A Primer on Emergency Rulemaking.

• Author: Oates, Jowanna Nicole
• Position: Florida

Over the past several months, there has been a renewed focus on emergency rulemaking, and the subsequent challenges to those rules, following the post-Hurricane Irma emergency rules adopted by the Department of Elder Affairs (DOEA) (1) and Agency for Health Care Administration (AHCA). (2) The emergency rulemaking process is not typically used by agencies; from 2008-2017, only 1,055 emergency rules were adopted. (3) In contrast, during the same time period 22,358 "regular" rules were adopted. (4) This article reviews the emergency rulemaking process and the procedures for challenging emergency rules.

What Is Emergency Rulemaking?

The Administrative Procedure Act allows an agency to use an accelerated rule adoption process "[i]f an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action ...." (5) An emergency rule is only effective for 90 days and may not be renewed unless there is a challenge to a proposed rule that is the subject of the emergency rule or the proposed rule that is the subject of the emergency rule is awaiting legislative ratification. (6) An emergency rule is effective upon filing, or on a date less than 20 days after filing. (7)

In order to utilize the emergency rulemaking process, an agency must take certain procedural protections, primary of which is the publication of "specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances." (8) This "statement, which is a principal element of the abbreviated record for judicial review of emergency rulemaking, must be factually explicit and persuasive concerning the existence of a genuine emergency." (9) The statement must contain adequate reasons demonstrating the need for an emergency rule and why the issue cannot be addressed through the nonemergency rulemaking process. (10) The reporter's comments on the 1974Administrative Procedure Act for the provision authorizing the adoption of emergency rules emphasized the importance of the emergency findings statement: "This provision generally continues existing law. Reasons and special facts are required to be stated in connection with emergency rules, so that this provision does not become a way around the other formalities of rulemaking." (11)

What Constitutes an Emergency?

A great deal of litigation in the emergency rule context is centered on whether emergency action is actually required. It has been observed that "[a]n agency's assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power." (12) An agency cannot create an emergency due to its own inaction. This is illustrated in Postal Colony Co., Inc. v. Askew, 348 So. 2d 338 (Fla. 1st DCA 1977), affd, 372 So. 2d 913 (Fla. 1978), when the court rejected an emergency rule in which the agency's findings stated that the rule was necessary to meet a statutory deadline. The court found that the emergency was created "by an avoidable administrative failure to make the necessary regulations effective within the time allowed." (13)

An agency's failure to anticipate the consequences of a foreseeable event also does not provide the basis for an emergency rule. For example, a court invalidated the Department of State's emergency rule pertaining to the submission of petitions proposing amendments to the state constitution, finding that the secretary's "failure to foresee the submission of several thousand petitions at the time near the deadline and the concomitant problems constitute[d] an avoidable administrative failure." (14) Likewise, a challenge to a proposed rule does not necessarily justify the need for an emergency rule:

Agencies whose permanent rulemaking has been temporarily stymied by a rule challenge may of course resort to emergency rulemaking when the delay creates an emergency; but the unusual conditions giving rise to the emergency must be clearly documented. Delay alone cannot suffice. If the delay attending permanent rule challenge proceedings were alone sufficient to justify emergency rulemaking, the legislature's provision for an automatic stay could in every case be neutralized for 90 days by emergency rulemaking. (15)

Waiver from Emergency Rules

F.S. Ch. 120 provides an expedited process for an individual seeking an emergency waiver or variance to a rule. F.S. [section]120.542(3) requires the Administration Commission to adopt uniform rules of procedure pursuant to [section]120.54(5), establishing the procedure for the consideration of requests for emergency variances and waivers. (16) Section 120.542(3) provides that such rules "may provide for expedited time frames, waiver of or limited public notice, and limitations on comments on the petition ...." The Administration Commission has adopted rules 28104.004-.0051, Florida Administrative Code, which provide requirements for filing petitions for emergency variance or waiver, time for agency...