The standard rulemaking process takes a minimum of 108 days (including publication delays) and frequently lasts six months or longer. Such delays can hamstring an agency’s ability to swiftly react to emergency situations. (The ability to respond swiftly to changing circumstances was a major reason why agency rulemaking was initially created). The Iowa Administrative Procedures Act (IAPA) has two procedures which can be used individually or jointly to either shorten or even eliminate delays caused by the rulemaking process. These two procedures have been nicknamed the “emergency” rulemaking process, but that name is a misnomer. The process is not limited to emergency situations and that particular word does not even appear in the statute.
The emergency rulemaking mechanism is a combination of Iowa Code, section 17A.4(2), which relates to the publication of a notice of intended action, and Iowa Code, section 17A.5(2)”b”, which concerns effective dates. As there are two different parts to the emergency rulemaking process, this means there are two procedures an agency must be follow in order to shorten the rulemaking process. To eliminate the notice requirements the agency must make a finding under §17A.4(2) that notice and public participation would be “unnecessary, impracticable or contrary to the public interest.”
To reduce or eliminate the publication period, that agency must find either that the advance effective date is authorized by statute; or that the rule confers a benefit or removes a restriction; or that the rule is necessary due to an imminent peril to the public health, safety or welfare. The underlying facts that support these findings must also be set out in the document. These three grounds cover general situations where the value of having a rule in place outweighs the value of providing notice and public participation. The three grounds are alternatives-any one is individually sufficient to support a filing without notice. In addition to citing the specific ground, the agency must also explain the underlying reasons supporting their finding.
The term “impracticable” is defined as infeasible, unwise or imprudent. rulemaking is impracticable when notice and public participation would automatically prevent the agency from functioning. An example would be newly enacted legislation calling for a specific effective date; to be implemented the legislation must be supplemented through rulemaking. In this situation the “impracticable” exemption might apply, since any delay in rulemaking would result in a delay in the implementation of the statute.
The term “unnecessary” means useless or needless. rulemaking is unnecessary when the rule is strictly ministerial or routine, such as changing an address; in such cases notice and public participation would be pointless.
The term “contrary to the public interest” is a catch-all phrase that requires an agency to weigh the value of notice and public participation against the value of speeding implementation of the rule
Automatic Exemptions From the rulemaking Process
A significant amount of rulemaking is mandated by federal law where the state agency has no choice and no discretion to amend the federal policy. Such changes, especially in the area of Medicaid policy, are commonplace and generally non-controversial. For this type of repetitive rulemaking a mechanism exists to allow an entire class of rules to be exempted from public participation. The agency adopts a rule detailing a “very narrowly tailored category of rules” which are to be automatically exempted from the rulemaking process as provided in Iowa Code section §17A.4(2. Once the exemption rule is effective, each time that specified class of rule is amended the agency need not establish specific reasons for the emergency filing in each rulemaking proceeding. The agency simply cites the adopted rule that already contains the reasons for the emergency filing.
Making Rules Effective Prior to Publication. Iowa Code §17A.5(2)”b”(1) and (2)
This is the second portion of the emergency rulemaking process. A rule may never be effective prior to its filing with the Administrative Rules Coordinator, but it can be made effective on the date of filing or any subsequent date, as specified by the agency in the filing. Rules may become effective prior to publication if the agency finds that the:
- Statute so provides
- Rule confers a benefit or removes a restriction on the public; or
- Effective date is necessary because of an “imminent peril to the public health, safety or welfare.”
There are special notice requirements for emergency implemented rules. When a rule is placed into effect the agency is required to make “reasonable efforts” to inform all persons who may be affected by that rule.
Remedies for the Abuse of the “Emergency” rulemaking Provisions
Emergency rules can be “sunsetted” which means the rules are no longer effective at a specified date. Although emergency rules are permanent, the Governor, Attorney General or the Administrative Rules Review Committee may file an objection to an emergency rule pursuant to Iowa Code §17A.4(2). An objection terminates rule 180 days after the objection is filed.
The “Double-Barreled” Filing
The non-statutory remedy known as the “double-barreled filing” was devised as an alternative to the objection. When an agency implements an emergency rule it also publishes a notice of intended action, thus providing for public participation. This notice is ultimately adopted and replaces the earlier emergency filing.