Alaska Administrative Procedure Act

Administrative State

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The Alaska 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 Alaska. It can be found in Title 44, Chapter 62 of the Alaska Statutes.^[1]^[2]

Article 1: Application and effect

Text of Article 1:

Sec. 44.62.010. Application to State Organization Act of 1959. Rule-making power conferred by ch 64 SLA 1959 is subject to this chapter.

Sec. 44.62.020. Authority to adopt, administer, or enforce regulations. Except for the authority conferred upon the lieutenant governor in AS 44.62.130 - 44.62.170, AS 44.62.010 - 44.62.320 do not confer authority upon or augment the authority of a state agency to adopt, administer, or enforce a regulation. To be effective, each regulation adopted must be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.

Sec. 44.62.030. Consistency between regulation and statute. If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, a regulation adopted is not valid or effective unless consistent with the statute and reasonably necessary to carry out the purpose of the statute.^[2]

Article 2: Submission, filing, and publication of regulations

Text of Article 2:

Sec. 44.62.040. Submitting regulations.

(a) Subject to (c) of this section, every state agency that by statute possesses regulation-making authority shall submit to the lieutenant governor for filing a certified original and one duplicate copy of every regulation or order of repeal adopted by it, except one that

(1) establishes or fixes rates, prices, or tariffs;

(2) relates to the use of public works, including streets and highways, under the jurisdiction of a state agency if the effect of the order is indicated to the public by means of signs or signals; or

(3) is directed to a specifically named person or to a group of persons and does not apply generally throughout the state.

(b) Citation of the general statutory authority under which a regulation is adopted, as well as citation of specific statutory sections being implemented, interpreted, or made clear, must follow the text of each regulation submitted under (a) of this section.

(c) Before submitting the regulations and orders of repeal to the lieutenant governor under (a) of this section, every state agency that by statute possesses regulation making authority, except boards and commissions, the office of victims' rights, and the office of the ombudsman, shall submit to the governor for review a copy of every regulation or order of repeal adopted by the agency, except regulations and orders of repeal identified in (a)(1) - (2) of this section. The governor may review the regulations and orders of repeal received under this subsection. The governor may return the regulations and orders of repeal to the adopting agency before they are submitted to the lieutenant governor for filing under (a) of this section (1) if they are inconsistent with the faithful execution of the laws, or (2) to enable the adopting agency to respond to specific issues raised by the Administrative Regulation Review Committee. The governor may not delegate the governor's review authority under this subsection to a person other than the lieutenant governor.

Sec. 44.62.050. Style and forms.

The Department of Law shall prepare and shall revise when necessary a drafting manual for administrative regulations that prescribes the style and forms for submitting regulations under AS 44.62.040.

Sec. 44.62.060. Preparation and filing.

(a) Every state agency that by statute possesses regulation-making authority shall work with the Department of Law, under AS 44.62.125 , in the preparation and revision of its regulations and shall adhere to the drafting manual for administrative regulations prepared by the Department of Law under AS 44.62.050 .

(b) In the performance of duties under AS 44.62.125 , the Department of Law shall advise the agencies on legal matters relevant to the adoption of regulations and may advise the agencies on the need for and the policy involved in particular regulations. In addition, the department shall prepare a written statement of approval or disapproval after each regulation has been reviewed in order to determine

(1) its legality, constitutionality, and consistency with other regulations;

(2) the existence of statutory authority and the correctness of the required citation of statutory authority following each section;

(3) its clarity, simplicity of expression, and absence of possibility of misapplication;

(4) compliance with the drafting manual for administrative regulations.

(c) The lieutenant governor may not accept for filing a regulation, amendment, or order of repeal required by AS 44.62.040 unless it is accompanied by the written statement specified in (b) of this section and the statement approves the regulation, amendment, or order of repeal.

Sec. 44.62.070. Fees.

A state officer or public official may not charge a fee to perform an official act in connection with the certification, submission, or filing of regulations under AS 44.62.040 - 44.62.120.

Sec. 44.62.080. Endorsement and filing.

(a) The lieutenant governor shall

(1) endorse on the certified copy of each regulation or order of repeal filed, the time and date of filing; and

(2) maintain, for five years after filing, a permanent file of the certified copies of regulations and orders of repeal for public inspection; after the certified copies have been on file for five years, the lieutenant governor shall transfer the permanent file of the copies to the state archivist (AS 40.21.020) annually, on or before January 1 of each year.

(b) The state archivist shall have and maintain, for public inspection, the permanent file of the certified copies of regulations and orders of repeal transferred to the archivist by the lieutenant governor under (a)(2) of this section.

Sec. 44.62.090. Filing with local government unit clerks. [Repealed, Sec. 2 ch 57 SLA 1969].

Repealed or Renumbered

Sec. 44.62.100. Presumptions from filing.

(a) The filing of a certified copy of a regulation or an order of repeal by the lieutenant governor raises the rebuttable presumptions that

(1) it was duly adopted;

(2) it was duly filed and made available for public inspection at the day and hour endorsed on it;

(3) all requirements of this chapter and the regulations relative to the regulation have been complied with;

(4) the text of the certified copy of a regulation or order of repeal is the text of the regulation or order of repeal as adopted.

(b) The courts shall take judicial notice of the contents of the certified copy of each regulation and of each order of repeal duly filed.

Sec. 44.62.110. Presumptions from publication.

(a) The publication of a regulation in the Alaska Administrative Code or register raises a rebuttable presumption that the text of the regulation as so published is the text of the regulation adopted.

(b) The courts shall take judicial notice of the contents of each regulation or notice of the repeal of a regulation printed in the Alaska Administrative Code or Alaska Administrative Register.

Sec. 44.62.120. Voluntary submitting and publication.

With the approval of the lieutenant governor, a state agency may submit to the lieutenant governor for filing a regulation or order of repeal of a regulation not required by AS 44.62.040 to be submitted. If the lieutenant governor accepts the regulation or order of repeal, the lieutenant governor shall endorse and file it as required in AS 44.62.080, and may publish the regulation or order of repeal in the manner the lieutenant governor considers proper.

Sec. 44.62.125. Regulations attorney.

(a) In the Department of Law a particular attorney, called the regulations attorney, shall be assigned, as the attorney's primary responsibility, the functions relating to the handling of administrative regulations.

(b) The department shall

(1) advise all state administrative agencies of the nature and use of administrative regulations;

(2) alert the agencies to statutes that need to be implemented, interpreted, or made clear by regulation;

(3) continually review the regulations, make recommendations to the respective agencies concerning deficiencies, conflicts, and obsolete provisions in and the need for reorganization or revision of the regulations, and prepare regulations to be adopted by the agencies, correcting or removing the deficiencies, conflicts, and obsolete provisions;

(4) work with all administrative agencies possessing regulation-making power in drafting all new regulations, advising the agencies of legal problems encountered, and ensuring compliance with the drafting manual for administrative regulations prepared by the Department of Law under AS 44.62.050 ;

(5) assist the agencies in holding public hearings under AS 44.62.210;

(6) to the extent necessary after regulations have been filed by the lieutenant governor, edit and revise them for consolidation into the Alaska Administrative Code in the manner provided for the revisor of statutes under AS 01.05.031 ;

(7) draft bills for consideration by the governor to transfer matter that should be statutory law from the Alaska Administrative Code to the Alaska Statutes and to clarify agency regulatory power when clarification is needed.^[2]

Article 3: Alaska administrative register and code

Text of Article 3:

Sec. 44.62.130. Codification and publication.

(a) The lieutenant governor shall provide for the continuing compilation, codification, and publication, with periodic supplements, of all regulations filed by the lieutenant governor's office, or of appropriate references to any regulations the printing of which the lieutenant governor finds to be impractical, such as detailed schedules or forms otherwise available to the public, or which are of limited or particular application. The publication of compiled regulations is the Alaska Administrative Code. The periodic supplements to it are the Alaska Administrative Register. The code and register must contain appropriate annotations to judicial decisions and opinions of the attorney general.

(b) The Department of Law shall prescribe a uniform system of indexing, numbering, arrangement of text, and citation of authority and history notes for the Alaska Administrative Code.

Sec. 44.62.140. Distribution of code and register.

(a) Except as provided in this section, the lieutenant governor shall supply a complete set of the Alaska Administrative Code, and of the Alaska Administrative Register, and of each supplement to the code or register to the clerk of each local government unit, or if the authority to accept filings is delegated, to the person to whom this authority is delegated. A local government unit may decide to be excluded from the distribution requirements of this subsection. After receiving notice from the local government unit of the unit's decision to be excluded, the lieutenant governor shall exclude that local government unit from the distribution requirements of this subsection.

(b) A local government unit that requests to be excluded from the distribution requirements of (a) of this section may request to start receiving distributions as described under (a) of this section by providing written notice to the lieutenant governor. No later than July 1 of the fiscal year following receipt of notice by the lieutenant governor, the lieutenant governor shall include the local government unit in the distribution.

Sec. 44.62.150. Price. [Repealed, Sec. 49 ch 127 SLA 1974].

Repealed or Renumbered

Sec. 44.62.160. Date and content of register.

(a) The Alaska Administrative Register shall be published quarterly on the first day of the month. All regulations required to be submitted under AS 44.62.040 that are filed by the first day of the month preceding publication shall be published in the register for that quarter.

(b) If during a quarter no regulation, amendment, or order of repeal has been filed the regular quarterly register shall be published reflecting that fact.

Sec. 44.62.170. Form of publication. [Repealed, Sec. 2 ch 57 SLA 1969].

Repealed or Renumbered

Sec. 44.62.175. Alaska Online Public Notice System.

(a) The lieutenant governor shall develop and supervise the Alaska Online Public Notice System, to be maintained on the state's site on the Internet. The lieutenant governor shall prescribe the form of notices posted on the system by state agencies. The Alaska Online Public Notice System must include

(1) notices of proposed actions given under AS 44.62.190(a);

(2) notices of state agency meetings required under AS 44.62.310(e), even if the meeting has been held;

(3) notices of solicitations to bid issued under AS 36.30.130;

(4) notices of state agency requests for proposals issued under AS 18.55.255, 18.55.320; AS 36.30.210; AS 37.05.316; AS 38.05.120; and AS 43.40.010;

(5) executive orders and administrative orders issued by the governor;

(6) written delegations of authority made by the governor or the head of a principal department under AS 44.17.010;

(7) the text or a summary of the text of a regulation or order of repeal of a regulation for which notice is given under AS 11.71.125 or AS 44.62.190(a), including an emergency regulation or repeal regardless of whether it has taken effect;

(8) notices required by AS 44.62.245(b) regarding an amended version of a document or other material incorporated by reference in a regulation;

(9) a summary of the text of recently issued published opinions of the attorney general;

(10) a list of vacancies on boards, commissions, and other bodies whose members are appointed by the governor;

(11) in accordance with AS 39.52.240(h), advisory opinions of the attorney general;

(12) notices required by AS 26.30.010(d) and (e) regarding applications for military facility zones; and

(13) notices of substances scheduled by an emergency regulation under AS 11.71.125.

(b) The issuer of the notice, order, delegation, text, summary, or list in (a) of this section shall post on the Alaska Online Public Notice System the notice, order, delegation, text, summary, or list, prepared in the format required by the lieutenant governor.

(c) A request for a printed copy of a required posting on the Alaska Online Public Notice System may be made under AS 40.25.110 - 40.25.220 to any state employee designated by the lieutenant governor to receive requests.

(d) The lieutenant governor shall provide for a permanent, electronic archive system of notices posted on the Alaska Online Public Notice System under this section. Access to the electronic archive system shall be made available to the public.

(e) The lieutenant governor may delegate duties under this section to qualified state employees.

(f) A person may not maintain an action based on a posting or lack of posting on the Alaska Online Public Notice System.^[2]

Article 4: Procedure for adopting regulations

Text of Article 4:

Sec. 44.62.180.' Effective date.

A regulation or an order of repeal filed by the lieutenant governor becomes effective on the 30th day after the date of filing unless

(1) otherwise specifically provided by the statute under which the regulation or order of repeal is adopted, in which event it becomes effective on the day prescribed by the statute;

(2) it is a regulation prescribing the organization or procedure of an agency, in which event it becomes effective upon filing by the lieutenant governor or upon a later date specified by the state agency in a written instrument submitted with, or as part of, the regulation or order of repeal;

(3) it is an emergency regulation or order of repeal adopted under AS 44.62.250, in which case the finding and the statement of the facts constituting the emergency shall be submitted to the lieutenant governor, together with the emergency regulation or order of repeal, which, in that event only, becomes effective upon filing by the lieutenant governor or upon a later date specified by the state agency in a written instrument submitted with, or as part of, the regulation or order of repeal;

(4) a later date is prescribed by the state agency in a written instrument submitted with, or as part of, the regulation or order of repeal.

Sec. 44.62.190. Notice of proposed action.

(a) At least 30 days before the adoption, amendment, or repeal of a regulation, notice of the proposed action shall be

(1) published in the newspaper of general circulation or trade or industry publication that the state agency prescribes and posted on the Alaska Online Public Notice System; in the discretion of the state agency giving the notice, the requirement of publication in a newspaper or trade or industry publication may be satisfied by using a combination of publication and broadcasting; when broadcasting the notice, an agency may use an abbreviated form of the notice if the broadcast provides the name and date of the newspaper or trade or industry journal and the Internet address of the Alaska Online Public Notice System where the full text of the notice can be found;

(2) furnished to every person who has filed a request for notice of proposed action with the state agency;

(3) if the agency is within a department, furnished to the commissioner of the department;

(4) when appropriate in the judgment of the agency,

(A) furnished to a person or group of persons whom the agency believes is interested in the proposed action; and

(B) published in the additional form and manner the state agency prescribes;

(5) furnished to the Department of Law together with a copy of the proposed regulation, amendment, or order of repeal for the department's use in preparing the opinion required after adoption and before filing by AS 44.62.060 ;

(6) furnished by electronic format to all incumbent State of Alaska legislators.

(b) If the form or manner of notice is prescribed by statute, in addition to the requirements of filing and furnishing notice under AS 44.62.010 - 44.62.300, or in addition to the requirements of filing and mailing notice under other sections of this chapter, the notice shall be published, posted, mailed, filed, or otherwise publicized as prescribed by the statute.

(c) The failure to furnish notice to a person as provided in this section does not invalidate an action taken by an agency under AS 44.62.180 - 44.62.290. (d) Along with a notice furnished under (a)(2), (4)(A), or (6) of this section, the state agency, except the Regulatory Commission of Alaska, the Board of Fisheries, the Board of Game, and the Alaska Oil and Gas Conservation Commission, shall include

(1) the reason for the proposed action, including, if applicable, an identification of the law, order, decision, or other action of the federal government or a federal or state court that is the basis for the proposed action; in this paragraph, “federal government” means a department, agency, corporation, or instrumentality of the United States government;

(2) the initial cost to the state agency of implementation;

(3) the estimated annual costs, based on a good faith effort to estimate the costs in the aggregate for each of the following categories using the information available to the state agency, to

(A) private persons to comply with the proposed action;

(B) the state agency for implementation and to other state agencies to comply with the proposed action; and

(C) municipalities to comply with the proposed action;

(4) the name of the contact person for the state agency; and

(5) the origin of the proposed action.

(e) Notwithstanding (a) of this section, if a person who is to receive a notice under (a) of this section requests that the state agency mail the notice, the state agency shall furnish the notice to the person by mail.

(f) To the extent feasible, the subject line of electronic mail and the title of a written publication providing the information required by (d) of this section must give the reader a fair idea of the substance of the proposed new regulation, the proposed amended regulation, or the regulation proposed for repeal.

(g) Along with a notice furnished under (a)(2), (4)(A), or (6) of this section, the Regulatory Commission of Alaska, the Board of Fisheries, the Board of Game, and the Alaska Oil and Gas Conservation Commission shall include the reason for the proposed action, the initial cost of implementation to the state agency, the estimated annual costs of implementation to the state agency, the name of a contact person, and the origin of the proposed action.

Sec. 44.62.195. Fiscal notes on regulations.

If the adoption, amendment, or repeal of a regulation would require increased appropriations by the state, the department or agency affected shall prepare an estimate of the appropriation increase for the fiscal year following adoption, amendment, or repeal of the regulation and for at least two succeeding fiscal years.

Sec. 44.62.200. Contents of notice.

(a) The notice of proposed adoption, amendment, or repeal of a regulation must include

(1) a statement of the time, place, and nature of proceedings for adoption, amendment, or repeal of the regulation;

(2) reference to the authority under which the regulation is proposed and a reference to the particular code section or other provisions of law that are being implemented, interpreted, or made specific;

(3) an informative summary of the proposed subject of agency action;

(4) other matters prescribed by a statute applicable to the specific agency or to the specific regulation or class of regulations;

(5) a summary of the fiscal information required to be prepared under AS 44.62.195; and

(6) for a regulation under AS 11.71.125, a summary of the attorney general's compliance with the requirements of AS 11.71.125(b).

(b) A regulation that is adopted, amended, or repealed may vary in content from the summary specified in (a)(3) of this section if the subject matter of the regulation remains the same and the original notice was written so as to assure that members of the public are reasonably notified of the proposed subject of agency action in order for them to determine whether their interests could be affected by agency action on that subject.

(c) An agency that issues a notice under this section shall ensure that the notice is prepared in a form adequate for posting on the Alaska Online Public Notice System. Unless the adoption, amendment, or repeal of a regulation is proposed by the Regulatory Commission of Alaska, the Board of Fisheries, the Board of Game, or the Alaska Oil and Gas Conservation Commission, a complete copy of each proposed adoption, amendment, or repeal of a regulation and, if feasible and not prohibited by copyright, any document or other material incorporated by reference, including any document or other material incorporated by reference under this section, in the proposed adoption or amendment shall be made available on the Alaska Online Public Notice System by providing an electronic attachment or link to the complete text.

(d) When a state agency, other than the Regulatory Commission of Alaska, the Board of Fisheries, or the Board of Game, posts, furnishes, or otherwise provides a notice of the proposed adoption, amendment, or repeal of a regulation under AS 44.62.190, a brief description of the changes made by the proposed adoption, amendment, or repeal must accompany the notice. However, if, under AS 44.62.190(a), the notice is published in a newspaper or trade or industry publication or is broadcast, this subsection does not require that the brief description otherwise required by this subsection accompany the publication or the broadcast. To the extent practicable, the brief description shall be written in clear, easily readable language that a person without a legal background is able to understand.

Sec. 44.62.210. Public proceedings.

(a) On the date and at the time and place designated in the notice the agency shall give each interested person or the person's authorized representative, or both, the opportunity to present statements, arguments, or contentions in writing, with or without opportunity to present them orally. The state agency may accept material presented by any form of communication authorized by this chapter and shall consider all factual, substantive, and other relevant matter presented to it before adopting, amending, or repealing a regulation. When considering the factual, substantive, and other relevant matter, the agency shall pay special attention to the cost to private persons of the proposed regulatory action.

(b) At a hearing under this section the agency or its authorized representative may administer oaths or affirmations, and may continue or postpone the hearing to the time and place which it determines.

Sec. 44.62.215. Record of public comment.

In the drafting, review, or other preparation of a proposed regulation, amendment, or order of repeal, an agency, other than a board or commission, the office of victims' rights, and the office of the ombudsman, shall keep a record of its use or rejection of factual or other substantive information that is submitted in writing as public comment and that is relevant to the accuracy, coverage, or other aspect of the proposed regulatory action.

Sec. 44.62.220. Right to petition.

Unless the right to petition for adoption of a regulation is restricted by statute to a designated group or the procedure for the petition is prescribed by statute, an interested person may petition an agency for the adoption or repeal of a regulation as provided in AS 44.62.180 - 44.62.290. The petition must state clearly and concisely

(1) the substance or nature of the regulation, amendment, or repeal requested;

(2) the reasons for the request;

(3) reference to the authority of the agency to take the action requested.

Sec. 44.62.230. Procedure on petition.

Upon receipt of a petition requesting the adoption, amendment, or repeal of a regulation under AS 44.62.180 - 44.62.290, a state agency shall, within 30 days, deny the petition in writing or schedule the matter for public hearing under AS 44.62.190 - 44.62.215. However, if the petition is for an emergency regulation, and the agency finds that an emergency exists, the requirements of AS 44.62.040 (c) and 44.62.190 - 44.62.215 do not apply, and the agency may submit the regulation to the lieutenant governor immediately after making the finding of emergency and putting the regulation into proper form.

Sec. 44.62.240. Limitation on retroactive action.

If a regulation adopted by an agency under this chapter is primarily legislative, the regulation has prospective effect only. A regulation adopted under this chapter that is primarily an "interpretative regulation" has retroactive effect only if the agency adopting it has adopted no earlier inconsistent regulation and has followed no earlier course of conduct inconsistent with the regulation. Silence or failure to follow any course of conduct is considered earlier inconsistent conduct.

Sec. 44.62.245. Material incorporated by reference.

(a) In adopting a regulation that incorporates a document or other material by reference, a state agency may incorporate future amended versions of the document or other material if the adopted regulation identifies or refers to the document or other material followed by the phrase "as may be amended," the phrase "as amended from time to time," or a similar provision and the

(1) document consists of a regulation of another agency of the state; or

(2) incorporation of a future amended version of the document or other material is explicitly authorized by a statute.

(b) When the amended version of a document or other material incorporated by reference in a regulation as described in (a) of this section becomes available, the state agency shall

(1) make the amended version of the document or other material available to the public for review; and

(2) post on the Alaska Online Public Notice System and publish in a newspaper of general circulation or trade or industry publication or in a regularly published agency newsletter or similar printed publication, not later than 15 days after the amended version of the document or other material becomes available, a notice that describes the affected regulation, the effective date of the amended version of the document or other material, and how a copy of the amended version may be obtained or reviewed.

(c) The state agency shall also send the notice described in (b)(2) of this section to

(1) a person who has placed the person's name on a distribution list kept by the agency that lists persons who want to receive the notice; the agency may allow a person to request that distribution of the notice be by electronic means and shall honor that request if appropriate means are available; and

(2) the regulations attorney in the Department of Law.

(d) A change in the form, format, or title in a future amended or revised version of a document or material incorporated by reference in a regulation under this section does not affect the validity of the regulation or the state agency's ability to enforce or implement the regulation. The state agency shall notify the regulations attorney in the Department of Law if the title of the document or other material changes. The regulations attorney shall correct the title in the Alaska Administrative Code under AS 44.62.125 .

Sec. 44.62.250. Emergency regulations.

(a) Except for a regulation adopted under AS 11.71.125, a regulation or order of repeal may be adopted as an emergency regulation or order of repeal if a state agency makes a written finding, including a statement of the facts that constitute the emergency, that the adoption of the regulation or order of repeal is necessary for the immediate preservation of the public peace, health, safety, or general welfare. The requirements of AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 do not apply to the initial adoption of emergency regulations; however, upon adoption of an emergency regulation , the adopting agency shall immediately submit a copy of it to the lieutenant governor for filing and for publication in the Alaska Administrative Register, and , within five days after filing by the lieutenant governor , the agency shall give notice of the adoption in accordance with AS 44.62.190(a). Failure to give the required notice by the end of the 10th day automatically repeals the regulation.

(b) A regulation or order of repeal may be adopted as an emergency regulation under AS 11.71.125 if the attorney general makes a written finding that the requirements of AS 11.71.125 are met. The requirements of AS 44.62.190 - 44.62.215 do not apply to the adoption or order of repeal by the attorney general of a regulation to schedule a substance by emergency regulation under AS 11.71.125.

Sec. 44.62.260. Limitation on effective period of emergency regulations.

(a) Except as provided in (c) of this section, a regulation adopted as an emergency regulation does not remain in effect more than 120 days unless the adopting agency complies with AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 either before submitting the regulation to the lieutenant governor or during the 120-day period.

(b) Except as provided in (c) of this section, before the expiration of the 120-day period, the agency shall transmit to the lieutenant governor for filing a certification that AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 were complied with before submitting the regulation to the lieutenant governor, or that the agency complied with those sections within the 120-day period. Failure to so certify repeals the emergency regulation; it may not be renewed or refiled as an emergency regulation.

(c) A substance scheduled by the attorney general by emergency regulation under AS 11.71.125 will remain on the schedule under the emergency regulation for a period not to exceed 1,095 days unless the legislature schedules the substance by law or annuls the regulation by law.

Sec. 44.62.270. State policy.

It is the state policy that emergencies are held to a minimum and are rarely found to exist. Nothing in this section limits the attorney general from scheduling a substance by emergency regulation under AS 11.71.125.

Sec. 44.62.280. Purpose of AS 44.62.180 - 44.62.290.

It is the purpose of AS 44.62.180 - 44.62.290 to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations. Except as provided in AS 44.62.250, AS 44.62.180 - 44.62.290 apply to the exercise of quasi-legislative power conferred by a statute, but nothing in AS 44.62.180 - 44.62.290 repeals or diminishes additional requirements imposed by the statute. AS 44.62.180 - 44.62.290 are not superseded or modified by subsequent legislation except to the extent that the legislation does so expressly.

Sec. 44.62.290. Limits of the application of AS 44.62.180 - 44.62.290.

(a) AS 44.62.180 - 44.62.290 do not apply to a regulation not required to be submitted to the lieutenant governor under AS 44.62.010 - 44.62.319.

(b) Only this section and AS 44.62.180 apply to a regulation that prescribes the organization or procedure of an agency.^[2]

Article 5: Judicial review

Text of Article 5:

Sec. 44.62.300. Judicial review of validity.

(a) An interested person may get a judicial declaration on the validity of a regulation by bringing an action for declaratory relief in the superior court. In addition to any other ground the court may declare the regulation invalid

(1) for a substantial failure to comply with AS 44.62.010 - 44.62.319; or

(2) in the case of an emergency regulation or order of repeal, upon the ground that the facts recited in the statement do not constitute an emergency under AS 44.62.250.

(b) Notwithstanding (a) of this section, a person may not bring an action in court to challenge the adoption, repeal, or amendment of a regulation by a state agency for

(1) insufficiency or inaccuracy of the information provided under AS 44.62.190(d) or (g);

(2) failure of the subject line of electronic mail or the title of a written publication to meet the requirements of AS 44.62.190(f);

(3) failure of the brief description required by AS 44.62.200(d) to comply with the requirements of AS 44.62.200(d) relating to

(A) the clarity and readability of the brief description; or

(B) the description of the changes made by the proposed adoption, amendment, or repeal of a regulation; or

(4) inaccuracy or insufficiency of the answer to a question provided by the state agency under AS 44.62.213.

Sec. 44.62.305. Judicial relief in administrative matters.

(a) Notwithstanding any other provision of law to the contrary and except as provided in (f) and (g) of this section, a person may obtain judicial relief in an administrative matter from the superior court before the state agency handling the administrative proceeding on the matter issues a final administrative decision if

(1) the person is a party to the administrative proceeding;

(2) the person has satisfied the procedural requirements of the administrative proceeding up to the time that the person petitions for judicial relief under (b) of this section;

(3) the state agency has unreasonably delayed the progress of the administrative proceeding; and

(4) further delay in reaching a final administrative decision will cause the person immediate and irreparable damage.

(b) A person may seek judicial relief under (a) of this section by filing a petition in the superior court. A person may not file the petition until 30 days after the person has filed with the state agency handling the administrative proceeding a written notice that the person intends to file the petition.

(c) In a proceeding begun under (b) of this section, if the superior court determines that the person is eligible for judicial relief under (a) of this section, the superior court may

(1) enjoin the administrative proceeding and determine the administrative matter in the superior court;

(2) order that the administrative matter be handled by another form of dispute resolution; or

(3) establish a deadline for the state agency to issue a final administrative decision.

(d) After a person files a petition under (b) of this section, the state agency shall continue with the administrative proceeding unless the superior court

(1) enjoins the administrative proceeding under (c)(1) of this section; or

(2) issues an order under (c)(2) of this section.

(e) If the superior court decides that a person is not eligible for judicial relief under (a) of this section, a party to the administrative proceeding may exercise any right of appeal allowed under law for the final administrative decision as if the person had not filed a petition under (b) of this section.

(f) A person may not obtain judicial relief under this section in a personnel proceeding by a state agency. In this subsection, “personnel proceeding” includes a proceeding under AS 39.25 (State Personnel Act) and a proceeding in a grievance arbitration procedure under a collective bargaining agreement.

(g) This section does not apply to an administrative proceeding of a state agency if another statute of this state establishes a deadline for the state agency to make a final decision in the administrative proceeding.

(h) In this section,

(1) “administrative matter” means the subject matter of an administrative proceeding;

(2) “administrative proceeding” means

(A) a proceeding subject to AS 44.62.330 - 44.62.630; and

(B) a proceeding that is not subject to AS 44.62.330 - 44.62.630, that is authorized by statute for the adjudication of a state agency matter by the state agency handling the matter or by a person appointed by the state agency, and that involves a matter that directly affects the personal, professional, or business interests of a specific person who is named in the adjudication;

(3) “damage” means damage to the personal, professional, or business interests of a person;

(4) “party” means a specific person whose personal, professional, or business interests are the subject of an administrative proceeding and who is named in the administrative proceeding;

(5) “person” does not include a state agency or other governmental agency;

(6) “state agency” means a department, an institution, a board, a commission, a division, an authority, and any other administrative unit of the executive branch of state government, except a public corporation; the term includes the University of Alaska.^[2]

Article 6: Open meetings of governmental bodies

Text of Article 6:

Sec. 44.62.310. Government meetings public.

(a) All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law. Attendance and participation at meetings by members of the public or by members of a governmental body may be by teleconferencing. Agency materials that are to be considered at the meeting shall be made available at teleconference locations if practicable. Except when voice votes are authorized, the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote. The vote at a meeting held by teleconference shall be taken by roll call. This section does not apply to any votes required to be taken to organize a governmental body described in this subsection.

(b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body. The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. Subjects may not be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. Action may not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations.

(c) The following subjects may be considered in an executive session:

(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;

(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;

(3) matters which by law, municipal charter, or ordinance are required to be confidential;

(4) matters involving consideration of government records that by law are not subject to public disclosure.

(d) This section does not apply to

(1) a governmental body performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding;

(2) juries;

(3) parole or pardon boards;

(4) meetings of a hospital medical staff;

(5) meetings of the governmental body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline;

(6) staff meetings or other gatherings of the employees of a public entity, including meetings of an employee group established by policy of the Board of Regents of the University of Alaska or held while acting in an advisory capacity to the Board of Regents; or

(7) meetings held for the purpose of participating in or attending a gathering of a national, state, or regional organization of which the public entity, governmental body, or member of the governmental body is a member, but only if no action is taken and no business of the governmental body is conducted at the meetings.

(8) meetings of municipal service area boards established under AS 29.35.450 - 29.35.490 when meeting solely to act on matters that are administrative or managerial in nature.

(e) Reasonable public notice shall be given for all meetings required to be open under this section. The notice must include the date, time, and place of the meeting and if, the meeting is by teleconference, the location of any teleconferencing facilities that will be used. Subject to posting notice of a meeting on the Alaska Online Public Notice System as required by AS 44.62.175 (a), the notice may be given using print or broadcast media. The notice shall be posted at the principal office of the public entity or, if the public entity has no principal office, at a place designated by the governmental body. The governmental body shall provide notice in a consistent fashion for all its meetings.

(f) Action taken contrary to this section is voidable. A lawsuit to void an action taken in violation of this section must be filed in superior court within 180 days after the date of the action. A member of a governmental body may not be named in an action to enforce this section in the member's personal capacity. A governmental body that violates or is alleged to have violated this section may cure the violation or alleged violation by holding another meeting in compliance with notice and other requirements of this section and conducting a substantial and public reconsideration of the matters considered at the original meeting. If the court finds that an action is void, the governmental body may discuss and act on the matter at another meeting held in compliance with this section. A court may hold that an action taken at a meeting held in violation of this section is void only if the court finds that, considering all of the circumstances, the public interest in compliance with this section outweighs the harm that would be caused to the public interest and to the public entity by voiding the action. In making this determination, the court shall consider at least the following:

(1) the expense that may be incurred by the public entity, other governmental bodies, and individuals if the action is voided;

(2) the disruption that may be caused to the affairs of the public entity, other governmental bodies, and individuals if the action is voided;

(3) the degree to which the public entity, other governmental bodies, and individuals may be exposed to additional litigation if the action is voided;

(4) the extent to which the governing body, in meetings held in compliance with this section, has previously considered the subject;

(5) the amount of time that has passed since the action was taken;

(6) the degree to which the public entity, other governmental bodies, or individuals have come to rely on the action;

(7) whether and to what extent the governmental body has, before or after the lawsuit was filed to void the action, engaged in or attempted to engage in the public reconsideration of matters originally considered in violation of this section;

(8) the degree to which violations of this section were wilful, flagrant, or obvious;

(9) the degree to which the governing body failed to adhere to the policy under AS 44.62.312 (a).

(g) Subsection (f) of this section does not apply to a governmental body that has only authority to advise or make recommendations to a public entity and has no authority to establish policies or make decisions for the public entity.

(h) In this section,

(1) "governmental body" means an assembly, council, board, commission, committee, or other similar body of a public entity with the authority to establish policies or make decisions for the public entity or with the authority to advise or make recommendations to the public entity; "governmental body" includes the members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists of two or more members;

(2) "meeting" means a gathering of members of a governmental body when

(A) more than three members or a majority of the members, whichever is less, are present, a matter upon which the governmental body is empowered to act is considered by the members collectively, and the governmental body has the authority to establish policies or make decisions for a public entity; or

(B) more than three members or a majority of the members, whichever is less, are present, the gathering is prearranged for the purpose of considering a matter upon which the governmental body is empowered to act, and the governmental body has only authority to advise or make recommendations for a public entity but has no authority to establish policies or make decisions for the public entity;

(3) "public entity" means an entity of the state or of a political subdivision of the state including an agency, a board or commission, the University of Alaska, a public authority or corporation, a municipality, a school district, and other governmental units of the state or a political subdivision of the state; it does not include the court system or the legislative branch of state government.

Sec. 44.62.312. State policy regarding meetings.

(a) It is the policy of the state that

(1) the governmental units mentioned in AS 44.62.310 (a) exist to aid in the conduct of the people's business;

(2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly;

(3) the people of this state do not yield their sovereignty to the agencies that serve them;

(4) the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know;

(5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created;

(6) the use of teleconferencing under this chapter is for the convenience of the parties, the public, and the governmental units conducting the meetings.

(b) AS 44.62.310 (c) and (d) shall be construed narrowly in order to effectuate the policy stated in (a) of this section and to avoid exemptions from open meeting requirements and unnecessary executive sessions.^[2]

Article 7: Legislative review of rules

Text of Article 7:

Sec. 44.62.330. Application of AS 44.62.330 - 44.62.630. (a) The procedure of the state boards, commissions, and officers listed in this subsection or of their successors by reorganization under the constitution shall be conducted under AS 44.62.330 - 44.62.630. This procedure, including accusations and statements of issues, service, notice and time and place of hearing, subpoenas, depositions, matters concerning evidence and decisions, conduct of hearing, judicial review and scope of judicial review, continuances, reconsideration, reinstatement or reduction of penalty, contempt, mail vote, oaths, impartiality, and similar matters shall be governed by this chapter, notwithstanding similar provisions in the statutes dealing with the state boards, commissions, and officers listed. Where indicated, the procedure that shall be conducted under AS 44.62.330 - 44.62.630 is limited to named functions of the agency.

(1) Board of Chiropractic Examiners;

(2) Board of Dental Examiners;

(3) State Board of Registration for Architects, Engineers, and Land Surveyors;

(4) Board of Examiners in Optometry;

(5) State Medical Board;

(6) Division of Lands under Alaska Land Act where applicable;

(7) Board of Nursing functions, except those related to findings of abuse, neglect, or misappropriation of property contained in the registry of certified nurse aides under AS 08.68.333;

(8) Board of Pharmacy;

(9) Board of Public Accountancy;

(10) Department of Labor and Workforce Development as to functions relating to employment security only as provided in (c) of this section;

(11) Real Estate Commission;

(12) Alaska Workers' Compensation Board, where procedures are not otherwise expressly provided by the Alaska Workers' Compensation Act;

(13) Department of Transportation and Public Facilities, as to functions relating to aeronautics and communications;

(14) Department of Public Safety, as to suspension or revocation of a security guard's license under AS 18.65.400 - 18.65.490;

(15) Department of Health and Social Services and Department of Environmental Conservation under AS 17.20 (Alaska Food, Drug, and Cosmetic Act), and Department of Commerce, Community, and Economic Development in connection with the licensing of embalmers and funeral directors under AS 08.42;

(16) Department of Environmental Conservation, under AS 18.35.010 - 18.35.090, concerning the regulation of tourist and trailer camps, motor courts, and motels;

(17) Board of Marine Pilots;

(18) Alaska Police Standards Council;

(19) Big Game Commercial Services Board;

(20) Alaska Public Offices Commission;

(21) Board of Fisheries;

(22) Board of Game;

(23) Department of Education and Early Development and Professional Teaching Practices Commission with regard to proceedings to revoke or suspend a teacher's certificate under AS 14.20.030 - 14.20.040 and AS 14.20.470(a)(4);

(24) Alaska Commission on Postsecondary Education under AS 14.48 as to denial of applications and revocation of authorizations and permits;

(25) Department of Environmental Conservation, except to the extent that AS 44.62.360 - 44.62.400 are inconsistent with the manner in which proceedings are initiated under the provisions of AS 46.03 and AS 46.14;

(26) Board of Psychologist and Psychological Associate Examiners;

(27) Department of Fish and Game as to functions relating to the protection of fish and game under AS 16.05.871;

(28) Board of Veterinary Examiners;

(29) Department of Commerce, Community, and Economic Development concerning the licensing and regulation of nursing home administrators;

(30) Board of Barbers and Hairdressers;

(31) Department of Natural Resources concerning the Alaska grain reserve program under former AS 03.12;

(32) Department of Commerce, Community, and Economic Development concerning the licensing and regulation of audiologists and speech-language pathologists under AS 08.11;

(33) Department of Commerce, Community, and Economic Development concerning the licensing and regulation of hearing aid dealers under AS 08.55;

(34) Board of Certified Real Estate Appraisers;

(35) Department of Labor and Workforce Development as to functions related to employment rights of the organized militia under AS 26.05.075;

(36) Board of Certified Direct-Entry Midwives;

(37) Board of Marital and Family Therapy;

(38) Department of Revenue for administrative review of actions taken under AS 43.50 relating to a tobacco product manufacturer's compliance with statutory requirements regarding cigarette sales;

(39) Department of Commerce, Community, and Economic Development as to the licensing and regulation of private professional guardians and conservators under AS 08.26;

(40) Department of Commerce, Community, and Economic Development relating to the licensing and regulation of persons making deferred deposit advances under AS 06.50;

(41) Department of Health and Social Services relating to the civil history databases under AS 47.05.330 - 47.05.390;

(42) State Commission for Human Rights, where procedures are not otherwise expressly provided in AS 18.80;

(43) Alaska Retirement Management Board for administration of pension forfeitures under AS 37.10.310;

(44) Department of Commerce, Community, and Economic Development relating to mortgage lending under AS 06.60;

(45) Board of Massage Therapists;

(46) Marijuana Control Board.

(b) The procedure of an agency not listed in (a) of this section shall be conducted under AS 44.62.330 - 44.62.630 only as to those functions to which AS 44.62.330 - 44.62.630 are made applicable by the statutes relating to that agency.

(c) Judicial review and scope of judicial review of all final decisions of the commissioner of labor and workforce development on an appeal relating to employment security shall be in accord with this chapter notwithstanding anything to the contrary in AS 23.20 (Alaska Employment Security Act). All other procedures of the Department of Labor and Workforce Development relating to employment security shall be as provided in AS 23.20 and the regulations under AS 23.20.

(d) Except in a case of reinstatement or reduction of penalty, the provisions of this chapter do not affect statutory provisions concerning

(1) civil or criminal penalties;

(2) additional relief by injunction or restraining order;

(3) penalty provisions relating to suspension, revocation, reissuance, and other similar matters of licenses, permits, leases, concessions, and other similar matters;

(4) related matters that in their context do not relate to procedure.

Sec. 44.62.340. Delegation of power by agencies.

(a) An agency listed in AS 44.62.330 may delegate the power to act, to hear, and to decide, unless expressly prohibited by law.

(b) In a law enacted after April 29, 1959, where the word “agency” alone is used, the power to act may be delegated by the agency, and where the words “agency itself” are used, the power to act may not be delegated unless a statute relating to that agency authorizes the delegation of its power to hear and decide.

Sec. 44.62.350. Appointment of hearing officers. (a) The governor shall assign a qualified, unbiased, and impartial hearing officer, with experience in the general practice of law, to conduct hearings under this chapter that are not conducted by the office of administrative hearings (AS 44.64.010). A hearing officer may perform other duties in connection with the administration of this chapter and other laws.

(b) An agency with hearing officers may continue their employment as hearing officers on an unbiased and impartial basis within the particular agency and may hire additional officers and prescribe additional qualifications.

(c) Except for a hearing officer hired to conduct hearings under AS 23.20 (Alaska Employment Security Act), a hearing officer shall have been admitted to practice law for at least two years immediately before the appointment.

Sec. 44.62.360. Accusation. A hearing to determine whether a right, authority, license, or privilege should be revoked, suspended, limited, or conditioned is initiated by filing an accusation. The accusation must

(1) be a written statement of charges setting out in ordinary and concise language the acts or omissions with which the respondent is charged, so that the respondent is able to prepare a defense;

(2) specify the statute and regulation that the respondent is alleged to have violated, but may not consist merely of charges phrased in the language of the statute and regulation; and

(3) be verified, unless made by a public officer acting in an official capacity or by an employee of the agency on whose behalf the proceeding is to be held; the verification may be on information and belief.

Sec. 44.62.370. Statement of issues. (a) A hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed is initiated by filing a statement of issues. The statement of issues is a written statement specifying

(1) the statute and regulation with which the respondent must show compliance by producing proof at the hearing; and

(2) particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought.

(b) The statement of issues shall be verified unless made by a public officer acting in an official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief.

(c) The statement of issues, together with the form for notice of defense and other information described in AS 44.62.380, shall be delivered to the respondent or sent by certified mail to the latest address on file with the agency, except that if a hearing has already been requested by the respondent,

(1) AS 44.62.380 and 44.62.390 do not apply; and

(2) the statement of issues together with the notice of hearing shall be delivered or mailed to the parties as provided in AS 44.62.420.

Sec. 44.62.380. Service of accusation. (a) Upon filing the accusation, the agency

(1) shall serve a copy of the accusation on the respondent as provided in (c) of this section;

(2) shall include with the accusation a post card or other form entitled “Notice of Defense” that, when signed by or on behalf of the respondent and returned to the agency, acknowledges service of the accusation and constitutes a notice of defense under AS 44.62.390;

(3) shall include in or with the copy of the accusation a statement that respondent may request a hearing by filing a notice of defense as provided in AS 44.62.390 within 15 days after the accusation is served on the respondent and that failure to do so constitutes a waiver of the right to a hearing;

(4) may include with the accusation any information that it considers appropriate.

(b) The statement to respondent must be substantially in the following form:

Unless a written request for a hearing signed by or on behalf of the person named as respondent in the accompanying accusation is delivered or mailed to the agency within 15 days after the accusation was personally served on you or mailed to you, (here insert name of agency) may proceed upon the accusation without a hearing. The request for a hearing may be made by delivering or mailing the enclosed form entitled “Notice of Defense,” or by delivering or mailing a notice of defense as provided by AS 44.62.390 to: (here insert name and address of agency).

(c) The accusation and all accompanying information may be sent to the respondent by any means selected by the agency. However, the agency may not make an order adversely affecting the rights of the respondent unless the respondent is served personally or by certified mail, files a notice of defense, or otherwise appears. Service may be proved in the manner authorized in civil actions. Service by certified mail is effective if a statute or agency regulation requires the respondent to file an address with the agency and to notify the agency of a change, and if a certified letter containing the accusation and accompanying material is mailed, addressed to respondent at the latest address on file with the agency.

Sec. 44.62.390. Notice of defense. (a) Within 15 days after service upon the respondent of the accusation, the respondent may file with the agency a notice of defense. In the notice the respondent may

(1) request a hearing;

(2) object to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed;

(3) object to the form of the accusation on the ground that it is so indefinite or uncertain that the respondent cannot identify the transaction or prepare a defense;

(4) admit the accusation in whole or in part;

(5) present new matter by way of defense.

(b) Within the time specified the respondent may file one or more notices of defense upon any or all of the grounds set out in (a) of this section but all of the notices shall be filed within that period unless the agency in its discretion authorizes the filing of a later notice.

(c) The respondent is entitled to a hearing on the merits if the respondent files a notice of defense, and the notice of defense is considered a specific denial of all parts of the accusation not expressly admitted. Failure to file the notice constitutes a waiver of the respondent's right to a hearing, but the agency in its discretion may nevertheless grant a hearing. Unless objection is taken as provided in (a) (3) of this section, all objections to the form of the accusation are waived.

(d) The notice of defense must be in writing, signed by or on behalf of the respondent, and must state the respondent's mailing address. It need not be verified or follow a particular form.

Sec. 44.62.400. Amended or supplemental accusation.

At any time before the matter is submitted for decision the agency may file or permit the filing of an amended or supplemental accusation. All parties shall be notified of the filing. If the amended or supplemental accusation presents new charges the agency shall give the respondent a reasonable opportunity to prepare a defense to it, but the respondent is not entitled to file a further pleading unless the agency in its discretion so orders. New charges are considered controverted. Objections to the amended or supplemental accusation may be made orally and shall be noted in the record.

Sec. 44.62.410. Time and place of hearing. (a) The agency shall determine the time and place of hearing. The hearing shall be held in Juneau or Ketchikan, whichever is closer to the place where the transaction occurred or where the respondent resides, if the transaction occurred in or the respondent resides in the First Judicial District; in Anchorage if the transaction occurred or the respondent resides within the Third Judicial District; in Fairbanks or Nome, whichever is closer to the place where the transaction occurred or where the respondent resides, if the transaction occurred in or the respondent resides in the Second or Fourth Judicial District. The agency may, if the transaction occurred in a judicial district other than that of respondent's residence, select an appropriate place of hearing in either district. The agency may select a different place nearer the place where the transaction occurred or where the respondent resides, or the parties by agreement may select any place in the state.

(b) A party may request that the party or a witness participate by telephone in a hearing. The requesting party shall pay the costs of the telephonic participation. Unless a finding is made that the telephonic participation would substantially prejudice the rights of an opposing party, the agency shall grant the request for that party or witness to participate telephonically if

(1) no party objects;

(2) the witness lives more than 30 miles one way from the hearing site;

(3) the party lives more than 100 miles one way from the hearing site; or

(4) other good cause is shown to the satisfaction of the agency.

Sec. 44.62.420. Form of notice of hearing. (a) The agency shall deliver or mail a notice of hearing to all parties at least 10 days before the hearing. The hearing may not be held before the expiration of the time within which the respondent is entitled to file a notice of defense.

(b) The notice to respondent must be substantially in the following form but may include other information:

You are notified that a hearing will be held before (here insert name of agency) at (here insert place of hearing) upon the ............. day of ................, 2 ..., at the hour of ............, upon the charges made in the accusation served upon you. You may be present at the hearing, may be but need not be represented by counsel, may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you. You may have subpoenas issued to compel the attendance of witnesses and the production of books, documents or other things by applying to (here insert appropriate office or agency).

Sec. 44.62.430. Subpoenas; witness fees. (a) Before the hearing begins the agency shall issue subpoenas and subpoenas duces tecum at the request of a party in accordance with the rules of civil procedure. After the hearing begins the agency hearing a case or a hearing officer sitting alone may issue subpoenas and subpoenas duces tecum.

(b) A subpoena issued under (a) of this section extends to all parts of the state and shall be served in accordance with the rules of civil procedure. A witness is not obliged to attend at a place out of the house district in which the witness resides unless the distance is less than 100 miles from the place of residence, except that the agency, upon affidavit of a party showing that the testimony of the witness is material and necessary, may endorse on the subpoena an order requiring the attendance of the witness.

(c) A witness who is not a party and who appears under a subpoena is entitled to receive

(1) fees as prescribed for a witness in court actions, unless the witness is an officer or employee of the state or a political subdivision of the state;

(2) reimbursement of transportation expenses in accordance with standards established by the Department of Administration under AS 39.20.160, for required travel in excess of 30 miles round trip from the witness's residence; and

(3) reimbursement of food and lodging expenses in accordance with standards established by the Department of Administration under AS 39.20.160 for each day of actual attendance and for each day of reasonable and necessary travel to and from the place of the hearing if the witness attends a hearing or deposition at a point so distant from the residence of the witness that a return to the residence from day to day is not practicable.

(d) Fees, transportation expenses, and food and lodging expenses shall be paid by the party at whose request the witness is subpoenaed.

Sec. 44.62.440. Depositions. (a) Upon a motion with good cause shown or upon stipulation of the parties, an agency may order discovery, including a deposition to perpetuate testimony, by any reasonable method including those methods prescribed by law in civil actions.

(b) If the witness resides outside the state and if the agency orders the taking of the testimony of the witness by deposition, the agency shall obtain an order of court to that effect by filing a petition for the taking of the deposition in the superior court nearest to the principal office of the agency. The proceedings on this order shall be in accordance with provisions governing the taking of depositions in the superior court in a civil action.

Sec. 44.62.450. Hearings. (a) A hearing in a contested case shall be presided over by a hearing officer. Unless the hearing is conducted by the office of administrative hearings (AS 44.64.010), the agency itself shall determine whether the hearing officer hears the case alone or whether the agency hears the case with the hearing officer.

(b) If the agency hears the case the hearing officer shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the agency on matters of law. The agency shall exercise all other powers relating to the conduct of the hearing, but may delegate any or all of these other powers to the hearing officer. If the hearing officer hears a case alone, the hearing officer shall exercise all powers relating to the conduct of the hearing.

(c) A hearing officer or agency member shall voluntarily seek disqualification and withdraw from a case in which the hearing officer or agency member cannot accord a fair and impartial hearing or consideration. A party may request the disqualification of a hearing officer or agency member by filing an affidavit, before the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. If the request concerns an agency member the issue shall be determined by the other members of the agency. If the request concerns the hearing officer, the issue shall be determined by the agency when the agency hears the case with the hearing officer, and by the hearing officer when the officer hears the case alone. An agency member may not withdraw voluntarily or be disqualified if the disqualification would prevent the existence of a quorum qualified to act in the particular case.

(d) The proceedings at the hearing shall be reported by a phonographic reporter or recorder, or other adequate means of assuring an accurate record.

Sec. 44.62.460. Evidence rules. (a) Oral evidence may be taken only on oath or affirmation.

(b) Each party may

(1) call and examine witnesses;

(2) introduce exhibits;

(3) cross-examine opposing witnesses on matter relevant to the issues, even though that matter was not covered in the direct examination;

(4) impeach a witness regardless of which party first called the witness to testify; and

(5) rebut the adverse evidence.

(c) If the respondent does not testify in behalf of the respondent, the respondent may be called and examined as if under cross-examination.

(d) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule that makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action. The rules of privilege are effective to the same extent that they are recognized in a civil action. Irrelevant and unduly repetitious evidence shall be excluded.

(e) Unless a different standard of proof is stated in applicable law, the

(1) petitioner has the burden of proof by a preponderance of the evidence if an accusation has been filed under AS 44.62.360 or if the renewal of a right, authority, license, or privilege has been denied;

(2) respondent has the burden of proof by a preponderance of the evidence if a right, authority, license, or privilege has been initially denied or not issued.

Sec. 44.62.470. Evidence by affidavit. (a) At any time 10 or more days before a hearing or a continued hearing, a party may mail or deliver to the opposing party a copy of an affidavit that the party proposes to introduce in evidence, together with a notice as provided in (b) of this section. Unless the opposing party, within seven days after that mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, the party's right to cross-examine the affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not given after request for it is made, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.

(b) The notice referred to in (a) of this section must be substantially in the following form:

The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing in (here insert title of proceeding). (Here insert name of affiant) will not be called to testify orally and you may not question the affiant unless you notify (here insert name of proponent or the proponent's attorney) at (here insert address) that you wish to cross-examine the affiant. To be effective your request must be mailed or delivered to (here insert name of proponent or the proponent's attorney) before (here insert a date eight days after the date of mailing or delivering the affidavit to the opposing party).

Sec. 44.62.480. Official notice. In reaching a decision official notice may be taken, either before or after submission of the case for decision, of a generally accepted technical or scientific matter within the agency's special field, and of a fact that is judicially noticed by the courts of the state. Parties present at the hearing shall be informed of the matters to be noticed, and those matters shall be noted in the record, referred to in the record, or appended to it. A party present at the hearing shall, upon request, be given a reasonable opportunity to refute the officially noticed matters by evidence or by written or oral presentation of authority. The agency shall determine the manner of this refutation.

Sec. 44.62.490. Amendment of accusation after submission. The agency may order amendment of the accusation after submission of the case for decision. Each party shall be given notice of the intended amendment and opportunity to show that the party will be prejudiced by it unless the case is reopened to permit the introduction of additional evidence in behalf of the party. If prejudice is shown, the agency shall reopen the case to permit the introduction of additional evidence.

Sec. 44.62.500. Decision in a contested case. (a) If a contested case is heard before an agency

(1) the hearing officer who presided at the hearing shall be present during the consideration of the case and, if requested, shall assist and advise the agency; and

(2) a member of the agency who has not heard the evidence may not vote on the decision.

(b) If a contested case is heard by a hearing officer alone, the hearing officer shall prepare a proposed decision in a form that may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record with the lieutenant governor, and a copy of the proposed decision shall be served by the agency on each party in the case and the party's attorney. Except as otherwise provided in AS 44.64.060(e), for a hearing conducted by the office of administrative hearings, the agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision.

(c) If the proposed decision is not adopted as provided in (b) of this section the agency may decide the case upon the record, including the transcript, with or without taking additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned the hearing officer shall prepare a proposed decision as provided in (b) of this section upon the additional evidence and the transcript and other papers that are part of the record of the earlier hearing. A copy of the proposed decision shall be furnished to each party and the party's attorney as prescribed by (b) of this section. The agency may not decide a case provided for in this subsection without giving the parties the opportunity to present either oral or written argument before the agency. If additional oral evidence is introduced before the agency, an agency member may not vote unless that member has heard the additional oral evidence. This subsection does not apply to a hearing conducted by the office of administrative hearings.

Sec. 44.62.510. Form and retroactivity of decision. (a) A decision shall be written and must contain findings of fact, a determination of the issues presented, and the penalty, if any. The findings may be stated in the language of the pleadings or by reference to them. Copies of the decision shall be delivered to the parties personally or sent to them by certified mail.

(b) A decision in a primarily judicial proceeding has retroactive effect in the same manner as a decision of a state court.

Sec. 44.62.520. Effective date of decision; stay. (a) A decision becomes effective 30 days after it is delivered or mailed to the respondent unless

(1) a reconsideration is ordered within that time;

(2) the agency itself orders that the decision become effective sooner; or

(3) a stay of execution is granted for a particular purpose and not to postpone judicial review.

(b) A stay of execution may be included in the decision or, if not included in it, may be granted by the agency at any time before the decision becomes effective. The stay of execution may be accompanied by an express condition that the respondent comply with specified terms of probation. The terms of probation shall be just and reasonable in the light of the findings and decision.

(c) If the respondent was required to register with a public officer, a notification of suspension or revocation shall be sent to that officer after the decision becomes effective.

Sec. 44.62.530. Default. If the respondent does not file a notice of defense or does not appear at the hearing, the agency may take action based upon the respondent's express admissions or upon other evidence, and affidavits may be used as evidence without notice to the respondent. If the burden of proof is on the respondent to establish that the respondent is entitled to the agency action sought, the agency may act without taking evidence. Nothing in this chapter may be construed to deprive the respondent of the right to make a showing by way of mitigation.

Sec. 44.62.540. Reconsideration. (a) The agency may order a reconsideration of all or part of the case on its own motion or on petition of a party. To be considered by the agency, a petition for reconsideration must be filed with the agency within 15 days after delivery or mailing of the decision. The power to order a reconsideration expires 30 days after the delivery or mailing of a decision to the respondent. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition is considered denied.

(b) The case may be reconsidered by the agency on all the pertinent parts of the record and the additional evidence and argument that are permitted, or may be assigned to a hearing officer. A reconsideration assigned to a hearing officer is subject to the procedure provided in AS 44.62.500. If oral evidence is introduced before the agency, an agency member may not vote unless that member has heard the evidence.

Sec. 44.62.550. Petition for reinstatement or reduction of penalty. A person whose license is revoked or suspended may petition the agency for reinstatement or reduction of penalty after one year from the effective date of the decision or from the date of the denial of a similar petition. The agency shall give notice to the attorney general of the filing of the petition, and the attorney general and the petitioner shall be given an opportunity to present either oral or written argument before the agency. The agency shall decide the petition, and the decision must include the reasons for the decision. This section does not apply if the statutes dealing with the particular agency contain different provisions for reinstatement or reduction of penalty.

Sec. 44.62.560. Judicial review. (a) Judicial review by the superior court of a final administrative order may be had by filing a notice of appeal in accordance with the applicable rules of court governing appeals in civil matters. Except as otherwise provided in this section, the notice of appeal shall be filed within 30 days after the last day on which reconsideration can be ordered, and served on each party to the proceeding. The right to appeal is not affected by the failure to seek reconsideration before the agency.

(b) The complete record of the proceedings, or the parts of it which the appellant designates, shall be prepared by the agency. A copy shall be delivered to all parties participating in the appeal. The original shall be filed in the superior court within 30 days after the appellant pays the estimated cost of preparing the complete or designated record or files a corporate surety bond equal to the estimated cost.

(c) The complete record includes

(1) the pleadings;

(2) all notices and orders issued by the agency;

(3) the proposed decision by a hearing officer;

(4) the final decision;

(5) a transcript of all testimony and proceedings;

(6) the exhibits admitted or rejected;

(7) the written evidence; and

(8) all other documents in the case.

(d) Upon order of the superior court, appeals may be taken on the original record or parts of it. The record may be typewritten or duplicated by any standard process. Analogous rules of court governing appeals in civil matters shall be followed where this chapter is silent, and when not in conflict with this chapter.

(e) The superior court may enjoin agency action in excess of constitutional or statutory authority at any stage of an agency proceeding. If agency action is unlawfully withheld or unreasonably withheld, the superior court may compel the agency to initiate action.

Sec. 44.62.570. Scope of review. (a) An appeal shall be heard by the superior court sitting without a jury.

(b) Inquiry in an appeal extends to the following questions: (1) whether the agency has proceeded without, or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

(c) The court may exercise its independent judgment on the evidence. If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by

(1) the weight of the evidence; or

(2) substantial evidence in the light of the whole record.

(d) The court may augment the agency record in whole or in part, or hold a hearing de novo. If the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing, the court may

(1) enter judgment as provided in (e) of this section and remand the case to be reconsidered in the light of that evidence; or

(2) admit the evidence at the appellate hearing without remanding the case.

(e) The court shall enter judgment setting aside, modifying, remanding, or affirming the order or decision, without limiting or controlling in any way the discretion legally vested in the agency.

(f) The court in which proceedings under this section are started may stay the operation of the administrative order or decision until

(1) the court enters judgment;

(2) a notice of further appeal from the judgment is filed; or

(3) the time for filing the notice of appeal expires.

(g) A stay may not be imposed or continued if the court is satisfied that it is against the public interest.

(h) If further appeal is taken, the supreme court may, in its discretion, stay the superior court judgment or agency order.

(i) If a final administrative order or decision is the subject of a proceeding under this section, and the appeal is filed while the penalty imposed is in effect, finishing or complying with the penalty imposed by the administrative agency during the pendency of the proceeding does not make the determination moot.

Sec. 44.62.580. Continuances. The agency may grant continuances. If a hearing officer is assigned to a hearing, a continuance may not be granted except by the hearing officer for good cause shown.

Sec. 44.62.590. Contempt. (a) In a proceeding before an agency, the agency shall certify the facts to the superior court in the judicial district where the proceeding is held if a person in the proceeding

(1) disobeys or resists a lawful order;

(2) refuses to respond to a subpoena;

(3) refuses to take oath or affirmation as a witness;

(4) refuses to be examined; or

(5) is guilty of misconduct at a hearing or so near the hearing as to obstruct the proceeding.

(b) Upon certification under (a) of this section, the court shall issue an order directing the person to appear before the court and show cause why the person should not be punished for contempt. The order and a copy of the certified statement shall be served on the person.

(c) After service under (b) of this section, the court has jurisdiction of the matter.

(d) The law applicable to contempt committed by a person in the trial of a civil action before the superior court applies to contempt under this section as to

(1) the proceeding taken;

(2) the penalties imposed; and

(3) the way the person charged may be purged of the contempt.

Sec. 44.62.600. Voting procedure. A member of an agency qualified to vote on a question may vote by mail or by teleconferencing. A vote by teleconferencing shall be recorded in a manner that identifies each person who has voted and how the person voted.

Sec. 44.62.610. Charge. A sum authorized to be spent under AS 44.62.330 - 44.62.630 by an agency is a legal charge against the appropriations of the agency.

Sec. 44.62.620. Power to administer oaths. In a proceeding under AS 44.62.330 - 44.62.630 an agency, agency member, secretary of an agency, or hearing officer may administer oaths and affirmations and certify official acts.

Sec. 44.62.630. Impartiality.

The functions of hearing officers and those officers participating in decisions shall be conducted in an impartial manner with due regard for the rights of all parties and the facts and the law, and consistent with the orderly and prompt dispatch of proceedings. These officers, except to the extent required for the disposition of ex parte matters authorized by law, may not engage in interviews with, or receive evidence or argument from, a party, directly or indirectly, except upon opportunity for all other parties to be present. Copies of all communications with these officers shall be served upon all parties.^[2]

External links

Footnotes

[us-1] USLegal, "Administrative Procedure Act — Alaska," accessed November 5, 2018

[alaska-2] 2.0 ^2.1 ^2.2 ^2.3 ^2.4 ^2.5 ^2.6 ^2.7 The Alaska State Legislature, "Administrative Procedures Act," Chapter 44.62 accessed April 28, 2023

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[2]

Alaska Administrative Procedure Act

Contents

Article 1: Application and effect

Article 2: Submission, filing, and publication of regulations

Article 3: Alaska administrative register and code

Article 4: Procedure for adopting regulations

Article 5: Judicial review

Article 6: Open meetings of governmental bodies

Article 7: Legislative review of rules

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