GA Bar Administrative Law 2 — Questions and Answers
Question 1: Under the Georgia Administrative Procedure Act, what is the minimum notice period an agency must provide before adopting a non-emergency rule?
- 10 days after posting on the agency website
- At least 30 days after filing notice with the Secretary of State and publishing in the Georgia Administrative Register (Correct answer)
- 60 days after mailing notice to all regulated parties
- No advance notice is required if the agency holds a public hearing
Correct answer: At least 30 days after filing notice with the Secretary of State and publishing in the Georgia Administrative Register
Georgia's APA requires the agency to file proposed rules with the Secretary of State and publish notice in the Georgia Administrative Register at least 30 days before adoption.
Question 2: The nondelegation doctrine as applied to Georgia agency rulemaking requires that the General Assembly:
- Retain absolute authority over all regulatory details
- Provide adequate standards or guidelines that limit the scope of power delegated to the agency (Correct answer)
- Approve every rule before it takes effect
- Sunset all delegated authority after five years
Correct answer: Provide adequate standards or guidelines that limit the scope of power delegated to the agency
Georgia courts require the legislature to supply an intelligible principle or adequate standards so that delegated power is constitutionally bounded.
Question 3: Which of the following is generally EXEMPT from rulemaking requirements under the Georgia APA?
- Rules setting licensing fees for a regulated profession
- Rules of general applicability interpreting a statute for the public
- Rules that apply solely to the internal management of the agency and do not affect the public (Correct answer)
- Rules imposing civil penalties on regulated entities
Correct answer: Rules that apply solely to the internal management of the agency and do not affect the public
Internal management rules that have no direct public effect are carved out from APA notice-and-comment requirements.
Question 4: An agency that wishes to adopt an emergency rule bypassing normal notice-and-comment procedures under the Georgia APA must find that:
- The rule is supported by a two-thirds vote of the agency board
- The Governor has declared a state of emergency covering the subject matter
- Adherence to normal rulemaking procedures would be contrary to the public interest due to an imminent peril (Correct answer)
- The legislature has authorized expedited rulemaking by concurrent resolution
Correct answer: Adherence to normal rulemaking procedures would be contrary to the public interest due to an imminent peril
Georgia's APA emergency-rule provision requires an agency finding that compliance with standard notice procedures would create an imminent public danger.
Question 5: Under the Georgia APA, any interested person may petition an agency to:
- Adopt, amend, or repeal a rule (Correct answer)
- Remove an administrative law judge from a pending case
- Transfer jurisdiction to a different agency
- Stay ongoing contested case proceedings
Correct answer: Adopt, amend, or repeal a rule
Georgia's APA expressly grants any interested person the right to petition an agency for the issuance, amendment, or repeal of a rule.
Question 6: When a reviewing court determines that an agency rule exceeds the agency's statutory authority, the court's typical first approach is to:
- Strike the entire rule without analysis
- Sever and invalidate only the unlawful portion if the remainder can stand independently (Correct answer)
- Remand to the legislature for clarification
- Uphold the rule under a presumption of regulatory validity
Correct answer: Sever and invalidate only the unlawful portion if the remainder can stand independently
Courts apply the severability doctrine to preserve valid portions of a rule when the offending provision can be excised without distorting the remainder.
Question 7: A reviewing court determines whether an agency rule falls within the scope of its enabling statute primarily by asking:
- Whether the rule reflects the most efficient regulatory approach
- Whether all agency members voted in favor of the rule
- Whether the rule is a reasonable interpretation of the agency's authorizing statute (Correct answer)
- Whether regulated parties submitted comments supporting the rule
Correct answer: Whether the rule is a reasonable interpretation of the agency's authorizing statute
Courts assess statutory authority by examining whether the rule reasonably implements the power the legislature actually granted, not whether it represents the best policy choice.
GA Bar Administrative Law 2
Under the Georgia Administrative Procedure Act, what is the minimum notice period an agency must provide before adopting a non-emergency rule?