Rule Making

Question 1

Steps agencies must take to propose, adopt a new rule, or to repeal an existing one (broad steps)

Answer 1

1. Tell the public: Publish a notice of proposed rule-making in the Register
2. Receive and consider public comment in proposed rule
3. Formally adopt rule (2 steps: publish in NYCRR and publish notice of adoption in NY register)

Question 2

Must agency hold a hearing before it adopts a rule?

Answer 2

Generally, an agency must hold a hearing only when legislation relating to that specific agency requires it to

Question 3

If a statute requires a hearing to be held, and it’s not held, what’s the result?

Answer 3

Rule is void

Question 4

Time frame for publication of rule and comments on it

Answer 4

1st step (publication of notice in Register) must take place  at least 45 days before:
a) proposed date of adoption of rule if no hearing is required OR b) proposed hearing date

Minimum public comment period: 45 days, measured from date of publication in Register

Question 5

What does the notice have to contain (notice of proposed rule making)?

Answer 5

1. the statutory authority for the proposed rule
2. the date, time, and place of any public hearing re: proposed rule adoption
3. deadline for submission of public comment
4. complete text of the proposed rule, or if it’s 2000+ words, a summary
5. regulatory impact statement (which explains need for rule, projected benefits, and implementing costs)

Question 6

What happens after the comment period ends? What are agency’s options?

Answer 6

1. Adopt the rule by publishing it in NYCRR and publishing a notice of adoption in NY Register
2. Withdraw the rule by publishing a notice of withdrawal in NY Register
3. Modify the rule by:
   a. Publishing a notice of revised rulemaking in NY Register AND
   b. accepting comments on revised rule for 30 days

Question 7

How does an agency adopt a rule faster (aka emergency procedure)? Include: Standard, Procedure, Time limits

Answer 7

1. Standard: Agency can dispense with some/all of requ’ts if it finds that immediate rule adoption is:
   a. necessary to preserve public health, safety, or general welfare AND
   b. compliance w/ reqt’s would be contrary to public interest
2. Procedure: Agency must either:
   a. File a notice of emergency adoption in NY Register, OR
   b. If it wants to adopt rule on emerg. basis & begin formal proposal process, it must file an emerg. notice of adoption & proposed rule-making
3. Time Limits: If agency adopts a rule on emerg basis, rule stays in effect for 90 days
   - agency can re-adopt it for an addt’l 60 days if it begins the formal proposal process when/before the re-adoption

Question 8

When is someone allowed to challenge the validity of a rule (and how)?

Answer 8

A person/company can file a petition for judicial review of a rule if:

1) Petitioner has standing (aka P is subject to or otherwise directly affected by rule AND
2) P has filed a request w/ agency, asking it to pass on validity or applicability of rule, and either:
a. agency has taken action on the request, OR
b. agency has not taken action & 30 days have passed since P filed request

Question 9

What grounds can a rule be challenged on?

Answer 9

1. the rule violates a const. provision
2. Rule is without statutory authority, or
3. Rule has been adopted without substantial compliance with req. rulemaking procedure (this must be done w/in 4 mo. of rule’s effective date)

Question 10

What kind of proceeding can a petition for review of the validity of a rule occur in?

Answer 10

A declaratory judgment action or Art. 78 proceeding (it’s usually a declaratory judment)

Question 11

What’s an agency adjudication (including examples)?

Answer 11

Definition: adversary contest btwn agency & person (where agency official acts in a judicial capacity)

Examples:

• imposing a fine or other sanction b/c person has violated a regulatory statute/rule
• suspending or revoking a license to practice a profession
• denying or suspending someone’s govt benefits

Question 12

When is an adjudicatory proceeding subject to SAPA (and what isn’t)?

Answer 12

Def of adj. proceed. in SAPA:

1) any activity in which a determination is made by an agency as to the legal right, duties, or privileges of named parties and
2) the agency is required by law to make such determination only on a record and after an opportunity to be heard

Proceedings excluded from this:

a) disciplinary proceedings against agency employees, and
b) hearings on traffic infractions

Question 13

Hearing requirements/allowances if adj. proceed. subject to SAPA that are diff. from other proceedings

Answer 13

1. hearing officer can rely on hearsay
2. evidence may be submitted in the form of copies or excerpts
   and 3. official docs don’t have to be authenticated

Question 14

Typical problems with adjudicatory proceedings to look out for

Answer 14

1. Agency failing to give reasonable notice
2. Presiding officer is biased (evidence, or insufficient evidence of bias, raising the objection, burden of proof)
3. Hearing not properly conducted (ex parte communications, consideration of outside evidence, prcoeedings/decision not on record, final decision)

Question 15

What’s required for ‘reasonable notice’ for an adj. proceeding (under SAPA)?

Answer 15

All parties must be given reasonable notice that includes:

• statement of the time, place and nature of mtg.
• statement of legal authority and jdx. under which hearing is to be held
• where possible, reference to particular sections of statute and rules involved AND
• short and plain statement of matters asserted

Question 16

What’s considered as evidence of bias (under SAPA for APs)?

Answer 16

If:

1. presiding officer has a personal/business relationship w/ one of the parties
2. presiding officer has a personal interest in matter being adjudicated (stands to benefit from a particular outcome), or
3. Presiding officer prejudges the case (states how he thinks matter should be resolved before matter is over)

Question 17

What’s insufficient evidence of bias (under SAPA for APs)?

Answer 17

1. presiding officer ruled against you in a prior proceeding, or presiding officer presided over a prior proceeding involving a similar claim, defense, or same party

Question 18

What’s required if party wants to bring up bias, and following procedure?

Answer 18

1. Party must file an affidavit of personal bias/disqualification of a presiding officer.
2. Agency then has to hold a mini-hearing to determine matter on the record. Agency’s determination is also subject to judicial review @ end of adjudicatory period.

Question 19

Burden of proof requird to show bias (in adj. proceed. under SAPA)

Answer 19

Rebuttable presumption that hearing officer is free from bias. Person alleging bias has burden to come forward with facts that show bias & must also prove the admin. outcome was a result of the bias

Question 20

SAPA hearing: ex parte communications rules

Answer 20

hearing officer can’t communicate (directly or indirectly) with any person/party or his rep in connection w/ an issue of fact unless notice is given of an opp for all parties to participate

Question 21

How can hearing officer consider outside evidence

Answer 21

HO can’t rely on information outside of the record except for facts that:
-may be judicially noticed
or are within the specialized knowledge of the agency (technicial/scientic facts)

–other outside info: hearing officer must give parties notice & opp to dispute the fact or its materiality before the adjudication

Question 22

What must be in the record (SAPA)?

Answer 22

Agency must make a complete record of hearing, including:

• any notices, pleadings, motions and intermed. rulings
• evidence presented
• statement of matters officially noticed
• final decision

Question 23

Requirements for the final decision (SAPA)

Answer 23

1. Must be in writing or stated in record AND

2. Must include findings of facts & conclusions of law (to allow for meaningful review)