State Administrative Procedure Act, Revised Model Summary

The Model State Administrative Procedure Act (MSAPA) was first promulgated by the Uniform Law Commission (ULC) in 1946. The Federal Administrative Procedure Act was drafted at about the same time as the 1946 Act, and there was substantial communication between the drafters of the two acts. The MSAPA has since been revised three times: 1961, 1981 and the most recent revision was completed and adopted by the ULC in July of 2010.

The MSAPA was recently revised because of the many changes in administrative law over the past twenty-eight years, both at the state and federal levels. There is now a substantial body of legislative action, judicial opinion and academic commentary that explain, interpret and critique the 1961 and 1981 Acts and the Federal Administrative Procedure Act. In the past two decades state legislatures, dissatisfied with agency rulemaking and adjudication, have enacted statutes that modify administrative adjudication and rulemaking procedure. Another reason prompting the recent revision of the MSAPA is the emergence of the Internet, which did not exist at the time of the last revision of the Act, and brings forth new issues in this area of law that needs to be addressed.

The 2010 MSAPA maintains continuity with the provisions of the 1961 Act, and to a lesser degree, the 1981 Act.  This Act returns to the external hearing rights approach followed in the 1961 Act, but also includes constitutionally required hearings in the mix of sources of hearing rights law. This Act is designed especially for adoption by states that currently have the 1961 Act, but would like to replace that act with a more modern up to date administrative procedure act. The Act is designed to ensure fairness in administrative proceedings, increase public access to the law administered by agencies, and promote efficiency in agency proceedings by providing for extensive use of electronic technology by state governments. The Act has been drafted to be less detailed and less comprehensive than the 1981 Act. Consistent with both the 1961 MSAPA and the 1981 MSAPA, the Act provides for a uniform minimum set of procedures to be followed by agencies subject to the act. The Act creates only procedural rights and imposes only procedural duties. Throughout the Act there are provisions that refer generally to other state laws governing related topics. When specific state laws are inconsistent with the provisions of the Act, those specific state laws will be controlling.

The 2010 MSAPA is divided into eight articles. In summary:

  • Article 1: contains extensive definitions of key terms used in the act. These definitions are designed to be used with the operative provisions in the other articles of the act. Terms that are used only in one article are defined in that article.
  • Article 2: contains provisions ensuring public access to agency law and policy. It modernizes and codifies publishing responsibilities for agencies that have primary responsibility for rules publishing and for agencies that adopt rules.
  • Article 3: contains provisions governing rulemaking by agencies. Key new or modernized provisions in this Article include current rulemaking docket, agency record in rulemaking negotiated rulemaking, regulatory analysis, direct final rulemaking, and guidance documents. The 2010Act returns to the provisions of the 1961 Act for emergency rulemaking requirements; other provisions of Article Three are similar to requirements in the 1981 Act that govern rulemaking.
  • Article 4: contains provisions governing adjudication by agencies. Article 4 procedures are designed to be used by both central panel agencies (governed by Article Six) and enforcement agencies that conduct their own contested case hearings.
  • Article 5: contains provisions governing judicial review of final agency action. This article continues provisions in the 1961 and 1981 Acts but substantially modernizes those acts provisions. Article Five addresses the major issues in judicial review including the right to judicial review and finality of agency, relation to other judicial review law, time for seeking judicial review, stay pending appeal, standing, exhaustion of administrative remedies, and scope of review.
  • Article 6:  is based on the ABA Model Central Panel Act, and provides for the essential provisions of law that a state legislature would need to create a central panel agency. This Act is drafted so that central panel administrative law judges would be presiding officers in contested case proceedings governed by the provisions of Article Four, and those provisions would govern procedures in contested cases heard by central panel administrative law judges. The chief administrative law judge of the central panel agency may also adopt procedural rules to govern contested case hearings.
  • Article 7: contains provisions related to legislative review of agency rules. This Article modernizes provisions for legislative rules review contained in the 1981 Act. Article seven includes a legislative rules review committee, review by a rules review committee, and rule review committee procedure and powers.
  • Article 8: contains provisions governing applicability of this Act, relation to other Acts, repeals, and effective date.