Alabama Administrative Procedure Act

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Administrative State

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The Alabama Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in Alabama. It can be found in Title 41, Chapter 22 of Code of Alabama.[1]

## Contents

* 1 Section 1: Short title
* 2 Section 2: Legislative intent and purpose; effect on substantive rights; applicability; authority to prescribe rules and regulations required in connection with this chapter
* 3 Section 3: Definitions
* 4 Section 4: Adoption by agencies of rules governing organization, practice, etc.; public access to rules, orders, etc.; effect of rules, orders, etc., not made available to public
* 5 Section 5: Notice of intent to adopt, amend, or repeal rules; adoption of emergency rules; procedural requirements; proceedings to contest rules
* 5.1 Section 5.1: Public notification of proposed rules; business economic impact statement; applicability
* 5.2 Section 5.2: Review of existing rules
* 6 Section 6: Designation and duties of agency secretaries; effective dates of rules
* 7 Section 7: Contents, publication, and availability of agency administrative codes, Alabama Administrative Code, and Alabama Administrative Monthly; filing of rules, amendments and repealers with Legislative Reference Service; uniform system for numbering rules; omission from publications of rules which are applicable to only one county; cost to agencies for use of Alabama Administrative Monthly
* 8 Section 8: Form for petition for adoption, amendment or repeal of rules; procedure upon submission of petition
* 9 Section 9: Adoption by reference of codes, standards, and regulations of other agencies of this state or the United States or of other approved organizations; form of reference; availability from agency of information as to rules, etc., adopted by reference.
* 10 Section 10: Action for declaratory judgment as to validity or applicability of rule; stay of enforcement of rule by injunction
* 11 Section 11: Petition for declaratory ruling as to validity of rule, as to applicability of any rule or statute enforceable by an agency, or as to meaning and scope of agency order; form and contents; binding effect of agency ruling; effect of failure to issue ruling; judicial review
* 12 Section 12: Notice and opportunity for hearing in contested cases; contents of notice; power of presiding officer to issue subpoenas, discovery and protective orders; procedure upon failure of notified party to appear; presentation of evidence and argument; right to counsel; disposition by stipulation, settlement, etc.; contents of record; public attendance at oral proceedings; recordings and transcripts of oral proceedings
* 13 Section 13: Rules of evidence in contested cases
* 14 Section 14: Intervention in contested cases
* 15 Section 15: Majority requirement for adoption of final decision in contested cases; use of proposed orders in cases where any official is unfamiliar with the case; finality of proposed orders
* 16 Section 16: Form and content of final order; when final order to be rendered; service of notice and copies of final order
* 17 Section 17: Filing of application for rehearing in contested cases; form and content; effect of application on final order; grounds for rehearing; service of application on parties of record; agency decision on application
* 18 Section 18: Disqualification from participation in proposed order or final decision based upon conflict of interest or personal bias
* 19 Section 19: Grant, denial, renewal, etc., of licenses
* 20 Section 20: Judicial review of preliminary, procedural, etc., actions or rulings and final decisions in contested cases
* 21 Section 21: Appeal of final judgment of circuit court under Section 41-22-20
* 22 Section 22: Joint Committee on Administrative Regulation Review
* 22.1 Section 22.1: Review of board and commission rules and actions by Legislative Reference Service and Joint Committee on Administrative Regulation Review; fees
* 23 Section 23: Submission and review of proposed rules; fiscal note required for rules with economic impact
* 24 Section 24: Reconsideration of disapproved rules by the Legislature
* 25 Section 25: Construction and applicability of chapter
* 26 Section 26: Repeal of inconsistent laws
* 27 Section 27: Effective date of chapter; validity, review, etc., of existing rules; disposition of adjudicative proceedings commenced prior to October 1, 1983; effective date and applicability as to Alabama Department of Environmental Management
* 28 See also
* 29 External links
* 30 Footnotes

## Section 1: Short title[edit]

Text of Section 1:

This chapter shall be known as and may be cited as the "Alabama Administrative Procedure Act."[1]

## Section 2: Legislative intent and purpose; effect on substantive rights; applicability; authority to prescribe rules and regulations required in connection with this chapter[edit]

Text of Section 2:

(a) This chapter is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public. Nothing in this chapter is meant to discourage agencies from adopting procedures conferring additional rights upon the public; and, save for express provisions of this act to the contrary, nothing in this chapter is meant to abrogate in whole or in part any statute prescribing procedural duties for an agency which are in addition to those provided herein.

(b) The purposes of the Alabama Administrative Procedure Act are:

(1) To provide legislative oversight of powers and duties delegated to administrative agencies;

(2) To increase public accountability of administrative agencies;

(3) To simplify government by assuring a uniform minimum procedure to which all agencies will be held in the conduct of their most important functions;

(4) To increase public access to governmental information;

(5) To increase public participation in the formulation of administrative rules;

(6) To increase the fairness of agencies in their conduct of contested case proceedings; and

(7) To simplify the process of judicial review of agency action as well as increase its ease and availability.

In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration.

(c) This chapter is not meant to alter the substantive rights of any person or agency. Its impact is limited to procedural rights with the expectation that better substantive results will be achieved in the everyday conduct of state government by improving the process by which those results are attained.

(d) Every state agency having express statutory authority to promulgate rules and regulations shall be governed by the provisions of this chapter and any additional provisions required by statute, and shall also have the authority to amend or repeal rules and regulations, and to prescribe methods and procedures required in connection therewith. Nothing in this chapter shall be construed as granting to any agency the authority to adopt or promulgate rules and regulations.

(e) All agencies whose rules or administrative decisions are subject to approval by the Supreme Court of Alabama and the Department of Insurance of the State of Alabama are exempted from the provisions of this chapter.[1]

## Section 3: Definitions[edit]

Text of Section 3:

The following words and phrases when used in this chapter shall, for the purpose of this chapter, have meanings respectively ascribed to them in this section, except when the context otherwise requires:

(1) AGENCY. Every board, bureau, commission, department, officer, or other administrative office or unit of the state, including the Alabama Department of Environmental Management, other than the Legislature and its agencies, the Alabama State Port Authority, the courts, the Alabama Public Service Commission, or the State Banking Department, whose administrative procedures are governed by Sections 5-2A-8 and 5-2A-9. The term shall not include boards of trustees of postsecondary institutions, boards of plans administered by public pension systems, counties, municipalities, or any agencies of local governmental units, unless they are expressly made subject to this chapter by general or special law.

(2) COMMITTEE. The Joint Committee on Administrative Regulation Review shall be the members of the Legislative Council.

(3) CONTESTED CASE. A proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing. The term shall not include intra-agency personnel actions; shall not include those hearings or proceedings in which the Alabama Board of Pardons and Paroles considers the granting or denial of pardons, paroles or restoration of civil and political rights or remission of fines and forfeitures; and which are exempt from Sections 41-22-12 through 41-22-21, relating to contested cases.

(4) LICENSE. The whole or part of any agency franchise, permit, certificate, approval, registration, charter, or similar form of permission required by law, but not a license required solely for revenue purposes when issuance of the license is merely a ministerial act.

(5) LICENSING. The agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license or imposition of terms for the exercise of a license.

(6) PARTY. Each person or agency named or admitted as a party or properly seeking and entitled as a matter of right, whether established by constitution, statute, or agency regulation or otherwise, to be admitted as a party, or admitted as an intervenor under Section 41-22-14. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.

(7) PERSON. Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(8) QUORUM. No less than a majority of the members of a multimember agency shall constitute a quorum authorized to act in the name of the agency, unless provided otherwise by statute.

(9) RULE. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation; provided, however, all forms shall be filed with the secretary of the agency and with the Legislative Reference Service and all forms, except intergovernmental, interagency, and intra-agency forms which do not affect the rights of the public and emergency forms adopted pursuant to Section 41-22-5, shall be published in the Agency Administrative Code. The term includes the amendment or repeal of all existing rules, but does not include any of the following:

a. Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public.

b. Declaratory rulings issued pursuant to Section 41-22-11.

c. Intergovernmental, interagency, and intra-agency memoranda, directives, manuals, or other communications which do not substantially affect the legal rights of, or procedures available to, the public or any segment thereof.

d. Determinations, decisions, orders, statements of policy, and interpretations that are made in contested cases.

e. An order which is directed to a specifically named person or to a group of specifically named persons which does not constitute a general class, and the order is served on the person or persons to whom it is directed by the appropriate means applicable thereto. The fact that the named person who is being regulated serves a group of unnamed persons who will be affected does not make the order a rule.

f. An order which applies to a specifically described tract of real estate.

g. Any rules or actions relating to any of the following:

1\. The conduct of inmates of public institutions and prisoners on parole.

2\. The curriculum of public educational institutions or the admission, conduct, discipline, or graduation of students of the institutions; provided, however, that this exception shall not extend to rules or actions of the State Department of Education.

3\. Opinions issued by the Attorney General of the State of Alabama.

4\. The conduct of commissioned officers, warrant officers, and enlisted persons in the military service.

5\. Advisory opinions issued by the Alabama Ethics Commission.

6\. Hunting and fishing seasons or bag or creel limits promulgated by the Commissioner of the Department of Conservation and Natural Resources.

h. Standards, specifications, codes, plans, manuals, and publications used in the design, construction, repair, and maintenance of highways, roads, and bridges under the jurisdiction of the Department of Transportation.[1]

## Section 4: Adoption by agencies of rules governing organization, practice, etc.; public access to rules, orders, etc.; effect of rules, orders, etc., not made available to public[edit]

Text of Section 4:

(a) In addition to the other rulemaking requirements imposed by law, each agency shall:

(1) Adopt as a rule a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests;

(2) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency;

(3) Make available for public inspection and copying, at cost, all rules and all other written statements of policy or interpretations formulated, adopted or used by the agency in the discharge of its functions;

(4) Make available for public inspection and copying, at cost, and index by name and subject all final orders, decisions, and opinions which are issued after October 1, 1982, except those expressly made confidential or privileged by statute or order of court.

(b) No agency rule, order, or decision shall be 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 and indexed as required by this section and the agency has given all notices required by Section 41-22-5. This provision is not applicable in favor of any person or party who has actual knowledge thereof, and the burden of proving such knowledge shall be on the agency.[1]

## Section 5: Notice of intent to adopt, amend, or repeal rules; adoption of emergency rules; procedural requirements; proceedings to contest rules[edit]

Text of Section 5:

(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:

(1) Give at least 35 days' notice of its intended action. Date of publication in the Alabama Administrative Monthly shall constitute the date of notice. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, shall specify a notice period ending not less than 35 days or more than 90 days from the date of the notice, during which period interested persons may present their views thereon, and shall specify the place where, and the manner in which interested persons may present their views thereon. The notice shall be given to the chairman of the legislative committee, as provided in Section 41-22-23, and mailed to all persons who pay the cost of such mailing and who have made timely request of the agency for advance notice of its rulemaking proceedings and shall be published, prior to any action thereon, in the Alabama Administrative Monthly. A complete copy of the proposed rule shall be filed with the secretary of the agency and the Legislative Reference Service.

(2) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if conflicting views are submitted on the proposed rule, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein its reasons for overruling any considerations urged against its adoption.

(b) Notwithstanding any other provision of this chapter to the contrary, if an agency finds that an immediate danger to the public health, safety, or welfare requires adoption of a rule upon fewer than 35 days' notice or that action is required by or to comply with a federal statute or regulation which requires adoption of a rule upon fewer than 35 days' notice and states in writing its reasons for that finding to the committee, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule shall become effective immediately, unless otherwise stated therein, upon the filing of the rule and a copy of the written statement of the reasons therefor with the Legislative Reference Service and the secretary of the agency. The rule may be effective for a period of not longer than 120 days and shall not be renewable. An agency shall not adopt the same or a substantially similar emergency rule within one calendar year from its first adoption unless the agency clearly establishes it could not reasonably be foreseen during the initial 120-day period that such emergency would continue or would likely reoccur during the next nine months. The adoption of the same or a substantially similar rule by normal rule-making procedures is not precluded. In any subsequent action contesting the effective date of a rule adopted pursuant to this subsection, the burden of proof shall be on the agency to justify its finding. Prior to indexing and publication, the agency shall make reasonable efforts to apprise the persons who may be affected by its rules of the adoption of the emergency rule. An emergency rule shall be strictly construed and shall not be valid except to the extent necessary to prevent, mitigate, or resolve immediate danger to the public health, safety, or welfare.

(c) It is the intent of this section to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules. Except for emergency rules which are provided for in subsection (b) of this section, the provisions of this section are applicable to the exercise of any rulemaking authority conferred by any statute, but nothing in this section repeals or diminishes additional requirements imposed by law or diminishes or repeals any summary power granted by law to the state or any agency thereof.

(d) No rule adopted after October 1, 1982, is valid unless adopted in substantial compliance with this section. A proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this section must be commenced within two years from the effective date of the rule; provided, however, that a proceeding to contest a rule based on failure to provide notice as herein required may be commenced at any time.[1]

### Section 5.1: Public notification of proposed rules; business economic impact statement; applicability[edit]

Text of Section 5.1:

(a) This section and Section 41-22-5.2 shall be known and may be cited as "The Red Tape Reduction Act."

(b) When an agency files a notice of intent to adopt, amend, or repeal any rule, the agency shall make its best efforts to notify the public of the proposed rule. At a minimum, when the agency files the notice of intent, the agency shall post the text of the rule the agency proposes to adopt, amend, or repeal on its website or, if the agency has no website, on a website operated or maintained by the executive branch. Additionally, when the agency files a notice of intent to adopt, amend, or repeal a rule, the agency shall electronically notify any person who has registered with the agency his or her desire to receive notification of any proposal by the agency to adopt, amend, or repeal a rule.

(c) If, prior to the end of the notice period, a business notifies an agency that it will be negatively impacted by an action proposed under subsection (b), the agency shall prepare and submit to the committee or its successor committee, agency, or service the information provided by the affected business as well as a Business Economic Impact Statement. The statement shall estimate the number of businesses subject to the agency's proposal as well as the projected reporting, recordkeeping, and other administrative costs required for compliance with the proposal. An agency shall prepare the business economic impact statement using information available to the agency in the normal course of business and utilizing the expertise and experience of existing agency employees.

(d) After receiving a business economic impact statement from an agency, the committee or its successor committee, agency, or service may require the agency to analyze and report to the committee or its successor committee, agency, or service the feasibility of some or all of the following methods of reducing the impact of the rule on businesses:

(1) The establishment of less stringent compliance or reporting requirements for businesses.

(2) The establishment of less stringent schedules or deadlines for compliance or reporting requirements for businesses.

(3) The consolidation or simplification of compliance or reporting requirements for businesses.

(4) The establishment of performance standards for businesses to replace design or operational standards required in the rule.

(e) An agency shall include information on any business economic impact statement whether the proposed rule is proposed as a result of a requirement issued by a federal agency.

(f) A business economic impact statement required to be filed pursuant to this section shall be filed with the Legislative Reference Service at the same time as the proposed rule is certified to the Legislative Reference Service and shall be available for public inspection.

(g) Each agency that files a business economic impact statement, at the time it is filed, shall place that statement on its website in a location that is easily accessible by the general public, or, if the agency does not have a website, on a website operated or maintained by the executive branch.

(h) If the committee or its successor committee, agency, or service determines that an agency or a division of an agency exists primarily to perform certification or licensing-related functions, the agency is not required to comply with the provisions of this section unless the committee or its successor committee, agency, or service determines in writing that an agency's proposal has such a negative impact on businesses that the filing of a business economic impact statement is warranted. Notwithstanding the provisions of subsection (c) of Section 41-22-6 providing that a rule is effective 45 days after filing with Legislative Reference Service, in any case in which the committee or its successor committee, agency, or service determines that the filing of a business economic impact statement is warranted as provided herein, the effective date of the rule shall be 45 additional days after the effective date specified in subsection (c) of Section 41-22-6. In all other respects, the remainder of this chapter shall continue to apply to the proposed rule.

(i) An agency or department shall fulfill any request for license or permit within 28 calendar days after receiving the application or notify the applicant of the reason for failure to issue the license or permit.

(j) An agency is not required to comply with this section if the proposed rule is being adopted in order for the agency to comply with membership requirements in a multi-state or national membership organization.

(k) This section shall not apply to the promulgation of an emergency rule adopted pursuant to subsection (b) of Section 41-22-5.[1]

### Section 5.2: Review of existing rules[edit]

Text of Section 5.2:

(a) Within five years of July 1, 2013, each agency shall review all agency rules existing on that date to determine whether the rules should be continued without change, or should be amended or rescinded. If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, the agency shall publish a statement certifying that determination.

(b) A rule adopted after July 1, 2013, shall be reviewed every five years in a manner consistent with subsection (a).[1]

## Section 6: Designation and duties of agency secretaries; effective dates of rules[edit]

Text of Section 6:

(a) Each agency shall have an officer designated as its secretary and shall file in the office of the secretary of the agency a certified copy of each rule adopted by it, including all rules, as defined in this chapter, existing on October 1, 1981. Each rule or regulation promulgated, whether the original or a revision, and all copies thereof, shall have the name or names of the author or authors, respectively, on its face. The secretary of the agency shall keep a permanent register of the rules open to public inspection.

(b) The secretary of each agency shall file in the office of the Legislative Reference Service, no later than 15 days after the filing with the secretary of the agency and within 90 days after completion of the notice, in a form and manner prescribed by the Legislative Reference Service, a certified copy of each rule adopted by it. As used in this section, "completion of notice" means the end of the notice period specified pursuant to subdivision (1) of subsection (a) of Section 41-22-5. A rule that is not filed with the Legislative Reference Service within the time limits prescribed in this subdivision is invalid. The Legislative Reference Service shall keep a permanent register of the rules open to public inspection.

(c) Each rule hereafter adopted is effective 45 days after filing with the Legislative Reference Service, unless it is:

(1) A rule for which a later date is required by statute or specified in the rule.

(2) A rule for which an earlier date is required by statute.

(3) An emergency rule adopted pursuant to subsection (b) of Section 41-22-5.

(4) A rule which the committee disapproves of or proposes an amendment for pursuant to Section 41-22-23.

(5) A rule that takes effect upon adjournment of the next legislative session following the completion of the appeal process as set forth in Section 41-22-23, if the Legislature fails to take action to disapprove the rule after approval by the Lieutenant Governor.[1]

## Section 7: Contents, publication, and availability of agency administrative codes, Alabama Administrative Code, and Alabama Administrative Monthly; filing of rules, amendments and repealers with Legislative Reference Service; uniform system for numbering rules; omission from publications of rules which are applicable to only one county; cost to agencies for use of Alabama Administrative Monthly[edit]

Text of Section 7:

(a) The secretary of the agency shall establish and maintain an official register of regulations which shall be compiled, indexed, published in loose-leaf form, and kept up to date by the secretary of the agency. This register of regulations shall be known as "The (name of the agency) Administrative Code," and it shall be made available, upon request, at cost to all persons for copying and inspection and to those persons who subscribe thereto. Supplementation shall be made as often as is practicable, but at least once every year. The secretary of the agency shall number and renumber rules to conform with a uniform numbering system devised by the Legislative Reference Service.

(b) The secretary of the agency may omit from its administrative code rules that are general in form, but are applicable to only one county or a part thereof. Rules so omitted shall be filed with the secretary of the agency, and exclusion from publication shall not affect their validity or effectiveness. The secretary of the agency shall publish a compilation of and index to all rules so omitted at least annually.

(c) The secretary of the agency shall make copies of the agency's administrative code available on an annual subscription basis, at cost.

(d) The secretary of the agency shall file with the Legislative Reference Service, not later than 15 days after filing with the secretary of the agency, all rules or amendments or repeal of rules promulgated by the agency. In addition, the secretary of the Alabama Public Service Commission and the Alabama State Port Authority shall file with the Legislative Reference Service, not later than 15 days after filing with the secretary of the commission, all rules or amendments or repeal of rules promulgated by that commission.

(e) The Legislative Reference Service shall establish and maintain an official register of regulations which shall be so compiled, indexed, published in loose-leaf form, and kept up to date by the Legislative Reference Service. The register of regulations shall be known as the "Alabama Administrative Code," and shall be made available at cost, upon request, to all persons for inspection and copying or who subscribe thereto. Supplementation shall be made as often as is practicable, but at least once every year. The Legislative Reference Service shall devise a uniform numbering system for rules and may renumber rules before publication to conform with the system.

(f) The Legislative Reference Service shall publish a monthly bulletin entitled the "Alabama Administrative Monthly," which shall contain a statement of either the terms or substance of all rules filed during the preceding month, excluding rules in effect on October 1, 1982, together with other material required by law and such other material the agency or committee determines to be of general interest.

(g) The Legislative Reference Service may omit from the Alabama Administrative Monthly and the Alabama Administrative Code rules that are general in form, but are applicable to only one county or a part thereof. Rules so omitted shall be filed with the Legislative Reference Service, and exclusion from publication shall not affect their validity or effectiveness. The Legislative Reference Service shall publish a compilation of, and index to, all rules so omitted at least annually.

(h) The Legislative Reference Service shall make copies of the Alabama Administrative Code and copies of the Alabama Administrative Monthly available at cost on an annual subscription basis.

(i) The Legislative Reference Service shall charge each agency using the Alabama Administrative Monthly a space rate computed to cover all publishing or printing costs related to the Alabama Administrative Monthly and shall charge each agency a per page rate for each page published in the Alabama Administrative Code to cover costs incurred by the Legislative Reference Service in publishing the Alabama Administrative Code.[1]

## Section 8: Form for petition for adoption, amendment or repeal of rules; procedure upon submission of petition[edit]

Text of Section 8:

Each agency shall prescribe by rule the form for petition requesting the adoption, amendment or repeal of a rule and the procedure for submission, consideration, and disposition thereof. Within 60 days after submission of a petition, the agency either shall deny the petition in writing on the merits, stating its reasons for the denial, or initiate rule-making proceedings in accordance with Section 41-22-5; provided, however, an agency which has its next regularly scheduled meeting beyond said 60-day period, may by written notice extend said period for not more than 30 days during which it shall deny or initiate rule-making proceedings.[1]

## Section 9: Adoption by reference of codes, standards, and regulations of other agencies of this state or the United States or of other approved organizations; form of reference; availability from agency of information as to rules, etc., adopted by reference.[edit]

Text of Section 9:

An agency may adopt, by reference in its rules and without publishing the adopted matter in full, all or any part of a code, standard or regulation which has been adopted by any other agency of this state or any agency of the United States or by a generally recognized organization or association approved by the joint committee administrative regulation review. The reference shall fully identify the adopted matter by date and otherwise. The agency shall have available copies of the adopted matter for inspection and the rules shall state where copies of the adopted matter can be obtained and any charge therefor as of the time the rule is adopted.[1]

## Section 10: Action for declaratory judgment as to validity or applicability of rule; stay of enforcement of rule by injunction[edit]

Text of Section 10:

The validity or applicability of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. In passing on such rules the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter.[1]

## Section 11: Petition for declaratory ruling as to validity of rule, as to applicability of any rule or statute enforceable by an agency, or as to meaning and scope of agency order; form and contents; binding effect of agency ruling; effect of failure to issue ruling; judicial review[edit]

Text of Section 11:

(a) On the petition of any person substantially affected by a rule, an agency may issue a declaratory ruling with respect to the validity of the rule or with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it or with respect to the meaning and scope of any order of the agency. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule. Each agency shall prescribe by rule the form of such petitions and the procedure for their submission, consideration and disposition, and shall prescribe in its rules the circumstances in which rulings shall or shall not be issued.

(b) A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by a court in a proper proceeding. Such rulings are subject to review in the Circuit Court of Montgomery County, unless otherwise specifically provided by the statute, in the manner provided in Section 41-22-20 for the review of decisions in contested cases. Failure of the agency to issue a declaratory ruling on the merits within 45 days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits of the request and shall be subject to judicial review.[1]

## Section 12: Notice and opportunity for hearing in contested cases; contents of notice; power of presiding officer to issue subpoenas, discovery and protective orders; procedure upon failure of notified party to appear; presentation of evidence and argument; right to counsel; disposition by stipulation, settlement, etc.; contents of record; public attendance at oral proceedings; recordings and transcripts of oral proceedings[edit]

Text of Section 12:

(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or by certified mail, return receipt requested. However, an agency may provide by rule for the delivery of such notice by other means, including, where permitted by existing statute, delivery by first class mail, postage prepaid, to be effective upon the deposit of the notice in the mail. Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceeding.

(b) The notice shall include:

(1) A statement of the time, place, and nature of the hearing;

(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) A reference to the particular sections of the statutes and rules involved; and

(4) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.

(c) In a contested case, on motion of a party, the presiding officer conducting the hearing may issue subpoenas, discovery orders related to relevant matters, and protective orders in accordance with the rules of civil procedure. The agency may set a reasonable fee by rule for the issuance of a subpoena to be paid by the moving party. Process issued pursuant to this subsection shall be enforced by a court in the same manner as process issued by the court. This subsection shall not apply to proceedings before the State Ethics Commission.

(d) If a party fails to appear in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of the party.

(e) Opportunity shall be afforded all parties to respond and present evidence and argument on all material issues involved and to be represented by counsel at their own expense. Provided, where the statutory determinative process is a multi-level or multi-step procedure, the opportunity to present evidence need be afforded the parties at only one level or step in the determination process, unless otherwise provided by statute establishing such determination process.

(f) Unless precluded by statute, informal dispositions may be made of any contested case by stipulation, agreed settlement, consent order, or default or by another method agreed upon by the parties in writing.

(g) The record in a contested case shall include:

(1) All pleadings, motions, and intermediate rulings;

(2) All evidence received or considered and all other submissions; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information;

(3) A statement of all matters officially noticed;

(4) All questions and offers of proof, objections, and rulings thereon;

(5) All proposed findings and exceptions;

(6) Any decision, opinion, or report by the hearing officer at the hearing; and

(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case unless such memoranda or data is protected as confidential or privileged; provided, if such memoranda or data contains information of a proprietary and confidential nature, it shall be protected by the agency from public disclosure.

(h) Oral proceedings shall be open to the public, unless private hearings are otherwise authorized by law. Oral proceedings shall be recorded either by mechanized means or by qualified shorthand reporters. Oral proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. The recording or stenographic notes of oral proceedings or the transcription thereof shall be filed with and maintained by the agency for at least five years from the date of decision and shall be made available for inspection by the public, except in those cases where private hearings are authorized by law, or where the proceedings shall be ordered sealed by order of court, or are required to be sealed by statute.

(i) Findings of fact shall be based solely on the evidence in the record and on matters officially noticed in the record.[1]

## Section 13: Rules of evidence in contested cases[edit]

Text of Section 13:

In contested cases:

(1) The rules of evidence as applied in nonjury civil cases in the circuit courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law. Except as hereinafter provided, objections to evidentiary offers may be made and shall be noted in the record. Whenever any evidence is excluded as inadmissible, all such evidence existing in written form shall remain a part of the record as an offer of proof. The party seeking the admission of oral testimony may make an offer of proof by means of a brief statement on the record describing the testimony excluded. All rulings on the admissibility of evidence shall be final and shall appear in the record. Subject to these requirements, when a hearing will be expedited and interests of the parties will not be prejudiced substantially, any part of the evidence may be received or may be required to be submitted in verified form; provided, the adversary party shall not be denied the right of cross-examination of the witness. The testimony of parties and witnesses shall be made under oath. Provided, however, in the hearing of a contested case where judicial review of the case is by trial de novo, the agency may announce that it shall not be necessary that objections be made during the hearing and upon such announcement, it shall not be required or necessary that objection to be made to any testimony or evidence which may be offered by either party, and on the consideration of such cases the agency shall consider only such testimony and evidence as is relevant, material, competent and legal, and shall not consider any testimony or evidence which is irrelevant, immaterial, incompetent or illegal, whether objection shall have been made thereto or not, and whether such testimony be brought out on direct, cross or re-direct examination, or is hearsay. The agency shall not be required to point out what testimony or evidence should be excluded or not considered. Either party, on submission, shall have the privilege of calling attention to any testimony or evidence which is deemed objectionable. If specific objection be made to any evidence and a ruling made thereon by the agency, this exception shall not apply to such evidence.

(2) Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the agency. Upon request, parties shall be given an opportunity to compare the copy with the original.

(3) A party may conduct cross-examination required for a full and true disclosure of the facts, except as may otherwise be limited by law.

(4) Official notice may be taken of all facts of which judicial notice may be taken and of other scientific and technical facts within the specialized knowledge of the agency. Parties shall be notified at the earliest practicable time, either before or during the hearing, or by reference in preliminary reports, preliminary decisions or otherwise, of the facts proposed to be noticed and their source, including any staff memoranda or data, and the parties shall be afforded an opportunity to contest such facts before the decision is announced unless the agency determines as part of the record or decision that fairness to the parties does not require an opportunity to contest such facts.

(5) The experience, technical competence, and specialized knowledge of the agency may be utilized in the evaluation of the evidence.[1]

## Section 14: Intervention in contested cases[edit]

Text of Section 14:

In contested cases, upon timely application, any person shall be permitted to intervene when a statute confers an unconditional right to intervene, or when the applicant has an individual interest in the outcome of the case as distinguished from a public interest and the representation of the interest of the applicant is inadequate.[1]

## Section 15: Majority requirement for adoption of final decision in contested cases; use of proposed orders in cases where any official is unfamiliar with the case; finality of proposed orders[edit]

Text of Section 15:

In a contested case, a majority of the officials of the agency who are to render the final order must be in accord for the decision of the agency to be a final decision. If any official of the agency who is to participate in the final decision has not heard the case or read the record and his vote would affect the final decision, the final decision shall not be made until a proposed order is prepared and an opportunity is afforded to each party adversely affected by the proposed order to file exceptions and present briefs and oral argument to the official not having heard the case or read the record. The proposed order shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision prepared by the person who conducted the hearing or one who read the record. The proposed order shall become the final decision of the agency without further proceedings, unless there are exceptions filed or an appeal to the agency within the time provided by rule. The parties by written stipulation may waive compliance with this section.[1]

## Section 16: Form and content of final order; when final order to be rendered; service of notice and copies of final order[edit]

Text of Section 16:

(a) The final order in a proceeding which affects substantial interests shall be in writing and made a part of the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 30 days:

(1) After the hearing is concluded, if conducted by the agency;

(2) After a recommended order, or findings and conclusions are submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer; or

(3) After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing. The 30 day period may be waived or extended with the consent of all parties and may be extended by law with reference to specific agencies.

(b) Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, shall be accompanied by a concise and explicit statement of the underlying facts of record which support the findings. If, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.

(c) If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such findings in the final order, which shall be appealable or enjoinable from the date rendered.

(d) Parties shall be notified either personally or by certified mail return receipt requested of any order and, unless waived, a copy of the final order shall be so delivered or mailed to each party or to his attorney of record. Provided, however, that, except as hereinafter provided, notification of any order other than a final decision or order subject to judicial review may, where permitted by existing statute, be delivered by first class mail, postage prepaid, and delivery shall be effective upon deposit of the notice and, unless waived, the final order in the mail; provided, the notification of the final order subject to judicial review, together with a copy of the final order, shall be delivered either by personal service as in civil actions or by certified mail, return receipt requested.[1]

## Section 17: Filing of application for rehearing in contested cases; form and content; effect of application on final order; grounds for rehearing; service of application on parties of record; agency decision on application[edit]

Text of Section 17:

(a) Any party to a contested case who deems himself aggrieved by a final order and who desires to have the same modified or set aside may, within 15 days after entry of said order, file an application for rehearing, which shall specify in detail the grounds for the relief sought therein and authorities in support thereof.

(b) The filing of such an application for rehearing shall not extend, modify, suspend or delay the effective date of the order, and said order shall take effect on the date fixed by the agency and shall continue in effect unless and until said application shall be granted or until said order shall be superseded, modified, or set aside in a manner provided by law.

(c) Such application for rehearing will lie only if the final order is:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) In violation of an agency rule;

(4) Made upon unlawful procedure;

(5) Affected by other error of law;

(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(7) Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

(d) Copies of such application for rehearing shall be served on all parties of record, who may file replies thereto.

(e) Within 30 days from the filing of an application the agency may in its discretion enter an order:

(1) Setting a hearing on the application for a rehearing which shall be heard as soon as practicable; or
(2) With reference to the application without a hearing; or
(3) Granting or denying the application.

If the agency enters no order whatsoever regarding the application within the 30-day period, the application shall be deemed to have been denied as of the expiration of the 30-day period.[1]

## Section 18: Disqualification from participation in proposed order or final decision based upon conflict of interest or personal bias[edit]

Text of Section 18:

(a) No individual who participates in the making of any proposed order or final decision in a contested case shall have prosecuted or represented a party in connection with that case, the specific controversy underlying that case, or another pending factually related contested case, or pending factually related controversy that may culminate in a contested case involving the same parties. Nor shall any such individual be subject to the authority, direction or discretion of any person who has prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy, involving the same parties.

(b) A party to a contested case proceeding may file a timely and sufficient affidavit asserting disqualification according to the provisions of subsection (a) or asserting personal bias of an individual participating in the making of any proposed order or final decision in that case. The agency shall determine the matter as part of the record in the case. When an agency in these circumstances makes such a determination with respect to an agency member, that determination shall be subject to de novo judicial review in any subsequent review proceeding of the case.[1]

## Section 19: Grant, denial, renewal, etc., of licenses[edit]

Text of Section 19:

(a) The provisions of this chapter concerning contested cases shall apply to the grant, denial, revocation, suspension, or renewal of a license.

(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, 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 or a later date fixed by order of the reviewing court.

(c) No revocation, suspension, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by certified mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.

(d) If the agency finds that danger to the public health, safety, or welfare requires emergency suspension of a license and states in writing its reasons for that finding, it may proceed without hearing or upon any abbreviated hearing that it finds practicable to suspend the license. The suspension shall become effective immediately, unless otherwise stated therein. The suspension may be effective for a period of not longer than 120 days and shall not be renewable. An agency shall not suspend the same license for the same or a substantially similar emergency within one calendar year from its first suspension unless the agency clearly establishes that it could not reasonably be foreseen during the initial 120-day period that such emergency would continue or would likely reoccur during the next nine months. When such summary suspension is ordered, a formal suspension or revocation proceeding under subsection (c) of this section shall also be promptly instituted and acted upon.[1]

## Section 20: Judicial review of preliminary, procedural, etc., actions or rulings and final decisions in contested cases[edit]

Text of Section 20:

(a) A person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

(b) All proceedings for review may be instituted by filing of notice of appeal or review and a cost bond with the agency to cover the reasonable costs of preparing the transcript of the proceeding under review, unless waived by the agency or the court on a showing of substantial hardship. A petition shall be filed either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters, or unless otherwise specifically provided by statute, in the circuit court of the county where a party other than an intervenor, resides or if a party, other than an intervenor, is a corporation, domestic or foreign, having a registered office or business office in this state, then in the county of the registered office or principal place of business within this state.

(c) The filing of the notice of appeal or the petition does not itself stay enforcement of the agency decision. If the agency decision has the effect of suspending or revoking a license, a stay or supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the reviewing court, upon petition of the agency, determines that a stay or supersedeas would constitute a probable danger to the public health, safety, or welfare. In all other cases, the agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted; provided, however, if the appeal or proceedings for review to any reviewing court is from an order of the agency increasing or reducing or refusing to increase rates, fares, or charges, or any of them, or any schedule or parts of any schedule of rates, fares, or charges, the reviewing court shall not direct or order a supersedeas or stay of the action or order to be reviewed without requiring, as a condition precedent to the granting of such supersedeas, that the party applying for supersedeas or stay shall execute and file with the clerk of the court a bond as provided for and required by statute or law. If the circuit court shall fail or refuse to grant supersedeas or stay, the party seeking such relief may petition the appropriate court to which the appeal or review lies to order a supersedeas or stay of the action or order of the agency from which review is sought. After the required bond shall have been filed and approved by the clerk, such agency order shall be stayed and superseded, and it shall be lawful to charge the rates, fares, or charges which have been reduced, refused, or denied by the agency order, until the final disposition of the cause. The provisions of this subsection shall apply when applicable, anything in Rule 60 of the Alabama Rules of Civil Procedure restricting the provisions of this subsection to the contrary notwithstanding.

(d) The notice of appeal or review shall be filed within 30 days after the receipt of the notice of or other service of the final decision of the agency upon the petitioner or, if a rehearing is requested under Section 41-22-17, within 30 days after the receipt of the notice of or other service of the decision of the agency thereon. The petition for judicial review in the circuit court shall be filed within 30 days after the filing of the notice of appeal or review. Copies of the petition shall be served upon the agency and all parties of record. Any person aggrieved who is not a party may petition to become a party by filing a motion to intervene as provided in Section 41-22-14. Failure to file such petition within the time stated shall operate as a waiver of the right of such person to review under this chapter, except that for good cause shown, the judge of the reviewing court may extend the time for filing, not to exceed an additional 30 days, or, within four months after the issuance of the agency order, issue an order permitting a review of the agency decision under this chapter notwithstanding such waiver. Any notice required herein which is mailed by the petitioner, certified mail return receipt requested, shall be deemed to have been filed as of the date it is postmarked. This section shall apply to judicial review from the final order or action of all agencies, and amends the judicial review statutes relating to all agencies to provide a period of 30 days within which to appeal or to institute judicial review.

(e) If there has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts, the court shall order the agency to conduct a prompt fact-finding proceeding under this chapter after having a reasonable opportunity to reconsider its determination on the record of the proceedings.

(f) Unreasonable delay on the part of an agency in reaching a final decision shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency.

(g) Within 30 days after receipt of the notice of appeal or within such additional time as the court may allow, the agency shall transmit to the reviewing court the original or a certified copy of the entire record and transcript of the proceedings under review. With the permission of the court, the record of the proceedings under review may be shortened by stipulation of all parties to the review proceedings. Any party found by the reviewing court to have unreasonably refused to stipulate to limit the record may be taxed by the court for such additional costs as may be occasioned by the refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable.

(h) The petition for review shall name the agency as respondent and shall contain a concise statement of:

(1) The nature of the agency action which is the subject of the petition;

(2) The particular agency action appealed from;

(3) The facts and law on which jurisdiction and venue are based;

(4) The grounds on which relief is sought; and

(5) The relief sought.

(i) In proceedings for judicial review of agency action in a contested case, except where appeal or judicial review is by a trial de novo, a reviewing court shall not itself hear or accept any further evidence with respect to those issues of fact whose determination was entrusted by law to the agency in that contested case proceeding; provided, however, that evidence may be introduced in the reviewing court as to fraud or misconduct of some person engaged in the administration of the agency or procedural irregularities before the agency not shown in the record and the affecting order, ruling, or award from which review is sought, and proof thereon may be taken in the reviewing court. If, before the date set for hearing a petition for judicial review of agency action in a contested case, it is shown to the satisfaction of the court that additional evidence is material and that there were good reasons for failure to present it in the contested case proceeding before the agency, the court may remand to the agency and order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modification, new findings, or decision with the reviewing court and mail copies of the new findings, or decision to all parties.

(j) The review shall be conducted by the court without a jury and, except as herein provided, shall in the review of contested cases be confined to the record and the additions thereto as may be made under subsection (i) of this section. Judicial review shall be by trial de novo in the circuit court where review is sought from tax assessments, tax determinations or tax redeterminations, rulings of the Revenue Department granting, denying, or revoking licenses, or rulings on petitions for tax refunds, or, unless a subsequent agency statute provides otherwise, where an agency statute existing on the effective date of Act No. 81-855, 1981 Acts of Alabama, or thereafter enacted provides for a trial de novo on appeal to or review by the courts; provided, however, in the review of tax assessments, tax determinations, or tax redeterminations, rulings of the Revenue Department granting, denying, or revoking licenses, or rulings on petitions for tax refunds, the administrative record and transcript shall be transmitted to the reviewing court as provided in subsection (g) of this section, and, on motion of either party, shall be admitted into evidence in the trial de novo, subject to the rights of either party to assign errors, objections, or motions to exclude calling attention to any testimony or evidence in the administrative record or transcript which is deemed objectionable or inadmissible. Provided further that, with the consent of all parties, judicial review may be on the administrative record and transcript. The court, upon request, shall hear oral argument and receive written briefs.

(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) In violation of any pertinent agency rule;

(4) Made upon unlawful procedure;

(5) Affected by other error of law;

(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

(l) Unless the court affirms the decision of the agency, the court shall set out in writing, which writing shall become a part of the record, the reasons for its decision.[1]

## Section 21: Appeal of final judgment of circuit court under Section 41-22-20[edit]

Text of Section 21:

An aggrieved party may obtain a review of any final judgment of the circuit court under Section 41-22-20 by appeal to the appropriate court to which the appeal or review lies. The appeal shall be taken within 42 days of the date of the entry of the judgment or order appealed from as in other civil cases, although the appeal may be taken regardless of the amount involved.[1]

## Section 22: Joint Committee on Administrative Regulation Review[edit]

Text of Section 22:

The committee shall review all agency rules prior to their adoption. The committee shall have full access to all resources of the legislative department and all agencies thereof when conducting its review.[1]

### Section 22.1: Review of board and commission rules and actions by Legislative Reference Service and Joint Committee on Administrative Regulation Review; fees[edit]

Text of Section 22.1:

(a) The Legislative Reference Service shall review each rule certified to it by a state board or commission that regulates a profession, a controlling number of the members of which are active market participants in the profession, to determine whether the rule may significantly lessen competition and, if so, whether the rule was made pursuant to a clearly articulated state policy to displace competition.

(b) If the Legislative Reference Service determines that a rule subject to subsection (a) may significantly lessen competition, it shall determine whether the rule was made pursuant to a clearly articulated state policy to displace competition, and shall certify those determinations to the committee. The board or commission shall submit a position paper, a transcript of any public hearings regarding the rule, and any other material collected during the consideration of the rule by the board or commission to accompany the rule as it is submitted to the committee. Upon receipt of a certification under this subsection, the chair of the committee shall call a meeting of the committee to review the substance of the rule, determine whether the rule may significantly lessen competition, and if so, whether it was made pursuant to a clearly articulated state policy to displace competition. The committee shall approve, disapprove, disapprove with a suggested amendment, or allow the agency to withdraw the rule for revision. The committee may conduct public hearings and solicit public comment during its consideration of the rule. If the committee approves the rule, it shall issue a written statement explaining its rationale for approving the rule. If the committee fails to act on a rule certified to it pursuant to this subsection, the rule shall not become effective and shall be placed on the agenda of the committee at each subsequent meeting until the committee disposes of the rule.

(c) A state board or commission that regulates a profession, a controlling number of the members of which are active market participants in the profession, may submit a previously adopted rule, along with a position paper, a transcript of any public hearings regarding the rule, and any other material collected during the consideration of the rule, to the Legislative Reference Service for a determination of whether the previously adopted rule may significantly lessen competition and whether the rule was made pursuant to a clearly articulated state policy to displace competition. If the Legislative Reference Service makes those determinations, it shall notify the board or commission and certify the determinations to the committee. Upon receipt of a certification under this subsection, the chair of the committee shall call a meeting of the committee to review the substance of the rule and either approve the rule or notify the board or commission that it agrees with the determination of the Legislative Reference Service. If the committee approves the rule, it shall issue a written statement explaining its rationale for approving the rule. The committee shall take action on a rule submitted under this subsection within 45 days of receipt of certification from the Legislative Reference Service.

(d) The Legislative Reference Service shall review each proposed action submitted to it by a state board or commission that regulates a profession, a controlling number of the members of which are active market participants in the profession, to determine whether the action proposed may significantly lessen competition and, if so, whether the action was proposed pursuant to a clearly articulated state policy to displace competition.

(e) If the Legislative Reference Service determines that an action subject to subsection (d) may significantly lessen competition, it shall determine whether the action was proposed pursuant to a clearly articulated state policy to displace competition, and shall certify those determinations to the committee. The board or commission shall submit a position paper, a transcript of any public hearings regarding the action, and any other material collected during the consideration of the action by the board or commission to accompany the action as it is submitted to the committee. Upon receipt of a certification under this subsection, the chair of the committee shall call a meeting of the committee to review the substance of the action, determine whether the action may lessen or has significantly lessened competition and, if so, whether it was proposed pursuant to a clearly articulated state policy to displace competition. The committee shall approve, disapprove, or propose a modification of a proposed action. The committee may conduct public hearings and solicit public comment during its consideration of the action. When the committee approves, disapproves, or proposes a modification of the action, it shall issue a written statement explaining its rationale. If the committee fails to act on an action certified to it pursuant to subsection (d), the action shall be placed on the agenda of the committee at each subsequent meeting until the committee acts on the certified action. Due to the timely nature of actions, the certified actions shall be given priority in the work of the committee.

(f) In addition to the fee levied under Section 41-22-7(i), the Legislative Reference Service shall charge a board or commission that is subject to subsection (a) , which submits a previously adopted rule to the Legislative Reference Service under subsection (c), or which submits a proposed action under subsection (d), a fee in the amount necessary to recover the costs of the Legislative Reference Service in complying with this section.[1]

## Section 23: Submission and review of proposed rules; fiscal note required for rules with economic impact[edit]

Text of Section 23:

(a) The notice required by subdivision (a)(1) of Section 41-22-5 shall be given, in addition to the persons therein named, to each member of the committee and such other persons in the legislative department as the committee requires. The form of the proposed rule presented to the committee shall be as follows: New language shall be underlined and language to be deleted shall be typed and lined through.

(b) Within the 45-day period between the time a rule is certified and the date it becomes effective, and subject to subsection (h) of Section 41-22-5.1, the committee shall study all proposed rules and may hold public hearings thereon. The committee may adopt a policy providing when a public hearing will be held on a rule meeting specified criteria. In the event the committee fails to give notice to the agency of either its approval or disapproval of the proposed rule within 45 days after filing of the adopted rule with the Legislative Reference Service pursuant to Section 41-22-6, the committee shall be deemed to have approved the proposed rule for the purposes of this section. In the event the committee disapproves a proposed rule or any part thereof, it shall give notice of the disapproval to the agency. The disapproval of any rule may be appealed to the Lieutenant Governor in writing by the agency that submitted the rule within 15 days of disapproval. The Office of the Lieutenant Governor shall stamp the written appeal to denote the date the appeal was received. If the disapproval of a rule is appealed to the Lieutenant Governor, the Lieutenant Governor, within the 15 days after the notice of appeal of the disapproval of the rule is filed, may review the rule and hold public hearings he or she determines necessary.

If the Lieutenant Governor sustains the disapproval of the rule, he or she shall notify the committee and return the rule to the agency and the disapproval shall be final.

If the Lieutenant Governor approves the rule, he or she shall notify the chair of the committee. The rule shall become effective upon adjournment of the next regular session of the Legislature that commences after the approval unless, prior to that time, the Legislature adopts a joint resolution that overrules the approval by the Lieutenant Governor and sustains the action of the committee.

If the Lieutenant Governor fails to either approve or disapprove the rule within the 15 days after the notice of appeal of the disapproval of the committee, the rule shall be deemed approved and the rule shall become effective upon adjournment of the next regular session of the Legislature that commences after the deemed approval unless, prior to that time, the Legislature adopts a joint resolution that overrides the deemed approval of the Lieutenant Governor and sustains the action of the committee. In the event the Office of the Lieutenant Governor is vacant, a rule disapproved by the committee shall be suspended until the adjournment of the next regular session of the Legislature following the disapproval. The rule shall be reinstated on adjournment of that regular session unless the Legislature, by joint resolution, sustains the disapproval.

(c) The committee may propose an amendment to any proposed rule and return it to the agency with the suggested amendment. In the event the agency accepts the rule as amended, the agency may resubmit the rule as amended to the committee and the rule shall become effective on the date specified in the rule, or on the date the amended rule is submitted, whichever is later. In the event the agency does not accept the amendment, the proposed amended rule shall be deemed disapproved, as provided in subsection (b).

(d) An agency may withdraw a proposed or certified rule. An agency may resubmit a rule so withdrawn or returned under this section with minor modification. Such a rule is a new filing and subject to this section but is not subject to further notice as provided in subsection (a) of Section 41-22-5.

(e) The committee is authorized to review and approve or disapprove any rule adopted prior to October 1, 1982.

(f) A rule submitted to the committee which has an economic impact shall be accompanied by a fiscal note prepared by the agency in accordance with this subsection. Upon receiving the fiscal note, the committee may require additional information from the submitting agency, other state agencies, or other sources. A state agency shall cooperate and provide information to the committee. At a minimum, the fiscal note submitted with a proposed rule shall include the following:

(1) A determination of the need for the regulation and the expected benefit of the regulation.

(2) A determination of the costs and benefits associated with the regulation and an explanation of why the regulation is considered to be the most cost effective, efficient, and feasible means for allocating public and private resources and for achieving the stated purpose.

(3) The effect of the regulation on competition.

(4) The effect of the regulation on the cost of living and doing business in the geographical area in which the regulation would be implemented.

(5) The effect of the regulation on employment in the geographical area in which the regulation would be implemented.

(6) The source of revenue to be used for implementing and enforcing the regulation.

(7) A conclusion on the short-term and long-term economic impact upon all persons substantially affected by the regulation, including an analysis containing a description of which persons will bear the costs of the regulation and which persons will benefit directly and indirectly from the regulation.

(8) The uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens. A determination of the need for the regulation shall consider qualitative and quantitative benefits and burdens.

(9) The effect of the regulation on the environment and public health.

(10) The detrimental effect on the environment and public health if the regulation is not implemented.

(g) In determining whether to approve or disapprove proposed rules, the committee shall consider the following criteria:

(1) Is there a statutory authority for the proposed rule?

(2) Would the absence of the rule or rules significantly harm or endanger the public health, safety, or welfare?

(3) Is there a reasonable relationship between the state's police power and the protection of the public health, safety, or welfare?

(4) Is there another, less restrictive method of regulation available that could adequately protect the public?

(5) Does the rule or do the rules have the effect of directly or indirectly increasing the costs of any goods or services involved and, if so, to what degree?

(6) Is the increase in cost, if any, more harmful to the public than the harm that might result from the absence of the rule or rules?

(7) Are all facets of the rulemaking process designed solely for the purpose of, and so they have, as their primary effect, the protection of the public?

(8) Any other criteria the committee may deem appropriate.[1]

## Section 24: Reconsideration of disapproved rules by the Legislature[edit]

Text of Section 24:

Repealed by Act 2015-291, §3, effective October 1, 2015.[1]

## Section 25: Construction and applicability of chapter[edit]

Text of Section 25:

(a) This chapter shall be construed broadly to effectuate its purposes. Except as expressly provided otherwise by this chapter or by another statute referring to this chapter by name, the rights created and the requirements imposed by this chapter shall be in addition to those created or imposed by every other statute in existence on the date of the passage of this chapter or thereafter enacted. If any other statute in existence on the date of the passage of this chapter or thereafter enacted diminishes any right conferred upon a person by this chapter or diminishes any requirement imposed upon an agency by this chapter, this chapter shall take precedence unless the other statute expressly provides that it shall take precedence over all or some specified portion of this named chapter.

(b) Except as to proceedings in process on October 1, 1982, this chapter shall be construed to apply to all covered agency proceedings and all agency action not expressly exempted by this chapter or by another statute specifically referring to this chapter by name.[1]

## Section 26: Repeal of inconsistent laws[edit]

Text of Section 26:

It is the express intent of the Legislature to replace all provisions in statutes of this state relating to rule-making, agency orders, administrative adjudication, or judicial review thereof that are inconsistent with the provisions of this chapter. Therefore, all laws or parts of laws that conflict with this chapter are hereby repealed on October 1, 1982; provided, however, nothing contained in this section shall be construed to repeal or modify Sections 22-22-1, 22-22-4, 22-22-8 through 22-22-10, 22-22-12 and 22-22-14, authorizing the Water Improvement Commission as the state Water Pollution Control Agency to issue one stop permits for the state for all purposes of the federal Water Pollution Control Act, as amended.[1]

## Section 27: Effective date of chapter; validity, review, etc., of existing rules; disposition of adjudicative proceedings commenced prior to October 1, 1983; effective date and applicability as to Alabama Department of Environmental Management[edit]

Text of Section 27:

(a) This chapter shall take effect at 12:01 A.M., October 1, 1982; provided, however, that Section 41-22-22 shall take effect October 1, 1981. In order that the Legislative Reference Service may appoint and hire an aide to receive the rules and in order to promulgate the Alabama Administrative Code and the Alabama Administrative Monthly as soon as possible, subsections (a) and (b) of Section 41-22-6 and subsections (a) through (e) of Section 41-22-7 shall also become effective October 1, 1981. It shall be the duty of all agencies in existence on the passage of this chapter and all agencies created thereafter to cooperate with the office of the Legislative Reference Service in compiling the Alabama Administrative Code and the Alabama Administrative Monthly by submitting to the committee all rules now and hereafter in effect, and all proposed rules.

(b) All existing rules shall be indexed by October 1, 1983, and the administrative code of each agency shall be completed and up-to-date at that time and the Alabama Administrative Code shall be completed and up-to-date by November 15, 1983.

(c) Any rule in effect before 12:01 A.M., October 1, 1983, except those adopted following a public hearing that was required by statute, shall forthwith be reviewed by the agency concerned on the written request of a person substantially affected by the rule involved. The agency concerned shall initiate the rule making procedures provided by this chapter within 90 days after receiving such written request. If the agency concerned fails to initiate the rule making procedures within 90 days, the operation of the rule shall be suspended. The right of review established by this subsection shall be exercisable no earlier than October 1, 1983.

(d) All rules in effect on September 30, 1983, shall be and become invalid on October 1, 1983, unless:

(1) Such rules are properly filed, indexed, and included within the administrative code of the agency in accordance with all the provisions of this chapter; and

(2) Such rules adopted prior to October 1, 1982, were validly adopted under procedures in effect prior to those provided in this chapter, or were readopted pursuant to the requirements of this chapter; or

(3) Such rules adopted on or subsequent to October 1, 1982, were validly adopted pursuant to the requirements of this chapter.

(e) All contested cases and other adjudicative proceedings conducted pursuant to any provision of the statutes of this state that were begun prior to October 1, 1983, shall be continued to a conclusion, including judicial review, under the provisions of such statutes, except that contested cases and other adjudicative proceedings that have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceedings, be conducted in accordance with the provisions of this chapter as nearly as feasible.

(f) Sections 41-22-1 through 41-22-11 and 41-22-22 through 41-22-27 shall take effect with regard to the Alabama Department of Environmental Management at 12:01 A.M. on October 1, 1986. All rules which were validly adopted by the Alabama Department of Environmental Management prior to October 1, 1986, under procedures in effect at the times such rules were adopted shall be valid, and all such rules adopted by the aforesaid department shall be properly filed, indexed and included within the administrative code of the aforesaid department in accordance with all the provisions of this chapter by October 1, 1987. The Alabama Department of Environmental Management shall be exempt from the provisions of Sections 41-22-12 through 41-22-19. Except as provided in subdivision (6) of subsection (c) of Section 22-22A-7, judicial review of any order of the environmental management commission modifying, approving or disapproving an administrative action of the Alabama Department of Environmental Management shall be in accordance with the provisions for review of final agency decisions of contested cases in Sections 41-22-20 and 41-22-21.[1]

## See also[edit]

* Administrative Procedure Act
* Rulemaking
* Adjudication
* Judicial review

## External links[edit]

* Search Google News for this topic
* Full text of the Alabama Administrative Procedure Act

## Footnotes[edit]

1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 Justia, "2016 Code of Alabama Title 41 - STATE GOVERNMENT. Chapter 22 - ADMINISTRATIVE PROCEDURE." accessed April 28, 2023

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* "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000)
* "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017)
* "Constitutionalism after the New Deal" by Cass R. Sunstein (1987)
* Federalist No. 23 by Alexander Hamilton (1787)
* "From Administrative State to Constitutional Government" by Joseph Postell (2012)
* "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002)
* "Rulemaking as Legislating" by Kathryn Watts (2015)
* "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016)
* "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017)
* "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007)
* "The Rise and Rise of the Administrative State" by Gary Lawson (1994)
* "The Study of Administration" by Woodrow Wilson (1887)
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* "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008)

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