DISTRICT OF COLUMBIA ADMINISTRATIVE

PROCEDURE ACT

TUESDAY, JULY 6, 1965

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 4 OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10 a.m., in room 1310, Longworth House Office Building, Hon. John Dowdy (subcommittee chairman) presiding.

Members present: Representatives Dowdy (subcommittee chairman), Whitener, Grider, Harsha, and Broyhill.

Also present: James T. Clark, clerk; Hayden S. Garber, counsel; and Leonard O. Hilder, investigator.

Mr. DowDY. The subcommittee will come to order.

We have set for hearing this morning H.R. 7067, introduced by request by Mr. McMillan, a bill to prescribe administrative procedures for the District of Columbia government.

The bill will be made a part of the record at this point. (H.R. 7067 follows:)

[H.R. 7067, 89th Cong., 1st sess.].

A BILL To prescribe administrative procedures for the District of Columbia government Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "District of Columbia Administrative Procedure Act".

OTHER AUTHORITY

SEC. 2. This Act shall supplement all other provisions of law establishing procedures to be observed by the Commissioners and agencies of the District government in the application of laws administered by them except that this Act shall supersede any such law and procedure to the extent of any conflict therewith.

SEC. 3. As used in this Act

DEFINITIONS

(1) "Commissioners" means the Board of Commissioners of the District of Columbia, or their designated agent;

(2) "District" means the District of Columbia;

(3) "agency" includes both subordinate agency and independent agency; (4) "subordinate agency" means any officer, employee, office, department, division, board, commission, or other agency of the government of the District, other than an independent agency or the Commissioners, required by law or by the Commissioners to administer any law or any rule adopted under the authority of a law;

(5) "independent agency" means any agency of the government of the District with respect to which the Commissioners are not authorized by law, other than this Act, to establish administrative procedures, but does not

include the several courts of the District and the District of Columbia Tax Court;

(6) "rule" means the whole or any part of any Commissioners or agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Commissioners or of any agency;

(7) "rulemaking" means Commissioners or agency process for the formulation, amendment, or repeal of a rule;

(8) "contested case" means a proceeding before the Commissioners or an agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this Act), or by constitutional right, to be determined after a hearing before the Commissioners or before an agency, but shall not include (A) any matter subject to a subsequent trial of the law and the facts de novo in any court; (B) the selection or tenure of an officer or employee of the District; (C) proceedings in which decisions rest solely on inspections, tests, or elections; and (D) cases in which the Commissioners or an agency act as an agent for a court of the District;

(9) "person" includes individuals, partnerships, corporations, associations, and public or private organizations of any character other than the Commissioners or an agency;

(10) "party" includes the Commissioners and any person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any proceeding before the Commissioners or an agency, but nothing herein shall be construed to prevent the Commissioners or an agency from admitting the Commissioners or any person or agency as a party for limited purposes;

(11) "order" means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of the Commissioners or of any agency in any matter other than rulemaking, but including licensing;

(12) "license" includes the whole or part of any Commissioners or agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;

(13) "licensing" includes process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license by the Commissioners or an agency;

(14) “relief” includes the whole or part of any Commissioners or agency (A) grant of money, assistance, license, authority, exemption, exception, privilege or remedy, (B) recognition of any claim, right, humanity, privilege, exemption, or exception, and (C) taking of any other action upon the application or petition of, and beneficial to, any person;

(15) "proceeding" means any process of the Commissioners or an agency as defined in paragraphs (6), (11), and (12) of this section; and

(16) "sanction" includes the whole or part of any Commissioners or agency (A) prohibition, requirement, limitation, or other condition affecting the freedom of any person; (B) withholding of relief; (C) imposition of any form of penalty or fine; (D) destruction, taking, seizure, or withholding of property; (E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees; (F) requirement, revocation, or suspension of a license; and (G) taking of other compulsory or restrictive action.

ESTABLISHMENT OF GENERAL PROCEDURES

SEC. 4. (a) The Commissioners shall, for themselves and for each subordinate agency, establish or require each subordinate agency to establish procedures in accordance with this Act.

(b) Each independent agency shall establish procedures in accordance with this Act.

(c) The procedures required to be established by subsections (a) and (b) of this section shall include requirements of practice before the Commissioners and each agency.

OFFICIAL PUBLICATION

SEC. 5. (a) The Commissioner shall publish at regular intervals not less frequently than once every two weeks a bulletin to be known as the "District of Columbia Register," in which shall be set forth the full text of all rules filed in the office of the Commissioners during the period covered by each issue of such bulletin, except that the Commissioners may in their discretion omit from the District of Columbia Register rules the publication of which would be unduly cumbersome, expensive or otherwise inexpedient, if, in lieu of such publication, there is included in the Register a notice stating the general subject matter of any rule so omitted and stating the manner in which a copy of such rule may be obtained.

(b) All courts within the District shall take judicial notice of rules published or of which notice is given in the District of Columbia Register pursuant to this section.

(c) Publicaion in the District of Columbia Register of rules adopted, amended, or repealed by the Commissioners or by an agency shall not be considered as a substitute for publication in one or more newspapers of general circulation when such publication is required by statute.

(d) The Commissioners are authorized to publish in the District of Columbia Register, in addition to rules published under authority contained in subsection (a) of this section, (1) cumulative indexes to regulations which have been adopted, amended, or repealed; (2) information on changes in the organization of the District government; (3) notices of public hearings; (4) codifications of rules; and (5) such other matters as the Commissioners may from time to time determine to be of general public interest.

(e) This section shall become effective thirty days after the date of approval of this Act.

PUBLIC NOTICE AND PARTICIPATION IN RULEMAKING

SEC. 6. (a) The Commissioners and each independent agency shall, prior to the adoption of any rule or the amendment or repeal thereof, publish in the District of Columbia Register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) notice of the intended action so as to afford interested persons opportunity to submit data and views either orally or in writing, as may be specified in such notice. The publication or service required by this subsection of any notice shall be made not less than thirty days prior to the effective date of the proposed adoption, amendment, or repeal, as the case may be, except as otherwise provided by the Commissioners or the agency upon good cause found and published with the notice.

(b) Any interested person may petition the Commissioners or an independent agency, requesting the promulgation, amendment, or repeal of any rule. The Commissioners and each independent agency shall prescribe by rule the form for such petitions, and the procedure for their submission, consideration, and disposition. Nothing in this Act shall make it mandatory that the Commissioners or any agency promulgate, amend, or repeal any rule pursuant to a petition therefor submitted in accordance with this section.

(c) Notwithstanding any other provision of this section, if, in an emergency, as determined by the Commissioners or an independent agency, the adoption of a rule is necessary for the immediate preservation of the public peace health, safety, welfare, or morals, the Commissioner or such independent agency may adopt such rule as may be necessary in the circumstances, and such rule may become effective immediately. Any such emergency rule shall forthwith be published and filed in the manner prescribed in section 7 of this Act. No such rule shall remain in effect longer than one hundred and twenty days after the date of its adoption.

FILING AND PUBLISHING OF RULES

SEC. 7. (a) Each agency, within thirty days after the effective date of this Act, shall file with the Commissioners a certified copy of all of its rules in force on such effective date.

(b) The Commissioners shall keep a permanent register open to public inspection of all rules.

(c) Except in the case of emergency rules, each rule adopted after the effective date of this Act by the Commissioners, or by any agency, shall be filed in

the office of the Commissioners. No such rule shall become effective until after its publication in the District of Columbia Register, nor shall such rule become effective if it is required by law, other than this Act, to be otherwise published, until such rule is also published as required in such law.

COMPILATION OF RULES

SEC. 8. (a) As soon as practicable after the effective date of this Act, the Commissioners shall have compiled, indexed, and published in the District of Columbia Register all rules adopted by the Commissioners and each agency and in effect at the time of such compilation. Such compilations shall be promptly supplemented or revised as may be necessary to reflect new rules and changes in rules. At least once every five years the Commissioners shall publish in the District of Columbia Register a complete and accurate compilation of all rules in effect on the date of publication.

(b) Compilations shall be made available to the public at a price fixed by the Commissioners.

(c) The Commissioners must publish the first compilation required by subsection (a) of this section within one year after the effective date of this Act and no rule adopted by the Commissioners or by any agency before the date of such first publication which has not been filed and published in accordance with this Act and which is not set forth in such compilation shall be in effect after one year after the date of enactment of this Act.

DECLARATORY ORDERS

SEC. 9. On petition of any interested person, the Commissioners or an agency, within their discretion, may issue a declaratory order with respect to the applicability of any rule or statute enforceable by them or by it, to terminate a controversy (other than a contested case) or to remove uncertainty. A declaratory order, as provided in this section, shall be binding between the Commissioners and the agency, as the case may be, and the petitioner on the state of facts alleged and established, unless such order is altered or set aside by a court. A declaratory order is subject to review in the manner provided in this Act for the review of orders and decisions in contested cases, except that the refusal of the Commissioners or of an agency to issue a declaratory order shall not be subject to review. The Commissioners and each agency shall prescribe by rule the form for such petitions and the procedure for their submission, consideration, and disposition.

CONTESTED CASES

SEC. 10. (a) In any contested case, all parties thereto shall be given reasonable notice of the afforded hearing by the Commissioners or the agency, as the case may be. The notice shall state the time, place, and issues involved, but if, by reason of the nature of the proceeding, the Commissioners or the agency determine that the issues cannot be fully stated in advance of the hearing, or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable, and opportunity shall be afforded all parties to present evidence and argument with respect thereto. Unless otherwise required by law, other than this Act, any contested case may be disposed of by stipulation, agreed settlement, consent order, or default.

(b) In contested cases, except as may otherwise be provided by law, other than this Act, the proponent of a rule or order shall have the burden of proof. Any oral and any documentary evidence may be received, but the Commissioners and every agency shall exclude irrelevant, immaterial, and unduly repetitious evidence. Every party shall have the right to present in person or by counsel his case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Where any decision of the Commissioners or any agency in a contested case rests on official notice of a material fact not appearing in the evidence in the record, any party to such case shall on timely request be afforded an opportunity to show the contrary.

(c) The Commissioners or the agency shall maintain an official record in each contested case, to include testimony and exhibits, but it shall not be necessary to make any transcription unless a copy of such record is timely requested by any party to such case, or transcription is required by law, other than this Act. The testimony and exhibits, together with all papers and requests filed in