Maine Administrative Procedure Act
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The Maine 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 Maine. It can be found in Title 5, Part 18, Chapter 375 of the Maine Revised Statutes.[1]
Chapter 375: Maine Administrative Procedure Act
Subchapter 1: General provisions
5 §8001: Short title
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Text of 5 §8001: This chapter is known and may be cited as the "Maine Administrative Procedure Act."[1] |
5 §8002: Definitions
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Text of 5 §8002: As used in this Act, unless the context otherwise indicates, the following words and phrases shall have the following meanings. 1. Adjudicatory proceeding. "Adjudicatory proceeding" means any proceeding before an agency in which the legal rights, duties or privileges of specific persons are required by constitutional law or statute to be determined after an opportunity for hearing. 1-A. Adopt. "Adopt" means action certified by the dated signature of an authorized representative that a rule is accepted as official by an agency. 2. Agency. "Agency" means any body of State Government authorized by law to adopt rules, to issue licenses or to take final action in adjudicatory proceedings, including, but not limited to, every authority, board, bureau, commission, department or officer of the State Government so authorized; but the term does not include the Legislature, Governor, courts, University of Maine System, Maine Maritime Academy, community colleges, the Commissioner of Education for schools of the unorganized territory, school administrative units, community action agencies as defined in Title 22, section 5321, special purpose districts or municipalities, counties or other political subdivisions of the State. 3. Agency member. "Agency member" means an individual appointed or elected to the agency who is charged by statute with that agency's decision-making functions. It does not include counsel to the agency or agency staff. 3-A. Effective date. "Effective date" means the date a rule goes into effect. If a date is not assigned by the agency, the effective date is assigned by the Secretary of State in accordance with section 8052, subsection 6. Unless otherwise stated in law, emergency rules filed in accordance with section 8054 are effective at the time they are filed with the Secretary of State. 3-B. Authorized representative. "Authorized representative" means the chair of a board or commission, an individual in a major policy-influencing position as defined by chapter 71, or the chief executive officer of an agency, within the agency adopting a rule. 3-C. Consensus-based rule development process. "Consensus-based rule development process" means a collaborative process when a draft rule is developed by an agency and a representative group of participants with an interest in the subject of the rulemaking. 4. Final agency action. "Final agency action" means a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency. 5. License. "License" includes the whole or any part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law which represents an exercise of the state's regulatory or police powers. 6. Licensing. "Licensing" means the administrative process resulting in the grant, denial, renewal, revocation, suspension or modification of a license. 7. Party. "Party" means:
8. Person. "Person" means any individual, partnership, corporation, governmental entity, association or public or private organization of any character, other than the agency conducting the proceeding. 8-A. Proposed rule. "Proposed rule" or "proposed agency rule" means a rule that an agency has formally proposed for adoption through submission of the rule to the Secretary of State for publication pursuant to section 8053, subsection 5. 9. Rule. "Rule" is defined as follows.
A rule is not judicially enforceable unless it is adopted in a manner consistent with this chapter.[1] |
5 §8003: Inconsistent provisions
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Text of 5 §8003: Except where expressly authorized by statute, any statutory provision now existing or hereafter adopted which is inconsistent with the express provisions of the Maine Administrative Procedure Act shall yield and the applicable provisions of this Act shall govern in its stead.[1] |
5 §8004: Matters pending not affected
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Text of 5 §8004: The Maine Administrative Procedure Act shall not apply to: 1. Adjudicatory proceedings. Adjudicatory proceedings commenced by filing of an application, request for a hearing, agency notice of a hearing or otherwise in accordance with preexisting law, prior to July 1, 1978; 2. Licensing proceedings. Licensing proceedings commenced by filing an application for a license, or renewal or reissuance thereof, or by notice of agency proceedings affecting an existing license, prior to July 1, 1978; or 3. Judicial review. Judicial review of any of the foregoing. 4. Collective bargaining. State personnel rules negotiated as part of any collective bargaining agreement.[1] |
5 §8005: Governor's Office of Health Policy and Finance
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Text of 5 §8005: Notwithstanding any provision of law to the contrary, the provisions of this subchapter and subchapters 2 and 2-A apply to rulemaking by the Governor's Office of Health Policy and Finance or its successor agency.[1] |
5 §8006: Expenses of loan authority board
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Text of 5 §8006: Reallocated to Title 5, Section 15006.[1] |
5 §8007: Loan Insurance Fund
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Text of 5 §8007: Reallocated to Title 5, Section 15007.[1] |
5 §8008: Additions
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Text of 5 §8008: Reallocated to Title 5, Section 15008.[1] |
5 §8009: Insurance of loans
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Text of 5 §8009: Reallocated to Title 5, Section 15009.[1] |
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Text of 5 §8010: Reallocated to Title 5, Section 15010.[1] |
5 §8011: Acquisition and disposal of property
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Text of 5 §8011: Reallocated to Title 5, Section 15011.[1] |
5 §8012: Loans eligible for investment
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Text of 5 §8012: Reallocated to Title 5, Section 15012.[1] |
5 §8013: Safeguarding the fund
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Text of 5 §8013: Reallocated to Title 5, Section 15013.[1] |
5 §8014: Accounts
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Text of 5 §8014: Reallocated to Title 5, Section15014.[1] |
5 §8015: Records confidential
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Text of 5 §8015: Reallocated to Title 5, Section 15015.[1] |
Subchapter 2: Rulemaking
5 §8051: Adoption of rules of practice
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Text of 5 §8051: In addition to other rule-making requirements imposed by law, each agency shall adopt rules of practice governing the conduct of adjudicatory proceedings, licensing proceedings and the rendering of advisory rulings, except to the extent that such rules are provided by law. The first time after October 1, 1995 that an agency proposes to adopt or modify the rules of practice governing the conduct of adjudicatory proceedings or licensing proceedings, the agency shall also propose any rules reasonably necessary to promote, when appropriate, the efficient and cost-effective use of alternative dispute resolution techniques, including the use of neutral facilitators, mediators or arbitrators. If the agency determines that it is unnecessary or inappropriate to propose these rules, it shall so state in the notice of rulemaking required under section 8053. A written explanation of the reasons for the agency's determination must be included in the basis statement of rule. Any agency rule of practice that imposes a time period or deadline for the filing of any submission or for the service of any paper must provide that filing or service is complete: 1. Upon an agency. Upon an agency, when the agency receives the submission or the paper by mail, in-hand delivery or any other means specified by the agency; or 2. Upon a party. Upon a party, when the paper is mailed to the party or the party's attorney, by in-hand delivery to the recipient or by delivery to the recipient's office.[1] |
5 §8051-A: Appointment of liaison
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Text of 5 §8051-A: The commissioner or director of each state agency shall designate a person to serve as a liaison between the agency and the general public, the Legislature, the Secretary of State and the office of the Attorney General with respect to rulemaking. The liaison shall serve as a representative of the agency with respect to providing information about agency rules. The liaison is responsible for implementing the procedural provisions of this subchapter. The Secretary of State shall maintain a list of all agency liaisons and their contact information on a publicly accessible website.[1] |
5 §8051-B: Consensus-based rule development process
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Text of 5 §8051-B: 1. Agency authority. An agency may voluntarily engage in a consensus-based rule development process. An agency that develops a draft rule through a consensus-based rule development process retains the sole discretion over whether to submit the rule as a proposed rule and as to the final language of the proposed rule. 2. Initial considerations. As part of a consensus-based rule development process, an agency shall:
3. Record. An agency that engages in a consensus-based rule development process that results in a proposed rule shall maintain:
4. Judicial review. An agency action to engage in or terminate a consensus-based rule development process is not subject to judicial review. This section does not bar judicial review of a rule finally adopted by an agency following a consensus-based rule development process if such a review is otherwise available by law as long as the basis for review is other than procedural error in the consensus-based rule development process.[1] |
5 §8052: Rulemaking
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Text of 5 §8052: 1. Notice; public hearing. Prior to the adoption of any rule, the agency shall give notice as provided in section 8053 and may hold a public hearing, except that a public hearing must be held if otherwise required by statute or requested by any 5 interested persons or if the rule is a major substantive rule as defined in section 8071, subsection 2, paragraph B. A public meeting or other public forum held by an agency for any purpose that includes receiving public comments on a proposed agency rule is a public hearing and is subject to all the provisions of this subchapter regarding public hearings. 2. Requirements. Any public hearing shall comply with any requirements imposed by statute, but shall not be subject to subchapter IV. Any public hearing shall be held and conducted as follows.
3. Statements and arguments filed. When a public hearing is held, written statements and arguments concerning the proposed rule may be filed with the agency within 10 days after the close of the public hearing, or within such longer time as the agency may direct. 4. Relevant information considered. The agency shall consider all relevant information available to it, including, but not limited to, economic, environmental, fiscal and social impact analyses and statements and arguments filed, before adopting any rule. 5. Written statement adopted. At the time of adoption of any rule, the agency shall adopt a written statement explaining the factual and policy basis for the rule. The agency shall list the names of persons whose comments were received, including through testimony at hearings, the organizations the persons represent and summaries of their comments. The agency shall address the specific comments and concerns expressed about any proposed rule and state its rationale for adopting any changes from the proposed rule, failing to adopt the suggested changes or drawing findings and recommendations that differ from those expressed about the proposed rule.
5-A. Impact on small business. In adopting rules, the agencies shall seek to reduce any economic burdens through flexible or simplified reporting requirements and may seek to reduce burdens through flexible or simplified timetables that take into account the resources available to the affected small businesses. The agency may consider clarification, consolidation or simplification of compliance or reporting requirements. For the purposes of this subsection, "small business" means businesses that have 20 or fewer employees. Prior to the adoption of any proposed rule that may have an adverse impact on small businesses, the agency shall prepare an economic impact statement that includes the following:
6. Effective date. No rule, except emergency rules adopted under section 8054, becomes effective until at least 5 days after filing with the Secretary of State under section 8056, subsection 1, paragraph B. When the effective date of a rule is contingent upon the occurrence or nonoccurrence of an event, notification of the occurrence or nonoccurrence must be filed with the Secretary of State when known. 7. Adoption of rule. A rule may not take effect unless:
The final date for comments may be extended if notice of doing so is published within 14 days after the most recently published comment deadline, in the consolidated notice referred to in section 8053. 8. Appropriate reference to underlying federal and state laws and regulations. At the time of adoption of any rule, the agency shall refer with particularity to any underlying federal or state law or regulation which serves as the basis of the rule.[1] |
5 §8053: Notice
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Text of 5 §8053: 1. Notice of rulemaking without hearing. At least 20 days prior to the comment deadline of any rule without hearing, the agency shall deliver or mail written notice or, with written or electronic agreement of the party, provide electronic notice to:
Notification to subscribers under paragraph B must be by mail or, with written or electronically submitted agreement of the subscriber, electronic notice or otherwise in writing to the last address provided to the agency by that person. Subscribers under paragraph B may request to receive a copy of each proposed rule with the written notice. The agency shall provide the copy at the same time the notice is sent. Written or electronic notice must also be given to the Secretary of State, by the deadline established by the Secretary of State, for publication in accordance with subsection 5. This notice must be in a format approved by the Secretary of State. 2. Notice of rulemaking hearing. When an agency holds a public hearing prior to adoption of a rule, notice of the hearing shall be given in the manner described in subsections 1 and 5, using the date of the hearing to calculate the time periods involved; 3. Contents of notice. Except for notices governed by subsections 5 and 7, a notice under this section must:
G. Indicate whether the rule is routine technical or major substantive as those terms are defined in section 8071. 3-A. Copies of proposed rules available upon request. At least 20 days prior to hearing on any proposed rule and at least 20 days prior to the comment deadline of any rule without a hearing, the agency shall make copies of the proposed rule available in writing or, with agreement of the requestor, electronically to persons upon request. 4. Fee schedule. The agency may establish a fee schedule for notice and for proposed rules under subsection 1, paragraph B, imposing a cost reasonably related to the actual expense entailed. Fees may vary depending upon the method of transmission of notice and the rules being transmitted. 5. Publication. Using the format of notice pursuant to subsection 7, the Secretary of State shall:
6. Electronic publication. In addition to the printed publication required in subsection 5, the Secretary of State shall maintain a publicly accessible website for posting the notices of all proposed and adopted rules. The contents of the notice for electronic publication are pursuant to subsection 3. An agency, on its publicly accessible website, shall either post its proposed and adopted rules or provide a link to the proposed or adopted rules posted on the Secretary of State's website. Notice of each rule-making proceeding must be published on the Secretary of State's website 17 to 24 days prior to the public hearing on the proposed rule or at least 30 days prior to the last date on which views and arguments may be submitted to the agency for consideration if no public hearing was scheduled. 7. Contents of notice for newspaper publication. The notice for publication in the newspaper under subsection 5 is shorter than the notice provided for all other purposes pursuant to subsection 3. The notice for newspaper publication must:
H. Indicate whether the rule is routine technical or major substantive as those terms are defined in section 8071.[1] |
5 §8053-A: Notice to legislative committees
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Text of 5 §8053-A: 1. Proposed rules. At the time of giving notice of rulemaking under section 8053 or within 10 days following the adoption of an emergency rule, the agency shall provide to the Legislature, in accordance with subsection 3, a fact sheet providing the information as described in section 8057-A, subsection 1.
2. Regulatory agenda. The agency shall provide copies of its agency regulatory agenda, as provided in section 8060, to the Legislature at the time that the agenda is issued. 3. Submission of materials to the Legislature. When an agency, pursuant to subsection 1 or 2, provides materials to the Legislature, it shall provide them to the Executive Director of the Legislative Council, who shall refer the materials to the appropriate committee or committees of the Legislature for review. The agency shall provide sufficient copies of the materials for each member of the appropriate committee or committees. 4. Adopted rules. When an agency adopts rules, it shall provide a copy of the adopted rules, the statement required by section 8052, subsection 5, and the checklist required by section 8056-A to the Secretary of State who shall compile the adopted rules by agency. 5. Annual lists of rule-making activity. By February 1st of each year, the Secretary of State shall provide the Executive Director of the Legislative Council lists by agency of all rules adopted by each agency in the previous calendar year. The Executive Director of the Legislative Council shall refer each list to the appropriate joint standing committee or committees of the Legislature for review. Each list must include for each rule the following information, which must be submitted by each agency to the Secretary of State:
6. Authority to report out legislation. After each appropriate joint standing committee of the Legislature has received a list of rule-making activity pursuant to subsection 5, the committee may require an agency to appear before the committee, and the committee may report out legislation in the same legislative session in which the report is received to adjust rule-making authority related to the rules adopted in the previous calendar year.[1] |
5 §8054: Emergency rulemaking
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Text of 5 §8054: 1. Emergency. If the agency finds that immediate adoption of a rule by procedures other than those set forth in sections 8052 and 8053 is necessary to avoid an immediate threat to public health, safety or general welfare, it may modify those procedures to the minimum extent required to enable adoption of rules designed to mitigate or alleviate the threat found. Emergency rules shall be subject to the requirements of section 8056. 2. Agency findings. Any emergency rule must include, with specificity, the agency's findings with respect to the existence of an emergency, including any modifications of procedures, and such findings are subject to judicial review under section 8058. Such findings must be included in the basis statement for any adopted emergency rule in a section labeled "findings of emergency." No emergency may be found to exist when the primary cause of the emergency is delay caused by the agency involved. 3. Emergency period. Any emergency rule shall be effective only for 90 days, or any lesser period of time specified in an enabling statute or in the emergency rule. After the expiration of the emergency period, such rule shall not thereafter be adopted except in the manner provided by section 8052. 4. Fiscal impact; curtailment orders. An emergency rule adopted in whole or in part to satisfy the requirements of a temporary curtailment order by the Governor under section 1668 must include a specification of the dollar amount of curtailed funds attributable to each change adopted in the rule.[1] |
5 §8055: Petition for adoption or modification of rules
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Text of 5 §8055: 1. Petition. Any person may petition an agency for the adoption or modification of any rule. 2. Form designated. Each agency shall designate the form for such petitions and the procedure for their submission, consideration and disposition. 3. Receipt of petition. Within 60 days after receipt of a petition, the agency shall either notify the petitioner in writing of its denial, stating the reasons therefor, or initiate appropriate rule-making proceedings. Whenever a petition to adopt or modify a rule is submitted by 150 or more registered voters of the State, the agency shall initiate appropriate rulemaking proceedings within 60 days after receipt of the petition. The petition must be verified and certified in the same manner provided in Title 21-A, section 354, subsection 7, prior to its presentation to the agency. 4. Petition submitted by persons incarcerated in Department of Corrections facility. Notwithstanding subsections 2 and 3, the Department of Corrections shall initiate appropriate rule-making proceedings within 60 days after receipt of a petition to adopt or modify a rule submitted by 150 or more persons incarcerated in a department correctional facility under Title 34‑A or by 25% or more of the total number of males or females incarcerated in a department correctional facility under Title 34‑A, whichever is fewer. The department is not required to initiate appropriate rule-making proceedings pursuant to this subsection if a petition to adopt or modify the same rule was received within the previous 12 months. The department may take reasonable steps to ensure that each signature on a petition submitted pursuant to this subsection is the signature of the person it purports to be and that the person was incarcerated in a department correctional facility under Title 34‑A at the time of signing. 5. Petition submitted by persons incarcerated in county or municipal detention facility. Notwithstanding subsections 2 and 3, the Department of Corrections shall initiate appropriate rule-making proceedings with respect to standards adopted pursuant to Title 34‑A, section 1208 or 1208‑B within 60 days after receipt of a petition to adopt or modify a rule submitted by 150 or more persons incarcerated in a county or municipal detention facility or by 25% or more of the total number of males or females incarcerated in a county or municipal detention facility, whichever is fewer. The department is not required to initiate appropriate rule-making proceedings pursuant to this subsection if a petition to adopt or modify the same rule was received within the previous 12 months. The department may take reasonable steps to ensure that each signature on a petition submitted pursuant to this subsection is the signature of the person it purports to be and that the person was incarcerated in the facility at the time of signing.[1] |
5 §8056: Filing and publication
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Text of 5 §8056: 1. Requirements. With respect to every rule adopted, the agency shall:
(4) An agency incorporating a matter by reference shall submit a copy of the incorporated matter to the Secretary of State;
2. Form. With respect to every rule adopted by the agency and in effect, the agency shall print and compile and make available to any person, at each of its offices, for inspection at no charge and for copying with or without cost, as the agency shall determine, and for distribution free or at actual cost, complete sets of such rules currently in effect. 3. Secretary of State. The Secretary of State shall:
4. Additional requirements. The requirements of subsection 2 shall additionally be applicable to the agency's forms, instructions, explanatory statements and other items defined in section 8002, subsection 9, paragraph B, subparagraph (4). 5. Record of vote. In addition to the foregoing, each agency shall keep, at its principal office, and make available for inspection to any person a record of the vote of each member of the agency taken in rule-making proceedings. 6. Attorney General review and approval. The review required in subsection 1 may not be performed by any person involved in the formulation or drafting of the proposed rule. The Attorney General may not approve a rule if it is reasonably expected to result in a taking of private property under the Constitution of Maine unless such a result is directed by law or sufficient procedures exist in law or in the proposed rule to allow for a variance designed to avoid such a taking. 7. Codification of rules. The Secretary of State, in consultation with affected state agencies, shall develop a plan to codify all current rules of state agencies within its available resources. The codified rules must be maintained on an electronic text file data base. To develop the electronic text file data base, agencies may refile an existing rule or parts of an existing rule. If an agency refiles a rule or portion of a rule:
8. Electronic text file procedures. Under subsection 1, the Secretary of State may establish by rule in accordance with the Maine Administrative Procedure Act procedures and criteria for the filing of rules in electronic text file format. 9. Certification of published rules. The Secretary of State may certify that a publication of the codified rules and any supplements or replacement volumes to that publication are a correct transcript of the text of the original rules.
10. Minor errors. The Secretary of State may correct minor, nonsubstantive errors in spelling and format in proposed or adopted rules if the agency is notified.[1] |
5 §8056-A: Technical assistance; annual report
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Text of 5 §8056-A: 1. Checklist. The Secretary of State shall establish and implement a checklist that must be completed by agencies and attached to adopted rules filed with the Secretary of State after December 31, 1989. The checklist must include the timing of filing and notices as well as other procedural requirements of this subchapter. 2. Technical assistance. The Secretary of State shall develop uniform drafting instructions for use by all agencies that propose rules under this subchapter and shall compile those instructions in a drafting manual. In addition, the Secretary of State shall provide assistance to any agency regarding the form for drafting of rules and supporting materials and the other requirements of this subchapter. 3. Report. The Secretary of State shall report to the Governor and the joint standing committee of the Legislature having jurisdiction over state and local government prior to February 1st of each year with respect to rule-making activities for the prior year. The report must include statistical information on agency rule-making activities, agency experience with procedural requirements of this subchapter, an evaluation of the codification process, the impact of the electronic text file data base on state agencies and users of the rules and recommendations for improvements to the rule-making process. In preparing the report, the Secretary of State shall solicit comments on this subchapter from agencies and their legal counsels, the Executive Director of the Legislative Council and the public.[1] |
5 §8057: Compliance
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Text of 5 §8057: 1. Rules; exception. Rules adopted in a manner other than that prescribed by section 8052, subsections 1, 2, 3, 4, 5-A and 7 and by sections 8053 and 8054 are void and of no legal effect, except that insubstantial deviations from the requirements of section 8053 do not invalidate the rule subsequently adopted. Rules in effect prior to July 1, 1978 become void and of no legal effect on July 1, 1979, unless originally adopted after notice published in a newspaper of general circulation in some area of the State and opportunity for hearing or unless adopted in accordance with this subchapter. 2. Rules not approved. Rules not approved and filed in the manner prescribed by section 8056, subsection 1, paragraphs A and B, shall be void and of no legal effect. Rules in effect prior to July 1, 1978, become void and of no legal effect on December 31, 1979, unless filed with the Secretary of State in accordance with section 8056, subsection 1, paragraph B. 3. Agency, responsibility. The requirements of this subchapter do not relieve any agency of the responsibility of compliance with any statute requiring that its rules be filed with or approved by any designated person before they become effective.[1] |
5 §8057-A: Preparation and adoption of rules
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Text of 5 §8057-A: In preparing and adopting rules, each agency shall strive to the greatest possible extent to follow the procedure defined in this section. 1. Preparation of rules. At the time that an agency is preparing a rule, the agency shall consider the goals and objectives for which the rule is being proposed, possible alternatives to achieve the goals and objectives and the estimated impact of the rule. The agency's estimation of the impact of the rule must be based on the information available to the agency and any analyses conducted by the agency or at the request of the agency. The agency shall establish a fact sheet that provides the citation of the statutory authority of the rule. In addition, the agency, to the best of its ability, shall also include in the fact sheet:
2. Additional information for existing rules. For existing rules having an estimated fiscal impact greater than $1,000,000, the fact sheet shall also include the following:
3. Public comment period. During the public comment period and prior to adoption of any rule, the agency shall strive to obtain and evaluate relevant information from the public and other information reasonably available to the agency with respect to relevant provisions in subsection 1. 4. Adoption of rules. At the time of adoption of any rule, the agency shall file with the Secretary of State the information developed by the agency pursuant to subsections 1 and 2 and, except for emergency rules, citations for up to 3 primary sources of information relied upon by the agency in adopting the rule. Professional judgment may be cited as one of those primary sources of information. Citations to primary sources of information are not subject to judicial review.[1] |
5 §8058: Judicial review of rules
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Text of 5 §8058: 1. Judicial review. Judicial review of an agency rule, or of an agency's refusal or failure to adopt a rule where the adoption of a rule is required by law, may be had by any person who is aggrieved in an action for declaratory judgment in the Superior Court conducted pursuant to Title 14, section 5951, et seq., which provisions shall apply to such actions wherever not inconsistent with this section. Insofar as the court finds that a rule exceeds the rule-making authority of the agency, or is void under section 8057, subsection 1 or 2, it shall declare the rule invalid. In reviewing any other procedural error alleged, the court may invalidate the rule only if it finds the error to be substantial and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if the error had not occurred. If the court finds that the rule is not procedurally invalid and not in excess of the agency's rule-making authority, its substantive review of that rule shall be to determine whether the rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The phrase "otherwise not in accordance with law" shall apply only to the review authorized in the preceding sentence and shall not be construed so as to limit or replace in any way section 8003. In the event that the court finds that an agency has failed to adopt a rule as required by law, the court may issue such orders as are necessary and appropriate to remedy such failure. 2. Failure to seek judicial review. The failure to seek judicial review of an agency rule in the manner provided by subsection 1 shall not preclude judicial review thereof in any civil or criminal proceeding.[1] |
5 §8059: Inconsistent rules
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Text of 5 §8059: When 2 rules are inconsistent or in conflict with one another, so that compliance with both is impossible, then compliance with either rule shall be deemed to be compliance with the other.[1] |
5 §8060: Regulatory agenda
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Text of 5 §8060: Each agency with the authority to adopt rules shall issue to the appropriate joint standing committee or committees of the Legislature and to the Secretary of State an agency regulatory agenda as provided in this section. 1. Contents of agenda. Each agency regulatory agenda to the maximum possible extent shall contain the following information:
2. Due date. A regulatory agenda must be issued between the beginning of a regular legislative session and 100 days after adjournment. 3. Legislative copies. The agency shall provide copies of the agency regulatory agenda to the Legislature as provided in section 8053-A. 4. Availability. An agency which issues an agency regulatory agenda shall provide copies to interested persons. 5. Legislative review of agency regulatory agendas. Each regulatory agenda shall be reviewed by the appropriate joint standing committee of the Legislature at a meeting called for the purpose. The committee may review more than one agenda at a meeting. 6. Application. Nothing in this section or section 8053-A may be construed to prohibit agencies from adopting emergency rules that have not been listed or included in the regulatory agenda pursuant to this section. 7. Agenda listing required. Notwithstanding any provision of law to the contrary, a rule may not be proposed pursuant to Title 38, chapter 16-D unless the chemicals affected by that proposed rule were specifically disclosed to the Legislature prior to the initiation of the rule-making process as part of a regulatory agenda, except that this subsection may not be construed to prohibit an agency from initiating appropriate rule-making proceedings in response to any person who petitions for adoption or modification of rules pursuant to section 8055.[1] |
5 §8061: Style
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Text of 5 §8061: All rules and any other materials required by this subchapter to be provided to the public or to the Legislature shall, to the maximum extent feasible, use plain and clear English, which can readily be understood by the general public. The use of technical language shall be avoided to the greatest possible extent.[1] |
5 §8062: Performance standards
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Text of 5 §8062: When legislation authorizing any regulated activity requires that certain criteria be met in order that any license, permit, authorization or certification to undertake the regulated activity be granted and when an agency determines that performance standards will assist regulated parties in complying with the criteria, the standards shall be developed during the rule-making process and incorporated into adopted rules when performance standards are equally effective in meeting applicable statutory criteria.[1] |
5 §8063: Fiscal impact
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Text of 5 §8063: Every rule proposed by an agency must contain a fiscal impact note at the end of the rule. The note must be placed on the rule prior to any public hearing and, in the case of rules adopted without a hearing, prior to the sending of notice under section 8053. The fiscal impact note must describe the estimated cost to municipalities and counties for implementing or complying with the proposed rule. If the proposed rule will not impose any cost on municipalities or counties, the fiscal impact note must state that fact.[1] |
5 §8063-A: Analysis of benefits and costs
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Text of 5 §8063-A: In addition to the economic impact statement required under section 8052, subsection 5-A and the fiscal impact note required under section 8063, an agency may, within existing budgeted resources and in instances in which the consideration of costs is permitted, conduct an analysis of the benefits and costs of a proposed rule to evaluate the effects of the rule on the distribution of benefits and costs for specific groups and on the overall economic welfare of the State. 1. Contents of a cost-benefit analysis. To the extent permitted within existing resources, a cost-benefit analysis conducted under this section must include, at a minimum, the following information:
Prior to conducting a cost-benefit analysis under this section, an agency shall determine that sufficient staff expertise and budgeted resources exist within the agency to complete the analysis. The agency shall include a cost-benefit analysis with a copy of a proposed rule when responding to a request for the proposed rule under section 8053, subsection 3-A. When the analysis is conducted on a provisionally adopted major substantive rule, the analysis must be included with the materials submitted to the Executive Director of the Legislative Council under section 8072, subsection 2. A cost-benefit analysis conducted under this section is not subject to judicial review under section 8058.[1] |
5 §8063-B: Identification of primary source of information
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Text of 5 §8063-B: For every rule proposed by an agency, except for emergency rules, the agency shall file with the Secretary of State citations for up to 3 primary sources of information relied upon by the agency in developing the proposed rule. The agency shall include that information with a copy of the proposed rule when responding to a request under section 8053, subsection 3-A. Professional judgment may be cited as one of those primary sources of information. Citations to primary sources of information are not subject to judicial review.[1] |
5 §8064: Limitation
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Text of 5 §8064: Except for emergency rules as provided in section 8060, subsection 6, an agency may not adopt any rule unless the agency has complied with the provisions in sections 8053-A and 8060, which include legislative review of the rule. When an agency proposes a rule not in its current regulatory agenda, the agency must file an amendment to its agenda with the Legislature and Secretary of State under section 8053-A at the time of rule proposal.[1] |
Subchapter 2-A: Rulemaking procedures governing rules authorized and adopted after January 1, 1996
5 §8071: Legislative review of certain agency rules
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Text of 5 §8071: Except as otherwise provided in this subchapter, rules adopted pursuant to rule-making authorization delegated to an agency after January 1, 1996 are subject to the procedures of this subchapter and subchapter II. 1. Legislative action. All new rules authorized to be adopted by delegation of legislative authority that is enacted after January 1, 1996, including new rules authorized by amendment of provisions of laws in effect on that date, must be assigned by the Legislature to one of 2 categories and subject to the appropriate level of rule-making procedures as provided in this subchapter. The Legislature shall assign the category and level of review to all rules at the time it enacts the authorizing legislation. The Legislature may assign different categories and levels of review to different types of rules authorized by the same legislation. 2. Categories of rules. There are 2 categories of rules authorized for adoption after January 1, 1996.
3. Levels of rule-making process. In order to provide for maximum agency flexibility in the adoption of rules while retaining appropriate legislative oversight over certain rules that are expected to be controversial or to have a major impact on the regulated community, each agency rule authorized and adopted after January 1, 1996 is subject to one of 2 levels of rule-making requirements.
The establishment or amendment of an agency fee by rulemaking is a major substantive rule, except for the establishment or amendment of a fee that falls under a cap or within a range set in statute, which is a routine technical rule.[1] |
5 §8071-A: Definitions
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Text of 5 §8071-A: As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings. 1. Legislative review session. "Legislative review session" means the regular session of the Legislature convening after the beginning of the legislative rule acceptance period. 2. Legislative rule acceptance period. "Legislative rule acceptance period" means the period beginning on the July 1st preceding the convening of a regular session of the Legislature and ending at 5:00 p.m. on the 2nd Friday in January after the convening of that regular session of the Legislature.[1] |
5 §8072: Legislative review of major substantive rules
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Text of 5 §8072: As provided in section 8071, major substantive rules are subject to an increased level of rule-making requirements. The rule-making requirements of subchapter II for routine technical rules apply to the adoption of major substantive rules, except that the 120-day period for adoption and the 150-day period for approval as to form and legality under section 8052, subsection 7, paragraphs A and B apply to provisional adoption of major substantive rules, not final adoption. In addition to the other rule-making requirements, every major substantive rule is also subject to legislative review as provided in this section. 1. Preliminary adoption of major substantive rules. An agency proposing a major substantive rule other than an emergency rule, after filing the notice of proposed rulemaking required by section 8052, shall proceed with rule-making procedures to the point of, but not including, final adoption. At that point, known in this section as "provisional adoption," the agency shall file the provisionally adopted rule and related materials with the Secretary of State as provided in section 8056, subsection 1, paragraph B and submit the rule to the Legislature for review and authorization for final adoption as provided in this section. The rule has legal effect only after review by the Legislature followed by final adoption by the agency. 2. Submission of materials. At the time an agency provisionally adopts a rule, the agency shall submit to the Executive Director of the Legislative Council 20 copies of:
3. Legislative review; legislative instrument prepared. If the required copies of the provisionally adopted rule and related information are received by the Executive Director of the Legislative Council during the legislative rule acceptance period, the Executive Director shall notify the Revisor of Statutes, who shall draft an appropriate legislative instrument to allow for legislative review and action upon the provisionally adopted rule during the legislative review session. The Secretary of the Senate and the Clerk of the House shall place the legislative instrument on the Advance Journal and Calendar . The secretary and clerk shall jointly suggest reference of the legislative instrument to a joint standing committee of the Legislature that has jurisdiction over the subject matter of the proposed rule and shall provide for publication of that suggestion in the Advance Journal and Calendar first in the Senate and then in the House of Representatives no later than the next legislative day following receipt of the legislative instrument. After floor action on referral of the legislative instrument to committee is completed, the Secretary of the Senate and the Clerk of the House of Representatives shall send copies of the rule and related information to each member of that committee. Each rule submitted for legislative review during the legislative rule acceptance period must be reviewed by the appropriate joint standing committee at a meeting called for that purpose in accordance with legislative rules. A committee may review more than one rule and the rules of more than one agency at a meeting. The committee shall notify the affected agency of the meeting on its proposed rules. 4. Committee review. The committee shall review each provisionally adopted rule and, in its discretion, may hold public hearings on that rule. A public hearing under this subsection must be advertised in the same manner as required by legislative rules then in effect for advertisement of public hearings on proposed legislation. The committee's review must include, but is not limited to, a determination of:
5. Committee recommendation. After reviewing a rule referred to it by the Legislature, the committee shall recommend:
The committee shall notify the agency proposing the rule of its recommendation. When the committee makes a recommendation under paragraph B, C or D, the notice must contain a statement of the reasons for that recommendation. 6. Draft legislation. 7. Report to the Legislature. Unless otherwise provided by the Legislature, each joint standing committee of the Legislature that receives a rule submitted during the legislative rule acceptance period shall report to the Legislature its recommendations concerning final adoption of the rule no later than 30 days before statutory adjournment of the legislative review session as provided in Title 3, section 2. 8. Final adoption; effective date. Unless otherwise provided by law, final adoption of a rule or part of a rule by an agency must occur within 60 days of the effective date of the legislation approving that rule or part of that rule or of the adjournment of the session in which the Legislature failed to act on the rule or part of the rule as specified in subsection 11. Finally adopted rules must be filed with the Secretary of State as provided in section 8056, subsection 1, paragraph B and notice must be published as provided in section 8056, subsection 1, paragraph D. Except as otherwise specified by law, the rules become effective 30 days after filing with the Secretary of State or at a later date specified by the agency. 9. Consideration at special session. If appropriate, the committee recommendation regarding an agency rule or rules may be submitted to and considered by a special session of the Legislature. 10. Rules submitted outside legislative rule acceptance period. The Legislature may act or decline to act upon any rules submitted outside the legislative rule acceptance period. 11. Prohibited final adoption. A provisionally adopted rule or part of a provisionally adopted rule may not be finally adopted by an agency unless:
For purposes of this subsection, the Legislature fails to act on a rule or part of a rule if the Legislature fails to enact legislation authorizing adoption or disapproving adoption of the rule or part of the rule during the legislative review session or during any subsequent session to which a legislative instrument expressly providing for approval or disapproval of the rule or part of the rule is carried over. Nothing in this section requires the Legislature to use the legislative instrument produced pursuant to subsection 3 to approve or disapprove of a rule or part of a rule.[1] |
5 §8073: Emergency major substantive rules
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Text of 5 §8073: Major substantive rules are subject to the emergency rule-making procedures required under subchapter II, except that a major substantive rule adopted on an emergency basis after the deadline for submission to the Legislature for review under section 8072 may be effective for up to 12 months or until the Legislature has completed review as provided in that section. After the expiration of the emergency period, an emergency rule may not be adopted except in the manner provided by section 8072.[1] |
5 §8074: Federally mandated rules
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Text of 5 §8074: Major substantive rules that must be adopted to comply with federal law or regulations or to qualify for federal funds and over the adoption of which the agency exercises no option or discretion are not subject to the legislative review requirement of this subchapter unless they impose requirements or conditions that exceed the federal requirements. An agency must file notice of the adoption of major substantive rules that are required by federal law and that do not exceed federal requirements with the Legislature in the same manner as it files notice of proposed rules under section 8053-A.[1] |
Subchapter 3: Advisory rulings
5 §9001: Advisory rulings
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Text of 5 §9001: 1. Written request. Upon written request of any interested person, an agency may make an advisory ruling with respect to the applicability of any statute or rule administered by that agency to him or his property or actual state of facts. 2. Rules written. All advisory rulings shall be in writing. 3. Advisory ruling not binding. An advisory ruling shall not be binding upon an agency, provided that in any subsequent enforcement action initiated by the agency which made the ruling, any person's justifiable reliance upon the ruling shall be considered in mitigation of any penalty sought to be assessed. 4. Advisory rulings. Each agency shall prescribe by rule, in accordance with section 8051, the procedure for the submission, consideration and disposition of requests for advisory rulings. In issuing an advisory ruling, the agency need not comply with the requirements of subchapters II or IV.[1] |
Subchapter 4: Adjudicatory proceedings
5 §9051: Scope
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Text of 5 §9051: 1. Adjudicatory proceeding. In any adjudicatory proceedings, except those proceedings involving correctional facilities, the Workers' Compensation Board, the Maine Motor Vehicle Franchise Board or the State Parole Board, the procedures of this subchapter apply. 2. Hearing. Unless a hearing is required by statute, the requirements of this subchapter, except the notice provisions of section 9052, subsection 1, shall not apply until a request for a hearing is made under section 9052, subsection 1, paragraph A, or a hearing is set by the agency. 3. Filing and service. The filing of any submission in any adjudicatory proceeding or the service of any paper on a party to an adjudicatory proceeding is complete:
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5 §9051-A: Notice of environmental agency adjudicatory proceedings
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Text of 5 §9051-A: Whenever adjudicatory hearings are held by the Department of Agriculture, Conservation and Forestry, the Department of Environmental Protection and the Board of Pesticides Control, the hearings shall be held in accordance with the provisions of this section. 1. Notice of opportunity for hearing; license applications with substantial public interest. When the applicable law or the Constitution of Maine requires that an opportunity for a hearing be provided or an agency deems in any proceeding that a substantial public interest is involved, notice shall be given as follows.
Interested persons may prepare and submit evidence and argument to the agency and request a hearing on the issue. 2. Hearing required. When a hearing is required by the Constitution of Maine, the applicable law or by agency regulation or has been requested pursuant to subsection 1, notice of the hearing shall be provided 30 days next prior to the scheduled initial hearing.
In the event that new hearings on a pending license application or an existing license are required, notice shall be provided 30 days next prior to the scheduled hearing as herein provided. When hearings are continued with respect to a license application, this 30 days' notice shall not apply. 3. Notice to the public. Notice to the public must be given by:
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5 §9052: Notice
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Text of 5 §9052: 1. Notice of hearing. When the applicable statute or constitutional law requires that an opportunity for hearing shall be provided, notice shall be given as follows:
2. Hearing required. When a hearing is required by the applicable statute or by agency regulation, or has been requested pursuant to subsection 1, paragraph A, or has been set in an exercise of the agency's discretion, notice shall be given as follows:
3. Notice to the public. Notice to the public shall be given:
4. Notice. Notice shall consist of:
5. Cancellation or change of hearing. If a scheduled hearing is cancelled or postponed to a later date, the agency shall provide timely notice to the persons described in section 9051 and, if applicable, to the persons and localities listed in section 9051-A and other persons the agency is required to notify or customarily notifies of hearings.[1] |
5 §9052-A: Holding of hearings
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Text of 5 §9052-A: Whenever an agency, including environmental agencies, holds a hearing pursuant to this subchapter, the agency shall strive to hold a hearing in the area or areas of the State which are significantly affected by the license application or which are concerned about the issue.[1] |
5 §9053: Disposition without full hearing
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Text of 5 §9053: Unless otherwise provided by law, agencies may: 1. Responsibility. Place on any party the responsibility of requesting a hearing if the agency notifies him in writing of his right to a hearing, and of his responsibility to request the hearing; 2. Stipulation, settlement, consent order. Make informal disposition of any adjudicatory proceeding by stipulation, agreed settlement or consent order; 3. Default. Make informal disposition of any adjudicatory proceeding by default, provided that notice has been given that failure to take required action may result in default, and further provided that any such default may be set aside by the agency for good cause shown; and 4. Issues limited. Limit the issues to be heard or vary any procedure prescribed by agency rule or this subchapter if the parties and the agency agree to such limitation or variation, or if no prejudice to any party will result.[1] |
5 §9054: Public participation
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Text of 5 §9054: 1. Intervention. On timely application made pursuant to agency rules, the agency conducting the proceedings shall allow any person showing that he is nor may be, or is a member of a class which is or may be, substantially and directly affected by the proceeding, or any other agency of federal, state or local government, to intervene as a party to the proceeding. 2. Intervention; interested person. The agency may, by order, allow any other interested person to intervene and participate as a full or limited party to the proceeding. This subsection shall not be construed to limit public participation in the proceeding in any other capacity. 3. Participation limited or denied. When participation of any person is limited or denied, the agency shall include in the record an entry to that effect and the reasons therefor. 4. Consolidation of presentations. Where appropriate, the agency may require consolidation of presentations of evidence and argument by members of a class entitled to intervene under subsection 1, or by persons allowed to intervene under subsection 2. 5. Participation. The agency shall allow any of its staff to appear and participate in any adjudicatory proceeding.[1] |
5 §9055: Ex parte communications; separation of functions
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Text of 5 §9055: 1. Communication prohibited. In any adjudicatory proceeding, no agency members authorized to take final action or presiding officers designated by the agency to make findings of fact and conclusions of law may communicate directly or indirectly in connection with any issue of fact, law or procedure, with any party or other persons legally interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate. 2. Communication permitted. This section shall not prohibit any agency member or other presiding officer described in subsection 1 from:
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5 §9056: Opportunity to be heard
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Text of 5 §9056: 1. Opportunity for hearing. The opportunity for hearing in an adjudicatory proceeding shall be afforded without undue delay. 2. Rights. Unless limited by stipulation under section 9053, subsection 4, or by agency order pursuant to section 9054, subsections 2 or 4, or unless otherwise limited by the agency to prevent repetition or unreasonable delay in proceedings, every party shall have the right to present evidence and arguments on all issues, and at any hearing to call and examine witnesses and to make oral cross-examination of any person present and testifying.[1] |
5 §9057: Evidence
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Text of 5 §9057: 1. Rules of privilege. Unless otherwise provided by statute, agencies need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. 2. Evidence. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude irrelevant or unduly repetitious evidence. 3. Witnesses. All witnesses shall be sworn. 4. Prefiling testimony. Subject to these requirements, an agency may, for the purposes of expediting adjudicatory proceedings, require procedures for the prefiling of all or part of the testimony of any witness in written form. Every such witness shall be subject to oral cross-examination. 5. Written evidence; exception. No sworn written evidence shall be admitted unless the author is available for cross-examination or subject to subpoena, except for good cause shown. 6. Confidential information. Information may be disclosed that is confidential pursuant to Title 22, chapters 958-A and 1071 and sections 7703 and 1828; Title 24, section 2506; and Title 34-A, except for information, the disclosure of which is absolutely prohibited under Title 34-A, section 1216. Disclosure may be only for the determination of issues involving unemployment compensation proceedings relating to a state employee, state agency personnel actions and professional or occupational board licensure, certification or registration.
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5 §9058: Official notice
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Text of 5 §9058: 1. Official notice. Agencies may take official notice of any facts of which judicial notice could be taken, and in addition may take official notice of general, technical or scientific matters within their specialized knowledge and of statutes, regulations and nonconfidential agency records. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the substance or materiality of the facts noticed. 2. Facts. Facts officially noticed shall be included and indicated as such in the record. 3. Evaluation of evidence. Notwithstanding the foregoing, agencies may utilize their experience, technical competence and specialized knowledge in the evaluation of the evidence presented to them.[1] |
5 §9059: Record
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Text of 5 §9059: 1. Record. In an adjudicatory proceeding, the agency shall make a record consisting of:
2. Hearings recorded. The agency shall record all hearings in a form susceptible to transcription. Portions of the record as required and specified in subsection 1 may be included in the recording. The agency shall transcribe the recording when necessary for the prosecution of an appeal. 3. Record; copies. The agency shall make a copy of the record, including recordings made pursuant to subsection 2, available at its principal place of operation, for inspection by any person during normal business hours; and shall make copies of the record, copies of recordings or transcriptions of recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the agency shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record which are made confidential by state or federal statute, but shall do so in the least restrictive manner feasible. 4. Decision on the record. All material, including records, reports and documents in the possession of the agency, of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record and no other factual information or evidence shall be considered in rendering a decision. 5. Documentary evidence. Documentary evidence may be incorporated in the record by reference when the materials so incorporated are made available for examination by the parties before being received in evidence.[1] |
5 §9060: Subpoenas and discovery
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Text of 5 §9060: 1. Proceedings. In any adjudicatory proceeding for which the agency, by independent statute, has authority to issue subpoenas, any party shall be entitled as of right to their issuance in the name of the agency to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding. In any proceeding in which the conducting agency lacks independent authority to issue subpoenas, any party may request the issuance of a subpoena by the agency, and the agency is hereby authorized to issue the same if it first obtains the approval of the Attorney General or of any deputy attorney general. Such approval shall be given when the testimony or evidence sought is relevant to any issue of fact in the proceeding. When properly authorized, subpoenas may be issued by the agency or by any person designated by the agency for that purpose, in accordance with the following provisions:
2. Adoption of rules. Each agency having power to conduct adjudicatory proceedings may adopt rules providing for discovery to the extent and in the manner appropriate to its proceeding.[1] |
5 §9061: Decisions
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Text of 5 §9061: Every agency decision made at the conclusion of an adjudicatory proceeding shall be in writing or stated in the record, and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's rights to review or appeal of the decision within the agency or review of the decision by the courts, as the case may be, and of the action required and the time within which such action must be taken in order to exercise the right of review or appeal, shall be given to each party with the decision.[1] |
5 §9062: Presiding officers
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Text of 5 §9062: 1. Presiding officer. An agency may authorize any agency member, employee or agent to act as presiding officer in any hearing. 2. Substitute officer. Whenever a presiding officer is disqualified or it becomes impracticable for him to continue the hearing, another presiding officer may be assigned to continue with the hearing; provided that, if it is shown substantial prejudice to any party will thereby result, the substitute officer shall commence the hearing anew. 3. Presiding officer; duties. Subject to rules or limitations imposed by the agency, presiding officers may:
4. Report. In the event that the presiding officer prepares any report or proposed findings for the agency, the report or findings shall be in writing. A copy of the report or findings shall be provided to each party and an opportunity shall be provided for response or exceptions to be filed by each party.[1] |
5 §9063: Bias of presiding officer or agency member
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Text of 5 §9063: 1. Hearings; impartial. Hearings shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer or agency member in the proceeding requesting that that person disqualify himself, that person shall determine the matter as a part of the record. 2. Counsel. Notwithstanding section 9055, the person involved may consult with private counsel concerning the charge.[1] |
5 §9064: Enforcement
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Text of 5 §9064: The agency shall be entitled to enforce its order in the courts by way of injunction or other appropriate legal remedy.[1] |
Subchapter 5: Licensing
5 §10001: Adjudicatory proceedings
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Text of 5 §10001: When licensing is required as a matter of constitutional right or by statute to be preceded by notice and opportunity for hearing, the provisions of subchapter IV concerning adjudicatory proceedings shall apply.[1] |
5 §10002: Expiration
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Text of 5 §10002: Except as otherwise provided in this subchapter, when a licensee has made timely and sufficient application for renewal of a license, the existing license shall not expire until the application has been finally determined by the agency.[1] |
5 §10003: Right to Hearing
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Text of 5 §10003: 1. Opportunity for hearing. Subject to the provisions of section 10004, an agency may not amend or modify any license unless it has afforded the licensee an opportunity for hearing in conformity with subchapter IV, nor may it refuse to renew any license unless it has afforded the licensee either an opportunity for an agency hearing in conformity with subchapter IV or an opportunity for a hearing in the District Court. In any such proceeding determined by the agency to involve a substantial public interest, an opportunity for public comment and participation must also be given by public notice in conformity with subchapter IV. 2. Proceeding. In any proceeding involving a proposed modification or amendment of a license which was the subject of an earlier hearing, the agency shall give notice thereof to all parties to the earlier proceeding and in any other manner required by section 9052, and may reopen the earlier proceeding for consideration of the proposed amendment or modification.[1] |
5 §10004: Action without hearing
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Text of 5 §10004: Notwithstanding the provisions of sections 10003 and 10051, an agency may revoke, suspend or refuse to renew any license without proceedings in conformity with subchapters IV or VI, when: 1. Judicial action. The decision to take that action rests solely upon a finding or conviction in court of any violation which by statute is expressly made grounds for revocation; 2. Reciprocal license. The Maine license has been issued upon the basis of a reciprocal agreement with another government, and the Maine action is based upon evidence, in the form of a certified copy, that the authority issuing the license which provided the basis for reciprocal licensing in Maine has revoked or suspended their license; 3. Health or safety hazard. The health or physical safety of a person or the continued well-being of a significant natural resource is in immediate jeopardy at the time of the agency's action, and acting in accordance with subchapter IV or VI would fail to adequately respond to a known risk, provided that the revocation, suspension or refusal to renew shall not continue for more than 30 days; 4. Certified inspector. The action is based solely upon the physical test, examination or inspection by a state-certified inspector of any product, animal, material or equipment, from which the agency concludes that action in accordance with subchapter IV or VI would not adequately protect public health or safety, provided that action under this subsection shall not be effective for a period of more than 30 days. 4-A. Gambling. The action is based on a violation of laws or rules at gambling facilities that are cited by the Department of Public Safety, Gambling Control Board, established pursuant to Title 8, chapter 31, or the Gambling Control Board or its designees determine that acting in accordance with subchapters 4 and 6 would fail to serve the public interest; however, the suspension, revocation or refusal to renew may not continue for more than 30 days. 5. Rules of sportsmanship. In the course of any professional sporting event directly regulated by an agency, the agency determines that a licensee has:
6. Horse racing. Violations of rules which occur at race tracks and cited by a commission, or its licensed designee, if acting in accordance with subchapters IV and VI would fail to immediately remedy the needs of the sport; provided that the revocation, suspension or refusal to renew shall not continue for more than 30 days.[1] |
5 §10005: Decision and record
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Text of 5 §10005: Any licensing decision not involving an adjudicatory proceeding, as defined in section 8002, subsection 1, shall be made in writing and shall be made only on the basis of evidence relevant to the case. When the requested license is denied, or only conditionally approved, the decision shall contain or reflect the agency's reasoning, in a manner sufficient to inform the applicant and the public of the basis for the agency's action.[1] |
Subchapter 6: Administrative court
5 §10051: Jurisdiction of District Court; retained powers of agency
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Text of 5 §10051: 1. Jurisdiction. Except as provided in section 10004; Title 8, section 279‑B; Title 10, section 8003; Title 20‑A, sections 10712 and 10713; Title 29‑A; Title 32, chapters 2‑B, 62, 114 and 135; and Title 38, section 342, the District Court has exclusive jurisdiction upon complaint of any agency or, if the licensing agency fails or refuses to act within a reasonable time, upon complaint of the Attorney General to revoke or suspend licenses issued by the agency and has original jurisdiction upon complaint of an agency to determine whether renewal or reissuance of a license of that agency may be refused. 2. Complaining agency. The complaining agency retains every other power granted to it by statute or necessarily implied therein, except the power of revoking or suspending licenses issued by it. Such retained powers include, but are not limited to, the granting or renewing of licenses, the investigating and determining of grounds for the filing of a complaint under this section and the prosecution of such complaints. 3. Appellate jurisdiction. The District Court has exclusive jurisdiction to review licensing decisions of the Department of Administrative and Financial Services taken pursuant to Title 28-A, sections 453-A, 458 and 653. Chapter 375, subchapter 7 governs these proceedings as far as applicable, substituting "District Court" for "Superior Court." 4. Violations. [ 2003, c. 505, §2 (RP) .][1] |
Subchapter 7: Judicial review—final agency action
5 §11001: Right to review
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Text of 5 §11001: 1. Agency action. Except where a statute provides for direct review or review of a pro forma judicial decree by the Supreme Judicial Court or where judicial review is specifically precluded or the issues therein limited by statute, any person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court in the manner provided by this subchapter. Preliminary, procedural, intermediate or other nonfinal agency action shall be independently reviewable only if review of the final agency action would not provide an adequate remedy. 2. Failure or refusal of agency to act. Any person aggrieved by the failure or refusal of an agency to act shall be entitled to judicial review thereof in the Superior Court. The relief available in the Superior Court shall include an order requiring the agency to make a decision within a time certain.[1] |
5 §11002: Commencement of action
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Text of 5 §11002: 1. Proceedings instituted. Proceedings for judicial review of final agency action or the failure or refusal of an agency to act shall be instituted by filing a petition for review in the Superior Court for the county where:
The court may grant a change of venue for good cause shown. 2. Petition; contents. The petition for review shall specify the persons seeking review, the manner in which they are aggrieved and the final agency action or agency inaction which they wish reviewed. It shall also contain a concise statement as to the nature of the action or inaction to be reviewed, the grounds upon which relief is sought and a demand for relief, which may be in the alternative. 3. Petition filed. The petition for review shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought. Any other person aggrieved shall have 40 days from the date the decision was rendered to petition for review. If the review sought is from an agency's failure or refusal to act, the petition for review shall be filed within 6 months of the expiration of the time within which the action should reasonably have occurred.[1] |
5 §11003: Service
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Text of 5 §11003: 1. Petition served. The petition for review shall be served by certified mail, return receipt requested, upon:
2. Certification. Upon request, the agency shall certify to the petitioner the names and addresses, as disclosed by its records, of all parties to the proceeding in which the decision sought to be reviewed was made, and service upon parties so certified shall be sufficient.[1] |
5 §11004: Stay
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Text of 5 §11004: The filing of a petition for review shall not operate as a stay of the final agency action pending judicial review. Application for a stay of an agency decision shall ordinarily be made first to the agency, which may issue a stay upon a showing of irreparable injury to the petitioner, a strong likelihood of success on the merits, and no substantial harm to adverse parties or the general public. A motion for such relief may be made to the Superior Court, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the petitioner had requested. In addition, the motion shall show the reasons for the relief requested and the facts relied upon, which facts, if subject to dispute, shall be supported by affidavits. Reasonable notice of the motion shall be given to all parties to the agency proceeding. The court may condition relief under this rule upon the posting of a bond or other appropriate security, except that no bond or security shall be required of the State or any state agency or any official thereof.[1] |
5 §11005: Responsive pleading; filing of the record
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Text of 5 §11005: No responsive pleading need be filed unless required by order of the reviewing court. The agency shall file in the reviewing court within 30 days after the petition for review is filed, or within such shorter or longer time as the court may allow on motion, the original or a certified copy of the complete record of the proceedings under review. In the case of the alleged failure or refusal of an agency to act, the record must include written, electronic or otherwise memorialized communications, directives, orders and other documentation of all decisions by the agency to act, to refuse to act or to delay action. Within 20 days after the petition for review is filed, all parties to the agency proceeding who wish to participate in the review shall file a written appearance that states a position with respect to affirmance, vacation, reversal or modification of the decision under review.[1] |
5 §11006: Power of court to correct or modify record
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Text of 5 §11006: 1. Review. Judicial review shall be confined to the record upon which the agency decision was based, except as otherwise provided by this section.
2. Corrections to record. The reviewing court may require or permit subsequent corrections to the record.[1] |
5 §11007: Manner and scope of review
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Text of 5 §11007: 1. Schedule. The court, upon request or its own motion, shall set a schedule for the filing of briefs by the parties and for oral argument. 2. Review by court. Except where otherwise provided by statute or constitutional right, review shall be conducted by the court without a jury. 3. Judgment. The court may not substitute its judgment for that of the agency on questions of fact, except that, with respect to a timely appeal by an individual of a denial of a disability determination by a hearing officer pursuant to sections 17106‑A and 17106‑B, the court shall review the matter de novo. 4. Decision. The court may:
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5 §11008: Appeal to law court
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Text of 5 §11008: 1. Appeal. Any party to the review proceeding in the Superior Court under this subchapter may obtain review by appeal to the Supreme Judicial Court sitting as the law court. The appeal shall be taken as in other civil cases. 2. Supreme Judicial Court. The Supreme Judicial Court shall have the power to make and amend rules of pleading, practice and procedure, for the purposes of securing a simple, speedy and effective judicial review under this subchapter.[1] |
See also
External links
Footnotes
- ↑ 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 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 1.41 1.42 1.43 1.44 1.45 1.46 1.47 1.48 1.49 1.50 1.51 1.52 1.53 1.54 1.55 1.56 1.57 1.58 1.59 1.60 1.61 1.62 1.63 1.64 1.65 1.66 1.67 1.68 1.69 1.70 1.71 1.72 Justia, "2017 Maine Revised Statutes—Maine Administrative Procedure Act," accessed May 11, 2023
