyon or before
January 1 of each year, make the index readily available for
public inspection, and make available for public inspection the full text of
all guidance documents to the extent inspection is permitted by law other than
this [act]. Upon request, an agency shall make copies of theguidance
indexes or guidance documents available without charge; at cost; or, if
authorized by law other than this [act], on payment of a reasonable fee. If an agency does not index a guidance
document, the agency may not rely on that guidance document or cite it as
precedent against any party to a proceeding, unless that party has actual and
timely notice of the guidance document.
(g) A person may
petition an agency under Section 317 to adopt a rule in
place of a guidance document under Section 317.
(h) A person may
petition an agency to revise or repeal an existing
guidance document. Not later than [60] days after submission of the petition,
the agency shall:
(1) revise
or repeal the guidance document;
(2) initiate
a proceeding for the purpose of considering
a revision or repeal; or
(3) deny the
petition in a record and state its reasons for the denial.
Comment
This
section seeks to encourage an agency to advise the public of its current
opinions, approaches, and likely courses of action by using guidance documents
(also commonly known as interpretive rules and policy statements). The section
also recognizes agencies’ need to promulgate such documents for the guidance of
both its employees and the public. Agency law often needs interpretation, and
agency discretion needs some channeling. The public needs to know the agency’s
opinion about the meaning of the law and rules that it administers. Increasing
public knowledge and understanding reduces unintentional violations and lowers
transaction costs. See Michael Asimow, “California
Underground Regulations,” 44 Admin. L. Rev. 43 (1992); Peter L. Strauss,
“Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an
Essential Element,” 53 Admin. L. Rev. 803 (2001). This section strengthens agencies’ ability to
fulfill these legitimate objectives by excusing them from having to comply with
the full range of rulemaking procedures before they may issue these nonbinding
statements. At the same time, the
section incorporates safeguards to ensure that agencies will not use guidance
documents in a manner that would undermine the public’s interest in
administrative openness and accountability.
Four states
have adopted detailed provisions regulating guidance documents in their
administrative procedure acts. See Ariz. Rev. Stat. Ann. §§ 41-1001, 41-1091; Mich. Comp. Laws §§ 24.203, 24.224; Va. Code Ann. § 2.2-4008; Wash. Rev. Code
Ann. § 34.05.230. This section draws
upon those provisions, and also upon requirements and recommendations issued by
federal authorities and the American Bar Association.
Subsection (a) exempts guidance
documents from the procedures that are required for issuance of rules. Many states have recognized the need for this
type of exemption in their administrative procedure statutes. These states have
defined guidance documents—or interpretive rules and policy
statements—differently from rules, and have also excused agencies creating them
from some or all of the procedural requirements for rulemaking. See Ala. Code §
41-22-3(9)(c) (“memoranda, directives, manuals, or other communications which
do not substantially affect the legal rights of, or procedures available to,
the public”); Colo. Rev. Stat. § 24-4-102(15), 24-4-103(1) (exception for
interpretive rules or policy statements “which are not meant to be binding as
rules”); AMAX, Inc. v. Grand County Bd. of Equalization, 892 P.2d 409, 417
(Colo. Ct. App. 1994) (assessors’ manual is interpretive rule); Ga. Code Ann. §
50-13-4 (“Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general
statements of policy, the agency shall [follow notice-and-comment
procedure]”) (emphasis added); Mich. Comp. Laws § 24.207(h) (defining “rule” to
exclude “[a] form with instructions, an interpretive statement, a guideline, an
informational pamphlet, or other material that in itself does not have the
force and effect of law but is merely explanatory”); Wyo. Stat. Ann. § 16-3-103
(“Prior to an agency’s adoption, amendment or repeal of all rules other than interpretative rules or
statements of general policy, the agency shall . . .”) (emphasis added); In
re GP, 679 P.2d 976, 996-97 (Wyo. 1984). See also Michael Asimow, “Guidance
Documents in the States: Toward a Safe Harbor,” 54 Admin. L. Rev. 631 (2002)
(estimating that more than thirty states have relaxed rulemaking requirements
for agency guidance documents such as interpretive and policy statements). The federal Administrative Procedure Act
draws a similar distinction. See 5 U.S.C. § 553(b)(A) (exempting
“interpretative rules [and] general statements of policy” from
notice-and-comment procedural requirements).
The second sentence of subsection
(a) sets forth the fundamental proposition that a guidance document, in
contrast to a rule, lacks the force of law.
Many state and federal decisions recognize the distinction. See, e.g., Brock v. Cathedral Bluffs Shale
Oil Co., 796 F.2d 533
(D.C.
Cir. 1986); District of Columbia v. Craig, 930
A.2d 946, 968-69 (D.C. 2007); Clonlara v. State Bd. of Educ., 501 N.W.2d 88, 94
(Mich. 1993); Penn.
Human Relations Comm’n v. Norristown Area School Dist., 374 A.2d 671, 678 (Pa. 1977).
Subsection (b) requires an agency to
allow affected persons to challenge the legality or wisdom of guidance
documents when it seeks to rely on these documents to their detriment. In effect, this subsection prohibits an
agency from treating guidance documents as though they were rules. Because rules have the force of law (i.e.,
are binding), an agency need not respond to criticisms of their legality or
wisdom during an adjudicative proceeding; the agency would be obliged in any
event to adhere to them until such time as they have been lawfully rescinded or
invalidated. In contrast, a guidance
document is not binding. Therefore, when
affected persons seek to contest a position expressed in a guidance document,
the agency may not treat the document as determinative of the issues
raised. See Recommendation 120C of the
American Bar Association, 118-2 A.B.A. Rep. 57, 380 (August 1993) (“When an
agency proposes to apply a nonlegislative rule . . . , it [should] provide
affected private parties an opportunity to challenge the wisdom or legality of
the rule [and] not allow the fact that a rule has already been made available
to the public to foreclose consideration of [their] positions”).
An integral aspect of a fair
opportunity to challenge a guidance document is the agency’s responsibility to
respond reasonably to arguments made against the document. Thus, when affected persons take issue with
propositions expressed in a guidance document, the agency “must be prepared to
support the policy just as if the [guidance document] had never been
issued.” Pacific Gas & Elec. Co. v.
FPC, 506 F.2d 33, 38 (D.C. Cir. 1974); see Center for Auto Safety v. NHTSA, 452
F.3d 798, 807 (D.C. Cir. 2006); Professionals and Patients for Customized Care
v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995); American Mining Cong. v. MSHA,
995 F.2d 1106, 1111 (D.C. Cir. 1993).
An agency may not, therefore, treat
its prior promulgation of a guidance document as a justification for not
responding to arguments against the legality or wisdom of the positions
expressed in such a document. Flagstaff Broadcasting
Found. v. FCC, 979 F.2d 1566 (D.C. Cir. 1992); Bechtel v. FCC, 957 F.2d 873
(D.C. Cir. 1992); Giant Food Stores, Inc. v. Commonwealth, 713 A.2d 177, 180 (Pa. Cmwlth. 1998);
Agency Policy Statements, Recommendation 92-2 of the Admin. Conf. of the U.S.
(ACUS), 57 Fed. Reg. 30,103 (1992), ¶ II.B.
An agency may, however, refer to a guidance document during a subsequent
administrative proceeding and rely on its reasoning, if it also recognizes that
it has leeway to depart from the positions expressed in the document. See, e.g., Steeltech, Ltd. v. USEPA, 273 F.3d
652, 655-56 (6th Cir. 2001) (upholding decision of ALJ who “expressly stated
that the [guidance document] was not a rule and that she had the discretion to
depart from [it], if appropriate,” but who adhered to the document upon
determining “that the present case does not present circumstances that raise
policy issues not accounted for in the [document]”); Panhandle Producers &
Royalty Owners Ass’n v. Econ. Reg. Admin., 847 F.2d 1168, 1175 (5th Cir. 1988)
(agency “responded fully to each argument made by opponents of the order,
without merely relying on the force of the policy statement,” but was not
“bound to ignore [it] altogether”); American Cyanamid Co. v. State Dep’t of
Envir. Protection, 555 A.2d 684, 693 (N.J. Super. 1989) (rejecting contention
that agency had treated a computer model as a rule, because agency afforded
opposing party a meaningful opportunity to challenge the model’s basis and did
not apply the model uniformly in every case).
See generally John F. Manning, “Nonlegislative Rules,” 72 Geo. Wash. L. Rev. 893,
933-34 (2004); Ronald M. Levin, “Nonlegislative Rules and the Administrative
Open Mind,” 41 Duke L.J. 1497 (1992).
The relevance of a guidance document to subsequent administrative
proceedings has been compared with that of the agency’s adjudicative
procedents. See subsection (d) infra.
What constitutes a fair opportunity
to contest a policy statement within an agency will depend on the
circumstances. See ACUS Recommendation
92-2, supra, ¶ II.B. (“[A]ffected persons should be afforded a fair opportunity
to challenge the legality or wisdom of [a policy statement] and suggest
alternative choices in an agency forum that assures adequate consideration by
responsible agency officials,” preferably “at or before the time the policy
statement is applied to [them]”).
Affected persons’ right to a meaningful opportunity to be heard on the
issues addressed in guidance documents must be reconciled with the agency’s
interest in being able to set forth its interpretations and policies for the
guidance of agency personnel and the public without undue impediment. An agency may use its rulemaking authority to
set forth procedures that it believes will provide affected persons with the
requisite opportunity to be heard. To
the extent that these procedures survive judicial scrutiny for compliance with
the purposes of this subsection (b), the agency will thereafter be able to rely
on established practice and precedent in determining what hearing rights to
afford to persons who may be affected by its guidance documents. As new fact situations arise, however, courts
should be prepared to entertain contentions that procedures that have been
upheld in past cases did not, or will not, afford a meaningful opportunity to
be heard to some persons who may wish to challenge the legality or wisdom of a
particular guidance document.
Subsection (c) permits an agency to
issue mandatory instructions to agency staff members, typically those who deal
with members of the public at an early stage of the administrative process,
provided that affected persons will have a fair opportunity to contest the
positions taken in the guidance document at a later stage. See Office of Management and Budget, Final
Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (2007), §
II(2)(h) (significant guidance documents shall not “contain mandatory language
. . . unless . . . the language is addressed to agency staff and will not
foreclose agency consideration of positions advanced by affected private
parties”); ACUS Recommendation 92-2, supra, ¶ III (an agency should be able to
“mak[e] a policy statement which is authoritative for staff officials in the
interest of administrative uniformity or policy coherence”). For example, an agency manual might prescribe
requirements that are mandatory for low-level staff, leaving to higher-ranking
officials the discretion to depart from the interpretation or policy stated in
the manual. The question of what
constitutes an adequate opportunity to be heard may vary among agencies or
programs. In some programs,
centralization of discretionary authority may be a necessary concession to
“administrative uniformity or policy coherence”; in other programs, the
obligation to proceed through multiple stages of review might be considered so
burdensome as to deprive members of the public of a meaningful opportunity to
obtain agency consideration of whether the guidance document should apply to
their particular situations. The
touchstone in every case is whether the opportunity to be heard prescribed by
subsection (b) remains realistically available to affected persons.
Subsection (d) is based on a similar
provision in ABA Recommendation No. 120C, supra. It is in accord with general principles of
administrative law, under which an agency’s failure to reasonably explain its
departure from established policies or interpretations renders its action
arbitrary and capricious on judicial review.
See § 509(a)(3)(H) [Alternative 2] (court may grant relief against
agency action other than a rule if it is “inconsistent with the agency’s prior
practice or precedent, unless the agency has stated credible reasons sufficient
to indicate a fair and rational basis for the inconsistency”); 1981 MSAPA §
5-116(c)(8)(iii) (equivalent provision); Yale-New Haven Hospital v. Leavitt,
470 F.3d 71, 79-80 (2d Cir. 2006). It
has been said that a guidance document should constrain subsequent agency
action in the same manner that the agency’s adjudicative precedents do. See Peter L. Strauss, “The Rulemaking
Continuum,” 41 Duke L.J. 1463, 1472-73, 1486 (1992) (cited with approval on
this point in United States v. Mead Corp., 533 U.S. 218, 232 (2001)); see also
Manning, supra, at 934-37.
One purpose of this subsection is to
protect the interests of persons who may have reasonably relied on a guidance
document. An agency that acts at
variance with its past practices may be held to have acted in an arbitrary and
capricious manner if the unfairness to regulated persons outweighs the
government’s interest in applying its new view to those persons. Heckler v.
Community Health Servs., 467 U.S. 51, 61 (1984) (“an administrative agency may
not apply a new [case law] rule retroactively when to do so would unduly
intrude upon reasonable reliance interests”); Miguel-Miguel v. Gonzales, 500
F.3d 941, 951 (9th Cir. 2007); Epilepsy Found. v. NLRB, 268 F.3d 1095, 1102
(D.C. Cir. 2001); Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 (5th
Cir. 1998). Accordingly, where persons
may have justifiably relied on a guidance document, the agency’s explanation
for departing from the position taken in that document should ordinarily
include a reasonable justification for the decision to override their reliance
interests.
The first two sentences of
subsection (f) are based directly on Va. Code Ann. § 2.2-4008. Similar provisions have been adopted in Arizona and Washington. See Ariz. Rev. Stat. Ann. § 41-1091; Wash.
Rev. Code Ann. § 34.05.230(3)-(4).
The last sentence of the subsection
is based on the federal APA. See 5
U.S.C. § 552(a)(2); Smith v. NTSB, 981 F.2d 1326 (D.C. Cir. 1993). Subject to harmless error principles, see §
509(b), a court may invoke the sanction prescribed in this section without
necessarily concluding that the party against whom the document is cited has
valid objections to the substance of the document.
Subsection
(g) is based on Wash. Rev. Code Ann. § 34.05.230(2), which provides for
petitions “requesting the conversion of interpretive and policy statements into
rules.” However, it is phrased more generally than the Washington provision, because an agency that
receives a rulemaking petition will not necessarily wish to “convert” the
existing guidance document into a rule without any revision. Knowing that
it will now be speaking with the force of law, in a format that would be more
difficult to alter than a guidance document is, the agency might prefer to
adopt a rule that is narrower than, or otherwise differently phrased than, the
guidance document that it would replace. In any event, the agency will,
as provided in section 317, need to explain any rejection of the petition,
whether in whole or in part, and such a rejection will be judicially reviewable
to the same extent as other actions taken under that section.
Subsection (h) extends the principles of section 317 by allowing interested
persons to petition an agency to revise or repeal an existing guidance
document. Thus, while this Act does not require an agency to obtain the
views of the public before issuing a guidance document, this subsection
provides a procedure by which members of the public may bring their views
regarding an existing guidance document to the agency’s attention and request
that the agency take account of those views. This process may be of
particular importance to persons who are indirectly affected by a guidance document
(such as persons who stand to benefit from the underlying regulatory program)
but are unlikely to be the targets of an enforcement action in which they could
challenge the legality or wisdom of the document under subsection (b).
See Nina A. Mendelson, “Regulatory Beneficiaries and Informal Agency
Policymaking,” 92 Cornell L. Rev. 397, 438-44 (2007); see also ACUS
Recommendation No. 76-5, 41 Fed. Reg. 56,769 (1976) (noting that section 553(e)
of the federal APA “allow[s] any person to petition at any time for the
amendment or repeal of . . . an interpretive rule or statement of
general policy”).
The subsection requires an agency to respond to the petition in [sixty] or
fewer days. An agency that is not prepared to revise or repeal the guidance
document within that time period may initiate a proceeding for the purpose of
giving the matter further consideration. This proceeding can be informal;
the notice and comment requirements of Sections 304 through 308 are
inapplicable to it, because those sections deal with rules rather than guidance
documents. The agency may, however, voluntarily solicit public comments
on issues raised by the petition. Cf. ACUS Recommendation 76-5, supra, ¶
2. This section does not prescribe a time period within which the agency
must complete the proceeding, but judicial intervention to compel agency action
“unlawfully withheld or unreasonably delayed” may be sought in an appropriate
case. § 501(a). If the agency declines to revise or repeal the
guidance document, within the [sixty] day period or otherwise, it must explain
its decision. Denials of petitions under this subsection, like denials of
petitions for rulemaking under section 317, are reviewable for abuse of
discretion, and the agency’s explanation will provide a basis for any judicial
review of the denial.
SECTION 311. REQUIRED INFORMATION FOR RULE. A Each rule filed
by an agency with the [publisher] under Section 315 must contain the text of
the rule
adopted, amended, or repealed and be accompanied by a record containing:
(1) the date the agency adopted, amended,
or repealed the rule;
(2) a reference to the specific statutory or
other authority authorizing the action;
(3) any findings required by any provision of law
as a prerequisite to adoption or effectiveness of the action;
(4) the effective date of the action;
(5) the concise
explanatory statement required by Section 312; and
(6) the any final
regulatory analysis statement required by Section 305.
Comment
Agency action is defined in section
102(4) to include an agency rule or order [(subsection (4)(a)], and the failure
to issue a rule or order [(subsection (4)(b)]. In Section 311(2),(3), and (4), the
term “action” refers to the rulemaking process related to the adoption,
amendment or repeal of a rule. See Section 102(2) definition of adoption of a
rule which includes amendment or repeal of a rule, unless the context clearly
indicates otherwise.
SECTION 312. CONCISE EXPLANATORY STATEMENT. At the time it adopts, amends, or repeals a rule, an agency shall issue a
concise explanatory statement containing:
(1) the agency’s reasons for the action, includingwhich must
include the agency’s reasons for not accepting substantial
arguments made in testimony and comments; and
(2) the reasons for any substantial change
between the text of the proposed rule adopted or
amended rule contained in the published notice
of the proposed adoption or amendment of the rule and the text
of the rule as finally adopted.
Comment
Many states have adopted the requirement
of a concise explanatory statement. Arkansas
(A.C.A. Section 25-15-204) and Colorado
(C.R.S.A. Section 24-4-103) have similar provisions. The federal Administrative
Procedure Act uses the identical terms in Section 553 (c) (5 U.S.C.A. Section
553). This provision also requires the
agency to explain why it rejected substantial arguments made in comments. Such explanation helps to encourage agency
consideration of all substantial arguments and fosters perception of agency
action as not arbitrary. Subsection (2) requires a statement of reasons for any
substantial change between the text of the proposed rule, and the text of the
adopted rule. Section 308 prohibits adoption of a rule that differs from the proposed
rule unless the adopted rule is the logical outgrowth of the proposed rule. An
adopted rule that contains a substantial change from the proposed rule can be
adopted under Section 308 if the logical outgrowth test is satisfied but the
agency will have to provide a statement of reasons under Section 312(2). If the
logical outgrowth test is not met, then the rule can not be adopted under
Section 308, and section 312(2) does not apply.
Agency action is defined in section
102(4) to include an agency rule or order [(subsection (4)(a)], and the failure
to issue a rule or order [(subsection (4)(b)]. In Section 312(1), the term
“action” refers to the rulemaking process related to the adoption, amendment or
repeal of a rule. See Section 102(2) definition of adoption of a rule which
includes amendment or repeal of a rule, unless the context clearly indicates
otherwise.
SECTION 313. INCORPORATION BY REFERENCE. A rule may incorporate by reference all or
any part of a code, standard, or rule that has been adopted by an agency of the
United States, this state, another state, or by a nationally recognized
organization or association, if:
(1) repeating verbatim the text of the code,
standard, or rule in the rule would be unduly cumbersome, expensive, or
otherwise inexpedient;
(2) the reference in the rule fully identifies
the incorporated code, standard, or rule by citation, place of inspection location,
and date[, and states whether the rule includes any later amendments or
editions of the incorporated code, standard, or rule];
(3) the code, standard, or rule is readily
available to the public in written or electronic form;
(4) the rule states where copies of the code,
standard, or rule are available for a reasonable charge from the agency adopting the rule and where
copies are available from the agency of the United States, this state, another
state, or the organization or association originally issuing the code,
standard, or rule; and
(5) the agency
maintains a copy of the code, standard, or rule readily available for public
inspection at the agency office.
Comment
Several states have provisions that require
the agencies to retain the voluminous technical codes. See, Alabama,
Ala.Code 1975 Section 41-22-9; Michigan,
M.C.L.A. 24.232; and North Carolina,
N.C.G.S.A. '
150B-21.6. To avoid the problems created
by those retention provisions, but to assure that these technical codes are
available to the public, this section adopts several specific procedures. One protection is to permit incorporating by
reference only codes that are readily available from the outside promulgator,
and that are of limited public interest as determined by a source outside the
agency. See Wisconsin,
W.S.A. 227.21. These provisions will
guarantee that important material drawn from other sources is available to the
public, but that less important material that is freely available elsewhere
does not have to be retained. The bracketed language in subsection (2) is based
on variations in state law as to whether later amendments to codes are
automatically incorporated into the rule, or whether a new rulemaking
proceeding would be required to include code amendments. This issue is
discussed in Jim Rossi, “Dual Constitutions and
Constitutional Duels: Separation of Powers and State Implementation of
Federally Inspired Regulatory Programs and Standards,” 46 WMMLR 1343 (2005)
SECTION 314. COMPLIANCE . An action taken under this [article],
including the adoption, amendment, or repeal of a
rule adopted
using the emergency process under Section 309(a) or the direct final process
under Section 309(b),, is not valid unless taken in
substantial compliance with the procedural requirements of this [article].
Comment
This section is a slightly modified
form of the 1961 Model State Administrative Procedure Act, section (3)(c). See
also section 3-113(a) and section 3-116 of the 1981 Model State Administrative
Procedures Act. Section 504(a) governs the timing of judicial review
proceedings to contest any rule on the ground of noncompliance with the
procedural requirements of this [act]. The scope of challenges permitted under Section
504(a) includes all applicable requirements of article 3 for the type of rule
being challenged.
SECTION 315. FILING OF RULES. An agency shall file in written and
electronic form with the [publisher] each rule it adopts, amends, or repeals, including
a rule adopted ,amended, or repealed under under
Section 309(a) or direct final (b). The agency shall file thea
rule not later than [ ] days after
adoption,
amendment, or repeal. The [publisher]
shall maintainkeep open to
public inspection a permanent register of all filed rules and concise
explanatory statements. The [publisher] shall affix to each rule a
certification of the time and date of filing. The [publisher] shall publish the
notice of adopted rules in the [administrative bulletin]. In filing a rule,
each agency shall use a standard form prescribed by the [publisher].
Comment
This section is based on the 1961
Model State Administrative Procedure Act, Section 4(a) and its expansion in the
1981 MSAPA, Section 3-114. Section 201(g)(1) provides that the administrative
bulletin must contain newly filed adopted rules. This section provides that the
publisher is responsible for publishing the notice of adopted rules in the
administrative bulletin.
SECTION 316. EFFECTIVE DATE OF RULES.
(a) Except as otherwise provided in this section,
[unless disapproved by the [rules review committee] or [withdrawn by the agency
under Section 703,] aeach rule adopted, amended,
or repealed and the repeal of a rule, becomes
effective [30] days after publication of the rule in the [administrative
bulletin] [on the [publisher]=s
Internet website.]
(b) The adoption, amendment, or repeal of a rule may become effective on
a later date than that established by subsection (a) if the later date is
required by law other than this [act] or specified in the rule.
(c) The adoption , amendment, or repeal of
a rule becomes effective immediately
upon its filing with the [publisher] or on any subsequent date earlier than
that established by subsection (a) if it is required to be implemented by a
certain date by the federal or [state] constitution, a statute, or court order.
(d) A rule adopted, amended,
or repealed using the emergency process under Section 309(a)
becomes effective upon actionadoption by the
agency.
(e) A rule adopted , amended, or repealed using
the direct final rulemaking process under Section
309(b) to which no objection is made becomes effective [30] days after the
close of the public comment period, unless the rulemaking proceeding is terminated or
a unless the agency specifies a later effective date is specified
by the agency.
Comment
This is a substantially revised
version of the 1961 Model State Administrative Procedure Act, Section 4 (b) &
(c) and 1981 Model State Administrative Procedure Act, Section 3-115. Most of
the states have adopted provisions similar to both the 1961 Model State
Administrative Procedure Act and the 1981 Model State Administrative Procedure
Act, although they may differ on specific time periods. Some rules may have
retroactive application or effect provided that there is express statutory
authority for the agency to adopt retroactive rules. See Bowen v. Georgetown University
Hospital 488 U.S. 204 (1988).
SECTION 317. PETITION FOR ADOPTION OF RULE. Any person may petition an agency to adopt a
rule. Each agency shall prescribe by rule the form of the petition and the
procedure for its submission, consideration, and disposition. Not later than
[60] days after submission of a petition, the agency shall:
(1) deny the petition in a record and state its
reasons for the denial; or
(2) initiate rulemaking proceedings in accordance
with this [act].
Comment
This section is substantially
similar to the 1961 MSAPA. See also section 3-117 of the 1981 MSAPA. Agency
decisions that decline to adopt a rule are judicially reviewable for abuse of
discretion (See Massachusetts v. EPA 127 S. Ct.
1438 (2007) (EPA decision to reject rulemaking petition and therefore not to
regulate greenhouse gases associated with global warming was judicially
reviewable and decision was arbitrary and capricious.).
SECTION 401. WHEN ARTICLE APPLIES; CONTESTED CASES.
This [article] applies to an
adjudication made by an agency in a contested case as defined in section 102(6).
Legislative
note For a statute to create a right to an evidentiary
hearing, express use of the term “evidentiary hearing” is not necessary in the
statute. Statutes often use terms like “appeal” or “proceeding” or “hearing”,
but in context it is clear that they mean an evidentiary hearing. An
evidentiary hearing is one in which the resolution of the dispute involves
particular facts and the presiding officer is limited to material in the record
in making his decision. Hearing rights are created by statutes that establish
an agency and delegate powers to the agency (agency enabling acts). The
provisions of this [act] do not create hearing rights.
Comment
Article 4 of this Act does not apply to all
adjudications but only to those adjudications, defined in Section 102(6)
as a “contested case.” Contested case is
the definition of the subset of adjudications that fall within this section
because law as defined in Section 102(164)
requires an evidentiary hearing to resolve particular facts or the application
of law to facts. This section is subject
to the exception in Section 4078 for an emergency
hearing if the requirements for that exception under this Article apply. If the
requirements for an emergency adjudication under Section 4078
are met, a hearing in a contested case may be conducted following the
procedures in thatose sections.
All contested cases are also subject to
Section 402 of this article.
For a statute to create a
right to an evidentiary hearing, express use of the term “evidentiary hearing”
is not necessary in the statute. Statutes often use terms like “appeal” or “proceeding”
or “hearing”, but in context it is clear that they mean an evidentiary hearing.
An evidentiary hearing is one in which the resolution of the dispute involves
particular facts and the presiding officer is limited to material in the record
in making his decision.
Hearings that are required by
procedural due process guarantees serve to protectinclude life,
liberty and property interests, which arise where a statute creates a
justified expectation or legitimate entitlement. This section includes more
than what were described as “rights” under older common law. In cases where the right to an evidentiary
hearing is created by due process, attention is directed to Article 4A, section 401ASection
405(2)D infra, which may permit an informal hearing.
Section 401, governing contested
case hearings, does not apply to investigatory hearings, a hearing that merely
seeks public input or comment, pure administrative process proceedings such as
tests, elections, or inspections, and situations in which a party has a right
to a de novo administrative or judicial hearing. An agency may by rule make all
or part of article 4 applicable to adjudication that does not fall within the
requirements of Section 401, including hearing rights conferred by agency
regulations, or on the record appeals.
This section draws upon the
California, (see Cal. Cal.Gov.Code Section 11410.10); Minnesota, (see Minnesota
Statutes Annotated, Section 14.02, subd. 3; Washington (see Revised Code of
Washington, 34.05.413(2) and Kansas (see Kansas Stat. Ann., KS ST Section
77-502(d) & Kansas Stat. Ann., KS ST Section 77-503).
(a) AThe
presiding officer mustshall be the individual
who is the agency head, as defined in Section 102(4) a member of
a multi-member body of individuals that is the
agency head, , or, unless prohibited by law,
anone or more
individual s designated by
the agency head , unless prohibited by law, or anone or more
administrative law judges assigned by the office in
accordance with Section 602.
(b) An
individual who has served as investigator, prosecutor, or advocate at any stage
in a contested case may not serve as the a presiding
officer or assist or advise theany presiding
officer in the same contested case. An individual who
is subject to the authority, direction, or discretion of an individual who has
served as [investigator,] prosecutor [,] [or]
advocate at any stage in a contested case, including investigation, may not
serve as
the presiding officer or assist or advise thea
presiding officer in the same proceeding.
(c) The provisions of Ssubsection
(b) governing
separation of functions as to the presiding officer also governs
separation of functions as to the agency head or other person or body to which
the power to hear or decide in the proceeding is delegated.
(d) A presiding officer is subject to
disqualification for bias, prejudice, financial interest, ex parte communications as
provided in Section 408(h), or
any other factor that would provides reasonable doubts about the
impartiality of the presiding officer]. A presiding officer, after making a
reasonable inquiry, shall disclose to all parties any known facts related to
grounds for disqualification that would be material to the impartiality of the presiding
officer in the contested case proceeding.
(e) Any party may petition for the
disqualification of a presiding officer promptly after notice that the person
will preside, or, if later,
promptly upon discovering facts establishing a grounds
for disqualification, whichever is later. The party
requesting the disqualification of the presiding officer must file a
petition mustthat states
with particularity the grounds upon which it is claimed that a fair
and impartial hearing cannot be accorded, or the applicable rule or canon of
practice or ethics that requires disqualification. If grounds for disqualification are discovered at a
time later than the beginning of the taking of evidence, a party must request
disqualification promptly after discovery. The petition may be
denied if the party fails to exercise due diligence in requesting
disqualification after discovering a grounds for
disqualification.
(f) A presiding officer whose disqualification is
requested shall determine whether to grant the petition and state facts and
reasons for the determination in writing. A presiding officer’s decision to
deny disqualification is not immediately subject to interlocutory
judicial review.
(g) If a substitute presiding officer is
required, the substitute must be appointed [as required by law, or if no law
governs, then]
by:
(1) the Governor, if the original presiding
officer is an elected official; or
(2) the appointing authority, if the original
presiding officer is an appointed official.
(h) If participation of the agency head is
necessary to enable the agency to take legally effective
action, thean agency
head may continue to participate notwithstanding a grounds
for disqualification, or exclusion.
Comment
Subsection (ab)
governs who may be appointed to serve as a presiding officer in a disputed
case. If the case is heard by more than
one presiding officer, as when the agency head hears a disputed case en banc,
one member of the agency head may serve as chair, but all of the persons
sitting as judge in the case are collectively the presiding officer.
Subsection (ab)
confers a limited amount of discretion upon the agency head to determine who
will preside. The presiding officer may
be either the agency head, or one or more members of the agency head, or one or
more administrative law judges assigned by the Office of Administrative Hearings
in accordance with Section 603. Without the bracketed language, subsection (ab)
resembles the law in a group of states that have created a central panel of
administrative law judges, and have made the use of administrative law judges
from the central panel mandatory unless the agency head or one or more members
of the agency head presides. In some states, however, the use of central panel
administrative law judges is mandatory only in certain enumerated agencies or
types of proceedings. If the bracketed language is adopted, the agency head, in
addition to the preceding options for appointment and unless prohibited by law,
may designate any one or more “other persons” to serve as presiding
officer. This discretion is subject to
subsections (c) & (d) on separation of functions. This discretion is also limited by the phrase
“unless prohibited by law,” included in the bracketed language, which prevents
the use of “other persons” as presiding officers to the extent that the other
state law prohibits their use. Thus, if this language is adopted by a state
that has an existing central panel of administrative law judges whose use is
mandatory in enumerated types of proceedings, the agencies must continue to use
the central panel for those proceedings, but may exercise their option to use “other
persons” for other types of proceedings.
Subsection (e) is based on
California Government Code Section 11425.30.
Subsection (f) is based upon 1981
MSAPA Section 4-202(b). See also California Government Code Section 11425.40(a).
Disclosure duties under subsection (e) are based on state ethics codes
governing ethical standards for judges in the judicial branch of the
government, Section 12 of the 2000 Uniform Arbitration Act, and on state law
governing the ethical responsibilities of government officials and employees.
See Section 410.
Subsection (g) is based on 1981
MSAPA Section 4-202(c).
Subsection (j) is based on
California Government Code Section 11425.40(c).
Subsection (k) adopts the rule of
necessity for decision makers. See California Government Code Section 11512(c)
(agency member not disqualified if loss of a quorum would result); United States
v. Will (1980) 449 U.S. 200 (common law
rule of necessity applied to U.S. Supreme Court to decide issues before the
court relating to compensation all Article III judges). Section
408(g) precludes ex parte communications between presiding officers and agency
heads.
SECTION 403. CONTESTED CASE PROCEDURE.
(a) This section does not apply to emergency
adjudications.
(b) An agency shall make available to the person
to which an agency action is directed a copy of the agency procedures governing
the case.
(c) The following rules apply in contested cases:
(1) Except as otherwise provided by law, the party
initiating the agency proceeding shall have the burden of proof. Upon proper
objection the presiding officer must exclude evidence that is irrelevant,
immaterial, and unduly repetitious or excludable on
constitutional, or statutory grounds or on the basis of an evidentiary
privilege recognized in the courts of this state. Any other relevant evidence, not privileged,
may be received if it is of a type commonly relied upon by reasonably prudent
people in the conduct of their affairs. The presiding officer may
exclude evidence that is objectionable under the applicable rules of evidence. Evidence may not be excluded solely because
it is hearsay.
Alternative A
Hearsay evidence may be used for the purpose
of supplementing or explaining other evidence except that on timely objection it
may not be sufficient in itself to support a finding unless it would be
admissible over objection in a civil action.
Alternative B
Hearsay evidence may be
sufficient to support fact findings if that evidence constitutes reliable,
probative, and substantial evidence.
(2) An objection must be made at the time the
evidence is offered. In the absence of an objection, the presiding officer may
exclude evidence at the time it is offered.
A party may make an offer of proof when evidence is objected to, or
prior to the presiding officer’s decision to exclude evidence.
(3) Any part
of the evidence may be received in written form, if doing so will expedite the
hearing without substantial prejudice to the interests of a party. Documentary evidence may be received in the
form of copies or excerpts or by incorporation by reference.
(4) All testimony of parties and
witnesses must be made under oath or affirmation.
(5) All
evidence must be made part of the hearing record of the case. No factual information or evidence may be
considered in the determination of the case unless it is part of the agency hearing
record. If the agency hearing record contains information that is confidential,
the presiding officer may conduct a closed hearing to discuss the information,
issue necessary protective orders, and seal all or part of the hearing record.
(6) The presiding officer may take official
notice of all facts of which judicial notice may be taken and of other
scientific and technical facts within the specialized knowledge of the
agency. Parties must be notified at the
earliest practicable time of the facts proposed to be noticed and their source,
including any staff memoranda or data.
The parties must be afforded an opportunity to contest any officially
noticed facts before the decision is announced.
(7) The experience, technical competence, and
specialized knowledge of the presiding officer may be used in the evaluation of
the evidence in the agency hearing record.
(ce) In a contested case, the presiding officer,
at
appropriate stages of the proceedings, shall give all parties a
timely opportunity to file pleadings, motions, and objections. The presiding
officer,
at appropriate stages of the proceeding, may give all parties thefull
opportunity to file briefs, proposed findings of fact and conclusions of law,
and proposed,
recommended, interim, or final orders. The presiding officer may, with the
consent of all parties, may refer the parties in a contested
case proceeding to mediation or other dispute resolution procedure.
(df) In a contested case, to the extent necessary
for full disclosure of all relevant facts and issues, the presiding officer
shall afford to all parties the opportunity to respond, present evidence and
argument, conduct cross-examination, and submit rebuttal evidence.
(eg) Except as otherwise provided by law other than
this [act],
the presiding officer may conduct all or part of an evidentiary hearing or a
prehearing conference by telephone, television, video conference, or other
electronic means. Each party to the proceeding must be given an opportunity to hear,
speak, and be heard atin the proceeding
as it occurs.
(fh) Except as otherwise provided in subsection (g), aA
hearing in a contested case must beis open to the
public., A hearing conducted by telephone, television,
video conference, or other electronic means is open to the
public if members of the public have an opportunity, at
reasonable times, to hear or inspect the hearing record, and
to inspect any transcript obtained by the agency.
(g)
Aexcept for a
hearing or part of a hearing that the presiding officer may close a
hearing on a ground on which this state may close a judicial proceeding
or pursuant to a statute other than this
[act].closes on
the same basis and for the same reasons that a court of this state may close a
hearing or closes pursuant to a statutory provision
other than this [act] that authorizes closure. To the extent that a hearing
is conducted by telephone, television, video conference, or other electronic
means, and is not closed, a hearing is open if members of the public have an
opportunity, at reasonable times, to hear or inspect the agency’s record, and
to inspect any transcript obtained by the agency.
(hi) Unless prohibited by law other than this
[act], at
the party’s expense, any party, at the party’s
expense, may be represented by counsel or may be advised,
accompanied, or represented by another individual.
(ij)
A party may exercise the right to self representation in a contested case, and
the presiding officer may explain contested case procedures to the self
represented party.
(j) A presiding
officer must record the hearing to provide a transcript of the hearing.
The transcript of the hearing may be recorded by stenographic
reporter, video recording, audio recording, or
other means.
(kk) The decision in a contested case must be written,
based on the agency hearing record, and include a
statement of the factual and legal bases of the decision.
(ll) Subject to Section 204, the rules by which an
agency conducts a contested case may include provisions more protective of the
rights of the person to which the agency action is directed than the
requirements of this section.
Comment
This section specifies the minimum
hearing requirements that must be met in disputed cases under this act. This
section applies to all agencies whether or not an agency rule provides for a
different procedure; this procedure is excused only if a statute expressly
provides otherwise. This section does not prevent an agency from adopting more
stringent procedures than those in this section. This section does not supersede conflicting
state or federal statutes.
There are several interrelated
purposes for this procedural provision: 1) to create a minimum fair hearing
procedure; and 2) to attempt to make that minimum procedure applicable to all
agencies. In many states, individual agencies have lobbied the legislature to
remove various requirements of the state Administrative Procedure Act from
them. The result in a considerable number of states is a multitude of divergent
agency procedures. This lack of procedural uniformity creates problems for
litigants, the bar and the reviewing courts. This section attempts to provide a
minimum, universally applicable procedure in all disputed cases. The important
goal of this section is to protect citizens by a guarantee of minimum fair
procedural protections. The procedures required here are only for actions that
fit the definition of a disputed case and fall within the provisions of Section
401. Thus, they do not spread quasi
judicial procedures widely, and do not create any significant agency loss of
efficiency or increased cost.
This section is modeled in part on
the Arizona Regulatory Bill of Rights, see A.R.S. Section 41-1001.01 and the
California Administrative Adjudication Bill of Rights, see West
Ann.Cal.Gov.Code Section 11425.10.
Under
subsection (c), agency procedures governing the case refers to rules of
practice adopted under Section 202, or default procedural rules adopted under
Section 204, or procedures required under the agency governing statute.
Under subsection (d)(1) evidence is
unduly repetitious if its probative value is substantially outweighed by the
probability that its admission will necessitate undue consumption of time. In most states a presiding officer=s determination that evidence is unduly
repetitious may be overturned only for abuse of discretion. Under subsection
(d)(1), the legal residuum rule is not adopted and hearsay evidence can be
sufficient to support fact findings if the hearsay evidence is sufficiently reliable.
This provision is based on the federal A.P.A. provision, 5 U.S.C. Section 556
(d), Richardson v. Perales, (1971) 402 U.S.
389 and the 1981 MSAPA Section 4-215(d). (reasonably prudent person standard
for reliability).
Subsection
(d)(4) information that is not a public record means information not subject to
disclosure under the applicable public records act in the jurisdiction.
Subsection
(d)(5) is based on 1981 MSAPA Section 4-212(f). See also California Government
Code Section 11515, and 1961 MSAPA Section 10(4).
Subsection
(d)(6) is based on 1981 MSAPA Section 4-215(d). See also California Government Code
Section 11425.50(c) which contains the same language.
Under
subsection (g) hearings in contested cases can be conducted using the
telephone, television, video conferences, or other electronic means. Subsection
(g) is based in part on California Government Code Section 11440.30. Due
process of law may require live in person hearings. See Whiteside v. State,
(2001) 20 P. 3d 1130 (Supreme Court of Alaska) (due process of law violated
with telephone hearing in driver’s license revocation hearing when driver’s
credibility was material to the hearing, and the driver was not offered an in
person hearing); But see Bancock v. Employment Division (1985) 72 Or. App. 486,
696 P. 2d 19, 21 (telephone hearings do not violate due process of law in hearings
in which the credibility of a party is at issue because audible indicia of a
witness’s demeanor are sufficient for credibility).
Subsection
(k) provides for a right of self representation for parties in contested case
proceedings. Subsection (k) also allows presiding officers to accommodate pro
se litigant’s unfamiliarity with agency procedures in contested cases by
explaining those procedures to the pro se litigant to the extent consistent
with fair hearing and impartial decision maker requirements. Goldberg v. Kelley
(1970) 397 U.S.
254 (impartial decision-making is essential to due process of law). The fair
hearing limits would be exceeded if the presiding officer violated impartial
decision maker requirements by improperly assisting one party in presenting
that parties case at the hearing.
The subsection (l) written decision
requirement is based in part on 1961 MSAPA Section 12, and on1981 MSAPA Section
4-215(g). See also California Government Code Section 11425.50. See also
sections 801, and 802, electronic publication of written decisions, and the
provisions of 15 U.S.C. Section 7004.
Section 10 of the 1961 MSAPA contained
many similar provisions.
SECTION
404 EVIDENCE IN CONTESTED CASE
The following rules apply in contested cases:
(1) Except as otherwise provided by law, the party
initiating the agency proceeding has the burden of
proof.
(2) Upon proper
objection, the presiding officer shall exclude
evidence that is irrelevant, immaterial, unduly repetitious, excludable
on constitutional or statutory grounds, or excludable on the basis
of an evidentiary privilege recognized in the courts of this state. Any other relevant evidence may be received
if it is of a type commonly relied upon by reasonably prudent individuals in the
conduct of their affairs. The presiding officer may
exclude evidence that is objectionable under the applicable rules of evidence, but evidence may
not be excluded solely because it is hearsay.
(3)
Alternative A
Hearsay evidence may be used to supplement
or explain other evidence, but on timely
objection, is not sufficient by itself to
support a finding unless it would be admissible over objection in a civil
action.
Alternative B
Hearsay evidence is sufficient
to support fact findings if it constitutes
reliable, probative, and substantial evidence.
end of
alternatives
(4) An objection must be made at the time the
evidence is offered. In the absence of an objection, the presiding officer may
exclude evidence at the time it is offered.
A party may make an offer of proof when evidence is objected to or before the
presiding officer’s decision to exclude evidence.
(5) Evidence may
be received in written form if doing so will expedite the hearing without
substantial prejudice to a party.
Documentary evidence may be received in the form of copies or excerpts
or by incorporation by reference.
(6) Testimony
must be made under oath or affirmation.
(7) Evidence must
be made part of the hearing record of the case. Information
or evidence may not be considered in determining the case
unless it is part of the hearing record. If the hearing record contains
information that is confidential, the presiding officer may conduct a closed
hearing to discuss the information, issue necessary protective orders, and seal
all or part of the hearing record.
(8) The presiding officer may take official
notice of all facts of which judicial notice may be taken and of other
scientific and technical facts within the specialized knowledge of the
agency. Parties must be notified at the
earliest practicable time of the facts proposed to be noticed and their source,
including any staff memoranda or data.
The parties must be afforded an opportunity to contest any officially
noticed facts before the decision is announced.
(9) The experience, technical competence, and
specialized knowledge of the presiding officer may be used in the evaluation of
the evidence in the hearing record.
Comment
SECTION 4054. NOTICE. IN CONTESTED CASE
(a) Except as otherwise provided for an emergency
adjudication under Section 4086, an agency
shall give notice as provided in this section.
(b) In an actions
initiated by a persons other than anthe
agency, within a reasonable time after filing, the agency shall give notice to
all parties that an action has been commenced.
The notice must include:
(1) the official file or other reference number,
the name of the proceeding, and a general description of the subject matter;
(2) contact information for communicating with
the agency, including the agency mailing address
and telephone number;
(3) a statement of the time, place, and nature of
the prehearing conference or hearing, if any;
(4) [the name, official title, mailing
address, and telephone number of any attorney or employee who has been
designated to represent the agency]; and
(5) that the person may be represented
by an attorney or other individual as provided in Section 403(h)of the
person’s choosing.
(c) In an action initiated by the agency , the
agency mustshall
give an initial notice to the party or parties against which the action is
brought
as provided by law. The
notice shall include:
(1) notification that an action that may result
in an order has been commenced against the partythem;
(2) a short and plain statement of the matters
asserted, including the issues involved;
(3) a statement of the legal authority and
jurisdiction under which the hearing is held citing the statutes that
includes identification of the statutory sections involved;
(4) the official file or other reference number, and the the name of the proceeding, and a
general description of the subject matter;
(5) the name, official title, mailing address,
[e-mail address,] [facsimile numberaddress,] and
telephone number of the presiding officer or, if no officer has been appointed
at the time the notice is given, the name, official title, mailing address,
[e-mail address,] [facsimile address,] and telephone number of the agency’s
representativeany attorney or employee designated to represent
the agency;
(6) a statement that a party thatwho
fails to attend or participate in any subsequent proceeding in a contested case
may be held in default;
(7) a statement that the party served may request
a hearing and instructions in plain language about how to request a hearing;
and
(8) the names and last known addresses of all
parties and other persons to which notice is being given by the agency.
(d) When a prehearing meeting or
conference is scheduled, the agency shall give parties notice at least 14
days before the hearing that contains the information required by contained in
subsection (c) at least 14 days before the hearing.
(e) Notice may include other matters that the
presiding officer considers desirable to expedite the proceedings.
Comment
This section is taken from: the
1961 Model State Administrative Procedure Act, section 9 and the 1981 Model
State Administrative Procedure Act, Section 4-206. See also; Oregon, O.R.S. Section 183.415;
Kansas, K.S.A. Section 77-518; Iowa, I.C.A. Section 17A.12; Montana, MCA
2-4-601; and Michigan, M.C.L.A. 24.271.
SECTION 4065. AGENCY HEARING RECORD IN CONTESTED
CASE.
(a) An agency shall maintain an agency hearing record
in each contested case.
(b) The agency hearing record
must
contain: consists of the
(1) a recording of the proceeding;
and :
(21) notices of all proceedings;
(32) any pre-hearing order;
(43) any motions, pleadings, briefs, petitions,
requests, and intermediate rulings;
(54) evidence admitted, received, or considered;
(65) a statement of matters officially noticed;
(76) proffers of proof and objections and rulings
thereon;
(87) proposed findings, requested orders, and
exceptions;
(98)
any transcript of all or part of the hearing;
(109) any final order, recommended decision, or
order on reconsideration;
(1110) all memoranda, data, or testimony prepared
under Section 407; and
(1211) matters placed on the record after an ex
parte communication.
(c) The agency hearing record
constitutes the exclusive basis for agency action in a contested case and for
judicial review of the case.
Comment
The recording of an agency
hearing can be made by certified shorthand reporter, video
or audio recording, or other electronic means.
SECTION 4076. EMERGENCY ADJUDICATION PROCEDURE.
(a) Unless prohibited by law other than this
[act], an agency shallmust conduct an
emergency adjudication in a contested case under under the
procedure provided in this section.
(b) An agency may issue an order under this
section only to deal with an imminent danger to the public health, safety, or
welfare. The agency may take only action
that is necessary to deal with the imminent danger to the public health,
safety, or welfare. [The emergency
action must be limited to temporary relief.].
(c) Before issuing an order under this section, anthe
agency, if practicable, shall give notice and an opportunity to be heard to the
person to which the agency action is directed.
The notice and hearing may be oral or written and may be communicated by
telephone, facsimile, or other electronic means.
(d) Any order issued under this section must
briefly explain the factual and legal reasons for making the decision using emergency
adjudication procedures.
(e) To the extent practicable, an agency shall
give notice of an order to the person to which the agency action is
directed. The order is effective when signed by an
agency official.
(f) After issuing an order pursuant to this
section, an agency shall proceed as soon as practicable to provide notice and an
opportunity for a hearing following thecontested case
procedure under Section 403 in order
to determineresolve
the issues underlying the temporary order relief.
(g) The
emergency order is effective for 180 days, or until the effective date of an
order issued under the contested case procedures of Section 403,
whichever is shorter.
Comment
This section is based upon the 1961
Model State Administrative Procedure Act, section 14(c) and the 1981 Model
State Administrative Procedure Act, Section 4-501. The procedure of this section is intended
permit immediate agency emergency adjudication, but also to provide minimal
protections to parties against whom such action is taken. Emergencies regularly occur that immediately
threaten public health, safety or welfare: licensed health professionals may
endanger the public; developers may act rapidly in violation of law; or
restaurants may create a public health hazard.
In these cases the agencies must possess the power to act rapidly to
curb the threat to the public. On the
other hand, when the agency acts in such a situation, there should be some
modicum of fairness, and the standards for invoking this remedy must be clear,
so that the emergency label may be used only in situations where it fairly can
be asserted that rapid action is necessary to protect the public.
Federal and state case law have
held that in an emergency situation an agency may act rapidly and postpone any
formal hearing without violation, respectively, of federal or state
constitutional law. FDIC v. Mallen, 486 U.S. 230 (1988); Gilbert v. Homar (1997) 520 U.S.
924; Dep=t of
Agric. v. Yanes, 755 P.2d 611 (OK. 1987).
The generic provision in this
section has several advantages over the present divergent approaches to
emergency agency action. First, all
agencies have the needed power to act without delay, but there is provision for
some type of brief hearing, if feasible.
Second, this article limits the agency to action of this type only in a
genuine, defined emergency. Third, there
are pre and post deprivation protections.
This section seeks to strike an appropriate balance between public need
and private fairness.
This section does not apply to an
emergency adjudication, cease and desist order, or other action in the nature
of emergency relief issued pursuant to express statutory authority arising
outside of this act.
SECTION 4087. EX PARTE COMMUNICATIONS.
(a) For purposes of this section, the final decision maker means
the agency head or another person or body to
which the power to decide the proceeding
is delegated .
(ba)
Except as otherwise provided in subsections (cb)
and (dc),
or unless required for the disposition of ex parte matters authorized by
statute, while a contested case is pending, the presiding officer and the
final decision maker may not make to or receive from any person any
communication regarding any issue in the proceeding without notice and
opportunity for all parties to participate in the communication. For the
purpose of this section, a proceeding is pending from the issuance of the
agency’s pleading, or from an application for an agency decision, whichever is
earlier.
(cb)
AThe
presiding officer and the final decision maker may communicatemake communications
to or receive communications from with an individual a person
authorized by law to provide legal advice to the presiding officer or to the final
decision maker andor may communicate
on ministerial matters with an individual a person
who serves on the [administrative] [personal]
staff of the presiding officer or the staff of the final decision maker if
the person providing legal advice or ministerial information has not served as
investigator, prosecutor, or advocate at any stage of the proceeding, and if
the individualstaff
advisor does not furnish, augment, diminish, or modify the
evidence in the record. When acting
as the decision maker, the agency head may make communications to or
receive communications from a person authorized by law to provide
legal advice to the agency if the person providing
legal advice has not served as investigator, prosecutor, or advocate at any
stage of the proceeding, and if the staff advisor does not
furnish, augment, diminish or modify the evidence in the record.
(dc) An employee or representative may make communications
to or receive communications concerning a pending contested case from
an agency head sitting as presiding officer or decision maker if:
(1) the communications does not
furnish, augment, diminish, or modify the evidence in the record;
consist of
an explanation of the technical or scientific basis of, or technical or
scientific terms in, the evidence in the agency hearing record; and
(2) the employee or representative giving the
technical explanation has not served as investigator, prosecutor,
or advocate at any stage of the proceeding; and
(3) the employee or representative giving the
technical explanation does not receive communications that the
agency head is prohibited from receiving; and.
(4) the technical or scientific term on which
explanation is sought is not a contested issue or an issue whose application is
central to the decision in the case.
(d) If the presiding
officer receives advice under subsection (c), the advice, if written, must be
made part of the agency hearing record. If the advice is oral, a memorandum
containing the substance of the advice must be made part of the record and the
parties must be notified and informed of the contents of the
communication. The parties may respond
to the advice of an employee or representative of the agency in a record that
is made part of the hearing record.
(e) If a presiding officer or the final
decision maker makes or receives a communication in violation of
this section, the presiding officer or the final decision maker shall, if the
communication is:
(1) written, shall make the
communication a part of the hearing record and prepare and make part of the
record a memorandum that contains the response of the presiding officer and the
final decision maker to the communication and the identity of the party or
person thatparties who communicated; or
(2) oral, shall prepare a
memorandum that contains the substance of the verbal communication, the
response of the presiding officer and the final decision maker, and the
identity of the party or person that parties who
communicated.
(f) If a communication prohibited by this section
is made, the presiding officer shall notify all parties of the prohibited
communication and permit parties to respond in writing within 15 days after the
notice. Upon good cause
shown, the presiding officer may permit additional testimony in response to the
prohibited communication.
(g) IfWhen athe
presiding officer is a member of a multi-member body
of individuals that is the agency
head , a member of an
agency head that is a body of persons, the presiding officer may
communicate with the other members of the multi member bodyagency head.
Otherwise, wWhile a
proceeding is pending, there may be no communication, direct or indirect,
regarding the merits of any issue in the
proceeding between the presiding officer and the agency head or other person or
body to which the power to hear or decide in the proceeding
is delegated.
(h) As a sanction, Iif
necessary to eliminate the effect of a communication received in violation of
this section, a presiding officer and final decision maker may be
disqualified under the provisions of Sections 402 (d) and,(e),
the partsortions
of the record pertaining to the communication may be sealed by protective order,
or other appropriate relief may be granted, including an adverse
ruling on the merits of the case or dismissal of the application.
or
other adverse ruling on the merits.
Comment
This section is not intended to be
applied to communications made by or to a presiding officer or personal staff
assistant regarding noncontroversial practice and procedure matters such as
number of pleadings, number of copies or type of service. Communications related to contested procedural
issues or motions are covered by Section 409(a). Other communications not on
the merits but related to security or to the credibility of a party or witness
are covered by Section 409(a). See Matthew Zaheri Corp., Inc. v. New Motor
Vehicle Board (1997) 55 Cal.
App. 4th 1305. However, this
section goes further in permitting advice to the presiding officer from staff
members on complex technical and scientific matters, but permits parties to
reply to those staff communications.
This section also provides another
remedy besides disclosure and party reply.
In a case where disclosure and reply are inadequate to cure or eliminate
the effect of the ex parte contact, a protective order may be issued. The intent of authorizing the protective
order is to keep the ex parte material from the successor presiding officer.
This section draws in part from the
systematic California
provisions on ex parte contacts. See
West=s
Ann.Cal.Gov.Code Section 11430.10 to 11430.80. The California sections address many of the
problems that arise in this area, and attempt to distinguish technical,
advisory contacts from agency staff to presiding officers or agency heads from
other kinds of party contacts.
SECTION 4098. INTERVENTION.
(a) A presiding officer shall grant a timely petition
for intervention in a contested case if:
(1) the petitioner has a statutory
right to initiate, or to intervene in, the proceeding in which intervention is sought;
or
(2) the petitioner has an interest
that will
or may be adversely affected by the outcome of the proceeding and
that interest is not adequately represented by existing parties.
(b) A presiding officer may grant a timely
petition for intervention ifwhen the
petitioner has a conditional statutory right to intervene, or ifwhen
the petitioner’s claim or defense is based on the same transaction or
occurrence as the contested case.
(c) When intervention is granted or at any subsequent
time, Athe presiding
officer may impose conditions at any time upon the intervener’s
participation in the proceedings.
(d) A presiding officer may permit intervention provisionally
and, at any time later in the proceedings or at the end of the proceedings, may
revoke the provisional intervention.
(e) Upon request by
the interveners or existing parties, the presiding officer may hold a hearing on
the intervention petition.
(f) The presiding officer, at least [24 hours] before
the hearing, shall issue an order granting or denying each pending petition for
intervention, specifying any conditions, and stating the reasons for the order.
A The presiding
officer shall promptly give notice of an order granting, denying, or revoking
intervention to the petitioner for intervention and to all parties. of an order
granting, denying, or revoking intervention. The notice must be given at
least 24 hours before a hearing on the merits of the case.
Comment
Section 408 is based in part of
1981 MSAPA Section 4-209. See also Federal Rule of Civil Procedure Rule 24 (intervention
of right under Rule 24(a), and permissive intervention under Rule 24(b)).
Subsection (c) recognizes the
normal judicial practice of limiting the participation of intervenors,
especially on cross examination, to their particular interest and taking any
other procedural steps or
limitations in order to maintaining an orderly and expeditious hearing. Mandatory
intervention is provided for in subsections (a)(1), and (2). Permissive
intervention is provided for in subsection (b).
Subsection (d) recognizes the power of the presiding officer to dismiss
a party who has intervened at any time after intervention has occurred when it
appears that the conditions of this section or the requirements for the
intervening party’s standing have not been satisfied. Subsection (f) provides for notice suitable
under the circumstances to enable parties to anticipate and prepare for changes
that may be caused by the intervention.
SECTION 41009. SUBPOENAS.
(a) Upon awritten
request in
a record by a party in a contested case, the presiding officer or
any other officer to whom the power is delegated shall issue a subpoena for the
attendance of a witness and the production of books, records, and other
evidence upon a showing of general relevance and reasonable scope of the
evidence sought for use at the hearing.
(b) Unless otherwise provided by
law or agency rule, a subpoenas so issued under
subsection (a) shall be served and, upon application to the court
by a party or the agency, enforced in the manner provided by law for the
service and enforcement of subpoenas in a civil action.
Comment
Section 409 is based in part on
1981 MSAPA Section 4-210. See also California Government Code sections 11450.05
to 11450.50 (subpoenas in administrative adjudication).
Subsection (b) is based on Arizona administrative
procedure act Section 41-1062A.4.
SECTION 4110. DISCOVERY.
(a) As used Iin
this section, “statement” includes a records signed by a
person of a person’shis or her written
statements signed by a person and
a records
that summarizes an oral statements made by a person.
(b) Except in an emergency hearing under Section
408, a party, upon written notice to another party at least [ ] days before an evidentiary hearing, mayis entitled
to:
(1) obtain the names and addresses of witnesses that
the disclosing party will present at the contested case
hearing to the extent known to the other party; and
(2) inspect and make a copy of
any of the following material in the possession, custody, or control of the
other party:
(A) statements of parties and
witnesses a statement relating to the subject matter of the
adjudication made by any party to another
party or person;
(B) statements of witnesses then
proposed to be called;;
(BC) all recordswritings,
including reports of mental, physical, and blood examinations,
and other
evidencethings which the party then
proposes to offer in evidence;
(CD) investigative reports made by or on behalf of
the agency or other party pertaining to the subject matter of the adjudication;
or
(DE) statements of expert witnesses then
proposed to be called;.
(E) any
exculpatory material in the possession of the agency; or
(F) other
materials for good cause shown.
(3) Parties to a contested case
proceedings have a duty to supplement responses provided
under subsection (b) to include information thereafter acquired to the extent
that information will be relied upon in the contested case
hearing.
(c) Upon petition, a presiding officer may issue
a protective order for any material for which discovery is sought under this
section that is exempt, privileged, or otherwise made confidential or protected
from disclosure by law, including material subject to the attorney-client privilegeattorney-client
privilege, attorney work product privilege, and [executive]
[deliberative process] privilege, and material
the disclosure of which or that would
result in annoyance, embarrassment, oppression, or undue burden or expense to
any person or party.
(d)
Upon petition, the presiding officer may
issue an order compelling discovery for refusal to comply with a discovery
request unless good cause exists for refusal.
Failure to comply with the discovery order may be enforced according to
the rules of civil procedure.
(e)
Upon
petition and for good cause shown, tThe presiding
officer may issue an order authorizing discovery by other methods provided by
law other than this [act] [the rules
of civil procedure].
Comment
Discovery
in administrative adjudication is more limited than in civil court proceedings.
Nevertheless discovery is available for the items listed in subsection (b). See
California Government Code Section 11507.6 to 11507.7 (discovery in
administrative adjudication).
Section 410 is based on Section 11507.6. 1981
MSAPA Section 4-210 also provides for discovery in administrative proceedings.
SECTION 4121. DEFAULT.
(a) Unless otherwise provided by law other than
this [act], if a party without good cause fails to attend or participate in a
pre-hearing
conference, or hearing, or other
stage of in a contested case, the
presiding officer may issue athe default order. If a default order is issued, the presiding
officer and
may conduct any further proceedings necessary to complete
the adjudication without the defaulting party and shall determine all issues in
the adjudication, including those affecting the defaulting party. A recommended, initial, or final order issued against a
defaulting party may be based on the defaultingabsent
party’s admissions or other evidence affidavits which can
that
may be used without notice to the defaultingabsent
party. IfWhen
the burden of proof is on the defaulting party to establish that the partyhe or she
is entitled to the agency action sought, the presiding officer may issue a
recommended, initial, or final order without
taking evidence.
(b) Not later thanWithin [ ] days after
a recommended, initial, or final order is rendered
against a party subject to a default order, that party may petition the
presiding officer to vacate the recommended, initial, or
final order. If For
good cause is shown for the party’s failure to
appear, the presiding officer shall vacate the decision and, after proper
service of notice, conduct another evidentiary hearing. If good cause is not
shown for the party's failure to appear, the presiding officer shall deny the
motion to vacate.
Comment
Under this section the presiding
officer has the power to impose a default judgment. However, the default
decision must be based upon prima facie evidence. Among the other laws that modify the
presiding officer’s discretion are the [state] rules of civil procedure. The
section thus authorizes a presiding officer to issue a default judgment for the
same reasons as contained in the state rules of civil procedure. This section is based on 1981 MAPA Section
4-208.
Subsection (b) is based in part on
1981 MSAPA Section 4-208 and on California Government Code Section 11520.
SECTION 4132. ORDERS: FINAL, AND RECOMMENDED, INITIAL.
(a) If the presiding officer is the agency head,
the presiding officer shall render a final order.
(b) Except as otherwise provided by law other than this
[act], iIf the presiding
officer is not the agency head and has not been delegated final decisional
authority, the presiding officer shall render a recommended order [proposed order].,
Ifwhen
the presiding officer is not the agency head and has not
been delegated final decisional authority, . Otherwise, tthe
presiding officer shall render an initial order thatwhich shall
becomes
a final order in [30] days after issuance,
unless reviewed by the agency head on its own motion or on petition of a party.
(c) Unless the time is extended by stipulation, waiver,
or upon a showing of good cause, Aa
recommended, or initial, or final
order must be served in a record upon each party and the agency head writing
within 90 days after conclusion of the hearing ends,
or
when the record closes, or after submission of
memos, briefs, or proposed findings are submitted, whichever is later. The time may be extended by
stipulation, waiver, or upon a showing of good cause.
(d) A recommended, initial, or final order must include
separately stated findings of fact and conclusions of law on all material
issues of fact, law, or discretion, the remedy prescribed, and, if applicable,
the action taken on a petition for stay.
A party may submit proposed findings of fact and conclusions of law. The order must also include a statement of
the available procedures and time limits for seeking reconsideration or other
administrative relief, and a statement of the time limits for seeking judicial
review of the agency order. A recommended or initial order
must include a statement of any circumstances under which the recommended
order, without further notice, may become a final order.
(e) Findings of fact must be based exclusively onupon
the evidence inof the agency
hearing record in the contested case and on matters officially noticed.
(f) An order
is issued under this Section when it is
signed by the agency head,
presiding officer, or an individual authorized by law other than this [act] to
sign the order.
(f) A presiding officer shall notify and provide
copies of the recommended or initial order to be delivered to each party and to
the agency head within the time limits set in subsection (c).
(g) When a licensee
has made timely and sufficient application for the renewal of a license, the
existing license does not expire until the application has been finally acted
upon by the agency and, if the application is denied or the terms of the new
license are limited, the last day for seeking judicial review of the agency
decision is 45 days from the date of the agency decision denying the
application or limiting the terms of the new license or a later date fixed by
order of the reviewing court.
Comment
See Section 102(11) for the definition of “final order”
Section 102(14 for the definition of initial order, and section 102 (24) of
this act for the definition of “recommended order”. This section draws upon useful provisions
from several states. E.g. see: Alabama, Ala.Code 1975 Section 41-22-16; Iowa,
I.C.A. Section 17A.15; Kansas, K.S.A. Section 77-526; Michigan, M.C.L.A.
24.281; Montana, MCA 2-4-623; Washington, RCWA 34.05.461. This section is also
based upon 1981 MSAPA Section 4-215. Emergency orders are issued under the provisions
of Section 408, not this section.
The third sentence of subsection
(d) is taken from the 1961 MSAPA.
SECTION 4143. AGENCY REVIEW OF RECOMMENDED AND
INITIAL ORDERS.
(a) An agency head may review an
recommended
or initial order on its own motion.
(b) A party may petition anthe
agency head to review an recommended or
initial order. Upon petition by any party, the agency head may review
an initial order and shall review a recommended
order, except as otherwise provided by law other than this
[act].
(c) A petition for review of an initial recommended
order must be filed with the agency head, or with any person designated for
this purpose by agency rule of the agency, not later
than within
[10] days after the initialrecommended order
order is
issuedrendered,
or the
parties are notified of the order, notice of the recommended
order is given to the parties, whichever is later. . If the agency head decides to review an initial recommended
order on its own motion, the agency head shall give written notice in a record of
its intention to review the recommended order within [10] days
after it is issuedrendered, or the parties
are notified of the order notice of the recommended
order is given to the parties, whichever is later.
(d) The [10]-day period in subsection (c) for
a party to file a petition, or for the agency head to notify the
parties give notice of its intention to review
an
initial recommended order in subsection (b),
is tolled by the submission of a timely petition under Section 416 for
reconsideration of the recommended order pursuant to this section.
A new [10]-day period beginsstarts to run
upon disposition of theany petition for
reconsideration or agency head review under subsection (b). If an recommended
order is subject both to a timely petition for reconsideration and to a
petition for appeal or to review by the agency head
on its
own motion, the petition for reconsideration must be disposed of
first, unless the agency head determines that action on the petition for
reconsideration has been unreasonably delayed.
SECTION 415. AGENCY
REVIEW OF RECOMMENDED ORDER
(a) e) An agency
head shall review a recommended order pursuant to this section
(b)
When
reviewing a An agency head that reviews a
recommended order, the agency head shall shall
exercise all the decision-making power that the agency head would have had if
the agency head had conducted the hearing that produced the recommended order,
except to the extent that the issues subject to review are limited by a provision
of law other than this [act] or by order of the agency head upon notice to all
the parties. In reviewing findings of
fact in a
recommended orders by the presiding
officers,
the agency head shall considergive due regard to
the presiding officer's opportunity to observe the witnesses, and to determine
the credibility of witnesses. The agency
head shall consider the hearingagency record or parts that
arethose portions of it as have been
designated by the parties.
(cf) An agency head may render a final order
disposing of the proceeding or may remand the matter for further proceedings
with instructions to the presiding officer who rendered the recommended order. Upon remanding a matter, the agency head may
order such temporary relief as is authorized and appropriate.
(dg) A final order or an order remanding the
matter for further proceedings under this section must identify any
difference between the order and the recommended order and mustshall
state the facts of record thatwhich support any
difference in findings of fact, state the source of law thatwhich
supports any difference in legal conclusions, and state the policy
reasons that which support
any difference in the exercise of discretion.
A final order under this section must include, or incorporate by express
reference to the recommended order, all the matters required by Section 413415(d). The agency head shall deliver the order cause an
order issued under this section to be delivered to the presiding
officer and to all parties.
Comment
This section draws upon 1981 MSAPA, which
reflects current practice in regard to recommended orders, initial orders, final
orders and review of final orders more accurately than the 1961 MSAPA. Subsections (b) and (e) draw upon the
Washington APA, West’s RCWA 34.05.464, and the Kansas APA, K.S.A. ' 77-527. The object of subsection (e) is to assure
agency head consideration of the issues tendered in the case.
SECTION 4164. RECONSIDERATION.
(a) Any party, not later thanwithin
[ ] days after notice of a final order
is given, may file a petition for reconsideration that states the specific
grounds upon which relief is requested.
The place of filing and other procedures, if any, mustshall
be specified by agency rule and mustshall be stated
in the final order.
(b) If a petition for reconsideration is timely
filed, and if the petitioner has complied with anthe
agency's procedural rules for reconsideration, if any, the time for filing a
petition for judicial review does not begincommence
until the agency disposes of the petition for reconsideration as provided in
Section 5034(d).
(c) If a petition is filed under subsection (a),
the presiding officer shall issue render
a written order not later thanwithin [20] days after the
filing denying the petition, granting the petition and dissolving
or modifying the final order, or
granting the petition and setting the matter for further proceedings. The petition may be granted only
if the presiding officer states findings of facts, conclusions of law, and the
reasons for granting the petition.
Comment
This section is based in part on the
Washington APA, West's RCWA 34.05.470.
This section creates a general right to seek reconsideration of a
recommended or final order. Subsection
(b) must be read concurrently with Section 507(d), which excuses exhaustion to
the extent that a provision of this [act] provides for excuse. See also 1981
MSAPA Section 4-218
SECTION 4175. STAY. Except as otherwise provided by law other
than this [act], a party, not later than [seven] days
after the parties are notified of the order, may request the agency to stay a
final order pending judicial review. within [seven] days after notice
of the order is given to the parties. When an agency finds that
justice so requires, Tthe agency may
grant the request for a stay pending judicial review if an agency finds that
justice so requires,. The agency may grant or deny the request for
stay of the order either before, on, or after the effective date of
the order.
Comment
The 1961 MSAPA ' 15 contained a provision for a stay.
Stays are sometimes necessary to preserve the status quo pending agency review
or judicial review. This section is based in part of 1981 MSAPA Section 4-217. The
second sentence of this section is based on Section 705 of the federal
administrative procedure act.
SECTION 4186. AVAILABILITY OF ORDERS; INDEX.
(a) Except as otherwise provided in subsections
(b),
and (c), an agency shall create an index of, all final orders and final written decisions
in contested cases and make the index and all final orders and decisions available
for public inspection and copying, at cost, in its
principal offices. The agency must also furnish the index and all
final orders and decisions in contested cases online through the [publisher]
via the [publisher’s] Internet website without charge, or in writing upon
request at a reasonable cost to be determined by the agency.
Legislative Note. Most states
have public records act that require disclosure of government documents and
records to the public unless particular documents are exempt from disclosure
under that act. Subsection (b) refers to those acts, and to exempt decisions
under those acts.
(b) Final orders or decisions that are exempt,
privileged, or otherwise made confidential or protected from disclosure by [the
public records law of this state] , [the disclosure of which
would constitute an unwarranted invasion of privacy or release of trade secrets],
are not public records and may not be indexed.
(c) A final order or decision under this section
may be excluded from an indexing and disclosure
only by order of the presiding officer with a written statement of reasons
attached to the order. If, in the
judgment of the presiding officer determines,
it is possible to redact [or to prepare a generic version of] a
final order or decision that is exempt,
privileged, or otherwise made confidential or protected from disclosure by [the
public records law of this state] so that it complies with the
requirements of that law, the redacted [or the generic version of
the] order or decision may be placed in
the indexed andor
published.
(d) An agency may not rely on a final order or decision
adverse to a party other than the agency as precedent in future adjudications
unless the agency designates the order order or
decision has been designated as a precedent by the agency,
and the order or decision has been published, placed in an
indexed, and made available for public
inspection.
Comment
This section is entirely new. This section continues the concept, seen
earlier in connection with rules, of preventing earlier decisional law known
only to agency personnel from constituting the basis for decision in a disputed
case. Subsection (c) is based in part on
the provisions of California Government Code Section 11425.60. If the agency
wishes to use a case as precedent in the future, it must make the order and
decision in that case available to the public. The only situations in which an
agency may rely on a contested case as precedent without indexing and making
that decision and order available to the public are described in subsection (b)
of this section.
In some states there have been
attacks on agency adjudications on the basis that the proceeding should be
conducted under the provisions for rulemaking.
In the case of SEC v. Chenery Corp., 332 U.S. 194 (1947) the United
States Supreme Court held that the choice of whether to proceed by rulemaking
or adjudication is left entirely to the discretion of the agency, because not
every principle can be immediately promulgated in the form of a rule. In the words of the Supreme Court “Some
principles must await their own development, while others must be adjusted to
meet particular, unforeseeable situations.”
Most states follow Chenery. See
Illuminating a Bureaucratic Shadow World: Precedent Decisions under California=s Revised Administrative Procedure Act,
21 J. Nat=l A.
Admin. L. Judges 247 (2001) at n. 68.
This section makes clear that the choice
between rulemaking and adjudication is entirely in the discretion of the
agency. However, in order to prevent law
to which the public does not have access from constituting the basis for
decision, final orders must be indexed and available to the public. See also
the California
administrative procedure act at West=s
Ann. Cal. Gov. Code, '
11425.60
Most states have public
records act that require disclosure of government documents and records to the
public unless particular documents are exempt from disclosure under that act.
Subsection (b) refers to those acts, and to exempt decisions under those acts.
(a) This Article applies to an adjudication in
which an opportunity for an evidentiary hearing is not required.
(ba)
In an adjudication under this article, that is not
a contested case, the agency shall give prompt notice of, and a statement
of the the reasons for, its action, to any
party to the adjudication and shall give the party the opportunity
to respond
(orally or in writing) be heard before an impartial decision
maker..
Comment
This section draws on the
informal adjudication provisions of several state Administrative Procedure Acts.
See: California Administrative Procedure Act, West=s
Ann.Cal.Gov.Code SECTION 11445.40; Va.
Administrative Procedure Act,
Section 2.2-4019, Va. Code Ann. ' 2.2-4019; and Washington
Administrative Procedure Act,
Section 34.05.485, West=s RCWA ' 34.05.485. The informal hearing may be in the nature of
a conference at the discretion of the presiding officer. The due process requirements
for informal adjudication are detailed in Goss v. Lopez, (1975) 419 U.S. 565, 581-582 (informal due process hearing
for school suspension of ten days or less), and Cleveland Board of Education v.
Loudermill (1985) 472 U.S.
532. The four due process elements for an informal
adjudication are 1) notice; 2) statement of reasons; 3) opportunity to respond (orally or in
writing); and 4) impartial decision maker. See Paul
Verkuil,
SECTION 402A. LICENSING
(ab) When an agency
decides a license application, the agency shall give prompt notice of its
action in response to an application. If the agency denies the application for
a license without the opportunity for an evidentiary hearing, the agency shall
include the reasons for the denial.
(b) If a licensee has made timely and sufficient
application for the renewal of a license, the existing license does not expire
until the application has been finally acted upon by the agency and, if the
application is denied or the terms of the new license are limited, the last day
for seeking judicial review of the agency decision is 45 days after the date of
the agency decision denying the application or limiting the terms of the new
license or a later date fixed by order of the reviewing court.
Comment
Subsection (b) was taken from
the 1961 Model State Administrative Procedure Act, section 14(b), which has
been adopted by many states. See, for example: Alabama,
Ala.Code 1975 Section 41-22-19; Tennessee, T.
C. A. Section 4-5-320; Michigan, M.C.L.A.
24.291; and Wisconsin,
W.S.A. 227.51.
SECTION 501. RIGHT TO JUDICIAL REVIEW; FINAL AGENCY ACTION
REVIEWABLE.
(a) As used in this [article], agency action is
final when it imposes an obligation, grants or denies a right, confers a
benefit,
or determines a legal relationship as a result of an administrative
process. Agency action that is a failure
to act is not judicially reviewable except that a reviewing court shall compel
agency action that is unlawfully withheld or unreasonably delayed. Final agency
action includes a final order in a contested case, and a final
rule.
(b) Except as otherwise provided in subsection (d), aA
person who
meets the other requirements of this
article otherwise qualified under this [article]
is entitled to judicial review of a final agency action. except as
provided in subsection (d).
(c) A person that may be who maybe
entitled to judicial review of a final agency action under subsection
(ba)
is entitled to judicial review of annon final agency
action that
is not final if postponement of judicial review would result in an
inadequate remedy or irreparable harm that outweighs the public benefit derived
from postponement.
(d) Final agency action
is reviewable except to the extent that
(1) a statutes [of this
state] other than this [act] preludes
judicial review; or
(2) agency action is committed to
agency discretion by law.
(e) Except when judicial review is available under
this [article] or under law other than this [act] , final
agency action is subject to judicial review in civil or criminal proceedings
for judicial enforcement
Comment
Subsection (a) of this section
provides a right of judicial review of final agency action by appropriate
parties. Under this section, the person
seeking review must meet all of the requirements of this article, which include
standing, exhaustion of remedies, and time for filing. The definition of “agency
action” is found in Section 102. This
section is similar to the judicial review provisions of Florida
(West’s F.S.A. Section 120.68), Iowa (I.C.A.
Section17A.19), Virginia (Va. Code Ann. Section 2.2-4026) and Wyoming (W.S.1977 Section 16-3-114). Agency
failure to act is not judicially reviewable unless agency action is unlawfully
withheld or unreasonably delayed. This provisions is based on the federal
A.P.A., 5 U.S.C. Section 706(1).
Subsection (a) also defines final
agency action. The definition used here
is found in state and federal cases. See
State Bd. Of Tax Comm’rs v. Ispat Inland, 784 N.E.2D 477 (Ind., 2003); District Intown Properties v.
D.C. Dept. Consumer and Regulatory Affairs, 680 A.2d 1373 (Ct. Apps. D.C.
1996); Texas Utilities Co. v. Public Citizen, Inc, 897 S.W.2d 443 (Tex. App. 1995); Bennet v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997);
Mobil Exploration and Producing Inc. v. Dept. Interior, 180 F.3d 1192, 1197 (10th
Cir. 1999).
Subsection (c) creates a limited
right to review of non-final agency action.
Subsection (d) is based on Section
701(a)(1),(2) of the federal administrative procedure act.
Subsection
(e) is based on Section 703 of the federal
administrative procedure act.
SECTION 502. RELATION
TO OTHER JUDICIAL REVIEW LAW AND RULES.
(a) Unless
otherwise provided by law other than this [act], judicial review of final
agency action may only be taken as provided by [state] [rules
of [appellate] [civil] procedure] [of this state] [rules of
civil procedure]. The court
may grant any type of legal and equitable remedies that are appropriate.
(b) Except
when judicial review is available under this [article] or under law other than
this [act], final agency action is subject to judicial review in civil or
criminal proceedings for judicial enforcement
Comment
This section places appeals from
final agency action within the existing state rules of appellate
procedure. Such action may be preferred
by some states because of constitutional provisions or because of the existence
of rules of appellate procedure that the legislature may not wish to
change. This practice was followed under
the 1961 MSAPA, and is followed in a number of states today. See e.g.: Alaska
(AS 44.62.560), California (West=s Ann.Cal.Gov.Code Section 11523), Delaware (29 Del.C.
Section 10143), Florida (West=s F.S.A. Section 120.68), Iowa (I.C.A. '
17A.20), Michigan (M.C.L.A. 24.302), Minnesota (M.S.A. '
14.63) (Appeal integrated with state appellate rules),Virginia (Va. Code Ann.
Section 2.2-4026), Wyoming
(W.S.1977 '
16-3-114).
Subsection
(b) is based on Section 703 of the federal
administrative procedure act. See also 1981 MSAPA Sections 5-201 to 5-205.
SECTION 503. TIME FOR SEEKING JUDICIAL REVIEW OF AGENCY
ACTION;,
LIMITATIONS.
(a) Judicial review of any rule on the
ground of noncompliance with the procedural requirements of this [act] must be
commenced not later than within [two]
years after from the
effective date of the rule. If otherwise available, Jjudicial
review of a rule or guidance document on other grounds may
be sought at any time.
(b) Judicial review of an order or other final
agency action other than a rule or guidance document must be commenced not later
thanwithin [30] days after the date of [mailing]
notice to the parties of the order or other agency action.
(c) A time for seeking judicial review under this
section is tolled during any time a party pursuesis pursuing
an administrative remedy before the agency which must be exhausted as a
condition of judicial review.
(d) A party may not file or petition
for judicial review while seeking reconsideration under Section 4168. During the time that a petition
for reconsideration is pending before an agency, the time for seeking judicial
review in subsection (b) is tolled.
Comment
The first sentence of subsection
(a) is based on 1961 Model State Administrative Procedure Act, section (3)(c).,
and on Section 3-113(b) of the 1981
Model State Administrative Procedures Act. The scope of challenges permitted for
noncompliance with procedural requirements under Section 314 includes all
applicable requirements of article 3 for the type of rule being
challenged.
SECTION 504. STAYS PENDING APPEAL. A petition for The initiation of
judicial review does not automatically stay an agency decision. An appellant
may petition the reviewing court for a stay upon the same basis as stays are
granted under the [state] rules of [appellate] [civil]
procedure [of this state] , and the reviewing
court may grant a stay regardless of whetherwhether or
not the appellant first sought a stay from the agency.
Comment
This provision for stay permits a
party appealing agency final action to seek a stay of the agency decision in the
court. This is similar to the 1961
MSAPA. See also 1981 MSAPA Section 5-111.
SECTION 505. STANDING.
(a) For purposes of
this section, A person is aggrieved if
the agency action has caused, or is expected to cause, injury to that person
[distinct from any injury caused to the public generally] [if the asserted
interests of the person are not inconsistent with or completely unrelated
to those the agency is required to
consider when it makes the decision].
(b) The
following persons have standing to obtain judicial review of a final agency
action:
(1) a person that has eligible for
standing under law of this state other than this [act]; and
(2) a person otherwise
aggrieved or adversely affected by the agency action.
Comment
Subsection (b)(1)1)
confers standing that arises under any other provision of law. Examples of this type of standing are
statutes that expressly confer standing in general language such as, for
example, Aany
person may commence a civil suit in his own behalf... to enjoin... an agency...
alleged to be in violation of this chapter. . . . 16 U.S.C.A. ' 1540, explained in Bennett v. Spear,
520 U.S.
154, 117 S.Ct. 1154(1997). Another
example is standing recognized in judicial decision or common law.
Subsection (b) (2) uses the
term person “aggrieved or adversely affected”. This term is based in part on
the provisions of the federal A.P.A., 5 U.S.C. Section 702. These words have
become terms of art used to describe types of injury that were not recognized
at common law. An example of a person
entitled to standing who is intended to be included under subsection (2) is a
competitor. These terms have also been used
to recognize standing based on non-economic values, such as aesthetic or
environmental injuries.
Subsection (a) uses a definition
for the term aggrieved that is taken from Section
101 of the ABA Model Statute for Local Land Use Processes, adopted by
the ABA in August, 2008.
SECTION 506. EXHAUSTION OF ADMINISTRATIVE REMEDIES.
(a) Subject to subsection (e) or a statute of this
state other than this [act] whichthat
provides that a person need not exhaust their
administrative remedies, a person may file a petition for judicial review under
this [act] only after exhausting all administrative remedies available within
the agency thewhose action of which is
being challenged and within any other agency authorized to exercise
administrative review.
(b) Filing a petition for reconsideration or a
stay of proceedings is not a prerequisite for seeking administrative or
judicial review.
(c) A petitioner for judicial review of a rule
need not have participated in the rulemaking proceeding upon which theat
rule is based.
(d) The
court may relieve a petitioner of the requirement to exhaust any or all
administrative remedies to the extent that the
administrative remedies are inadequate or would result in irreparable harm.
Comment
This section creates a default
requirement of exhaustion, which is generally followed in the states. However, the section creates several
exceptions to the default rule.
Subsection (b) requires issue exhaustion in appeals from rulemaking for
persons who did not participate in the challenged rulemaking. It excuses persons seeking judicial review of
a rule who were not parties before the agency from the exhaustion requirement;
but, if the issue that they seek to raise was not raised and considered in the
rulemaking proceeding that they challenge, then they must first petition the
agency to conduct another rulemaking to consider the issue. If the agency
refuses to do so or if the agency conducts a second rulemaking that is adverse
to the petitioner on the issue or issues raised in his petition for rulemaking,
then the petitioner may seek judicial review. Subsection (d) recognizes the
judicially created exception to the exhaustion requirement where agency relief
would be inadequate or would result in irreparable harm. In some states courts have held that
irreparable harm that is a sufficient condition to excuse exhaustion exists
only if it outweighs the public interest in exhaustion. State courts are free under this section to
engage in that weighing test.
SECTION 507. AGENCY RECORD ON JUDICIAL REVIEW; EXCEPTION. Judicial review of adjudication and
rulemaking is confined to the agency record or matters arising
from the record except insofar as the petitioner alleges procedural error
arising from matters outside the agency record or alleges matters that are not
evident from the record that involve new evidence or changed
circumstances. The record may be opened
only to avoid manifest injustice.
Comment
This section establishes a default
closed record for judicial review of adjudication and rulemaking. It is well established in most states and in
federal administrative procedure that, in case of adjudication, judicial review
is based upon that evidence which was before the agency on the record. Otherwise, the standards of judicial review
could be subverted by the introduction of additional evidence to the court that
was not before the agency. See
Western States Petroleum Ass=n
v. Superior Court, 888 P.2d 1268 (Cal.
1995). For rulemaking, the record for
judicial review is defined in Section 302 of this Act.
The section contains an exception
to the closed record on review where petitioner alleges error, such as ex parte
contacts, that does not appear in or is not evident from the record. Other examples of error that do not appear or
are not evident from the record are: improper constitution of the decision
making body, grounds for disqualification of a decision maker, or unlawful
procedure. However, the standard for
opening the record on appeal is high.
SECTION 508. SCOPE OF REVIEW.
(a) In judicial review of an agency action, the
following rules apply:
(1) Except as provided by law other than this
[act], the burden of demonstrating the invalidity of agency action is on the
party asserting invalidity.
(2) The court shall make a separate and distinct
ruling on each material issue on which the court’s decision is based.
(3) The
court may grant relief only if it determines that a person seeking judicial
review has been prejudiced by one or more of the following:
(A) the agency erroneously interpreted the law, or
acted
in excess of its authority under the law;
(B) the agency committed an error of procedure;
(C) the agency action is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law;
(D) an agency determination of fact is not
supported by substantial evidence in the record as a whole; or
(E) to the extent that the facts are subject to
trial de novo by the reviewing court, the action was unwarranted by the facts.
(b) In making the
determinations under this section, the court shall review the whole agency
record, or theose parts
designated by the parties, and shall take due account of the
rule of harmless error.
Comment
One view is that scope of review is
notoriously difficult to capture in verbal formulas, and its application varies
depending on context. For that reason,
some members urge return to shorter, skeletal formulations of the scope of
review, similar to the 1961 MSAPA. See
Ronald M. Levin, Scope of Review Legislation, 31 Wake Forest
L. Rev. 647 (1996) at 664-66. William D.
Araiza, In Praise of a Skeletal APA, 56 Admin. L. Rev. 979 (2004). (Judiciary,
not legislature, appropriate body to evolve specific standards for review,
because of great variety of agency action and contexts, and inability to
describe how general standards of review should apply to many of them). Alternative 1 reflects this view.
The other view is that judicial
review is sometimes almost perfunctory, and more detailed standards will result
in closer judicial scrutiny. A related
view strongly argued in drafting committee meetings was that scope of review is
a device by which the judiciary assists the legislature to keep the agencies
within the bounds set by the legislature, helps to assure agency action
consistent with the intent of the legislature, and protects citizens from
agency error. More detailed scope of
review provisions also make the task of the judiciary easier because they
provide clearer instructions from the legislature about how to review agency
decisions. More detailed scope of review
provisions lead to more intense judicial review, and that is an approach that
legislatures welcome for the same reason that they have embraced regulatory
review: it controls agency action.
Alternative 2, which draws heavily on the Iowa provisions on scope of review ( I.C.A.
17. A.19(10)), represents this position.
Judicial review is essential and
exists in all states. Subsections (a)
(1) & (2) describe the general burdens on the appellant and the approach
under this Act. They are substantially
similar to the general scope of review provisions of the Federal APA, 5 U.S.C.
Section 706.
Subsections (a)[(3) alternative
1](A) & (B) identify the courts’ power to decide questions of law and
procedure. Subsection (a)[(3) alternative
1](A) includes, but is not limited to, violations of constitutional or
statutory provisions and actions that are in excess of statutory authority from
Section 15(g) of the 1961 MSAPA, and includes subsections (c) (1), (2) and (4)
of the 1981 MSAPA. The section thus
includes challenges to the facial or applied constitutionality of a statute,
challenges to the jurisdiction of the agency, erroneous interpretation of the
law, and may include erroneous application of the law. This section is not intended to preclude
courts from according deference to agency interpretations of law, where such
deference is appropriate.
SECTION 601. CREATION
OF OFFICE OF ADMINISTRATIVE HEARINGS.
(a) As used
Iin
this [article], office means the [Office of Administrative Hearings].
(b) The [Office of Administrative Hearings] is
created in the executive branch of state government [within the [ ] agency] for the purpose of separating
the adjudication function from the investigative, prosecutorial, or
policy-making function of agencies in the executive branch of state government.
Comment
Section 601 is based upon Section 1-2(a) of the Model Act
Creating a State Central Hearing Agency
(Office of Administrative Hearings) adopted by the house of delegates of the
American Bar Association (February 2, 1997). Thirty states (including the
District of Columbia) have established central panel agencies. Representative
state statutes creating a central panel include Alaska statutes, section
44.64.010, California Government Code Section 11370.2, Louisiana: statutes,
Section 49.991, and Washington Administrative Procedure Act, Section 34.12.010.
(a)
The office is headed by a chief administrative law judge appointed by
[the Governor] [with the advice and consent of the Senate].
(b) A chief administrative law
judge shall
serves
a term of [five5] years,, and until a successor is appointed
and qualifies for office, in entitled toshall receive the
salary provided by law, and may be reappointed.
(c)
At the time of appointment, the chief administrative law judge must have
been admitted to the practice of law in this state for at leasta minimum of
five years and have substantial experience in administrative law.
(d)
A chief administrative law judge:
(1) must take the oath of office required by law before
beginning prior to the commencement of the
duties of the office;
(2) shall devote full time to the duties of the
office and may not engage in the
private practice of law; and
(3) is subject to the code of conduct for
administrative law judges adopted
pursuant to Section 604(7).
(e)
A chief administrative law judge may be removed from office prior to the
end of a term only for cause and only after notice and an
opportunity for a contested case hearing.
Comment
Section 602 is based upon Section
1-4 of the Model Act Creating a State
Central Hearing Agency (Office of
Administrative Hearings) adopted by the house of delegates of the American Bar
Association (February 2, 1997).
(a)
The chief administrative law judge, pursuant to
the [state merit system], shall appoint administrative law judges pursuant to
the [state merit system],.
(b)
In addition to meeting any other requirements of the [state
merit system], to be eligible for appointment as an administrative law judge,
an individual must have been admitted to the practice of law in this state for at leasta minimum of
[three] years.
(c) On the effective date of this [act],
administrative law judges employed by agencies to which this [article] applies
are transferred to the office and, regardless of the minimum qualifications
imposed by this [article], are administrative law judges in the office.
(cd) An administrative law judge:
(1)
shallmust
take the oath of office required by law before beginning prior to
commencement
of duties as an administrative law judge;
as an administrative law
judge;
(2) is subject to the code of conduct for
administrative law judges adopted
pursuant to Section 604(7);
(3)
is entitled toshall
receive the compensation provided by law; and
(4)
may not perform any act inconsistent
with the duties and responsibilities of an
administrative law judge.
(de) An administrative law judge:
(1)
is subject to the supervision of the
chief administrative law judge;
(2)
may be disciplined pursuant to the
[state merit system law];
(3) Except as
otherwise provided in paragraph (4), may be removed from office
only for cause and only after notice and an opportunity for a contested case
hearing ; and
(43)
is subject to a reduction in force on
in accordance with the [state merit system law].
law]; and
(4) may be
removed from office only for cause and only after notice and an
opportunity
for a contested case hearing [may be removed pursuant to the [state merit
system law].
(e) On the [effective
date of this [act]], administrative law judges
employed by agencies to which this [article] applies are transferred to the
office and, regardless of the minimum qualifications imposed by this [article],
are administrative law judges in the office.
Comment
Section 603 is based upon Sections
1-2(b), and 1-6 of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings)
adopted by the house of delegates of the American Bar Association (February 2,
1997).
SECTION 604. CHIEF ADMINISTRATIVE LAW JUDGE; POWERS; DUTIES. The chief administrative law judge has the
powers and duties specified in this section. The chief administrative law judge:
(1) shall supervise and manage the
office;
(2) shall assign randomly
administrative law judges in any case referred to the office, taking into
account administrative law judge expertise;
(3)
shall assure the decisional independence of each administrative law
judge;
(4)
shall establish and implement standards for equipment, supplies, and
technology for administrative law judges;
(5)
shall provide and coordinate continuing education programs and services
for administrative law judges and advise them of changes in the law concerningrelative to
their duties;
(6)
shall adopt rules pursuant to this [act] to implement this [article];
(7)
shall
adopt a code of conduct for administrative law judges;
(8)
shall monitor the quality of adjudications conducted by administrative
law judges;
(9)
when
necessary, shall discipline administrative law judges who do not
meet appropriate standards of conduct and competence;
(10)
may accept grants and gifts for the benefit of the office; and
(11) may contract with other public agencies for
the services of the office.
Comment
Section 604 is based upon Section
1-5 of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings)
adopted by the house of delegates of the American Bar Association (February 2,
1997).
SECTION 605.
COOPERATION OF AGENCIES.
(a)
All agencies shall cooperate with the chief administrative law judge in
the discharge of the duties of the office.,
including
providing information and coordinating schedules for contested case hearings.
(b)
Subject to Section 402(g), an agency may not reject a particular
administrative law judge for a particular hearing.
Comment
Section 605 is based upon Section 1-7(a) of the Model Act
Creating a State Central Hearing Agency
(Office of Administrative Hearings) adopted by the house of delegates of the
American Bar Association (February 2, 1997). There are similar provisions in
Alaska statutes, section 44.64.080. Agencies should cooperate with the office of
administrative hearings by providing information and
coordinating schedules for contested case hearings.
SECTION 606. ADMINISTRATIVE LAW JUDGES; POWERS; DUTIES;
DECISION MAKING AUTHORITY.
(a)
[Except as otherwise provided in subsection (dc),
unless]
[Unless] [U]nless the agency head elects to
conduct the hearing, in which case the agency head shall render a final order
under Section 413(a)415,
in a contested case, an administrative law judge shall be assigned to be the
presiding officer. The administrative law judge shall issue a recommended or initialterim
order to the agency head in the contested case pursuant to Section 413415.
(b)
Except as provided by law other than this [act], if a matter is referred
to the office by an agency, the agency may not take no
further action with respect to the proceeding, except as a party, until a
recommended or initialinterim order is
issued. [This subsection does not prevent an appropriate interlocutory review
by the agency or an appropriate termination or modification of the proceeding
by the agency when authorized by law other than this [act].]
(c) Unless the agency head elects to conduct the
hearing, an administrative law judge shall be
the presiding officer and shall issue a recommended or interim order in
any adjudication involving any agency except the following agencies: (1)[list
agencies to be exempted from central panel requirements].
(cd) In addition to acting as the presiding
officer in contested cases under this [act], subject to the direction of the
chief administrative law judge, an administrative law judge may perform such
other duties as are authorized by law other than this [act].
[(d) This section does not
apply to the following agencies: [list
agencies exempted]] .
Comment
Section 606 is based upon Section 1-10 of the Model
Act Creating a State Central Hearing
Agency (Office of Administrative Hearings) adopted by the house of
delegates of the American Bar Association (February 2, 1997).
[NOTE:
A state may choose the legislative rule review
process stated in this article.]
SECTION 701. [LEGISLATIVE RULES REVIEW COMMITTEE]. There is created a joint standing [rules review
committee] of the legislature designated the [rules
review committee].
Legislative Note: States
that have existing rules review committees can incorporate the provisions of
Sections 701, and 702, using the existing number of members of their current
rules review committee. Because state practice varies as to how these
committees are structured, and how many members of the legislative body serve
on this committee, as well as how they are selected, the act does not specify the
details of the legislative review committee selection process. Details of the
committee staff and adoption of rules to govern the rules review committee
staff and organization are governed by law other than this act including the
existing law in each state.
SECTION 702. REVIEW
BY [RULES REVIEW COMMITTEE].
(a) An agency
shall file a copy of an adopted, amended, or repealed rule with the [rules
review committee] at the same time it is filed with [the [publisher]]. An
agency is not required to file an emergency rule adopted under Section 309(a)
with the [rules review committee].
(b) The [rules review committee] may examine currently
effective rules in effect and newly adopted, amended, or repealed rules to determine whether the:
(1) rule is a valid exercise of delegated
legislative authority;
(2) statutory authority for the rule has expired
or is been
repealed;
(3) rule is necessary to accomplish the apparent
or expressed intent of the specific statute that the rule implements;
(4) rule is a reasonable implementation of the
law as it applies to any affected class of
persons affects
persons particularly affected by the rule; and
(5) agency rule complieds
with the regulatory analysis requirements of Section 305 and the analysis
properly reflects the effect of the rule.properly determines the
factors under Section 305(c).
(c) The [rules review committee] may request from
an agency such information as is necessary
to exercise
its powerscarry out its duties under subsection
(b). The [rules review committee] shall
consult with standing committees of the Llegislature
with subject matter jurisdiction over the subjects of the rule under
examination.
(d) The [rules review committee]:
(1) shall maintain oversight over agency
rulemaking; and
(2) shall exercise other duties assigned to it
under this [article].
Comment
This section adopts a rules review
committee process that is widely followed in state administrative law as a
method for legislative review of agency rules. Subsection (b) allows the
legislative rules review committee to review currently effective rules and newly
adopted rules. The rules review committee may establish priorities for rules
review including review of newly adopted or amended rules, and may manage the
rules review process consistent with committee staff and budgetary resources.
If the content of the rule changes because of legislative amendments, the
agency will be required to file the amended rule with the publisher, and the
amended rule will replace the original rule that was filed with the publisher. The
rules review process applies to rules adopted following the requirements of
Sections 304 to 308. This process does not apply to emergency rules adopted
under Section 309(a).
SECTION 703. [RULES REVIEW COMMITTEE] PROCEDURE AND POWERS.
Legislative
Note: the 30 day
time period in subsection (a) is the same as the 30 day time period in section
316(a).
(a) Not later than [30] days after receiving a copy of the notice
of an adopted, amended, or repealed rule from an agency under Section 702307,
the [rules review committee] may:
(1)
approve the adopted, amended, or repealed rule;
(2)
disapprove the rule and propose an amendment to the adopted, amended, or repealed rule; or
(3)
disapprove the adopted, amended, or repealed rule.
(b) If the [rules review committee] approves anthe
adopted, amended, or repealed rule or does not disapprove and propose ana
amendment under subsection (a)(2) or disapprove under subsection (a)(3), the
adopted, amended, or repealed rule becomes effective on the date specified for
the original
rule inunder
Section 316.
(c) If the [rules
review committee] proposes an amendment to the adopted or amended rule under
subsection (a)(2), the agency may make
the amendment and resubmit the rule, as amended, to the [rules review
committee]. The amended rule must be one that the agency could have adopted on
the basis of the record in the rulemaking proceeding and the legal authority
granted to the agency. The agency shallmust provide an
explanation for the amended rule as provided in Section 312. An agency is not
required to hold a hearing on an amendment made under this subsection. If the
agency makes the amendment, it shall also give notice to the [publisher] for
publication of the rule, as amended, in the [administrative bulletin]. The
notice must include the text of the rule as amended. If the [rules review
committee] does not disapprove the rule, as amended, or propose a further
amendment, the rule becomes effective on the date specified for the original
rule under Section 316.
Legislative
Note; state
constitutions vary as to whether or not a joint resolution is a valid way of disapproving an agency rule.
In some states, the legislature must use the bill process with approval by the
governor. In other states the joint resolution process is proper. States should
use the alternative that complies with their state constitution.
(d) If the [rules review committee] disapproves
the adoption, amendment, or repeal of a
rule under subsection (a)(3), the adopted, amended, or repealed rule becomes
effective upon adjournment of the next regular session of the legislature unless before the adjournment the
legislature [adopts a [joint] [ concurrent]
resolution] [enacts a bill] sustaining the action
of the committee.
(e) An agency may withdraw the adoption,
amendment, or repeal of a rule by giving notice of the withdrawal to the [rules
review committee] and to the [publisher] for publication in the [administrative
bulletin]. A withdrawal under this
subsection terminates the rulemaking proceeding with respect to the adoption,
amendment, or repeal, but does not prevent the agency from initiating a new
rulemaking proceeding for the same or substantially similar adoption,
amendment, or repeal.
Legislative
Note: the 30 day
time period in subsection (a) is the same as the 30 day time period in section
316(a).
Legislative
Note; state
constitutions vary as to whether or not a joint resolution is a valid way of disapproving an agency
rule. In some states, the legislature must use the bill process with approval
by the governor. In other states the joint resolution process is proper. States
should use the alternative that complies with their state constitutionLegislative Note. State constitutions vary on the federal
constitutional issue decided by the U.S. Supreme Court in I.N.S.
v. Chadha (1983) 462 U.S. 919, 103 S.Ct. 2764. The U.S. Supreme
Court held that the one house legislative veto provided for in section
244(c)(2) violated the Article I requirement
that legislative action requires passage of a law by both houses of
congress (bicameralism) and presentation to the president for signing or veto
(presentation requirement). Those state constitutions that require presentation
to the governor need an additional step, presentation of the joint resolution
to the governor for approval or disapproval. With state constitutions that do
not require presentation to the governor the rules review process can be
completed with legislative adoption of a joint resolution.
Comment
This is a type of veto that
provides for cooperation between the Legislature and the Governor, and attempts
to avoid the I.N.S. v. Chadha (1983) 462 U.S. 919, 103 S.Ct. 2764. problem
of unconstitutionality by delaying the effective date of the rule until the legislature
has the opportunity to enact legislation to annul or modify it. The governor may veto the act by which the
legislature seeks to annul or modify the rule.
This type of veto provision is widely used in the states. For
disapproval of a rule to be effective, the legislature as a whole must adopt a
joint resolution, and in many states the governor must by presented with the
joint resolution for approval or disapproval. While the rules review committee
can recommend disapproval, the committee recommendation must be approved by the
legislature by joint resolution. In some states, the legislature must comply
with the legislative process for enacting a bill including presentation to the
governor to exercise the power of legislative veto over an agency regulation. In
at least one state use of a joint resolution without the governor’s
participation violates the state constitution. State v. A.L.I.V.E. Voluntary (Alaska, 1980) 606 P.2d
769. The rules review committee has the power to temporarily suspend an agency
rule pending enactment of a permanent suspension by action of both houses of
the state legislature, and presentation to the governor. Martinez
v. Department of Industry, Labor, & Human Relations (Wisconsin, 1992) 165 W.2d 687, 478 N.W.2d
582 (temporary suspension statute held not to violate state constitution
separation of powers doctrine).
APPLICABILITY; EFFECTIVE DATE
SECTION 801. APPLICABILITYEFFECTIVE DATE. This [act] takes effect on [date] and
governs all agency proceedings, and all proceedings for judicial review or
civil enforcement of agency action, commenced after [the
effective date of this [act]that date. ThisThe [act] does
not govern an adjudications for which
notice was given beforeprior to that
date under Section 403 and all rulemaking proceedings for which
notice was given or a petition filed before that
date.
Comment
Section 801 is based on Section
1-108 of the 1981 MSAPA. See Also California Government Code Sections 11400.10,
and 11400.20 (operative date of California APA revisions). Agency proceedings on remand following
judicial review after the act takes effect are governed by the prior law.
SECTION
802. RELATION TO ELECTRONIC
SIGNATURES IN GLOBAL AND NATIONAL
COMMERCE ACT.
This [act] modifies, limits, and
supersedes the federal Electronic Signatures in Global and National Commerce
Act, 15 U.S.C. Section 7001 et. seq., but does not modify, limit, or supersede
Section 101 (c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic
delivery of any of the notices described in Section 103(b) of that act, 15
U.S.C. Section 7003(b).
SECTION
803. REPEALS The following acts and parts of acts are repealed
(a) [the 1961 Model State Administrative Procedure Act]
(b) [the 1981 Model State
Administrative Procedure Act]
(c)
SECTION 804. EFFECTIVE DATE This [act] takes effect on
[date]
