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View Diary: Louisiana backs off on 30-day wait for abortion, but rules for new clinics may still be imposed (58 comments)

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  •  Maybe someone (8+ / 0-)

    actually read the Administrative Procedures Act re: emergency rulings -- which involve imminent peril to health and safety and basically expire after 120 days.

    If an agency finds that imminent peril to public health, safety, or welfare requires adoption of
    a rule or fee upon shorter notice than 90 days, the agency must, within five days of adoption,
    inform the governor, the attorney general, the speaker of the House of Representatives, the
    president of the Senate, and the office of the state register in writing of its reasons for so
    finding. It may proceed without prior notice or hearing or upon abbreviated notice and hearing
    to adopt such emergency rule subject to certain requirements. ( R.S. 49:953(B)) The agency
    must take appropriate measures to make emergency rules known to the persons who may be
    affected. An emergency rule cannot remain in effect beyond the publication date of the
    Louisiana Register in the month following the month in which the rule was adopted, unless the
    rule and the reasons for its adoption are published in that issue. An emergency rule shall not
    be effective for a period longer than 120 days
    . (R.S. 49:954(B))

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Tue Jan 28, 2014 at 09:10:49 AM PST

    •  Public participation? Such a quaint notion. (0+ / 0-)

      As you point out, Louisiana's APA limits this kind of emergency rulemaking to instances of "imminent peril."  Obviously, there is no peril imminent, and the agency is just trying to avoid having to deal with public comments.

      Earlier in my career, I litigated cases like this against federal agencies.  The federal courts construe the corresponding exception in the federal APA very narrowly.  To quote the D.C. Circuit:

      We begin our examination of the Department's assertion of these exceptions with the firm understanding that the exceptions to the provisions of section 553 “will be narrowly construed and only reluctantly countenanced.” State of New Jersey, Department of Environmental Protection v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980). See generally Note, The “Good Cause” Exceptions: Danger to Notice and Comment Requirements Under the Administrative Procedure Act, 68 Geo.L.J. 765 (1980). As the legislative history of the APA makes clear, moreover, the exceptions at issue here are not “escape clauses” that may be arbitrarily utilized at the agency's whim. S.Rep.No. 752, 79th Cong., 1st Sess. (1945), reprinted in Administrative Procedure Act, Legislative History, 79th Cong. 1944-46 at 200, 201. Rather, use of these exceptions by administrative agencies should be limited to emergency situations, id. at 200; furthermore, the grounds justifying the agency's use of the exception should be incorporated within the published rule.
      American Federation of Gov't Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981)

      Based on my experience with federal agencies, I can't imagine that this sort of end run around the mandatory notice and comment procedures would survive any court challenge.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Tue Jan 28, 2014 at 01:10:04 PM PST

      [ Parent ]

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