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Rulemaking Defined Under the Model State APA

Rule making is the process adopted by administrative agencies to make or publish rules and regulations.  Generally, a legislature enacts basic government policies and then administrative agencies create rules to implement details of these policies.  The reason for delegating the rulemaking power by the legislature to an administrative agency is to bring scientific and technical details in the rules created.

The Model State Administrative Procedure Act (MSAPA) of 1946 provides guidance to  states to adopt state administrative procedure acts (APA).  MSAPA was revised in 1961 and 1981 as the state government’s area of administration expanded.

Administrative agencies in each state are bound by the state’s APA.[i] State APA determines if an administrative agency is performing rulemaking within the power delegated by the legislature.[ii]

According to the 1961 revised version of MSAPA, a rule is an agency’s statement which has a general applicability.  A rule implements, interprets, or prescribes law or government policy.  A rule also describes an agency’s organization, procedure and practice requirements.

The 1961 revised version of MSAPA excludes certain actions from agency’s rulemaking process.  Preparing statements regarding the internal management of an administrative agency is exempted from an agency’s rulemaking process.  This is because it does not affect private rights of the public.  MSAPA also excludes certain declaratory rulings from an agency’s rulemaking process.  Statements created regarding inter agency memoranda are also exempted.

The 1981 version of MSAPA defines a rule as a complete or partial statement of an administrative agency with general applicability and future effect.  Rules are made to implement, interpret or prescribe laws or government policies, and an agency’s organization, procedure or practice requirements.  Under the revised 1981 MSAPA , an administrative agency’s rulemaking is the process for formulating and adopting a rule.  Rulemaking also means the process of amending, repealing, or suspending an existing rule.

In an emergency, an agency can temporarily deviate from the APA’s rulemaking procedure.  However, APA rulemaking process can only be avoided if the agency finds that emergency action is necessary for upholding public peace, health, safety or general welfare.

[i] Archer v. Emples.’ Ret. Sys., 2009 R.I. Super. LEXIS 37 (R.I. Super. Ct. 2009)

[ii] Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 148 Wn.2d 887 (Wash. 2003)

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