Chapter 10 - Administrative Procedures

Chapter 10 - Administrative Procedures

4.1001 Definitions.

As used in this chapter:

(a) “Agency” means each board, commission, department or officer of the government, other than the legislature or the courts, authorized by law to make rules or to determine contested cases.

(b) “Contested case” means a proceeding including but not limited to ratemaking, price fixing and licensing, in which the legal rights, duties, or privileges of a party are determined.

(c) “License” includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law, but does not include a license required solely for revenue purposes.

(d) “Licensing” includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(e) “Party” means each person or agency named or admitted as a party, or person seeking and entitled as of right to be admitted as a party.

(f) “Person” means any individual, partnership, corporation, association, governmental sub-division, or public or private organization of any character, other than an agency.

(g) “Rule” means each agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practical requirements of any agency. The term includes the amendment or repeal of a prior rule, but does not include statements concerning only the internal management of an agency and not affecting private rights or pro-cedures available to the public, or intraagency memoranda.

4.1002 Duty to make rules.

Each agency of the government shall:

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

(2) adopt rules stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests.

4.1003 Publication of rules.

The Secretary of American Samoa shall compile, index, and publish all effective rules adopted by each agency. Revised or supplemented compilations shall be published at least once every 2 years. Compilations shall be made available upon request to agencies and officials of the government free of charge and to other persons at prices fixed by the Secretary to cover mailing and publication costs.

4.1004 Notice of intended action.

Prior to the adoption, amendment, or repeal of any rule, the agency shall give at least 20 days notice of its intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon. The notice shall be mailed to all persons who have made timely requests of the agency for advance notice of its rule-making proceedings and shall be publicized in all news or broadcasting media operated by the government.

4.1005 Hearing.

Prior to the adoption, amendment, or repeal of any rule, the agency shall afford all interested persons reasonable opportunity to submit data, views, and arguments, orally or in writing. In case of substantive rules, opportunity for oral hearings shall be granted if requested by 25 persons, by a governmental subdivision or agency or by an association having not less than 25 members. The agency shall consider fully all written and oral submissions respecting the pro-posed rule.

4.1006 Petitions for issuance, amendment, or repeal of rules.

Each agency shall afford any interested person the opportunity to petition for the issuance, amendment, or repeal of a rule.

4.1007 Statute of limitations.

A contest of any rule on the ground of noncompliance with the procedural requirements of 4.1002 and 4.1004 through 4.1010 and 4.1020 must be commenced within 2 years from the effective date of the rule.

4.1008 Filing requirements.

Each agency shall file with the Secretary of American Samoa, the clerk of the House of. Representatives, and the secretary of the Senate a certified copy of each rule adopted by it, and of all rules in effect on the effective date of this chapter.

4.1009 Validity and effect of rules—Recommendations of Legislature.

(a) No rule adopted after the effective date of this chapter is valid unless adopted in sub-stantial compliance with 4.1002 and 4.1004 through 4.1010, and 4.1020.

(b) No agency rule, order or decision is valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been made available for public inspection as required in 4.1020. This provision is not applicable in favor of any person or party who has actual knowledge of the rule, order or decision.

(c) Each rule adopted after the effective date of this chapter shall be effective 20 days after filing, except that:

(1) If a later date is required by statute or specified in the rule, the later date shall be the effective date.

(2) Subject to applicable constitutional or statutory provisions, an emergency rule adopted pursuant to 4.1010 shall be effective immediately upon filing with the Secretary of American Samoa, the Clerk of the House of Representatives and the Secretary of the Senate, or at a stated date less than 20 days thereafter, if the agency finds that this effective date is necessary because of imminent peril to the public health, safety, or welfare. The agency’s finding and a brief statement of the reasons therefor shall be filed with the rule.

(d) The Legislature may by letter or resolution make appropriate suggestions for changes, amendments, repeals, or additions to the rules.

4.1010 Emergency rules.

(a) If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon fewer than 20 days notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing, pursuant to subparagraph (2) of 4.1009 (c), or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The rule may be effective for a period not longer than 120 days, and an identical rule may be adopted under sections 4.1004 and 4.1005.

(b) The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them.

4.1011 Administrative manual.

The Governor shall cause to be prepared and maintained an administrative manual, which sets forth the duties, responsibilities, objectives, purposes and internal operations of each of the executive departments, boards, commissions, and agencies and instrumentalities. It shall also contain the rules adopted by the Governor under any law. The Governor shall provide for the distribution of the manual to the officials who need it.

4.1020 Public inspection rights and requirements.

(a) Each agency shall make available for public inspection all rules and all written state-ments of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions, and all final orders, decisions, and opinions.

(b) The Secretary of American Samoa shall keep a permanent register of the rules adopted by the various agencies, which shall be open to public inspection.

4.1025 Contested case—Hearing—Notice.

(a) In a contested case, all parties shall be afforded an opportunity for hearing after rea-sonable notice.

(b) The notice shall include a statement of the time, place and nature of the hearing and a short and plain statement of the matters asserted.

4.1026 Right to hearing.

All parties shall be afforded the opportunity to respond and present evidence and argument on all issues involved, and to conduct such cross-examination as is necessary for a full and true disclosure of the facts.

4.1027 Rules of evidence.

Strict rules of evidence need not be followed, but the receipt of evidence shall be guided by the rules of evidence applicable in the trial division of the High Court of American Samoa.

4.1028 Effect to rules of privilege.

Agencies shall give effect to the rules of privilege recognized by law.

4.1029 Official notice of facts.

Official notice may be taken of judicially cognizable facts.

4.1030 Findings, decisions, and orders.

(a) A final decision or order adverse to a party in a contested case shall be in writing and stated in the record.

(b) A final decision shall include findings of fact and conclusions of law.

(c) If findings of fact are set forth in statutory language, they shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

(f) Findings of fact shall be based exclusively on the evidence and on matters officially noticed. An agency’s experience, technical competence, and specialized knowledge may be used in the evaluation and interpretation of the evidence.

4.1031 Notice of decision or order to parties.

All parties shall be notified, either personally or by mail, of any decision or order and shall, upon request, be furnished with a copy of the same.

4.1032 Contents of record.

In a contested case, the record shall include:

(1) all pleadings, motions, proposed findings, exceptions, objections, briefs, and memoranda filed by the parties;

(2) a summary of the evidence received or considered and of matters officially noticed at any stage of the proceedings;

(3) any intermediate rulings and any decision, opinion or report by the officer pre-siding at the hearing;

(4) the final decision or order; and

(5) any other relevant material ordered into the record by the agency or its hearing officer.

4.1033 Communications prohibited and allowed.

(a) Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency, who are assigned to render a decision or to make findings of fact or conclusions of law in a contested case, may not communicate, directly or indirectly, with any person or party in connection with any issue of fact, or with any party or representative of a party in connection with any issue of law, except upon notice and opportunity for all parties to participate.

(b) Except as provided in 4.1034 and subsection (a), an agency member may communicate with other members of the agency and may have the aid and advice of any disinterested employee of the agency.

4.1034 Separation of functions.

No officer, employee, or agent engaged in the performance of any investigative or prosecuting function for an agency in a contested case may, in that or any factually related case, participate or advise in any final or recommended agency decision, except as witness or counsel in proceedings where all parties have notice and the opportunity to participate.

4.1035 Expiration of license sought to be renewed.

When a licensee has made timely application for the renewal of a license, the existing license shall not expire until the application has been finally determined by the agency, or, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order.

4.1036 Prerequisites to revocation, suspension, annulment, or withdrawal of license.

No revocation, suspension, annulment, or withdrawal of any license shall be lawful unless the agency gave the licensee reasonable notice of facts or conduct which warrant the intended action and an opportunity to show compliance with all lawful requirements for the retention of the license.

4.1037 Emergency suspensions of license.

If an agency finds that the public health safety, or welfare requires emergency action, and incorporates such a finding in its order, the agency may order a summary suspension of a license for a period not to exceed 120 days, pending revocation proceedings or other action.

4.1040 Right to judicial review—Other means of review not limited.

(a) A person who has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this section and 4.1041 through 4.1044.

(b) This section does not limit the utilization of, or the scope of, judicial review available under other means of review, redress, relief or trial de novo provided by law, and judicial review may not be sought under this section and 4.1041 through 4.1044 of any proceeding for which, or by any person for whom, the law specifically provides other adequate means of judicial review.

(c) A preliminary, procedural or intermediate agency action or ruling shall be immediately reviewable only if review of the final agency decision would not provide an adequate remedy.

4.1041 Petition-Stay of agency decision.

(a) Proceedings for review may be instituted by filing a petition in the appellate division of the High Court of American Samoa within 30 days after the issuance of the decision to be reviewed, or if rehearing or reconsideration is requested, within 30 days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.

(b) The filing of a petition under this section shall not stay enforcement of the agency’s decision. The agency may grant, or the court may order, a stay on appropriate terms.

4.1042 Transmission of record.

Within 30 days after service of the petition, or within further time allowed by the court, the agency shall transmit to the court the original or a certified copy of the record of the proceeding under review.

4.1043 Review.

(a) The review shall be confined to the record. Upon request by any party, the court shall receive briefs and hear oral argument. On motion of any party, the court may, in its discretion, receive any evidence necessary to supplement the record.

(b) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In reviewing the agency’s interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give

appropriate weight to the agencies experience, technical competence, and specialized knowledge.

4.1044 Reversal or modification of decision.

The court may reverse or modify the decision of the agency, or remand the case for further proceedings, if substantial rights of the petitioner have been prejudiced because the decision of the agency is;

(1) in violation of applicable constitutional or statutory provisions;

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

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; or

(6) arbitrary, capricious or characterized by abuse of discretion.