The Office of General Counsel issued the following informal opinion on July 17, 2001, representing the position of the New York State Insurance Department.
RE: Retroactive Application of Changes Made to Regulation 169.
When Regulation 169 is approved in final form, with any changes, will these changes apply retroactively?
In the case of Regulation 169, it is expected that the permanent rule will not differ from the emergency rule currently in effect. However, if there are any changes, they will apply prospectively from the date that the change is made, either in another emergency regulation or when the final rule becomes effective.
No specific facts were provided.
Pursuant to section 202(6)(a) of the State Administrative Procedure Act ("SAPA"), rules may be adopted on an emergency basis if an agency finds that the immediate adoption of a rule is necessary for the preservation of public health, safety or general welfare and that compliance with the requirements of the proposal process would be contrary to the public interest. Section 202(6)(b) provides that an emergency rule will expire in 90 days after being filed with the Secretary of State and each re-adoption after a proposed rulemaking is made will be effective for 60 days. Generally, the new emergency rule will apply prospectively from its effective date.
Regulation 169 is currently effective on an emergency basis. The Department anticipates that the final rule will not differ from the emergency rule currently in effect. However, if there are any changes, they will apply prospectively from the date that the changes are made, either in another emergency regulation or when the final rule becomes effective.
The above opinion is informal and not binding on any court. For further information, you may contact Attorney Pascale Joasil at the New York City office.