Because the effect of the majority’s decision is not merely the invalidation of a regulation, but the de facto permanent prohibition of double celling in existing State prisons, I am *293constrained to dissent. I do not believe that petitioners, who seek to nullify 9 NYCRR 7621.5 (hereinafter the final rule), have met their heavy burden of showing that same is "unreasonable and unsupported by any evidence” (Matter of Consolation Nursing Home v Commissioner of N. Y. State Dept. of Health, 85 NY2d 326, 332 [emphasis supplied]).
The record reveals that respondent State of New York is in the midst of a prison crisis. Respondent Department of Correctional Services (hereinafter DOCS) was operating at nearly 132% of its capacity as of July 1995. This Court cannot ignore court orders requiring DOCS to accept State-ready inmates from county jails within prescribed time periods or face multimillion dollar fines for contempt (see, CPL 430.20 [1]; see also, Matter of Ayers v Coughlin, 72 NY2d 346; Matter of Jackson v New York State Dept. of Correctional Servs., 173 AD2d 467). This Court also cannot ignore its own decision validating Laws of 1995 (ch 3, § 29), which permitted respondent Governor to bar certain violent felony offenders from entering DOCS temporary release and residential treatment programs (see, Dorst v Pataki, 228 AD2d 4). Compelled to both accept an ever-increasing number of new prison inmates and to prevent the early release of existing inmates, respondent State Commission of Correction (hereinafter the Commission) has been left without any other short-term solution to this crisis other than the adoption of the final rule permitting temporary double celling.
In this environment, we should be mindful that the Court of Appeals has summarized the standards to be applied in determining the validity of a challenged regulation: "The function of a reviewing court is a limited one. The challenger of a regulation must establish that the regulation 'is so lacking in reason for its promulgation that it is essentially arbitrary’ * * *. The interpretation given a statute by the administering agency 'if not irrational or unreasonable, should be upheld’ ” (Ostrer v Schenck, 41 NY2d 782, 786 [emphasis supplied]). Indeed, "[administrative rules are not judicially reviewed pro forma in a vacuum, but are scrutinized for genuine reasonableness and rationality in the specific context” (New York State Assn. of Counties v Axelrod, 78 NY2d 158, 166). Notably, an administrative agency’s exercise of its rule-making powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise (see, Matter of Memorial Hosp. v Axelrod, 68 NY2d 958, 960).
In my opinion, the final rule as adopted by the Commission—a body with special competence in this area—has not *294been proven by petitioners to be arbitrary or unreasonable. The majority’s finding of unreasonableness is based on the admitted inconsistency between the final rule and 9 NYCRR 7621.6 (multiple occupancy housing units). While there can be no doubt that these two provisions are inconsistent because the final rule violates the 50-square-foot requirement for multiple occupancy housing units (and, notwithstanding the Attorney-General’s protestations to the contrary, two inmates in a cell is an obvious multiple occupancy), I find that the current crisis and the lack of other viable options provide a rational basis for adopting inconsistent regulations.
Only two recently constructed State prisons have been specifically designed for double celling. The vast majority of cells in the State are 60 square feet or less. It is therefore impossible for the Commission to promulgate regulations for double celling which would be consistent with 9 NYCRR 7621.6. Respondent Commissioner of Correctional Services believes it is preferable to spread very limited double celling* among all DOCS facilities rather than to concentrate it exclusively in two, thereby minimizing potentially adverse incidents. This exercise of judgment and expertise must be accorded high judicial deference (see, Matter of Memorial Hosp. v Axelrod, supra). Said differently, I. am persuaded that the means chosen by the Commissioner to accomplish the unavoidable need for additional beds in State prisons have not been proven by petitioners to be "so lacking in reason” as to be arbitrary.
The rationality of the final rule is further buttressed by the safeguards provided within the rule itself. Although the square footage of a double occupancy housing unit is modest—60 square feet—it is comparable to other double occupancy housing units throughout the country, including Federal prisons. Additionally, inmates must undergo a screening and risk assessment prior to being assigned to a double occupancy housing unit (see, 9 NYCRR 7621.5 [e]). Most importantly, and unlike the original emergency regulation at issue in proceeding No. 1 (168 Misc 2d 781), the final rule imposes a 60-day limitation on an inmate’s involuntary confinement in a double cell (see, 9 NYCRR 7621.5 [g]). It is this latter restriction, preventing indefinite double celling, which is most compelling in shielding the final rule from being invalidated on arbitrary and capricious grounds.
*295Finally, although the reconcilability of two inconsistent regulations is at issue in this proceeding, the general rule of statutory interpretation is that a subsequent statute prevails over a preexisting and irreconcilably conflicting statute which is not expressly repealed (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 391, 398). Likening these principles to the instant regulations, to the extent that the final rule and 9 NYCRR 7621.6 cannot be reconciled because of the square-footage inconsistencies, I find the final rule to be an implicit repeal of 9 NYCRR 7621.6 as the latter applies to double celling.
Scrutinizing the final rule not in a vacuum but in the specific context of the prison crisis, I find it to be reasonable and would reverse the order of Supreme Court (Ceresia, Jr., J.) (170 Misc 2d 143) invalidating it.
I concur in the majority’s conclusion that the appeal in proceeding No. 1 should be dismissed as moot.
Cardona, P. J., Mercure and Casey, JJ., concur with Spain J.; Carpinello, J., concurs in part and dissents in part in a separate opinion.
Ordered that the appeal in proceeding No. 1 is dismissed, as moot, without costs.
Ordered that the judgment in proceeding No. 2 is affirmed, without costs.
The final rule only impacts a small percentage of the 20,000 cell units within DOCS. DOCS has only been authorized to convert 866 cells for double occupancy use and, as of February 1996, the average number of cells actually used for this purpose was 610.