Rule Making Flashcards
What are the NY laws and publications relating to agencies?
New York Register: a weekly publication of New York State that contains information on proposed rules and other agency activities
New York Codes, Rules, and Regulations: a compilation of state agency rules that have been adopted by state agencies after being published in the NY Register
State Administrative Procedure Act: a statute governing the procedures that most NY agencies must follow
Agencies must adopt rules in accordance with what statute?
State Administrative Procedure Act
What is the process for proposing a new rule or repealing an existing one?
- Publish a notice of proposed rule making in the NY Register
- Receive and consider public comment (a hearing is not always required
- Formally adopt the rule
a. Publish in the NY Codes, Rules, and Regulations
b. Publish a notice of adoption in the NY Register
Are hearings required before an agency can adopt a rule?
A hearing is required only if the legislation relating to the agency requires it. If a hearing is required and is not held, the rule is void.
What is the time frame for publication of the rule and comments on it?
Publication of the notice must take place 45 days before:
a. Proposed date of adoption (if no hearing is required) OR
b. Proposed hearing date
What is the minimum public comment period?
45 days from the date of publication in the NY Register
What notice must the agency give prior to adoption of the rule? What must the Notice of Proposed Rule Making include?
The Notice of Proposed Rule Making must include:
a. Statutory authority for the proposed rule
b. Date, time, and place of any related public hearings
c. Deadline for submission of comments
d. Complete text of the proposed rule (or a summary if more than 2000 word)
e. Regulatory impact statement
What happens after the comment period ends?
The agency may:
- Adopt the rule
a. Publish it in the NY Codes, Rules, and Regulations
b. Publish a notice of adoption in the NY Register - Withdraw the rule
Publish a notice of withdrawal in the NY Register - Modify the rule
a. Publish a notice of revised rule making in the NY Register
b. Accept comments on the revised rule for at least 30 days
When can an agency adopt a rule on an accelerated timeline?
Only under emergency circumstances, when:
- Immediate adoption of the rule is necessary to preserve public health, safety, or welfare, AND
- Compliance with the requirements would be contrary to the public interest
How can an agency adopt an emergency procedure?
Either:
- File a notice of emergency adoption in the NY Register; OR
- If it wants to adopt the rule on an emergency basis and also begin the formal proposal process, file a notice of emergency adoption and a proposed rule making in the NY Register
How long does an emergency rule stay in effect for?
90 days
The agency can readopt the rule for an additional 60 days, provided it begins the formal proposal process when or before it readopts
How does one challenge the validity of a rule?
Preconditions:
- Standing - Petitioner is subject to or otherwise directly affected by the rule
- Exhaustion - Petitioner filed a request with the agency asking it to pass on the validity or applicability of the rule and the agency either:
a. took action on the request OR
b. failed to take action on the request within 30 days
On what grounds may a rule be challenged?
- The rule violates the Constitution
- The rule is without statutory authority
- The rule had been adopted without substantial compliance with the required rule making procedure (This action must be brought within 4 months of the rule’s effective date)
What type of function is agency rule making?
Quasi-legislative
