Back in June, we notified readers of an upcoming federal case regarding rulemaking. The Legal Information Institute reports that the Supreme Court will hold oral arguments on December 1, 2014, in Perez v. Mortgage Bankers Assn. (13-1041); Nickols v. Mortgage Bankers Assn. The issue in this case is whether a federal agency is required to engage in notice-and-comment rulemaking before it can alter an interpretive rule that articulates an interpretation of the agency’s regulation. More information is available at http://www.law.cornell.edu/supct/cert/13-1052 .
Category Archives: Administrative Law
See Michael White’s post re: publication of ACUS’ recommendations at http://www.federalregister.gov/blog/2012/01/2273
Virginia’s Attorney General recently issued an opinion that universities can prohibit the open carry of firearms inside university buildings by policy; however, must promulgate a regulation to apply such prohibition to concealed handgun permit holders.
Summary of opinion:
Under the present state of the law, the University of Virginia lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. Further, with respect to persons who have a concealed carry permit, because the University adopted a policy rather than a regulation, it has not “otherwise prohibited by law” persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy.
The Institute for Policy Integrity at the New York University School of Law has released a 459-page report entitled 52 Experiments with Regulatory Review: The Political and Economic Inputs into State Rulemakings. The report, authored by Jason A Schwartz, recognizes the impact of government regulation on the economy and argues that “systems of economic analysis and regulatory review are needed so that the costs and benefits of action are properly weighted.”
In describing the report, the web site at the Institute for Policy Integrity says,
Nearly twenty percent of the American economy is regulated by state governments. But there are major concerns about how regulatory decisions are made. Although states routinely regulate industries whose economic footprints climb into the hundreds of millions of dollars, these rules are often made ad hoc, risking inefficient results that limit public benefit.
After more than a year of research, surveys, and analysis, Policy Integrity is the first to compile the regulatory practices of all fifty states (plus D.C. and Puerto Rico) in one document. Comparing each set of laws and guidelines on paper to direct feedback from leaders on the ground, the report assigns states a grade based on an evaluation of the quality of their review process. The results of “52 Experiments with Regulatory Review,” which finds significant flaws with state level regulatory review, indicate that billions of dollars and important environmental and public health protections are at risk. States earned an average grade of “D+” with the lowest possible grade being a “D-.”
The full report is available from the Institute for Policy Integrity at http://policyintegrity.org/publications/detail/52-experiments-with-regulatory-review/.
The National Conference of Commissioner on Uniform State Laws (NCCUSL) has posted the final version of the 2010 Model State Administrative Procedure Act (MSAPA) on the web at http://www.law.upenn.edu/bll/archives/ulc/msapa/2010_final.htm. NCCUSL adopted the revised MSAPA, subject to style changes, at its 2010 summer meeting. The final version was posted on October 18, 2010.
Administrative Codes and Registers (ACR) gratefully acknowledges the efforts of the NCCUSL MSAPA drafting committee. Under the leadership of Francis J. Pavetti, the committee welcomed members of ACR as observers. The committee permitted ACR observers to actively participate in the discussions and graciously accepted feedback. ACR is especially grateful to John Gedid and Greg Ogden who made special efforts to keep ACR informed by attending ACR conferences and directly soliciting feedback from ACR members.
4/19/2011 Update: Back in February, NCCUSL changed its web site. The MSAPA is now found at http://www.uniformlaws.org/Act.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model.
At its annual meeting held July 9 through 16, 2010, in Chicago, Illinois, the National Conference Commissioners On Uniform State Laws (NCCUSL) approved and recommended a new Model State Administrative Procedure Act (MSAPA). The text of the 2010 MSAPA replaces the 1981 MSAPA.
The new text has not yet been posted on the NCCUSL web site. The approved MSAPA is subject to revision by the Style Committee. The Style Committee meets in September.
The Model State Administrative Procedure Act (MSAPA) drafting committee of the National Conference of Commissioners on Uniform State Laws (NCCUSL) met October 16-18, 2009, in Chicago. The committee was able to cover its agenda. which focused on Articles 4 (Adjudications), 5 (Judicial Review), and 6 (Administrative Law Judge Central Panel). Information relied upon for the October 2009 meeting, including a redlined draft, is available on the NCCUSL MSAPA Committee web site.
The committee is scheduled to hold a conference call in January 2010. The agenda will include a review of comments made during the 2009 summer conference reading.
The committee is also scheduled to meet in February 2010.
Uniform Law Commission (ULC) leadership has granted the Model State Administrative Procedure Act (MSAPA) drafting committee an extension. The MSAPA was to have been completed and up for final approval at this summer’s ULC conference in Santa Fe, New Mexico, July 9 – 16, 2009.
In an e-mail announcing the decision, John Sebert, ULC Executive Director, said:
This July  the Committee will read the rulemaking provisions – Articles 2, 3, 7 and the relevant definitions in Article 1 – and after them as many of the judicial review provisions of Articles 4, 4A, 5 and 6 (and the related definitions in Article 1) as time permits. Consideration in July 2010 will be focused almost exclusively on the judicial review provisions. MSAPA will have its final consideration, and a vote by the states, in July 2010.
A copy of the current draft and related information is available online at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234.
The Uniform Law Commission (ULC) has scheduled the final Model State Administrative Procedure Act (MSAPA) drafting committee meeting for March 27-29, 2009, in Chicago, IL. The Committee is scheduled to discuss rulemaking and rules review issues at the meeting. John Martinez, New Mexico Administrative Law Division Director, will represent Administrative Codes and Registers at the meeting.
The Virginia House of Delegates passed a constitutional amendment (first resolution) that provides that the General Assembly may suspend or nullify any or all portions of any administrative rule or regulation by joint resolution agreed to by a majority of the members elected to each house. View the progress of House Joint Resolution 731.