§ 49:962 — Emergency rulemaking

§962. Emergency rulemaking
A.(1) In extraordinary circumstances, an agency may adopt an emergency rule as an
alternative to the rulemaking provisions provided for in R.S. 49:961. An emergency rule
may be adopted by an agency without prior notice or a public hearing for any of the
following reasons:
(a) To prevent imminent peril to the public health, safety, or welfare.
(b) To avoid sanctions or penalties from the United States.
(c) To avoid a budget deficit in the case of the medical assistance program.
(d) To secure new or enhanced federal funding.
(e) To effectively administer provisions of law related to the imposition, collection,
or administration of taxes when required due to time constraints related to congressional,
legislative, or judicial action.
(2) It shall not be considered an emergency if the agency is acting in the normal
course and scope of fulfilling its mission, failed to take necessary steps in the administration
of the agency to avoid an emergency, is promulgating rules to implement an Act of the
legislature unless the Act specifically directed the agency to proceed with emergency
rulemaking, or is continually republishing existing emergency rules.
(3) Subject to applicable constitutional or statutory provisions, an emergency rule
shall become effective on the date of its adoption, or on a date specified by the agency to be
not more than sixty days from the date of its adoption, provided written notice is given as
required by Subsection B of this Section.
(4) An emergency rule shall not remain in effect beyond the publication date of the
Louisiana Register published in the month following the month in which the emergency rule
is adopted, unless the emergency rule and the reasons for adoption are published in that issue.
An emergency rule shall not be effective for a period longer than one hundred eighty days.
(5) No emergency rule shall be adopted by an agency more than two consecutive
times unless the agency is operating under a state or federal declaration of disaster, a state
or federal public health emergency, or an ongoing emergency as authorized by the legislature,
governor, or other provision of law. However, the agency may concurrently proceed with
the adoption of an identical rule pursuant to the procedure provided for in R.S. 49:961(A).
B.(1) No later than five days after the adoption of an emergency rule, the agency
shall provide notice in writing of its emergency action along with a copy of the emergency
rule. The notice shall contain, at a minimum, all of the following:
(a) A preamble which states the specific provision or provisions of Paragraph (A)(1)
of this Section the agency is citing as cause for emergency rulemaking and the specific facts
and detailed reasoning for emergency rulemaking in order to satisfy the criteria for an
emergency rule.
(b) The name of the person within the agency who has the responsibility for
responding to inquiries about the action.
(c) A statement that the intended action complies with the statutory law administered
by the agency, including a citation of the enabling legislation.
(2)(a) The notice required in Paragraph (1) of this Subsection shall be transmitted to
the governor of the state of Louisiana, the attorney general, the speaker of the House of
Representatives, the president of the Senate, and the office of the state register in accordance
with each entity's transmittal policy.
(b) No later than five days after the adoption of the emergency rule, the agency shall
transmit a copy of the notice required in Paragraph (1) of this Subsection to all persons who
have made timely request of the agency for notice of rule changes.
(3) The office of the state register may omit from the Louisiana Register any
emergency rule which would be unduly cumbersome, expensive, or otherwise inexpedient
to print, if the emergency rule in printed or processed form is made available on application
to the adopting agency, and if the Louisiana Register contains a notice stating the general
subject matter of the omitted emergency rule, the reasons for the finding of the emergency
submitted by the agency, and how a copy may be obtained.
C. The validity of an emergency rule may be determined in an action for declaratory
judgment in the district court of the parish in which the agency is located. The agency shall
be made a party to the action. An action for a declaratory judgment under this Section may
be brought only by a person to whom such emergency rule is applicable or who would be
adversely affected by such emergency rule and only on the grounds that the emergency rule
does not meet the criteria for adoption of an emergency rule as provided in Paragraph (A)(1)
of this Section. The court shall declare the emergency rule invalid if it finds that there is not
sufficient evidence that such emergency rule must be adopted on an emergency basis for one
or more of the reasons for adoption of an emergency rule as provided in Subsection A of this
Section. Notwithstanding any provision of law to the contrary, the emergency rule shall
remain in effect until such declaratory judgment is rendered. The provisions of R.S. 49:968
shall not apply to any action brought pursuant to this Section. The provisions of this Section
are in addition to R.S. 49:968 and shall not limit any action pursuant to R.S. 49:968.
D.(1) Within sixty days after receipt of the emergency rule and agency notice required
in Subsection B of this Section by the presiding officer of either the House of
Representatives or the Senate, an oversight subcommittee of either house may individually
or jointly conduct a hearing to review the emergency rule and make a determination of
whether the emergency rule meets the criteria for an emergency rule set forth in Subsection
A of this Section. The oversight subcommittee shall also make the following determinations:
(a) Whether the emergency rule is in conformity with the intent and scope of the
enabling legislation purporting to authorize the emergency rule.
(b) Whether the emergency rule is in conformity with and not contrary to all
applicable provisions of law and of the constitution.
(c) The advisability or relative merit of the emergency rule.
(d) Whether the emergency rule is acceptable or unacceptable to the oversight
subcommittee.
(2)(a) If within sixty days after receipt of the emergency rule and agency notice
required in Subsection B of this Section either the House or Senate oversight committee
determines that an emergency rule is unacceptable, the respective subcommittee shall provide
a written report which contains the following:
(i) A copy of the emergency rule.
(ii) A summary of the determinations made by the oversight committee.
(b) The written report shall be delivered to the governor, the agency proposing the
rule change, and the Louisiana Register no later than four days after the oversight committee
makes its determination.
(3) If an emergency rule is determined to be unacceptable by an oversight committee,
the agency shall not propose a rule change or emergency rule that is the same as or
substantially similar to the disapproved emergency rule within four months after issuance of
a written report by the subcommittee issued pursuant to this Subsection, nor more than once
during the interim between regular sessions of the legislature.
E. Within sixty days after adoption of an emergency rule, the governor may review
such emergency rule and make the determinations as provided in Subsection D of this
Section. If within this time period the governor finds an emergency rule unacceptable, he
shall prepare a written report as provided in Paragraph (D)(2) of this Section and transmit
copies to the agency proposing the emergency rule and the Louisiana Register no later than
four days after the governor makes his determination.
F. Upon receipt by the agency of a report issued by the oversight subcommittee or the
governor finding an emergency rule unacceptable, the emergency rule shall be nullified and
shall be without effect. The governor shall have no authority to disapprove the action taken
on an emergency rule by the oversight subcommittee.
G. The Department of Wildlife and Fisheries and the Louisiana Wildlife and
Fisheries Commission may employ the timetables and provisions of this Section in
promulgating rules and regulations relative to hunting seasons, trapping seasons, alligator
seasons, shrimp seasons, oyster seasons, and finfish seasons and size limits, and all rules and
regulations pursuant thereto. Rules adopted annually pursuant to this Subsection which open
and close the offshore and fall shrimp seasons, the oyster seasons, the marine finfish seasons,
the webless migratory game bird hunting season, and the trapping season shall be effective
for the duration of the respective season. Notwithstanding the provisions of Subsection D
of this Section, any legislative oversight hearing held on a rule proposed under the provisions
of this Subsection shall be held no earlier than five days and no later than thirty days
following the date of adoption of the rule.
NOTE: Former R.S. 49:962 redesignated as R.S. 49:977.4 by Acts 2022, No. 663,
§1.

Legislative History

Acts 2021, No. 211, §11; Acts 2022, No. 663, §1; Redesignated from R.S. 49:953.1.