Category Archives: Administrative Law

Oral Arguments for Perez v. Mortgage Bankers Assn. Scheduled for December 1, 2014

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 .

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Administrative Conference of the United States Recommendations

See Michael White’s post re: publication of ACUS’ recommendations at http://www.federalregister.gov/blog/2012/01/2273

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Filed under Administrative Law, Conferences, Federal Rulemaking, Uncategorized

AG’s opinion: Regulating guns at Virginia public universities

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.

http://oag.state.va.us/Opinions%20and%20Legal%20Resources/Opinions/2011opns/11-078-Hanger.pdf

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Regulatory Review Report Card and Recommendations

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/.

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Filed under Administrative Law, Executive Oversight, Fiscal Impact, Legislative Oversight, Rules Review, State Rulemaking

2010 Model State Administrative Procedure Act Available

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.

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Filed under Administrative Law, Model Act

NCCUSL Approves New Model State Administrative Procedure Act

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.

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MSAPA Update

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.

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Extension Granted to MSAPA Drafting Committee

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 [2009] 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.

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MSAPA Drafting Committee Meets March 27-29, 2009

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.

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Proposed Legislative Veto of Virginia Administrative Rules

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.

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ULC’s MSAPA Revision Drafting Committee to Meet November 14-16, 2008

The Uniform Law Commission’s drafting committee to revise the Model State Administrative Procedure Act (MSAPA) will meet November 14 through 16, 2008, in Denver, CO.  Information that the committee will consider is posted online at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234.  The draft MSAPA is scheduled for its final reading at the Summer ULC meeting scheduled for July 9 through 16, 2009, in Santa Fe, New Mexico.

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More on Reliability of Online Legal Resources

Here is an article that was published in the June/July 2008 issue of Virginia Lawyers Magazine relating to online official legal resources:

http://www.vsb.org/docs/valawyermagazine/vl0708_valaw-online.pdf

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Model State Administrative Procedure Act Revision Process — Invitation to Participate

The following notice is provided by Commissioner Francis J. Pavetti, Chair of the National Conference of Commissioners on Uniform State Laws Model State Administrative Procedure Act Drafting Committee.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is revising its Model State Administrative Procedure Act (MSAPA). NCCUSL invites organizations and individuals interested in state administrative agency processes to participate in this effort.

NCCUSL is a 117 year old national organization of lawyers, judges and law professors who are appointed to represent their states in drafting and seeking enactment of uniform laws to facilitate commerce and certainty in the law among the states. For more information about NCCUSL, visit http://www.nccusl.org/.

The goal of the MSAPA drafting committee is to make the administrative process more efficient, accessible and fair. The most recent draft of MSAPA is available at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234. The drafting process will not be completed until the spring of 2009. The MSAPA drafting committee invites interested parties to attend committee meetings as an observer and make comments and suggestions at the meetings or by submitting them in writing. To become an observer, please contact Ms. Leang Sou at NCCUSL at (312) 915-0488 or at leang.sou@nccusl.org . Submit written comments about the MSAPA to Commissioner Francis J. Pavetti, 18 The Strand, Goshen Point, Waterford, CT 06385.

UPDATE: The NCCUSL office moved the first week of January. The new phone number is (312) 450-6606.

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Updated MSAPA Draft Available

The National Conference of Commissioners on Uniform State Laws (NCCUSL) has posted the latest draft of the Model State Administrative Procedure Act (MSAPA), and related information, on its web site — http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234. The draft is available in several electronic formats, including PDF, Word, ASCII, and HTML. It is also available with redlining to show the most recent changes, or as a clean copy. The MSAPA drafting committee meets November 9 through 11 in Denver, CO.

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Virginia Reinstates Administrative Law Advisory Committee

Virginia’s Administrative Law Advisory Committee (ALAC) is back in business.  After a 5-year moratorium, the Virginia Code Commission reinstated ALAC to assist the Commission with its oversight authority over the operation and effectiveness of the Virginia Administrative Process Act and Virginia Register Act.  ALAC is a 12-member committee consisting of representatives from the business community, local government, the state bar, state agencies, the academic community, the Virginia Supreme Court, public interest associations and other interested parties.

The following is a partial list of legislative changes that were made between 1994 and 2001 as a result of ALAC’s work:

  • Eliminate requirement to publish regulatory notices in newspaper
  • Require annual filing and publication of agency guidance document lists
  • Clarify steps a petitioner must take to perfect a petition for rulemaking and agency responsibilities, including publication in the Virginia Register
  • Establish fast-track rulemaking process for non-controversial regulations

ALAC’s first meeting was held September 27 and the inital suggested workplan will be presented to the Virginia Code Commission for its approval at its October meeting.

The suggested workplan consists of the following issues:

  • Administrative Process Act exemptions study. Currently, over 75 exemptions exist within Virginia’s APA and others are scattered throughout the Code of Virginia and in enactments of Acts of Assembly;
  • Incorporation by reference in the promulgation process;
  • Appeals of administrative decisions;
  • Stay abreast of the work of the Model State Administrative Procedure Act NCCUSL drafting committee

For further information, go to ALAC’s website at http://legis.state.va.us/codecomm/alac/alac.htm.

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American Bar Association’s Interstate Compact Administrative Procedure Act Project

Back in 2003, the American Bar Association’s Section of Administrative Law and Regulatory Practice initiated a project to assess the need for an administrative procedure act that could apply to interstate compacts. The project is nearing completion. Information about the project is available at http://www.abanet.org/adminlaw/interstate/home.html.

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NCCUSL’s MSAPA Drafting Committee Fall Meeting

The National Conference of Commissioners on Uniform State Laws (NCCUSL) has scheduled the next Model State Administrative Procedure Act (MSAPA) drafting committee meeting for November 9 through 11, 2007, in Denver, CO.

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European Forum of Official Gazettes

John Martinez (NM) posted the following information to the ACR ListServ.

… I ran across an interesting organization in Europe that is very similar to ACR. It is called the European Forum of Official Gazettes and the description on its homepage reads:

The European Forum of Official Gazettes was created in 2004 by the organisations responsible for publishing the official gazettes of the European Union Member States and the Office for Official Publications of the European Communities. Since 2005, the Forum also invites legal gazettes of countries outside the European Union to participate in its work.

The objectives of the Forum are to exchange ideas and information on publication processes, technology and best practices between the official publishers.

The Forum produces the Directory of Legal Gazettes in Europe, which is similar to the Survey that ACR produces. It also has annual conferences where they discuss issues very similar to those that we do at our conferences. The website is located at http://circa.europa.eu/irc/opoce/ojf/info/data/prod/html/index.htm. . . . Agendas and materials from past conferences are located under “Activities” and a copy of the 2007 Directory of Legal Gazettes in Europe is located under “Official Gazettes.”

The Forum’s 2007 Directory of Legal Gazettes in Europe is available as a PDF document. The Forum’s next meeting is scheduled for September 25-26, 2008, in Madrid, Spain.

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MSAPA Drafting Committee Releases Issues Statement

On July 10, 2007, the National Conference of Commissioners on Uniform State Laws (NCCUSL) Model State Administrative Procedure Act (MSAPA) drafting committee released an Issues Statement. The committee prepared the statement for the NCCUSL summer meeting that will be held July 27 through August 3, 2007, in Pasadena, California.

The statement includes four issues that concern rulemaking or state rules publishers. They are:

  • § 310. Guidance Documents and § 201(d) Publication of Guidance Document;
  • § 301 (d) Written Rulemaking Docket;
  • § 308. Variance between proposed rule and adopted rule; and
  • § 507. Exhaustion of Administrative Remedies.

The Issues Statement is available on the NCCUSL archive web site at the Biddle Law Library at Penn Law.

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State Regulatory Flexibility Best Practices Conference

On Wednesday, March 28, 2007, the U.S. Small Business Administration (SBA), Office of Advocacy, the Ewing Marion Kauffman Foundation, and the Public Forum Institute are sponsoring a conference entitled “Building a Better Small Business Climate: State Regulatory Flexibility Best Practices”. The conference is being held in Kansas City, MO. An e-mail describing the conference states:

The purpose of this conference is to bring together the small business community, state legislators, and state government agencies to explore and share state tools and methodologies developed to successfully implement state regulatory flexibility laws. A guide consisting of state best practices will be distributed to conference attendees.

Information about the conference is available at http://www.sba.gov/advo/rfa_stateconference.html.

UPDATE:  Participation is by invitation only.  Space is limited.  For questions, please contact Dawn Crockett at dawn.crockett@sba.gov or (202) 619-2310.

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President Bush Amends Executive Order 12866 Affecting Federal Rulemaking Process

[NOTE: This is a repost, with updates, from the old Rulemaking blog which has been discontinued.]

In 1993, President Clinton issued Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). That order, according to OMB Watch:

. . . establishes the guiding principles agencies must follow when developing regulations, including encouraging the use of cost-benefit analysis, risk assessment, and performance-based regulatory standards. The executive order also establishes the regulatory planning process for each agency, delegating authority to the Office of Information and Regulatory Affairs (OIRA) to coordinate agency rulemaking efforts with the regulatory priorities of the President. E.O. 12,866 also expands the roles of OIRA in rulemaking through a centralized review of regulations, whereby OIRA acts as gatekeeper for the promulgation of all significant rulemakings. (Source: http://www.ombwatch.org/article/articleview/180/1/67, accessed 1/27/2007)

On January 18, 2007, President Bush issued Executive Order 13422 (72 FR 2763, January 23, 2007), and OMB Watch sounded an alarm. Analyzing the new order in an article entitled, “Undermining Public Protections”, OMB watch warns:

The revised Executive Order . . . is a further threat to public protections from an administration committed to elevating special interests over public interests. It codifies regulatory delay, further removes agency discretion over legislative implementation, and centralizes control over the regulatory process into a small executive office. It substitutes free market criteria for the public values of health, safety, and environmental protections, and substitutes executive authority for legislative authority. (Source: http://www.ombwatch.org/article/articleview/3685/1/{category_id}, accessed 1/27/2007)

Public Citizen is also critical of the executive order, characterizing it as a move that “will threaten the ability of the federal government to protect and inform the public.” Public Citizen itemized it concerns, saying:

First, it requires agencies to get White House approval of many important kinds of guidance for the public, which would allow the White House to create a bureaucratic bottleneck that would slow down agencies’ ability to give the public information it needs. Agencies use guidance to let the public know how they intend to enforce the laws and regulations on the books.

*****

Second, the new order stresses the concept of “market failure” in its revised command for agencies to state justifications for new regulations for public health, privacy, safety, civil rights and the environment. Market failure is an economics term describing situations in which private markets, left to themselves, fail to bring about results that the public needs. This order, however, will be enforced by Susan Dudley, the radical extremist that the White House is setting up for a recess appointment to become the administrator of the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. Based on an evaluation of Dudley’s record in a report released last year, Public Citizen has concluded that in her hands, the market failure provision will become a barrier to the protections that the public needs.

Third, the order requires agencies to develop annual plans for upcoming rulemakings that identify “the combined aggregate costs and benefits of all … regulations planned for that calendar year to assist with the identification of priorities.” This new requirement will make cost/benefit analysis the central factor in setting priorities for needed protections of the public interest. (Source: http://www.citizen.org/pressroom/release.cfm?ID=2361, accessed 1/27/2007)

Other news about the order seems scarce. Searches on major eastern newspaper websites, and the news services on Google and Yahoo yielded only one other article. In that article, NewsInferno.com (http://www.newsinferno.com/archives/1402#more-1402) relied upon information from Public Citizen. Even the Wall Street Journal appeared to be silent about the order.

Part of the problem might be accessibility and the method used to amend the order. Executive Order 13422 directs changes at specific paragraphs in the old, previously amended order. After spending a significant amount of time searching online, it became clear that a complete version that integrates the changes is not available–at least not yet.

It will be interesting to watch the federal regulatory process and see if the fears expressed actually materialize.

NOTE: Executive Order 12866 was also amended by Executive Order 13258, issued February 26, 2002, by President Bush (67 FR 9385, February 28, 2002).

UPDATE: On January 30, 2007, twelve days after President Bush signed the order, the New York Times ran an article entitled “Bush Directive Increases Sway on Regulation.” The same day, the Washington Post considered the Executive Order in an article “Bush Order Limits Agencies’ ‘Guidance’.”

On February 13, 2007, the House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, held an oversight hearing — “Amending Executive Order 12866: Good Governance or Regulatory Usurpation?Also on February 13, 2007, and April 26, 2007, the House Committee on Science and Technology, Subcommittee on Investigations and Oversight held similar hearings.

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Virginia Administrative Law Conference

Professor John Gedid will be giving the keynote address that will open Virginia’s annual Administrative Law Conference scheduled for Tuesday, November 1, 2005, at the Downtown Richmond Omni. Professor Gedid has been asked to talk about the work of the NCCUSL drafting committee presently working on changes to the Model Administrative Procedures Act. You may recall that Professor Gedid was part of a regulatory rules review panel presentation at the 2002 Providence, RI, summer conference, and later talked to ACR about the model APA drafting committee at the 2004 New Orleans summer conference.

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Compact Rulemaking at Admin. Law Section Midyear Meeting

The American Bar Association’s Section of Administrative Law and Regulatory Practice has scheduled its midyear meeting in Salt Lake City, Utah on February 9-15, 2005. At the meeting, one of the items to be discussed will be rulemaking and interstate compacts. As the time for the conference approaches, more details will be available at http://www.abanet.org/adminlaw/home.html.

Update: According to Kent Bishop, our Interstate Compact Rules Guru, the sessions will most likely be scheduled on February 10-12. More details will follow.

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