Sources of Law and Rulemaking

Question 0

What is the SAPA

Answer 0

State Administrative Procedure Act
governs rule making and adjudication process in NY
provides framework of procedures for agencies
Applies only to Agencies as defined by statute

Question 1

List sources of law

Answer 1

US Constitution and State Constitution
Agency's enabling act
State Administrative Procedure Act (SAPA)
Statutory procedural requirements
Agency regulation
case law

Question 2

What is not an agency

Answer 2

The governor
agencies in legislative and judicial branches
agencies created by interstate compact or international agreement
military divisions
state police
intelligence unit of criminal justice service
state insurance fund
unemployment insurance appeal board
workers comp board and
dept of corrections and community supervision

Question 3

2 important powers exercised by agencies

Answer 3

1. set standards to govern conduct - rule-making
2. resolve disputes of specific entities or individuals - adjudication

SAPA and enabling acts constrain rule making and adjudication

Question 4

Administrative Rules

Answer 4

have full force and effect of law

Question 5

Sources of Publication

Answer 5

NY State Register

NY Codes, Rules and Regulations

Question 6

Steps to Rule Making Procedure

Answer 6

1. Notice of Proposed Rule Making
2. Receipt of Public Comment
3. Action by Agency

Question 7

Agency’s notice requirement

Answer 7

Notice of Proposed Rule making submitted to Sec of State for
publication in State Register

Public given opportunity to submit comments

Question 8

Timing of publication

Answer 8

published in State Register 45 days before
either
first public hearing (if required) or
before enacting or changing rule

Question 9

Notice must include

Answer 9

deadline for submissions to comments
statutory authority for proposed rule
date time and place of public hearings 
complete text if less than 2k words
over 2k words must provide link to text and brief description
summary of regulatory impact statement

Question 10

Notice expires when and how

Answer 10

365 days from date of publication or date of last public hearing
if not adopted and filed

Question 11

Consensus rule

Answer 11

Rule generally noncontroversial.
technical noncontroversial changes
non major change
public hearing is not required
notice explains why not controversial
if objection is made non-consensus rule must be followed

Question 12

Receipt of public comment

Answer 12

must accept for 45 days after notice published in state register
or
5 days after date of last scheduled public hearing on the proposed rule

Question 13

Action by Agency

Answer 13

After notice and comment an agency can
Adopt
Withdraw
Revise

Question 14

Revision of Rule

Answer 14

if proposed rule is substantially revised
Notice of Revised Rule Making is submitted to Sec of State
for publication in state register

published at least 30 days prior to adoption to allow public comment

Question 15

Withdrawal of Rule

Answer 15

submit notice of withdrawal to sec of state
publication in state register
includes reasons for withdrawal
may not propose same rule without first providing public with opportunity to comment

Question 16

Requirements to Adopt Rule

Answer 16

Notice of Adoption filed with sec of state for publication including assessment of public comments received

Full text of rule is filed with dept of state
accompanied by certification and effective date of the rule

Question 17

Emergency Rules

Answer 17

if immediate adoption is necessary for
Preservation of public health, safety or general welfare and
compliance with rule making procedure will be against public interest
rule can be adopted on an emergency basis
90 days max
re-adopted for additional 60 days with regular notice and comment requirements.

Question 18

Adoption of Emergency Rule

Answer 18

Notice of Emergency adoption filed with sec of state for publication in state register

full text filed with dept of state for publication in NYCRR