Rulemaking

Question 1

Per SAPA, what procedure must an agency follow to propose a new rule OR to adopt or repeal an existing one?

Answer 1

To propose/adopt/repeal a rule, an agency must:

1. Publish a notice of proposed rulemaking in the NY State Register;
2. Receive and consider public comment on the proposed rule; AND
3. Formally adopt the rule by:
   (a) Publish it in the NYCRR, AND
   (b) Publish notice of adoption in NYSR

Question 2

What are the two steps required for an agency to formally adopt a rule?

Answer 2

1. Publish the rule in the NY Codes, Rules, and Regulations (NYCRR), AND
2. Publish notice of the adoption in NY State Register

Question 3

Must an agency hold a hearing before adopting a rule?

Answer 3

Generally, no hearing required

Question 4

What is the exception to the rule that a hearing is not generally required prior to passing a rule?

Answer 4

When the statute authorizing the rule states that a hearing is required.

(If a hearing is required but not held, the rule is VOID!)

Question 5

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

Answer 5

The publication of the notice in the NYR must take place AT LEAST 45 days before:

1. The proposed date of the adoption of the rule (if no hearing is required), OR
2. The proposed hearing date (if hearing is required).
   (i. e., The minimum public comment period is 45 days, measured 45 days out from the publication in the NY Register)

Question 6

What notice must be given by hte agency prior to the adoption of the rule?

Answer 6

Notice of Proposed Rule Making

Question 7

What is included in the Notice of Proposed Rule Making? (5 things)

Answer 7

The NPRM must include:

1. The statutory authority for the proposed rule;
2. Date, time, and place of any public hearings related to the rule’s adoption (if held);
3. Deadline for submitting comments on the proposed rule;
4. The complete text of the proposed rule (OR a SUMMARY if the rule is over 2,000 words!); AND
5. A regulatory impact statement (RIS) (explaining the need for the rule, the costs, and benefits).

Question 8

What happens after the comment period closes on a proposed rule?

Answer 8

After the comment period ends, the agency can:

1. Adopt the rule (publish the rule in the NYCRR and publish notice of adoption in NYR); OR
2. Withdraw the rule (publish a notice of withdawal in the NYR); OR
3. Modify the rule (publish a notice of revised rulemaking in the NYR and accept new comments on the revised rule for AT LEAST 30 days)

Question 9

If the agency decides to modify its proposed rule after the comment period closes, what two steps must it take?

Answer 9

To modify the rule, the agency must:

1. Publish a notice of revised rulemaking in the NYR, AND
2. Accept new comments on the revised rule for AT LEAST 30 days

Question 10

What if the agency needs to adopt a rule on a more accelerated timeline? (Emergency rulemaking)

(2 elements)

Answer 10

An agency may do away with the general proposal requirements IF it finds that:

1. Immediate adoption is ecessary to preserve public health, safety, or general welfare; AND
2. Compliance with the formal adoption requirements would be contrary to the public interest.

Question 11

What is the procedure for emergency adoption?

Answer 11

The agency must either:

1. File a notice of EMERGENCY ADOPTION in the NYR (temporary measure); OR
2. File a COMBINED NOTICE of emergency adoption and proposed rulemaking (short-term solution with potential for long-term adoption)

Question 12

For how long is an emergency rule in effect?

Answer 12

If an agency adopts a rule on an emergency basis (i.e., no comment period, no formal adoption, etc.), the rule stays in effect for 90 days.

(The agency may re-adopt for an additional 60 days, but only if it has begun the formal proposal process before re-adoption)

Question 13

How do you challenge the validity of a rule?

(Judicial review of rules)

Answer 13

A person or enterprise may file a petition for judicial review of a rule IF:

1. The petitioner has standing (P is subject to or directly affected by the rule);
2. The petitioner has filed a request with the agency asking it to pass on the validity or applicability of the rule; AND
3. Either (a) the agency has taken action on the request OR (b) the agency has failed to take action and 30 days have elapsed since the request was filed.

(BUT see also the grounds requirements for the challenge)

Question 14

What are the three grounds under which a rule may be challenged?

Answer 14

Petitioner can challenge a rule for:

1. Violating a constitutional provision;
2. Exceeding statutory authority; OR
3. Being adopted without substantial compliance with rulemaking procedure (BUT, MUST be judicially challenged within FOUR MONTHS of the rule’s effective date)

Question 15

What are the two ways that Petitioner can petition for review of a rule?

Answer 15

1. Declaratory judgment
2. Article 78 proceeding (What is this?)