Rulemaking Under the 2010 Model State Administrative Procedure Act
33 Pages Posted: 30 Aug 2011
Date Written: August 1, 2011
This article presents a survey and critical analysis of issues raised by the rulemaking provisions of the Revised Model State Administrative Procedure Act (MSAPA), which was approved in 2010 by the Uniform Law Commission. Although the MSAPA rulemaking scheme is roughly similar to the federal model, it incorporates interesting variations on that model, including specifications for the composition of the rulemaking record, explicit criteria for regulatory analysis, and enforceable time limits on the duration of a rulemaking proceeding.
Most significantly, the new MSAPA’s approach to guidance documents (interpretive rules and policy statements) is strikingly different from the federal model. In federal law, a guidance document that is used, or likely to be used, in a coercive manner may be reclassified as a legislative rule and invalidated as having been issued without notice and comment proceedings. In contrast, the MSAPA accepts at face value an agency’s characterization of a pronouncement as a guidance document, but it prescribes specific requirements to govern how such documents may be used. The requirements are intended to ensure that persons who may be affected by a guidance document will have an adequate opportunity to contest its legality or wisdom. At the same time, the Act seeks to facilitate regulated persons’ ability to rely on such pronouncements, because an agency that proposes to depart from a guidance document must articulate a reasonable explanation for the variance. The Act’s nuanced approach, if it proves successful, may offer useful lessons that could be incorporated into federal practice.
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