The Business Council supports S.5912-B (Jacobs), which would amend the State Administrative Procedure Act (SAPA) regarding the parameters within which an administrative agency may use emergency rule making and modify the applicable timeframes for the same.
Currently SAPA allows agencies to adopt emergency rules without public notice and comment, if it finds that immediate adoption is necessary to preserve "general welfare" and compliance with the normal SAPA public notice and comment period is "contrary to the public interest." An agency is required to propose a "permanent" rule, with public notice and opportunities for public comment, within 90 days of filing the emergency rule.
Unfortunately, many administrative agencies have taken advantage of emergency rule-making authority to promulgate regulations that have little or nothing to do with the preservation of the “general welfare”. In fact, over the last decade, state agencies promulgated approximately 2/3 of the 2,750 regulations adopted through emergency adoption. This means that 2/3 of the regulatory burden faced by New York’s employers are imposed without any public notice or opportunity for public comment. This is both unfair and in patent violation of the intent of the SAPA statute.
Since emergency regulations take effect immediately, this lack of public comment period also leaves employees completely unprepared to comply with an emergency regulation. Accordingly, this legislation aims to clarify and narrow the universe of regulations that would qualify as emergency rule making to those that would:
- Be impractical because of an imminent and actual threat to public health or safety; or
- The delay would cause the agency to be out of compliance with a federal or state law; or
- The delay would result in the loss of federal funds; or
- The delay would lead to irreparable injury.
Also, this bill better motivate state agencies to put emergency rule-making through the full SAPA review process in a timelier manner, giving the public the proper opportunity to comment on a proposed regulation. The bill mandates that within thirty days of the adoption of the emergency rule, the agency must submit a notice of proposed rulemaking to commence the usual rule-making procedures.
S.5912-B (Jacobs) is a common sense solution to a very real problem faced by all regulated parties in the state. The bill addresses an all too common problem of New York’s regulated community being denied the right to comment on a regulation before it is imposed as a legal obligation, while preserving the power of agencies to make rules through emergency rule-making when there is indeed an actual emergency. For these reasons we urge the legislature to approve this bill this during this Legislative session.