NCCUSL MSAPA Drafting Committee Fall 2005 Meeting

The National Conference of Commissioners on Uniform State Laws (NCCUSL) Model State Administrative Procedure Act (MSAPA) Drafting Committee has scheduled its fall meeting for October 7 through 9, 2005, in Arlington, VA. The NCCUSL web page describes the committee in the following terms:

This committee is revising the [1981] Model State Administrative Procedures Act, which provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies. A revision is necessary to update the act to recognize electronic communications and other state procedural innovations since the act was originally promulgated. Upon completion of its main charge, the committee will study the development of an administrative procedures act for use by interstate compact entities.

In its report to the NCCUSL Annual Meeting, held July 22 through 29, the committee identified the following issues for which it is seeking feedback:

KEY ISSUES

1. Should the Model State Administrative Procedure Act require interpretive and policy statements to be adopted as rules; and, if not, should there be a requirement that they be published?

2. If interpretive and policy statements are not rules, but are required to be published, should the Model State Administrative Procedure Act address the weight to be given to them on judicial review?

3. Should the Model State Administrative Procedure Act require prior agency decisions of first impression on legal issues to be adopted as rules; or, if not required to be adopted as rules, should there be a requirement that such decisions be indexed and published?

4. Should evidentiary hearings be required only when mandated by statute, constitution or other law, or should the Conference adopt the broader approach of the 1981 Model State Administrative Procedure Act that requires an evidentiary hearing in almost all instances where an order is to be issued by the agency?

5. With respect to post hearing ex parte communications between the agency decision maker and agency staff, what, if any, disclosure of the ex parte communication should be required to the parties? Also, what, if any, opportunity should be allowed for a party to respond to the disclosed communication?

OTHER ISSUES

6. Should cost-benefit analysis be required for all rules; or be limited to certain situations; and, if limited, under what criteria?

7. Should the Act provide for an administrative rules editor, with the power to edit, for the publication, compilation, indexing, and public inspection of rules or should the Act provide for a publisher with limited power to edit?

8. Should the Act contain a legislative veto power for agency rules?

9. Should the Act provide that, before a person who was not a party in an agency rulemaking proceeding seeks judicial review of a rule produced in that proceeding, that person must first petition the agency for rulemaking on the subject for which she seeks judicial review?
[See http://www.law.upenn.edu/bll/ulc/msapa/2005AMAdminReport.htm for the complete report.]

ACR members may contact Ken Hansen (801-538-3777) with input on these issues.

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