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 for determining
facts or applying law pursuant to which an agency formulates and issues an
order.
(2)
“Adoption of a rule” means not only the adoption of a rule but also
the amendment of a rule or the repeal of a rule unless the text of
a section otherwise specifies.
(32) “Agency” means a state board, authority,
commission, institution, department, division, office, officer, or other state
entity that is authorized or required by law of this state to
make rules or to adjudicate. The term does not include the Governor, the Legislature,
or the Judiciary.
(43) “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 performing or failing to perform,
any duty, function, or activity or to make any determination required by law.
(54) “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.
(65)
“Agency record” means the agency
rulemaking record required by Section 302, the emergency rulemaking record in
rulemaking conducted under governed by
Section 309(a), the direct final rulemaking record in rulemaking conducted
under governed by Section 309(b), the hearing
record in adjudication required by Section 406, and the hearing
record in an emergency adjudication record under Section 407,
and
the hearing record in an informal adjudication record under Section 401A.
(76) “Contested case” means an adjudication in
which an opportunity for an evidentiary hearing is required by the federal constitution
or a federal statute or the constitution or a statute of this state.
(87) “Electronic” means relating to technology
having electrical, digital, magnetic, wireless, optical, electromagnetic, or
similar capabilities.
(98) “Electronic record” means a record created,
generated, sent, communicated, received, or stored by electronic means.
(109) “Emergency adjudication” means an
adjudication in a contested case when the public health, safety, or welfare
requires immediate action.
(110) “Evidentiary hearing” means a hearing for the
receipt of evidence on issues on which a decision of the presiding officer may
be made in a contested case.
(121)
“Final order” means the order issued by
the agency head sitting as the presiding officer in a contested case.
(132)
“Guidance document” means a record of
general applicability developed by an agency that lacks the force of law but states
the agency’s current approach to, or interpretation of, law, or general
statements of policy that describes how and when the
agency will exercise discretionary functions. The term does not include records
described in subsections (27) (A), (B), (C), and (D).
(143) “Index” means a searchable list of subjects and titles in a record with
page numbers, hyperlinks, or other connectors that link the index entries with the
text to which they refer 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.
(15) “Informal
adjudication” means an adjudication
that is not a contested case.
(164)
“Initial order” means an order that is issued by a
presiding officer with final decisional authority if the order is subject to
discretionary review by the
agency subject to further agency
review and is issued by a presiding officer with final decisional authority.
(175)
“Internet website” means a website on
the Internet that permits the public to search a database that archives
materials required to be published by with
the [publisher] under this [act].
(186)
“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.
(197) “License” means a permit, certificate,
approval, registration, charter, or similar form of permission required by law and
issued by an agency.
(2018)
“Licensing” means the grant, denial,
renewal, revocation, suspension, annulment, withdrawal, or amendment of a
license.
(2119) “Notify” means to take steps reasonably
required to inform a person, whether or not that
person actually comes to know of the information it.
(2220) “Order” means an agency decision that
determines or declares the rights, duties, privileges, immunities, or other
interests of a specific person.
(231) “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.
(242) “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.
(253) “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)
“Proposed rule” means a rule proposed to be adopted, amended or repealed by an
agency.
(265)
“Recommended order” means an 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.
(276) “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.
(287) “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 and has the force of law. The term does not include:
(A) a statements that
concerns concerning only
the internal management of an agency and that does
not affect 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 Attorney General;
(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 persons violating the
law 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) a forms developed by an
agency to implement or interpret agency law or policy; or
(F)
a guidance
documents.
(298)
“Rulemaking” means the process for adoption
of a new rule or the amendment or repeal of an existing rule..
(3029)
“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.
(310) “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 courts in that state. 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).
Evidentiary Hearing. This
definition describes the process for an evidentiary hearing. The opportunity for an evidentiary hearing is defined by the
definition of a contested case, Section 102(6), and by Section 401. See also Section
403(k) decision in contested case.
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. States can satisfy the requirement of an
index by providing a record that is searchable by Word on the Internet, unless
a hard copy index is required.
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. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172,
188-89 (1999) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585
(1952) . See also 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). For example, a Governor’s
declaration of a state of emergency would fall within the category
of an executive order with statutory or
constitutional authorization. See, e.g., New Mexico Executive Order
2005-040 (2005).
License. The definition of license is based upon
1981 MSAPA Section 102(4).
Licensing. The definition of
licensing is based on 1961 MSAPA section 14(a).drawn
largely from the 1961 MSAPA.
Notify. The definition of notify is based on
due process of law requirements for methods
of notifying persons. Mullane v. Central Hanover Bank & Trust
Co. 339 U.S. 306, 314-316 (1950); Goldberg
v. Kelley, 397 U.S. 254, 267-268 (1970); Dusenberry
v. United States, 534 U.S. 161, 168-170 (2002); See Ho v.
Donovan 569 F.3d 677, 680-681 (7th.
Cir.,2009). This
definition is similar to the definition of notice in Section
2(a) of the Uniform Arbitration Act, and in Section 1-202(d) of
the Uniform Commercial Code.
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 276(A) is drawn from
1981 Model State APA § 3-116(1). Subsection 26(CE)
is drawn from 1981 Model State APA § 3-116(9). Subsection 26(DF)
is drawn from 1981 Model State APA § 3-116(2). Subsection 26(EH)
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 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. States vary
widely as to what state agencies are subject to the APA, and what agencies are
exempt from the APA. The issue of what agencies are exempt from the APA
will be decided by each state using its own
legislative process. Some states list the
agencies or agency proceedings that are exempt from the requirements of the APA.
See Washington, West’s RCWA 34.05.30.This section
provides a way to resolve those issues.
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.
(b) The [publisher] shall publish all rulemaking-related
documents listed in this subsection (n) (1), (2), (3), and (4) in
[electronic and written] [electronic or written] [electronic] [written] format all
rulemaking-related documents listed in subsection (n) (1), (2), (3), and (4).
The [publisher] shall prescribe a uniform numbering system, form, and style for
all proposed, adopted, and amended rules.
(c) The [publisher] shall maintain the official
record of the adoption, amendment, and repeal of rules, including
the text of the rule and any supporting documents, filed with the [publisher] by
an agency. An agency adopting, amending, or repealing a rule shall
maintain the rulemaking record required 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].
(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 the proposed adoption, amendment,
or repeal of a 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 a newly filed amended rule shows the text of the existing rule and the
change that is made;
(3) any other notice and material required to be
published in the [administrative bulletin]; and
(4) an index of the contents.
(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 the [administrative bulletin]
and the [administrative code].available for public inspection and,
and at a reasonable charge, copying the [administrative bulletin] and the
[administrative code].
(j) The [publisher], after notification to the
agency, 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, at no charge, all of the documents provided by
each agency under subsection (n).
(l) Unless a particular record is exempt from
disclosure under law other than this [act], an agency shall publish on its
website and, upon request and, for a
reasonable charge, make available through the regular mail upon request, each
notice of proposed rulemaking under Section 304, each rule filed under Section
315, each summary of regulatory analysis required by Section 305, each declaratory
order issued under Section 203, the index of declaratory orders prepared
pursuant to Section 203(g), each guidance document issued pursuant to Section
310, the index of currently effective guidance documents prepared pursuant to
Section 310(f), each final order in a contested case issued pursuant to Section
418, and the index of final orders in contested cases prepared pursuant to Section
418(a).
(m) 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 but
must send all the information contained in the notice.
(n)
Each agency shall file with the [publisher]
in an electronic format acceptable to the [publisher]:
(1) the notice of an the
adoption,
amendment, or repeal of a rule;
(2) a summary of the regulatory analysis required
by Section 305 for each proposed rule;
(3) each adopted, amended, or repealed
rule;
(4) an index of currently effective guidance documents
under Section 310(f);
(5) any other notice or matter that an agency is
required to publish under this [act].
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. Providing a hypertext link on
an internet website will satisfy the publication requirements for agencies and
publishers.
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).
Subsection (l) requires
agencies to publish guidance documents on the
agency web site. 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 (n).
Subsections (k) and (l) are drawn
from the Washington Administrative Procedure Act. See WA
ST 34.05.260.
SECTION 202. REQUIRED AGENCY PUBLICATIONRULEMAKING AND
RECORDKEEPING. In addition
to rulemaking requirements imposed by law other than this [act], Eeach
agency shall:
(1) publish 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) publish a description of all formal and
informal procedures available, including a description of all forms and
instructions used by the agency;
(3) publish 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]; [and]
(5) maintain [custody of] the agency’s current
rulemaking docket required by Section 302(b)[; and
(6) 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, at a
reasonable cost, copying [and online on the [publisher]’s Internet website],
update the index and compilation at least [monthly], 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 publish 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, and hours of operations for agency offices. .The term
methods of operation in subsection (1) refers to information about how
the agency carrioes out tis responsibilities that would be helpful to the
public Subsection (2) is not intended
to require publication of internal procedures available to and applicable to
employees only, and that are of no real interest to the public. Subsection
(3) requires publication of a
description of application processes that are appropriate to the
agency. For social welfare agencies, the publication would
include available benefits administered by
that agency.
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). Subsection (6) requires the
publisher to maintain the official version of the index and
rules compilation. The publisher is the repository of the official
language of the rules. If questions arise about authentication of agency rules,
the publisher is the
source for the official version of the rule in question.
SECTION 203. DECLARATORY ORDER.
(a) Any interested person may petition an agency for
a declaratory order that interprets or applies the
statute administered by the agency or 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 [or at the
next regularly scheduled meeting of the agency] 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. [If the agency fails to act
within the applicable time deadline, the agency is deemed to have
declined to issue a declaratory order.]
(d) If an agency declines to issue a declaratory
order as requested under subsection (a), it shall promptly notify the petitioner
in a
record of its decision. The decision shall be in a record and shall 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 an agency is
authorized not to disclose certain information in its records in order to
protect confidentiality, the 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 each currently
effective declaratory order.
(g) An agency shall maintain an index of all of
its currently effective declaratory orders, file the index with the
[publisher] [annually], make the index readily available for public inspection,
and make available for public inspection and, at a reasonable cost, copying of 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. The term
“interested person” in Subsection (a) is broader than the term
aggrieved person for judicial review in Article 5,
and is also broader than the term person toward whom agency
action is directed in adjudication
under Article 4. The term is narrower than the term any member
of the public used in Section 303. Ripeness and standing
requirements that restrict court issued declaratory judgments do not apply to
declaratory orders issued by administrative agencies. Subsection
(a) refers to declaratory orders that interpret or apply the statue
administered by the agency. In states
that have constitutional agencies, the term statute would include the entire
body of law, including constitutional provisions, that the
agency is responsible for enforcing.
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. The term notify in subsection
(d) incorporates the definition of notify in section 102(19) (reasonable steps
to inform a person). Mailing [or
e-mailing] a copy of the notice to the petitioner at
the address last known to the
agency would satisfy the
requirement to notify the person.
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. Subsection (f) requires publication of currently
effective declaratory orders. This would include all declaratory orders issued
by the agency that are currently being
relied upon by the agencies, and this would
exclude declaratory orders that have been amended, repealed, or
replaced by later 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) 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 submitted;
(4) the time within which comments may be submitted;
(5) where comments may be inspected;
(6) requests for a public hearing;
(7) appropriate information about a public
hearing, if any, including the names of the persons making the request; and
(8) the timetable for action.
(d) Upon request, the agency shall provide, at a
reasonable cost, 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. Unless the record and materials are privileged or
exempt from disclosure under the law of this state other
than this [act], tThe 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 part of
the rulemaking record cannot practicably be displayed or is inappropriate for
public display on the Internet website, the agency shall describe the document
and shall note on the Internet website that the document is not displayed.
(b) A rulemaking record must contain:
(1) a copy of all publications in the
[administrative bulletin] relating to the rule or the proceeding upon which the
rule is based;
(2) a copy of any part of the rulemaking docket
containing entries relating to the rule or the proceeding upon which the rule
is based;
(3) a copy and an index, if prepared,or an index
of all
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 the presentations, and any
memorandum summarizing the contents of those presentations prepared by the
agency official who presided over the hearing;
(5) a copy
of all comments received by the agency in response
to the notice of proposed rulemaking;
(65) a copy of the rule and explanatory statement
filed with the [publisher]; and
(76) 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 rulemaking and may solicit comments and recommendations
from the public by publishing an advance notice of 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
appointments to the committee, the agency shall
make reasonable efforts to establish a balance in representation among members
of the public known to have an interest in the subject matter of the
rulemaking. At least annually tThe
agency shall publish in the [administrative bulletin] 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 than [30] days before the adoption, amendment,
or repeal of a rule, an agency shall file notice of the proposed rulemaking 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 ruleaction and
request a hearing;
(6) a citation to and summary of each scientific
or statistical study, report, or analysis that served as a basis for the proposed
rulemaking, together with an indication of how the full text may be obtained; and
(7) 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 the notice or send it electronically to each person that has mademakes
a timely request to the agency for a mailed or electronic copy of the notice.
An agency may charge a reasonable fee for a written mailed
copyies requested
by a person if the person makes 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.
Subsection (a)(6) 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 305. REGULATORY ANALYSIS.
(a) An agency shall prepare a regulatory analysis
for a proposed
rule proposed to be adopted, amended, or repealed 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 rule has an economic impact of
less than [$ ], the agency shall
prepare a statement of minimal estimated economic impact.
(c) A regulatory analysis must contain:
(1) an analysis of the benefits and costs of a
reasonable range of regulatory alternatives reflecting the scope of discretion
provided by the statute authorizing the rule; and
(2) a determination whether:
(A) the benefits of the rule justify
the costs of the rule; and
(B)
the rule will achieve the objectives of the authorizing statute in a
more cost effective manner, or with greater net benefits, than other regulatory
alternatives.
(d) An agency preparing a regulatory analysis
under this section shall prepare a concise summary of the analysis.
(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 invalid 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. States should set the dollar amount of
estimated economic impact for triggering the regulatory analysis requirement of
this section at a fairly high dollar amount as they deem appropriate or by
other approach make the choice to prepare regulatory analyses carefully so that
the number of regulatory analyses prepared by any agency are limited in number.
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.
SECTION 306. PUBLIC PARTICIPATION.
(a) An agency proposing the adoption, amendment,
or repeal of a rule shall specify a public comment period of at
least [30] days after publication of the notice of proposed rulemaking during
which a person may submit information and comment on the proposed rule proposed for
adoption, amendment, or repeal.
The information or comment may be submitted in an electronic or written
formatelectronically or in written form.
(b) An agency shall consider all information and
comment on a proposed rule proposed for adoption, amendment,
or repeal which 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 proposed rule
proposed
for adoption, amendment, or repeal. If an agency holds 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 must be recorded. A hearing on a proposed 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 proposed rule proposed for
adoption, amendment, or repeal may not be held earlier than [20]
days after notice of its location, date, and time is published in the
[administrative bulletin].
(e) An agency representative shall preside at a
hearing on a proposed 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.
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. In that
case, the minimum time period would be 50 days rather than 30 days.
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 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.
(b) Not later than [two years] after the notice of
proposed rulemaking, 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]. [The
agency may extend the period of time for adopting, amending or repealing
the rule for an additional period of [two years] by filing a statement of good
cause for the extension in the rulemaking record, but must provide for
additional public participation as provided in Section 306 prior to adopting, amending or
repealing the rule.]
(c) An agency shall file adopted rules adopted,
amended, or repealed with the [publisher] not later than [ ] days after the date of adoption of the
rule.
(d) A rule is void unless it is adopted, amended,
or repealed and filed within the time limits set by this section.
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 (d) provides that a rule that is not
properly adopted and filed for publication has no legal effect.
SECTION 308. VARIANCE BETWEEN PROPOSED AND FINAL ACTION. An agency may not take action on a proposed rule
proposed
to be adopted, amended, or repealed that differs from the action
proposed in the notice of proposed rulemaking on which the rule is based unless
the action is a logical outgrowth of the action 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 outgrowth 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, 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 program, 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
of an
emergency rule does not preclude the adoption or amendment of an identical
rule, or the repeal of athe rule,
under Sections 304 through 308. The
agency shall file with the [publisher] a rule adopted, amended, or repealed
under this subsection as soon as practicable given the nature of the emergency,
shall publish the rule on its website, and shall notify persons who have
requested notice of rules related to that subject matter. Nothing in this
section prohibits the adoption of a new emergency rule if at the end of the
effective period of the original emergency rule, the agency finds that the
imminent peril to the public health, safety, or welfare, including the imminent loss
of federal funding for an agency program, still exists.
(b) If an agency proposes to adopt, amend, or
repeal a rule the adoption, amendment, or repeal
of which is expected to be noncontroversial, it may use the direct final
rulemaking process authorized by this subsection and must comply with Section
304 (a)(1), (2), (3), (5), and (b); and Section
312(1).
The
rule to be adopted, amended, or repealed must be
published in the [administrative bulletin] along with a statement by the agency
that it does not expect the action to be controversial, and that the rule shall
become effective upon publication after 30 days if no objection is received. If no objection is received, the agency shall
publish the rule and the action becomes final under Section 316(e). If an
objection to the use of the direct final rulemaking process is received from
any person within [ ] days of the public notice, the rule shall not become
final. 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. When an emergency rule has the effect of repealing an existing
rule, the impact of the end of the emergency on the repealed rule, whether the
repealed rule comes back into existence, is not governed by the provisions of Section
309(a) but would be governed by law of this state other than this act, such as
the governing statute that delegates rulemaking authority to the agency that issued
the emergency rule.
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.
(b) An agency that proposes to rely on a guidance
document to the detriment of a person in any administrative proceeding must
afford the 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 an agency proposes to act in an
adjudication at variance with a position expressed in a guidance document, it
shall provide a reasonable explanation for the variance. If an affected
person in an adjudication 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 variance outweighs the affected person’s
reliance interests.
(e) An agency shall maintain an index of all of
its currently effective guidance documents, publish the index on its website,
make all guidance documents available to the public as provided in Section
201(l), and file the index with the [publisher] [annually] as required by
Section 201(n). The agency may not rely on a guidance document or cite it as
precedent against any party to a proceeding, unless the guidance document is
published on the agency website as required by Section 201(l).
(f) A guidance document may be considered by a
presiding officer or final decision maker in an agency adjudication but it does
not bind the presiding officer and the final decision maker in the exercise of
discretion.
(g) A
person may petition an agency under Section 317 to adopt a rule in place of a
guidance document.
(h) A person may petition an agency to revise or
repeal a 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).
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. Subsection (d) refers only to official acts of the
agency (compare the definition of “agency action” in Section 102(3)), not to
informal acts of agency staff, such as inspections. The latter types of conduct
are frequently not accompanied by a written statement at all, so it would be
outside the scope of requirements imposed by subsection (d) to require these
government personnel to “explain’ a departure from the position taken in a
guidance document.
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.
When an agency grants a petition to
revise or repeal a guidance document in part, and denies the petition in part,
the agency should explain the partial denial to comply with the requirements of
Section 310(i)(3).
SECTION 311. REQUIRED INFORMATION FOR RULE. A 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; and
(5) the concise explanatory statement required by
Section 312.
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, including
the agency’s reasons for not accepting substantial arguments made in testimony
and comments; and
(2) subject to Section 308, the reasons for any change
between the text of the proposed 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.
(3)
The summary of any regulatory analysis
prepared under Section 305.
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, 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 at no charge or for a
reasonable charge;
(4) the rule states where copies of the code,
standard, or rule are available for a reasonable charge from the
agency adopting the rule, whether a charge must be paid, 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 under
Section 309, 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 Section 309.
The agency shall file the rule not later
than [ ] days after adoption, amendment,
or repeal. The [publisher]
shall maintain a permanent register of all filed rules and concise explanatory
statements. The [publisher] shall affix to each adopted, amended, or repealed
rule a certification of the time and date of filing. The [publisher] shall
publish the notice of adopted, amended, or repealed rules in the
[administrative bulletin]. In filing an adopted, amended, or repealed
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,] a rule adopted, amended,
or repealed 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 action 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 agency specifies a later effective date.
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.). When an agency grants a
rulemaking petition in part, and denies the petition in part, the agency should
explain the partial denial to comply with the requirements of Section 317(1).
SECTION 401. WHEN ARTICLE APPLIES; CONTESTED CASES.
TThis
[article] applies to an adjudication made by an agency in a contested case. An agency
may conduct a proceeding in an adjudication that is not a contested case
notwithstanding this article.
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’s decision
is based on the hearing record. 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(16) requires an evidentiary hearing to resolve
particular facts or the application of law to facts. This section is subject to the exception in
Section 407 for an emergency hearing if the requirements for that exception
under this Article apply. If the requirements for an emergency adjudication
under Section 407 are met, a hearing in a contested case may be conducted
following the procedures in that section. All contested cases are also subject to
Section 402 of this article.
Hearings that are required by
procedural due process guarantees serve to protect 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 401A 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) A presiding officer must be the individual
who is the agency head, a member of a multi-member body of individuals that is
the agency head, an individual designated by the agency head, unless prohibited
by law other than this [act], or an administrative law judge assigned 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 presiding
officer or assist or advise the presiding officer in the case.
An individual or 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 the
presiding officer in the same case proceeding.
(c) Subsection (b) also governs separation of
functions as to the agency head or other person or body to which the power to
hear or decide 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 cause a
reasonable person to question provides reasonable doubt
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 ground
for disqualification. The petition must state with particularity the ground
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. The petition may be denied if the party fails to exercise due
diligence in requesting disqualification after discovering a ground 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 a record writing.
A presiding officer’s decision to deny disqualification is not 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,] 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 action, the agency
head may continue to participate notwithstanding a ground for disqualification
or exclusion.
Legislative Note: The
last alternative under subsection (a) would be applicable in states that have
adopted central panel hearing offices but would not apply to states that do not
have central panel hearing offices.
Article 6 governs central panel hearing offices under this act.
Comment
Subsection (a) governs who may be
appointed to serve as a presiding officer in a contested 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 (a) 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 (a)
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 (bc) & (d)
on separation of functions.
Subsection (b)
prohibits agency employees from serving as presiding
officers in a specific contested case if they have
served in the same case as a staff adversary or advocate, or of they
are subject to supervision by a staff advocate or adversary in the same case. These
employees are subject to the ex parte communication prohibitions contained in
section 408.
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) In a contested case, the presiding officer
shall give all parties a timely opportunity to file pleadings, motions, and objections.
The presiding officer may give all parties the opportunity to file briefs,
proposed findings of fact and conclusions of law, and recommended, interim, or
final orders. The presiding officer,
with the consent of all parties, may refer the parties in a contested case
proceeding to mediation or other dispute resolution procedure.
(d) 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.
(e) Except as otherwise provided by law other than
this [act], when compelling circumstances make the appearance
of witnesses impracticable and the credibility of testimony can otherwise be
determined, 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. The hearing may be conducted
by telephone (or other method by which the witnesses may not be seen)
only
if the parties consent [or the presiding officer find that this
method will not impair reliable determination
of the credibility of testimony]. Each
party to the proceeding must be given an opportunity to attend, hear, speak,
and be heard at the proceeding as it occurs. Nothing in this subsection prevents
an agency from providing for electronic telephone
hearings by rule.
(f) Except as otherwise provided in subsection
(g), a hearing in a contested case must be 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 to attend the hearing at the place where the
presiding officer is located or they have an opportunity to hear or see the
proceeding as it occurs, unless prohibited by law other than this act.
(g) A presiding officer may close a hearing to the
public on a ground on which this state may close a judicial
proceeding to the public or pursuant to a statute other
than this [act].
(h) Unless prohibited by law other than this
[act], a party, at the party’s expense, may be represented by a lawyer.
(i) 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.
(hj)
A presiding officer must ensure that
a hearing record is createdrecord 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.
(ik) The decision in a contested case must be prepared
electronically or, upon request, in writingwritten, based on
the hearing record, and include a statement of the factual and legal bases of
the decision. Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit
statement of the underlying facts supporting the findings .
(jl) 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.
(k) Unless
precluded by law, an agency may make an informal
disposition of any contested case by stipulation, agreed settlement, consent
order, or default.
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, or agency procedural rules adopted by the agency.
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 (eg) hearings in
contested cases can be conducted using the telephone, television, video
conferences, or other electronic means. Subsection (eg)
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). Telephone
hearings are widely used in high volume short hearing dockets such as
unemployment compensation hearings.
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 (il)
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.
Subsection (k) is based
on Section 9(d) of the 1961 MSAPA.
Section 910
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, when the agency initiates
a
contested case the adjudicative proceeding, the
agency has the burden of proof. When a party other than the agency initiates a contested
case the adjudicative proceeding, that
party 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 [including
hearsay 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.
Alternative A
(3) 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
(3) 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 excerpts or copies if the original is not readily
available or excerpts or by incorporation by
reference. Upon request, parties shall be
given an opportunity to compare
the copy with the original.
(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 scientific,
technical or other 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 becomes
finalis 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
Under subsection (2) 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. The term
statutory in subsection (2) evidence rules that are
codified by statute in states with an evidence code (See California Evidence
code). Under subsection (3), 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
(5) is based on
Section 10(1),(2) of the 1961 MSAPA, and Section 4-212(d),(e), of the 1981
MSAPA.
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.
SECTION 405. NOTICE IN CONTESTED CASE.
(a) Except as otherwise provided for in an
emergency adjudication under Section 408, an agency shall give notice as
provided in this section.
(b) In an contested
case action
initiated by a person other than an 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 has the right to be represented
by a lawyer as provided in Section 403(h).
(c) In an contested
case action
initiated by the agency, the agency must give an initial notice to the party against
which the action is brought. The notice
shall include:
(1) notification that an action that may result
in an order has been commenced against the party;
(2) a short and plain statement of the matters
asserted, including the issues involved;
(3) a statement of the legal authority under
which the hearing is held citing the statutes and any rules involved;
(4) the official file or other reference number
and the name of the proceeding;
(5) the name, official title, mailing address,
[e-mail address,] [facsimile number,] and telephone number
of the presiding officer and 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 representative;
(6) a statement that a party that 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 hearing or a prehearing conference is
scheduled, the agency shall give parties notice that contains the information required
by subsection (c) at least 14 days before the hearing or prehearing conference.
(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 406. HEARING RECORD IN CONTESTED CASE.
(a) An agency shall maintain thea
hearing record created by the presiding officer under Section 403(h) in
each contested case.
(b) The hearing record must contain:
(1)
a recording of the proceeding;
(2) notices of all proceedings;
(3) any pre-hearing order;
(4) any motions, pleadings, briefs, petitions,
requests, and intermediate rulings;
(5) evidence admitted, received, or considered;
(6) a statement of matters officially noticed;
(7) proffers of proof and objections and rulings
thereon;
(8) proposed findings, requested orders, and
exceptions;
(9) any transcript of all or part of the hearing;
(10) any recommended decision, final order, or order on reconsideration; and
(11) matters placed on the record after an ex
parte communication under Section 408(e).
(c) The hearing record constitutes the exclusive
basis for agency action in a contested case.
Comment
The recording of an agency hearing can
be made by certified shorthand reporter, video or audio recording, or other
electronic means. Judicial review under Section 507 is limited to matters in
the agency hearing record.
SECTION 407. EMERGENCY ADJUDICATION PROCEDURE.
(a) Unless prohibited by law other than this
[act], an agency may conduct an emergency adjudication in a contested case under
this section.
(b) An agency may take action and issue an order
under this section only to deal with an imminent peril to the public health,
safety, or welfare.
(c) Before issuing an order under this section, an
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) An 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 the agency head or the designee of the agency head.
(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 the procedure
under Section 403 to determine the issues underlying the temporary order.
(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 408. EX PARTE COMMUNICATIONS.
(a) For
purposes of this section, “final decision maker” means the agency head or another
person or body to which the power to decide the proceeding is delegated.
(b) Except as otherwise provided in subsections (c),
and
(d),
and (e), 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 concerning a pending contested
case other
than uncontested procedural issues wwithout
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.
(c) A
presiding officer or final decision maker may communicate about a pending contested
case with any person if the communication is required
for the disposition of ex parte matters authorized by statute
or concerns an uncontested procedural issue.
(dc)
A presiding officer and the final
decision maker may communicate about a pending contested case with an
individual authorized by law to provide legal advice to the presiding officer or
to the final decision maker and may communicate on ministerial matters with an
individual 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 contested case proceeding,
and if the communication individual does
not furnish,
augment, diminish, or modify the evidence in the record.
(ed)
An employee or representative
of an agency may communicate with the An agency
head who is the presiding officer or final decision maker in a pending contested
case may
communicate about that case with an employee or
representative of the agency if:
(1) the employee or representative:
(A) has not served as an investigator, prosecutor,
or advocate at any stage of the contested case, and has not communicated with
any such person about the case; and
(B) has not otherwise had a communication with any
person made or received communications about
the case that the agency head is prohibited from making or
receivingother than a communication a presiding officer or
decision maker is permitted to make or receive under subsection
(c) or (d) or a communication of the type permitted by
paragraph (2) ; and
(2) the communication does not furnish, augment,
diminish, or modify the evidence in the agency hearing record and is:
(A) an explanation of the technical or scientific
basis of, or technical or scientific terms in, the evidence in the agency
hearing record;
(B) an explanation of the precedent, policies, or
procedures of the agency; or
(C) any other communication that does not address
the quality or sufficiency of, or the weight that should be given to, evidence
in the agency hearing record or the credibility of witnesses.
(fe)
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, 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 that 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 communicated.
(gf) If a communication prohibited by this section
is made, the presiding officer or the final decision maker 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 or the final decision maker may permit
additional testimony in response to the prohibited communication.
(hg) If a presiding officer is a member of a multi-member
body of individuals that is the agency head, the presiding officer may
communicate with the other members of the multi member body when
sitting as the presiding officer and final decision maker.
Otherwise, while a proceeding is pending, there may be no communication, direct
or indirect, regarding 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 the proceeding is delegated.
(ih)
If 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 Section 402 (d) and (e), the parts
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.
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.
Under subsection (h) when the
presiding officer is a member of a
multimember body of individuals that is the agency head, the members
may communicate with each other for the purpose of deciding the contested case
before that body.
SECTION
409. INTERVENTION.
(a) A presiding officer shall grant a timely petition
for intervention in a contested case if:
(1) the petitioner has a statutory right under law
other than this act to initiate or to intervene in the proceeding in which
intervention is sought; or
(2) the petitioner has an interest that 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 if the petitioner has a permissive statutory right under law
other than this act to intervene or if the petitioner’s claim or defense is
based on the same transaction or occurrence as the contested case.
(c) A 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 or by action of the presiding officer, the presiding officer may hold a
hearing on the intervention petition.
(f) A presiding officer shall promptly give notice
of an order granting, denying, or revoking intervention to the petitioner for
intervention and to all parties. The notice must be given at a reasonable time
to allow parties to reasonably prepare for the hearing on the merits.
Comment
Section 4098
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)). Under subsection (a) a petition for intervention
must be timely. Under ordinary circumstances a timely petition would be filed
far enough in advance
of the contested case hearing so that the intervenor would
be able to prepare for that hearing, and the existing parties would have time
to respond to the intervenor’s oetition.
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 410. SUBPOENAS.
(a) Upon a request in a record by a party in a
contested case, the presiding officer or any other officer to whom the power is
delegated pursuant to statute 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 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 411. DISCOVERY.
(a) In this section, “statement” includes a record
of a person’s written statement signed by a person and a record that summarizes
an oral statement made by a person.
(bb)
Except in an emergency hearing under
Section 408, a party, upon written notice to another party at least [ ] days before an evidentiary hearing, and a
showing of need unless otherwise provided by agency rule may:
(1) obtain the names and addresses of witnesses the
disclosing party will present at the hearing to the extent known to the other
party; and
(2) inspect and copy any of the following
material in the possession, custody, or control of the other party:
(A) statements of parties and witnesses then
proposed to be called;
(B) all records, including reports of mental,
physical, and blood examinations, and other evidence the party proposes to
offer;
(C) investigative reports made by or on behalf of
the agency or other party pertaining to the subject matter of the adjudication;
(D) statements of expert witnesses 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 proceeding 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 hearing.
(ec) 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
privilege, attorney work product, and [executive] [deliberative process]
privilege, and material the disclosure of which would result in annoyance,
embarrassment, oppression, or undue burden or expense to any person or party.
(fd)
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.
(ge)
Upon petition and for good cause shown,
the presiding officer may issue an order authorizing discovery by other methods
provided by law other than this [act].
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. Discovery as provided
for in Section 411 is not appropriate for all agency administrative
hearings. In high volume, short duration hearings such as
unemployment compensation hearings, no discovery is provided except for
exchange of documents or witness lists. Under
subsection (b), agencies have the option of adopting rules governing the
applicability of the discovery provisions of
section 411 to their agency hearings.
SECTION 412. DEFAULT.
(a) Unless otherwise provided by law other than
this [act], if a party without good cause fails to attend or participate in a
prehearing conference or hearing in a contested case, the presiding officer may
issue a default order. If a default
order is issued, the presiding officer 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 defaulting party’s admissions or other evidence that
may be used without notice to the defaulting party. If the burden of proof is
on the defaulting party to establish that the party is entitled to the agency
action sought, the presiding officer may issue a recommended, initial, or final
order without taking evidence.
(b) Not later than [ ] days after the date of
notifying a party subject to a default order that a
recommended, initial, or final order has been rendered is rendered
against that a
party subject
to a default order, that party may petition the presiding officer
to vacate the recommended, initial, or final order. If 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 413. ORDERS: FINAL, 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], if the presiding officer is not the agency head and has not
been delegated final decisional authority, the presiding officer shall render a
recommended order. If the presiding officer is not the agency head and has been
delegated final decisional authority, the presiding officer shall render an
initial order that becomes a final order [30] days after issuance, unless
reviewed by the agency head on its own motion or on petition of a party.
(c) A recommended, initial, or final order must
be served in a record upon each party and the agency head within 90 days after
the hearing ends, the record closes, or 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. At the discretion of the presiding officer under
Section 403(c), aA
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 order, without further notice,
may become a final order.
(e) Findings of fact must be based exclusively on
the evidence in the hearing record in thee contested
case and on matters officially noticed.
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 fact 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.
(f) An order is issued under this sSection
when it is signed by the agency head, presiding officer, or an individual
authorized by law other than this [act] to sign the order.
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 414. AGENCY REVIEW OF INITIAL ORDER.
(a) An agency head may review an initial order on
its own motion.
(b) A party may petition an agency head to review
an initial order. Upon petition by a party, the agency head may review an initial
order, except as otherwise provided by law other than this [act].
(c) A petition for review of an initial order
must be filed with the agency head, or with any person designated for this
purpose by agency rule not later than [150]
days after the initial order is issued, or from the date
that the parties are notified of the order, whichever is later. If the agency head decides to review an
initial order on its own motion, the agency head shall give notice in a record of
its intention to review the order within [150]
days after it is issued, or the parties are notified of the order, whichever is
later.
(d) The [150]-day
period in subsection (c) for a party to file a petition or for the agency head
to notify the parties of its intention to review an initial order, is tolled by
the submission of a timely petition under Section 416 for reconsideration of
the order. A new [150]-day period begins
upon disposition of the petition for reconsideration. If an order is subject both to a timely
petition for reconsideration and to a petition for review by the agency head,
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.
(e) When reviewing an initial
order, the agency head 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 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 an initial order by the
presiding officer, the agency head shall consider the presiding officer’s
opportunity to observe the witnesses and to determine the credibility of
witnesses. The agency head shall
consider the hearing record or parts that are designated by the parties.
(f) 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 initial order. Upon remanding a matter, the agency head may
order such temporary relief as is authorized and appropriate.
(g) A final order or an order remanding the
matter for further proceedings must identify any difference between the order
and the initial order and must state the
facts of record that support any difference in findings of fact, the source of
law that supports any difference in legal conclusions, and the policy reasons that
support any difference in the exercise of discretion. Findings of fact must be based
exclusively on the evidence in the hearing record in the contested case and on matters
officially noticed. A final
order under this section must include, or incorporate by express reference to
the initial order, all the matters
required by Section 413(d). The agency
head shall deliver the order to the presiding officer and all parties.
SECTION 415. AGENCY
REVIEW OF RECOMMENDED ORDER.
(a) An agency head shall review a recommended
order pursuant to this section.
(b) When reviewing a recommended order, the agency
head 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 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 order by the presiding officer, the agency head shall consider
the presiding officer’s opportunity to observe the witnesses and to determine
the credibility of witnesses. The agency
head shall consider the hearing record or parts that are designated by the
parties.
(c) 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.
(d) A final order or an order remanding the
matter for further proceedings must identify any difference between the order
and the recommended order and must state the facts of record that support any difference
in findings of fact, the source of law that supports any difference in legal
conclusions, and the policy reasons that support any difference in the exercise
of discretion. Findings of fact must be based
exclusively on the evidence in the hearing record in the contested case and on matters
officially noticed. A
final order under this section must include, or incorporate by express
reference to the recommended order, all the matters required by Section 413(d). The agency head shall deliver the order to
the presiding officer and 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 416. RECONSIDERATION.
(a) Any party, not later than [ ] days after the date of notification to
the parties that notice of
a final order has been issuedis 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, must be specified by agency rule and must be
stated in the final order.
(b) If a petition for reconsideration is timely
filed, and if the petitioner has complied with an agency’s procedural rules for
reconsideration, if any, the time for filing a petition for judicial review
does not begin until the agency disposes of the petition for reconsideration as
provided in Section 503(d).
(c) If a petition is filed under subsection (a),
the decision
maker presiding officer shall issue a
written order not later than [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. If the decision
maker does not respond to the petition within [30]
days after filing, or a longer period agreed to by the parties, the
petition is deemed denied. The
petition may be granted only if the decision maker 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 417. 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. The 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 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 418. AVAILABILITY OF ORDERS; INDEX.
(a) Except as otherwise provided in subsections
(b) and (c), an agency shall create an index of all final orders in contested cases
and make the index and all final orders available for public inspection and
copying, at cost, in its principal offices.
(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] are not public records and may not be
indexed.
(c) A final order may be excluded from an index
and disclosure only by order of the presiding officer with a written statement
of reasons attached to the order. If the
presiding officer determines it is possible to redact a final order 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 order may be placed in the index and
published.
(d) An agency may not rely on a final order adverse
to a party other than the agency as precedent in future adjudications unless
the agency designates the order as a precedent, and the order has been published,
placed in an index, 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.
SECTION 419 LICENSES
(a) When the grant, denial, or renewal of a license
is required to be preceded by notice and opportunity for hearing, the
provisions of this Act concerning contested cases apply.
(b) When a licensee has made
timely and sufficient application for the renewal of a license or a new license
with reference to any activity of a continuing nature, the existing license
does not expire until the application has been finally determined by the
agency, and, in case the application is denied or the terms of the new license
limited, until the last day for seeking review of the agency order or a later
date fixed by order of the reviewing court.
(c) No revocation, suspension,
annulment, or withdrawal of any license is lawful unless, prior to the
institution of agency proceedings, the agency gave notice by mail to the
licensee of facts or conduct which warrant the intended action, and the
licensee was given an opportunity to show compliance with all lawful requirements
for the retention of the license. If the agency finds that public health,
safety, or welfare imperatively requires emergency action, and incorporates a
finding to that effect in its order, summary suspension of a license may be
ordered pending proceedings for revocation or other action. These proceedings
shall be promptly instituted and determined.
Comment
Section
419 is based on Section 14 of the 1961 MSAPA
(a) This [article] applies to an adjudication in
which an opportunity for an evidentiary hearing is not required.
(b) In an adjudication under this [article], the
agency shall give prompt notice of, and a statement of the reasons for, its
action, to any party to the adjudication and shall give the party the
opportunity to respond (orally or in writing) 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,
(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
Many
licensing decisions by administrative agencies can be challenged by the license
holder who has the right to notice and an opportunity to be heard. Challenges
to those deisions would be considered contested cases governed by the
provisions of Article 4. If the license applicant does not have the right to
notice and an opportunity to be heard to challenge an agency licensing
decision, then the provisions of Article 4A apply to that licensing decision. 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 to the extent that a statute
other than this act limits or precludes judicial review, as otherwise
provided in subsection (d), a person who meets the other
requirements of this [article] is entitled to judicial review of a final agency
action.
(c) A person that may be entitled to judicial
review of a final agency action under subsection (b) is entitled to judicial
review of an 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 statute [of this state] other than this
[act] preludes judicial review; or
(2) agency action is committed to agency
discretion by law.
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.
SECTION 502. RELATION TO OTHER JUDICIAL REVIEW LAW AND
RULES.
(a) Except as Unless
otherwise provided by law other than this [act], judicial review
of final agency action may only be taken as provided by rules of [appellate]
[civil] procedure [of this state]. The
court may grant any type of legal and equitable remedies that are
appropriate.
(b) This [article] does not
limit utilization of or the scope of judicial review available under other means
of review, redress, relief, or trial de novo provided by a statute other than
this [act]. Except to the
extent that prior, adequate, and exclusive opportunity for 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
enforcementExcept 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 15a of the 1961 MSAPA.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 a rule on the ground of
noncompliance with the procedural requirements of this [act] must be commenced not
later than [two] years after the effective date of the rule. Judicial 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 than [30] days after the date the parties are notified 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 pursues an administrative remedy
before the agency which must be exhausted as a condition of judicial review.
(d) A party may not petition for judicial review
while seeking reconsideration under Section 416. During the time 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 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 rules of
[appellate] [civil] procedure [of this state], and the reviewing court may
grant a stay regardless of whether 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].
(ab)
The following persons have standing to
obtain judicial review of a final agency action:
(1)
a person that has standing under law of this state other than this
[act]; and
(2) a person aggrieved or adversely affected by
the agency action.
Comment
Subsection (b)(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 (de)
or a statute of this state other than this [act] which provides that a person
need not exhaust administrative remedies, a person may file a petition for
judicial review under this [act] only after exhausting all administrative
remedies available within the agency the 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 judicial review.
(c) A petitioner for judicial review of a rule
need not have participated in the rulemaking proceeding upon which the rule is
based.
(d) The court may relieve a petitioner of the
requirement to exhaust any or all administrative remedies to the extent 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.
(a) Judicial review of adjudication
and rulemaking is confined to the agency record or matters arising from the
record except when the party seeking judicial review makes
allegations of procedural error 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. as necessary to The record may be opened only to avoid
manifest injustice.
(b) In an adjudication that is not a contested
case, judicial review is based on the hearing record in
informal adjudication [governed by Section 421].
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 of this or
another state;
(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 determinations under this section,
the court shall review the whole agency record, or the 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) In 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].
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 serves a term
of [five] years, and until a successor is appointed and qualifies for office, is
entitled to 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 least 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 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 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 shall appoint administrative law
judges pursuant to the [state merit system].
(b)
In addition to meeting 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 least [three]
years.
(c)
An administrative law judge:
(1) shall take the oath of office required by law before
beginning duties 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 to the compensation provided
by law; and
(4)
may not perform any act inconsistent
with the duties and responsibilities of an
administrative law judge.
(d) An administrative law judge:
(1)
is subject to the administrative 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
(4) is subject to a reduction in force in
accordance with 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 concerning
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) shall discipline [pursuant to the [state merit
system law] 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.
(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 (d), unless] [Unless] [the
agency head elects to conduct the hearing, in which case the agency head shall
render a final order under Section 413(a), 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 initial order to the
agency head in the contested case pursuant to Section 413.
(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 further action with respect
to the proceeding, except as a party, until a recommended or initial 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)
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(b) is based upon
Section 1-10(c) 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).
[ARTICLE] 7
SECTION 701. [LEGISLATIVE RULES REVIEW COMMITTEE]. There is created a standing 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
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 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; and
(5) agency complied with the regulatory analysis
requirements of Section 305 and the analysis properly reflects the effect of
the rule.
(c) The [rules review committee] may request from
an agency information necessary to exercise its powers under subsection (b). The [rules review committee] shall consult
with standing committees of the Legislature 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.
(a) Not later than [30] days after receiving a
copy of an adopted, amended, or repealed rule from an
agency under Section 702, 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 an
adopted,
amended, or repealed rule or does not disapprove and propose an
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 rule in 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 shall 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 rule under
Section 316.
(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. The [rules
review committee] disapproval power expires at the adjournment of
the session or after the legislature has been in session for a total of 90
days, whichever comes first.
(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).
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. 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).
SECTION 801. APPLICABILITY. This [act] governs all agency
proceedings, and all proceedings for judicial review or civil enforcement of
agency action, commenced after [the effective date of this [act]. This [act] does not govern an adjudication
for which notice was given before that date under Section 403 and 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]…
