Chapter 1:
Administrative Procedure
Subchapter:
I: General Provision
II:
Regulation
III: Hearings
IV: Judicial
Review
V: License
Removal
VI: Miscellaneous
Provisions
§101.
Title.
§102.
Definitions.
This chapter shall be
known and may be cited as the "State Administrative Procedure Act".
Source: YSL 1-90 §1, modified.
As used in this
chapter:
(a) "Agency" means each authority, board, commission, department or office of the State Government, other than the Legislature, the Yap Fishing Authority or the courts, authorized by law to make regulations or to determine contested cases.
(b) "Contested case" means a proceeding in which the legal rights, duties or privileges of a party are determined.
(c) "License" includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law.
(d) "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
(e) "Party" means each person or agency named or admitted as a party, or person seeking and entitled as of right to be admitted as a party.
(f) "Person" means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character, other than an agency.
(g) "Regulation" means each agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practical requirements of any agency and has the force of law. The term includes the amendment or repeal of a prior regulation, but does not include statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, or intra-agency memoranda.
Source: YSL 1-90 §2, modified.
§111.
Filing and availability of regulations.
§112.
Petitions for issuance, amendment or repeal of regulations.
§113.
Statute of limitations.
§114.
Validity and effect of regulations; recommendations of
Legislature.
§115.
Emergency regulations.
§116.
Public inspection rights and requirements.
(a) Each agency shall file with the Attorney General and Chief Clerk of the Legislature a certified copy of each regulation adopted by it, including all existing regulations on the effective date of this chapter.
(b) The Attorney General and the Chief Clerk shall keep a permanent register of regulations open to public inspection. Copies of regulations shall be made available to agencies and officials of the State free of charge. Upon request, copies shall be made available to other persons at prices to cover costs.
Source: YSL 1-90 §3, modified.
Cross-reference: The statutory provision designating the composition and responsibilities of the Office of the Attorney General are found in section 128 of Title 3 (Executive) of this Code. The statutory provisions on the Chief Clerk of the Legislature are found in chapter 2 of Title 2 (Legislature) of this Code.
Each agency shall afford any
interested person the opportunity to petition for the issuance, amendment
or repeal of a regulation.
Source: YSL 1-90 §6.
A contest of any regulation on the
ground of noncompliance with the procedural requirements of this chapter
must be commenced within two years from the effective date of the
regulation.
Source: YSL 1-90 §7, modified.
Cross-reference: The statute of limitations provision in criminal cases is found in section 111 of Title 11 (Crimes and Punishment) of this Code.
(a) No regulation, adopted after the effective date of this chapter shall be valid unless adopted in substantial compliance with this chapter.
(b) No agency regulation, order or decision is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been made available for public inspection as required in section 116 of this chapter. This provision is not applicable in favor of any person or party who has actual knowledge of the regulation, order or decision.
(c) Each regulation adopted after the effective date of this chapter shall be effective 20 days after filing, except that:
(1) If a later date is required by statute or specified in the regulation, the later date shall be the effective date;
(2) Subject to applicable constitutional or statutory provisions, an emergency regulation adopted pursuant to section 115 of this chapter shall be effective immediately upon filing with the Attorney General and the Chief Clerk of the Legislature, or at a stated date less than 20 days thereafter, if the agency finds that this effective date is necessary because of imminent peril to the public health, safety or welfare. The agency's finding and a brief statement of the reasons therefor shall be filed with the regulation.
(d) The Legislature may by letter or resolution make appropriate suggestions for changes, amendments, repeals or additions to the regulations.
Source: YSL 1-90 §8, modified.
Cross-reference: The statutory provisions on the Legislature are found in Title 2 of this Code.
Commission Comment:
The effective date of this chapter is May 18, 1981.
(a) If an agency finds that an imminent peril to the public health, safety or welfare requires adoption of a regulation upon fewer than 20 days. notice and states in writing its reasons for that finding, it may proceed without prior notice and hearing pursuant to section 114(b) of this chapter, or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency regulation. The regulation may be effective for a period not longer than 120 days.
(b) The agency shall take appropriate measures to make emergency regulations known to persons who may be affected by them.
Source: YSL 1-90 §9, modified.
Cross-reference:
Section 114 of this subchapter is on the validity and effect of regulations, and recommendations of the Legislature.
Each agency shall
make available for public inspection all regulations and all written
statements of policy or interpretations formulated, adopted or used by the
agency in the discharge of its functions, and all final orders, decisions
and opinions.
Source: YSL 1-90 §10.
§131.
Notice of agencies intended action.
§132.
Hearing.
§133.
Notice in a contested case.
§134.
Right to hearing.
§135.
Rules of evidence.
§136.
Privilege.
§137.
Official notice of facts.
§138.
Findings, decisions and orders.
§139.
Notification of
parties.
§140.
Records; contents.
§141.
Communications prohibited and allowed.
§142.
Separation of functions.
Prior to the adoption, amendment or
repeal of any regulation, the agency shall give at least thirty days
notice of its intended action. The notice shall include a statement
of either the terms or substance of the intended action or a description
of the subjects and issue involved, and the time when, the place where,
and the manner in which interested persons may present their views
thereof. The notice shall be mailed to all persons who have made
timely requests of the agency for advance notice of its regulation-making
proceedings and shall be publicized in all news or broadcasting media
operated by the government.
Source: YSL 1-90 §4, modified.
Prior to the adoption, amendment or
repeal of any regulation, the agency shall afford all interested persons
reasonable opportunity to submit data, views, and arguments, orally or in
writing. In case of substantive regulations, opportunity for oral
hearings shall be granted if requested by 25 persons, by a governmental
subdivision or agency or by an association having not less than 25
members. The agency shall consider fully all written and oral
submissions respecting the proposed regulation.
Source: YSL 1-90 §5, modified.
(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include a statement of the time, place, and nature of the hearing and a short and plain statement of the matters asserted.
Source: YSL 1-90 §11, section title added and section modified.
Commission Comment:
The section number and title were omitted from YSL 1-90.
All parties shall be afforded the
opportunity to respond and present evidence and argument on all issues
involved, and to conduct such cross-examination as is necessary for a full
and true disclosure of the facts.
Source: YSL 1-90 §12, modified.
Strict rules of evidence need not be
followed, but the receipt of evidence shall be guided by the rules of
evidence applicable in the courts of the State.
Source: YSL 1-90 §13.
Cross-reference:
Title 12 [Reserved] of this Code is on Rules of Court.
Agencies shall give effect to the
rules of privilege recognized by law.
Source: YSL 1-90 §14.
Official notice may be taken of
judicially cognizable facts.
Source: YSL 1-90 §15.
(a) A final decision or order adverse to a party in a contested case shall be in writing and stated in the record.
(b) A final decision shall include findings of fact and conclusions of law.
(c) If findings of fact are set forth in statutory language, they shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
(d) Findings of fact shall be based exclusively on the evidence and on matters officially noticed. An agency's experience, technical competence, and specialized knowledge may be used in the evaluation and interpretation of the evidence.
Source: YSL 1-90 §16, modified.
All parties shall be notified, either
personally or by mail, of any decision or order and shall, upon request,
be furnished with a copy of the same.
Source: YSL 1-90 §17.
In a contested case, the record shall
include:
(a) All pleadings, motions, proposed findings, exceptions, objections, briefs, and memoranda filed by the parties;
(b) A summary of the evidence received or considered and of matters officially noticed at any state of the proceedings;
(c) Any intermediate rulings and any decision, opinion or report by the officer presiding at the hearing;
(d) The final decision or order; and
(e) Any other relevant material ordered into the record by the agency or its hearing officer.
Source: YSL 1-90 §18, modified.
(a) Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency, who are assigned to render a decision or to make findings of fact or conclusions of law in a contested case, may not communicate, directly or indirectly, with any person or party in connection with any issue of fact, or with any party or representative of a party in connection with any issue of law, except upon notice and opportunity for all parties to participate.
(b) Except as provided in section 142 of this chapter and subsection (a) of this section, an agency member may communicate with other members of the agency and may have the aid and advice of any disinterested employee of the agency.
Source: YSL 1-90 §19, modified.
No officer, employee or agent engaged
in the performance of any investigative or prosecuting function for an
agency in a contested case may, in that or any factually related case,
participate or advise in any final or recommended agency decision, except
as witness or counsel in proceedings where all parties have notice and the
opportunity to participate.
Source: YSL 1-90 §20.
§161.
Right to review; interlocutory review.
§162.
Petition; stay of agency decision.
§163.
Transmission of record.
§164.
Review.
§165.
Decision.
(a) A person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this chapter.
(b) This section shall not limit the utilization of, or the scope of, judicial review available under other means of review, redress, relief or trial or trial de novo provided by law, and judicial review may not be sought under this chapter of any proceeding for which, or by any person for whom, the law specifically provides other adequate means of judicial review.
(c) A preliminary, procedural or intermediate agency action or ruling shall be immediately reviewable only if review of the final agency decision would not provide an adequate remedy.
Source: YSL 1-90 §21, modified.
Cross-reference: The constitutional provisions regarding the Judiciary are found in Yap Const., Art. VII. The statutory provisions on the Judiciary are found in Title 4 of this Code.
(a) Proceedings for review may be instituted by filing a petition in a court of competent jurisdiction within 30 days after the issuance of the decision to be reviewed, or if rehearing or reconsideration is requested, within 30 days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.
(b) The filing of a petition under this section shall not stay enforcement of the agency's decision. The agency may grant, or the court may order, a stay on appropriate terms.
Source: YSL 1-90 §22, modified.
Cross-reference: The constitutional provisions regarding the Judiciary are found in Yap Const., Art. VII. The statutory provisions on the Judiciary are found in Title 4 of this Code.
Within 30 days after service of the
petition, or within further time allowed by the court, the agency shall
transmit to the court the original or a certified copy of the record of
the proceeding under review.
Source: YSL 1-90 §23, modified.
(a) The review shall be confined to the record. Upon request by any party, the court shall receive briefs and hear oral argument. On motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record.
(b) The court may not substitute its judgment for that of the agency as to the weight of the evidence of questions of facts. In reviewing the agency's interpretation of evidence, its factual inferences, and its conclusions of law, the court shall give appropriate weight to the agency's experience, technical competence, and specialized knowledge.
Source: YSL 1-90 §24.
The court may reverse or modify the
decision of the agency, or remand the case for further proceedings, if
substantial rights of the petitioner have been prejudiced because the
decision of the agency is:
(a) In violation of applicable constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence in the whole record; and
(f) Arbitrary, capricious or characterized by abuse of discretion.
Source: YSL 1-90 §25, modified.
Cross-reference: The constitutional provisions regarding the Judiciary are found in Yap Const., Art. VII. The statutory provisions on the Judiciary are found in Title 4 of this Code.
§181.
Expiration of license sought to be renewed.
§182.
Prerequisites to revocation, suspension, annulment or
withdrawal.
§183.
Emergency suspensions.
When a licensee has made timely
application for the renewal of a license, the existing license shall not
expire until the application has been finally determined by the agency,
or, in case the application is denied or the terms of the new license
limited, until the last day for seeking review of the agency
order.
Source: YSL 1-90 §26, modified.
No revocation, suspension, annulment
or withdrawal of any license shall be lawful unless the agency gave the
licensee reasonable notice of facts or conduct which warrant the intended
action and an opportunity to show compliance with all lawful requirements
for the retention of the license.
Source: YSL 1-90 §27.
If an agency finds that the public
health, safety or welfare requires emergency action, and incorporates such
finding in its order, the agency may order a summary suspension of a
license for a period not to exceed 120 days, pending revocation
proceedings or other action.
Source: YSL 1-90 §28, modified.
§191.
Public service regulations.
Regulations proposed pursuant to the
State Public Service System Act prior to the effective date of this
chapter shall be exempt from the provisions of this chapter which concern
the procedure for adoption of regulations and their effective
date.
Source: YSL 1-90 §30, modified.
Commission Comment:
The effective date of this chapter is May 18, 1981. The
statutory provisions of the State Public Service System Act are found in
chapter 1 of Title 8 (Public Officers and Employment) of this
Code.