NCCUSL MSAPA Drafting Committee Spring Meeting

The National Conference of Commissioners for Uniform State Laws (NCCUSL) Model State Administrative Procedure Act (MSAPA) drafting committee met April 15 through April 17 in Philadelphia. The committee considered a second draft, primarily reviewing and making major changes to the core adjudication and judicial review articles. The committee discussed the rulemaking article at its meeting last fall. Therefore, this second draft contains changes that represent the committee's most current thinking about rulemaking. If ACR members have comments about the rulemaking provisions in the second draft, please contact Ken Hansen (801-538-3777). At the April meeting, some additional rulemaking issues surfaced as the committee discussed judicial review.

• In the Standing section (C5-106), the language providing "if the challenged agency action is a rule, a person subject to the rule" was removed as a criteria for standing, as it is encompassed by "a person otherwise aggrieved ... by the agency action."
• The committee discussed the implications of "aggrieved or adversely affected" as it appeared in the draft without the qualifying language from the 1981 MSAPA.
• In the Exhaustion of Administrative Remedies section (C5-107), Prof. Michael Asimow raised the concept of "issue exhaustion" in rulemaking. If an individual encounters an issue with a rule that was not considered by the agency during the rulemaking process, either directly by the agency or indirectly as the result of public comment, the individual should be required to raise the issue with the agency (by filing a petition for rulemaking -- see section C3-115) before the individual may take the issue (and the agency) to court.

The committee had two questions that ACR could help address. During the discussion of Section C5-108, Closed Record; Exception (changed to Agency Record; Exception), a question arose regarding how many states currently require an agency to maintain a rulemaking record. The committee is considering creating a new section, separate from C5-109, Scope of Review, for rulemaking. A question also came up about how many states have adopted the federal "hard look" doctrine (a la Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)) stated on page 75 in paragraphs D and E. The committee will present an executive summary of the issues at the NCCUSL annual summer meeting in Pittsburgh, Pennsylvania, July 22-29, 2005. The MSAPA drafting committee will meet again this fall to review the entire draft.