Introduction and Rule Making Process

Question 1

What is an agency?

Answer 1

A government unit, typically created by legislature to oversee a particular area of law such as NY State department of health, NY State liquor authority.

Question 2

What are the two principal functions of agencies?

Answer 2

Quasi legislative- Delegated rule making power

Quasi Judicial- Determining whether rule violated.

Question 3

What is the New York Register? NYR

Answer 3

Weekly publication of information on proposed rules/other agency activities

Question 4

What is the New York Code, Rules and Regulations? NYCRR

Answer 4

Compilation of State rules adopted by agencies that have been published in NYR

Question 5

What is State Administrative Procedure Act? SAPA

Answer 5

Statute governing procedures in New York State agencies that must be followed.

Question 6

Under SAPA, to propose a new rule, or adopt/repeal an existing one, what must an agency do?

Answer 6

PRA - P public notice of proposed rule making in NYR, R Receive /consider public comment and, A after publish in NYCRR publishing notice of adoption in NYR.

Question 7

Does an agency have to hold a hearing before adopting a rule?

Answer 7

No, unless legislation relating to agency requires it.

Question 8

If a hearing has to be held and isnt, what happens?

Answer 8

The rule made is void.

Question 9

What is the time frame for the publication of rule and comments?

Answer 9

45 days before proposed date of adoption/hearing date. Minimum public comment period is 45 days.

Question 10

What is required for contents of notice?

Answer 10

1) Statutory authority;
2) Date/Time/Place public meeting;
3) Deadline for comments;
4) Complete text if under 2000 words. Summary if it exceeds 2000 words.
5) Regulatory impact statement, stating need for rule, projected benefits/costs of implementing.

Question 11

What happens after the end of the 45 day comment period? and what are required publication procedures?

Answer 11

You can ADOPT - publish in NYCRR, notice of adoption in NYR
You can WITHDRAW - Notice in NYR
You can MODIFY - Publish notice revising in NYR and accept comments on revised rule for at least 30 days.

Question 12

When can an agency dispense with all or part of proposal requirements?

Answer 12

if adoption is

1) Necessary to preserve public health, safety and public welfare; and
2) Compliance with usual requirements would be contrary to public interest.

Question 13

What procedures must it comply with when it does?

Answer 13

Either

1) Publish notice of emergency adoption in New York Register; or
2) If wants to adopt rule on emergency basis, begin formal proposal process, file combined notice of emergency adoption and rule making

Question 14

If an agency adopts a rule on an emergency basis, how long does it stay in effect for?

Answer 14

90 days.

Question 15

Can that period be extended?

Answer 15

Yes, by 60 days if the formal rule making process has been started when/before readoption.

Question 16

What are the two pre-conditions to filing a petition for JR of a rule?

Answer 16

1) Petitioner has standing (ie is affected by rule); and
2) Has filed request with agency asking it to pass on validity/applicability of rule and either
a) Agency taken action on request; or
b) Agency ignored/failed to take action for 30 days since filing.

Question 17

What are the grounds that a rule can be challenged on?

Answer 17

1) rule violates constitutional provision;
2) Rule w/out statutory authority;
3) Rule adopted without compliance with rule making procedures (must be done within 4 months of effective date of rule)

Question 18

What is the nature of a petition for review proceeding? What is the more common vehicle?

Answer 18

Either declaratory judgment action or ARTICLE 78 Proceeding. Article 78 is more common.

Question 19

So we know an administrative agency has powers delegated to it by the legislature or the executive branch, but what makes the delegation permissible?

Answer 19

A delegation is permissible only if it is accompanied by reasonable safeguards and standards.

Question 20

How are the reasonable safeguards and standards requirement interpreted?

Answer 20

It is interpreted broadly