Rule Making Flashcards
What standards regulate RULE MAKING PROCEDURES?
- SAPA: Agencies must adopt rules in accordance with
New York’s “State Administrative Procedure Act.” (SAPA) - LEGISLATIVE STANDARDS: In addition, the legislature,
when creating the agency, may impose additional standards
What must an AGENCY do to ADOPT its RULES?
To propose a new rule, or to adopt or repeal an existing one, the agency must:
- PUBLISH a notice of rule making in the NEW YORK STATE REGISTER;
- Receive and consider PUBLIC COMMENTS on the proposed rule;
- FORMALLY ADOPT the rule:
(i) by publishing the ACTUAL rule in the NYCRR;
(ii) and by publishing a notice of adoption of the rule in
the New York State Register
HEARING
Must the agency hold a hearing before it adopts the rule?
GENERALLY not.
generally an agency must hold a hearing ONLY when the LEGISLATION RELATING to that SPECIFIC AGENCY requires it.
UNLESS the statute tells us that a public hearing is rqrd, IT WILL NOT BE REQUIRED.
IF a statute REQUIRES a hearing to be held, and a hearing is NOT HELD, the rule WILL BE VOID.
Notice of Proposed Rule: Time Frame
What’s the time frame for publication of the rule and comments on it?
The first step (publication of the notice) must take place at least 45 days before:
(i) The PROPOSED DATE OF ADOPTION of the rule, IF no hearing is rqrd; OR
(ii) The proposed hearing date
The minimum public comment period is 45 days MEASURED from the DATE OF PUBLICATION in the NEW YORK STATE REGISTER.
Notice of Proposed Rule Making: Contents of Notice
What notice must the agency give prior to adoption of the rule?
The Notice of Proposed Rule Making includes the following information:
- the STATUTORY AUTHORITY for the proposed rule;
- the date, time and place of any public hearings relating to the adoption of the proposed rule;
- the DEADLINE for SUBMISSION of COMMENTS on the PROPOSED RULE
- the COMPLETE TEXT of the PROPOSED RULE, or IF the rule EXCEEDS 2,000 words than a SUMMARY of the rule; and
- a REGULATORY IMPACT STATEMENT, which explains, among other things, the need for the proposed rule, its projected benefits; and the costs associated with implementing it.
Adoption or Withdrawal of Proposed Rule
What happens after the comment period ends?
After the comment period ends, the agency that proposed the rule may do one of the following:
(a) ADOPT THE RULE by:
(i) PUBLISHING it in the NYCRR; AND
(ii) PUBLISHING a notice of ADOPTION of the rule in the New York State Register
OR
(b) WITHDRAW the rule by:
PUBLISHING a notice of WITHDRAWAL of the rule in the New York State Register
OR
(c) MODIFY the rule by:
(i) PUBLISHING a notice of REVISED RULEMAKING in the New York State Register; AND
(ii) Accepting comments on the REVISED RULE rule for AT LEAST 30 days
Emergency Rules.
What if the Agency needs to adopt a rule on a more accelerated time line?
What is the STANDARD for allowing EMERGENCY RULE MAKING?
Standard =
An agency can dispense with all or part of the proposal
requirements if it finds that the immediate adoption of a rule:
(i) Is NECESSARY to PRESERVE PUBLIC HEALTH, SAFETY, or GENERAL WELFARE; AND
(ii) COMPLIANCE w/the REQUIREMENTS would be contrary to the PUBLIC’S INTERESTS
Emergency Rules.
What if the Agency needs to adopt a rule on a more accelerated time line?
WHAT are the ADOPTION PROCEDURES?
The agency must either:
(i) File a notice of EMERGENCY ADOPTION in the NEW YORK STATE REGISTER; OR
(ii) if it wants to adopt the rule on an emergency basis and ALSO BEGIN the formal proposal process, it MUST FILE a COMBINED NOTICE of emergency adoption and proposed rulemaking
Emergency Rules.
What if the Agency needs to adopt a rule on a more accelerated time line?
WHAT are the time limits?
- If an agency adopts a rule on an emergency basis, the rule stays in effect for 90 DAYS.
- The agency MAY RE-ADOPT the emergency rule for an additional 60 DAYS, PROVIDED it begins the formal proposal process WHEN or BEFORE it ADOPTS the rule
Judicial Review of Rules. How does one challenge the validity of a rule?
What are the PRECONDITIONS?
A person or enterprise may file a petition for judicial
review of a rule if:
(i) the petitioner has standing, meaning that the PETITIONER IS SUBJECT TO or OTHERWISE directly affected by the rule;
AND
(ii) the petitioner has filed a request with the agency, asking it to pass on the validity or the applicability of the rule; and either:
(a) The agency has taken action on the request; OR
(b) The agency has failed to take action on the request AND 30 DAYS has elapsed
Judicial Review of Rules. How does one challenge the validity of a rule?
What are the GROUNDS?
A rule may be challenged on the following grounds:
(i) the rule VIOLATES a CONSTITUTIONAL PROVISION;
(ii) the rule is WITHOUT STATUTORY AUTHORITY (possibly beyond the scope of any existing authority); OR
(iii) the rule has BEEN ADOPTED WITHOUT SUBSTANTIAL COMPLIANCE with the RQRD rule making PROCEDURE
**Note: A challenge based on (iii) above must be judicially
challenged within 4 MONTHS of the rule’s effective date
Judicial Review of Rules. How does one challenge the validity of a rule?
What is the NATURE OF THE PROCEEDING - WHAT TYPE OF PROCEDURE CAN BE USED?
Nature of Proceeding:
The petition for review of the rule may be brought as either:
(i) a DECLARATORY JUDGEMENT ACTION; OR
(ii) an ARTICLE 78 proceeding.
Generally, a declaratory judgment action is the APPROPRIATE vehicle for challenging the validity of a rule.
Hypo Relating to Rule Making:
The New York State legislature passes a statute called the Wildlife Protection Act (“WPA”), which provides that it is unlawful “to intentionally kill or wound any endangered species of fish or wildlife.” The WPA authorizes the New York Department of Wildlife Protection (“DWP”) to issue rules implementing the WPA.
Wishing to curb the practice of the sale of coats made with the fur of endangered species, the DWP publishes in the New York Register a notice of a proposed rule which would prohibit “the sale of any clothing made in whole or part of fur of endangered species.” The notice does not cite the WPA, but rather states that “the New York legislature has given the DWP authority to issue the rule.” The notice provides no further information, other than that “the rule would become effective in 15 days after publication of this notice.”
What legal challenges could be made to the adoption of the rule?
- It might be challenged on the ground that there is no statutory authority. The rule goes beyond the scope of providing rules to implement the acts of the provision.
- The notice did not provide the statutory authority for the rule.
- The notice fails to provide enough time for comments. The notice must be published at least 45 days before the proposed adoption date.
- The notice doesn’t state the deadline for comments.
- The rule does not provide a regulatory impact statement.
Hypo Relating to Rule Making:
Ted, the owner of Ted’s Fur Emporium commences a declaratory judgment action, seeking to have the rule declared invalid.
Does he have standing?
On what grounds might he attack the rule?
Are there any procedural prerequisites to Ted’s declaratory judgment action?
STANDING:
Ted has standing b/c he is DIRECTLY AFFECTED by the rule.
GROUNDS:
Ted may argue:
(i) the rule is WITHOUT STATUTORY AUTHORITY; OR
(ii) the rule was adopted WITHOUT SUBSTANTIAL COMPLIANCE with the rule making procedures
PROCEDURE REQUISITES TO DECLARATORY JUDGEMENT ACTION:
Ted MUST FIRST FILE A REQUEST with the AGENCY to PASS on the VALIDITY of the rule and wait for either a response or for 30 days to ELAPSE
