Could a Louisiana agency satisfy emergency-rule written notice by fax or PDF alone?

Plain-English summary

Louisiana's Department of Health and Hospitals asked whether sending a fax or computer PDF met the “in writing” requirement for an emergency rule under LSA-R.S. 49:953. In this 2006 opinion, the Attorney General advised against relying solely on those transmission methods. The statute did not expressly authorize fax or PDF delivery, although it did not expressly prohibit them either.

The quoted rulemaking provision required an agency finding imminent peril or another specified emergency basis to state its reasons in writing to the named state officials and the Department of the State Register within five days of adopting an emergency rule. The AG observed that other statutes expressly recognized these formats when accepted, and recommended a legislative amendment addressing electronic transmission. The opinion did not definitively rule that every faxed or PDF statement was invalid.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say fax or PDF delivery satisfied the emergency-rule notice requirement?

No. It said the statute lacked express authorization for those formats and recommended against relying on either alone.

Did the 2006 statute expressly ban fax or PDF delivery?

No. The opinion acknowledged that the statute contained no express prohibition either.

What written statement did the quoted provision require?

The agency had to give its reasons for emergency adoption in writing to the governor, attorney general, legislative leaders and Department of the State Register within the period stated in the quoted provision.

What remedy did the AG propose for the transmission uncertainty?

The opinion recommended seeking legislative language specifically governing methods such as fax and computer PDF.

Background and statutory framework

LSA-R.S. 49:953(B) governed abbreviated emergency-rule adoption after an agency found one of the statutory emergency bases. The request concerned transmission of its required written explanation, not whether the agency had a valid emergency. The AG found no explicit fax or PDF rule in the statute and framed its answer as a recommendation against exclusive reliance on those methods.

Citations

• LSA-R.S. 49:953 (emergency-rule written statement).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0437

Original opinion text

August 28, 2006
OPINION NUMBER 05-0437

61 – LAWS - General

Mr. Frank H. Perez
Because LSA-R.S. 49:953 does not explicitly
General Counsel
authorize an agency to transmit the “in writing”
Department of Health and Hospitals requirement by others means of transmission such as facsimile or computer.pdf formats, this office does not 1201 Capitol Access Road recommend reliance solely upon these methods of
P. O. Box 3836
transmission.
Baton Rouge, LA 70821-3836

Dear Mr. Perez:

Your request for an Attorney General opinion was forwarded to me for research and reply. Your question is whether an electronic submission by way of facsimile or computer pdf satisfies the “in writing” requirement as interpreted by LSA-R.S. 49:953.

Louisiana Revised Statute 49:953(B) provides as follow:

B. (1) If an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule upon shorter notice than that provided in Subsection A of this Section and within five days of adoption states in writing to the governor of the state of Louisiana, the attorney general of Louisiana, the speaker of the House of Representatives, the president of the Senate, and the Department of the State Register, its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule. The provisions of this Paragraph also shall apply to the extent necessary to avoid sanctions or penalties from the United States, or to avoid a budget deficit in the case of medical assistance programs or to secure new or enhanced federal funding in medical assistance programs. The agency statement of its reason for finding it necessary to adopt an emergency rule shall include specific reasons why the failure to adopt the rule on an emergency basis would result in imminent peril to the public health, safety, or welfare, or specific reasons why the emergency rule meets other criteria provided in this Paragraph for adoption of an emergency rule.

Page 2

MR. FRANK PEREZ
OPINION NUMBER 05-0437
Page - 3 –

There is no provision contained within R.S. 49:953 which explicitly authorizes an agency to transmit such action taken as it relates to any rule by way of facsimile or computer pdf format, nor does the statute prohibit such transmissions. Since the statute does not specifically provide for these methods, this office does not recommend that you rely solely upon these methods of transmission especially when our research has found that where these formats are accepted they have been explicit within the statute.

In conclusion, it is the opinion of this office that legislative assistance should be sought in amending the statute to include a provision that specifically governs the transmission of the “in writing” requirement by methods which may include facsimile and computer pdf transmissions.

We hope this opinion has sufficiently addressed your concerns. If our office may be of further assistance, please do not hesitate to contact us.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: ___
CHARLENE PATTERSON
Assistant Attorney General
/cp

Page 3

MR. FRANK PEREZ
OPINION NUMBER 05-0437
Page - 3 –

OPINION NUMBER 05-0437

61-LAWS-GENERAL

Because LSA-R.S. 49:953 does not explicitly authorize an agency to transmit the “in writing” requirement by others means of transmission such as facsimile or computer.pdf formats, this office does not recommend reliance solely upon these methods of transmission.

Mr. Frank H. Perez
General Counsel
Department of Health and Hospitals
1201 Capitol Access Road
P. O. Box 3836
Baton Rouge, LA 70821-3836

DATE RECEIVED:

DATE RELEASED: August 28, 2006

CHARLENE PATTERSON
ASSISTANT ATTORNEY GENERAL