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Representative John Miskelly
AGENCY — ADOPTION OF EMERGENCY RULES If an agency falls under the provisions of 75 O.S. 301 [75-301] (1971), et seq., known as the Administrative Procedures Act, then that agency must follow Section 75 O.S. 303 [75-303](b) in adopting emergency rules and regulations. Further, that if an agency is excepted from the provisions of the Administrative Procedures Act then it must follow 75 O.S. 253 [75-253] (1971) in adopting its emergency rules and regulations.
The Attorney General's office is in receipt of your opinion request wherein you ask, in effect, the following question: Should an agency follow 75 O.S. 253 [75-253] (1971) or 75 O.S. 303 [75-303](b) (1971) in adopting emergency rules and regulations?
Title 75 O.S. 253 [75-253] (1971) which was adopted in 1961, states as follows: "If an emergency situation arises and the preservation of the public peace, health, safety, welfare, or other compelling extraordinary circumstances require that an emergency rule or regulation, amendment, revision, or revocation of an existing rule or regulation become effective without delay, an agency may adopt any such, provided the Governor shall first certify to this effect, and all emergency adoptions shall be in force immediately, or on such date as specified therein, and the Governor shall immediately file copies of his certification and the emergency adoption with the Secretary of State and the State Librarian and Archivist as provided in Section l(a) of this act.
The Governor's certificate and the emergency adoption shall be published in accordance with the provisions of Section 5 of this Act.
Executive orders of the Governor shall become effective upon the date specified therein or immediately upon issuance, and shall, be published as required by Section 5 of this Act." At the time of adoption this particular act relating to state agency rules and regulations required that every agency, including any authority, board, commission, department, instrumentality, office, or officer of the State of Oklahoma, that possesses rule-making powers shall file a certified original and one duplicate copy of all its rules or regulations in force and effect with the Secretary of State and a certified original and two duplicate copies with the State Librarian and Archivist on or before the effective date of this act.
Title 75 O.S. 303 [75-303](b) (1971), which was adopted in 1963, states as follows: "(b) If an agency finds that an imminent peril to the public health, safety or welfare requires adoption of a rule upon fewer than twenty (20) days notice and states in writing its reasons for that finding, it may receive without prior notice or hearing or upon any abbreviated notice of hearing that it finds practicable, to adopt an emergency rule.
The rule may be effective for a period of not longer than one hundred and twenty (120) days, but the adoption of identical rule under the procedures set by subsection (a) is not precluded.
The sufficiency of the reasons for a finding of imminent peril to the public health, safety or welfare shall be subject to judicial review." Section 27 of the original House Bill, which is not set forth in the statutes, expressly provided the following: "All laws or parts of laws, encompassed herewith are hereby repealed to the extent of such conflict." Therefore the provisions of the 1961 Act would not be repealed except to the extent that any provision of a new act would be in conflict with the 1961 Act.
This follows the general rule of statutory construction as expressed in In re Kendall, 292 P.2d 1022, wherein the Court held that where two conflicting and inconsistent statutes are passed, the last enactment of the Legislature takes precedence over prior enactments in that it expresses the latest intention of the Legislature.
It is therefore clear that all agencies which fall under the provisions of the 1963 Act must follow the emergency rules adoption procedure as set forth in Section 303(b), and that all agencies excepted from the Act (see Section 301) and have rule-making powers, shall follow the provisions as set forth under Section 253.
It is, therefore, the opinion of the Attorney General that if an agency falls under the provisions of 75 O.S. 301 [75-301] (1971), et seq., known as the Administrative Procedures Act, then that agency must follow Section 75 O.S. 303 [75-303](b) in adopting emergency rules and regulations. Further that if an agency is excepted from the provisions of the Administrative Procedures Act then it must follow 75 O.S. 253 [75-253] (1971) in adopting its emergency rules and regulations. (Donald B. Nevard)