ADMINISTRATIVE & REGULATORY LAW NEWS
News from the States
Rulemaking Emergencies1
State APAs usually permit agencies to adopt rules without public participation in emergency situations. However, emergency rules typically lapse within a short time unless the agency has conducted apost-adoption notice-and-comment procedure. This generally parallels federal practice; although rules can be adopted under the APA's good cause exception in emergency situations, agencies almost always adopt them as "interim final" rules. This means that the agency invites post-adoption comments and then readopts a final rule. See Recommendation 95-4, Administrative Conference of the United States.
Recently, a California court upheld an emergency rule in a politically stressful situation. A federal statute passed in 1996 required that states immediately cease providing routine prenatal examinations to illegal aliens under Medicaid statutes. California's welfare agency implemented the federal statute with an emergency rule. A trial court invalidated the rule on the ground that no emergency existed.
The Court of Appeals reversed, holding that an immediately effective federal statute confronted the state with an emergency situation. It defined "emergency"as"an unforeseen situation calling for immediate action." Besides, there was little that public commenters could have said even if they had been given a chance to comment. The appellate court rebuked the trial court for allowing its political views about the federal legislation to interfere with its judgment about rulemaking procedures. Doe v. Wilson, 67 Cal.Rptr.2d 187 (1997).
Recent State Administrative Law Articles of Interest
McNeil, Christopher B., Due Process and the Ohio Administrative Procedure Act: the Central Panel Proposal, 23 Ohio N.U. L. Rev. 783-821 (1997).
Siris, Michael J., New York's Freedom from Information Law: Disclosure of Public Costs of a New York State Senator's "Public Interest"Mailings, 60 Alb. L. Rev. 1273-1294 (1997).
Florida APA Symposium, 48 Fla. L. Rev. 1-158 (1996). An Overview of the 1996 Administrative Procedure Act, by James P. Rhea & Patrick L. "Booter" Imhof; The Third Time's the Charm: Florida Finally Enacts Rulemaking Reform, by Lawrence E. Sellers, Jr.; The Legislature Tweaks Mcdonald (Again): the New Restrictions on the Use of "Unadopted Rules" and "Incipient Policies" by Agencies in Florida's Administrative Procedure Act, by Wade L. Hopping & Kent Wetherell.
1. This item was provided by Professor Michael Asimow of the University of California at Los Angeles School of Law.
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