ARTICLE 1 General Provisions
Legislative intent. The legislature hereby finds and declares
that the administrative rulemaking, adjudicatory and licensing processes
among the agencies of state government are inconsistent, lack uniformity
and create misunderstanding by the public. In order to provide the
people with simple, uniform administrative procedures, an administrative
procedure act is hereby enacted. This act guarantees that the actions of
administrative agencies conform with sound standards developed in this
state and nation since their founding through constitutional, statutory
and case law. It insures that equitable practices will be provided to
meet the public interest.
It is further found that in the public interest it is desirable for
state agencies to meet the requirements imposed by the administrative
procedure act. Those agencies which will not have to conform to this
act have been exempted from the act, either specifically by name or
impliedly by definition.
Short title. This chapter shall be known and may be cited as
the "State Administrative Procedure Act."
Definitions. As used in this chapter,
* 1. "Agency" means any department, board, bureau, commission,
division, office, council, committee or officer of the state, or a
public benefit corporation or public authority at least one of whose
members is appointed by the governor, authorized by law to make rules or
to make final decisions in adjudicatory proceedings but shall not
include the governor, agencies in the legislative and judicial branches,
agencies created by interstate compact or international agreement, the
division of military and naval affairs to the extent it exercises its
responsibility for military and naval affairs, the division of state
police, the identification and intelligence unit of the division of
criminal justice services, the state insurance fund, the unemployment
insurance appeal board, and except for purposes of subdivision one of
section two hundred two-d and section two hundred two-f of this chapter,
the workers' compensation board and except for purposes of article two
of this chapter, the department of corrections and community
supervision.
* NB Effective until January 1, 2027
* 1. "Agency" means any department, board, bureau, commission,
division, office, council, committee or officer of the state, or a
public benefit corporation or public authority at least one of whose
members is appointed by the governor, authorized by law to make rules or
to make final decisions in adjudicatory proceedings but shall not
include the governor, agencies in the legislative and judicial branches,
agencies created by interstate compact or international agreement, the
division of military and naval affairs to the extent it exercises its
responsibility for military and naval affairs, the division of state
police, the identification and intelligence unit of the division of
criminal justice services, the state insurance fund, the unemployment
insurance appeal board, and except for purposes of subdivision one of
section two hundred two-d of this chapter, the workers' compensation
board and except for purposes of article two of this chapter, the
department of corrections and community supervision.
* NB Effective January 1, 2027
2. (a) "Rule" means (i) the whole or part of each agency statement,
regulation or code of general applicability that implements or applies
law, or prescribes a fee charged by or paid to any agency or the
procedure or practice requirements of any agency, including the
amendment, suspension or repeal thereof and (ii) the amendment,
suspension, repeal, approval, or prescription for the future of rates,
wages, security authorizations, corporate or financial structures or
reorganization thereof, prices, facilities, appliances, services or
allowances therefor or of valuations, costs or accounting, or practices
bearing on any of the foregoing whether of general or particular
applicability.
(b) Not included within paragraph (a) of this subdivision are:
(i) rules concerning the internal management of the agency which do
not directly and significantly affect the rights of or procedures or
practices available to the public;
(ii) rules relating to the use of public works, including streets and
highways, when the substance of such rules is indicated to the public by
means of signs or signals;
(iii) rulings issued under section two hundred four or two hundred
five of this chapter;
(iv) forms and instructions, interpretive statements and statements of
general policy which in themselves have no legal effect but are merely
explanatory;
(v) rules promulgated to implement agreements pursuant to article
fourteen of the civil service law;
(vi) rates of interest prescribed by the superintendent of financial
services pursuant to section fourteen-a of the banking law;
(vii) rules relating to the approval or disapproval of subscriber
rates contained in an application to the public service commission,
after public hearing and approval by the applicable municipality for a
certificate of confirmation or an amendment to a franchise agreement;
(viii) appraisal models, discount rates, state equalization rates,
class ratios, special equalization rates and special equalization ratios
established pursuant to the real property tax law;
(ix) rates subject to prior approval by the superintendent of
financial services or to section two thousand three hundred forty-four
of the insurance law;
(x) any regulation promulgating an interim price and any final
marketing order made by the commissioner of agriculture and markets
pursuant to section two hundred fifty-eight-m of the agriculture and
markets law;
(xi) any fee which is:
(1) set by statute;
(2) less than one hundred dollars;
(3) one hundred dollars or more and can reasonably be expected to
result in an annual aggregate collection of not more than one thousand
dollars;
(4) established through negotiation, written agreement or competitive
bidding, including, but not limited to, contracts, leases, charges,
permits for space use, prices, royalties or commissions; or
(5) a charge or assessment levied by an agency upon another agency or
by an agency upon another unit of state government.
(xii) changes in a schedule filed by a telephone corporation subject
to the jurisdiction of the public service commission;
(xiii) rules relating to requests for authority by a telephone
corporation subject to the jurisdiction of the public service commission
under sections ninety-nine, one hundred and one hundred one of the
public service law and by a public utility subject to the jurisdiction
of the public service commission under section one hundred seven of the
public service law;
(xiv) any regulation comprised solely of one or more additions to the
list of nonprescription drugs reimbursable under the medicaid program
pursuant to paragraph (a) of subdivision four of section three hundred
sixty-five-a of the social services law.
3. "Adjudicatory proceeding" means any activity which is not a rule
making proceeding or an employee disciplinary action before an agency,
except an administrative tribunal created by statute to hear or
determine allegations of traffic infractions which may also be heard in
a court of appropriate jurisdiction, in which a determination of the
legal rights, duties or privileges of named parties thereto is required
by law to be made only on a record and after an opportunity for a
hearing.
4. "License" includes the whole or part of any agency permit,
certificate, approval, registration, charter, or similar form of
permission required by law.
5. "Licensing" includes any agency activity respecting the grant,
denial, renewal, revocation, suspension, annulment, withdrawal, recall,
cancellation or amendment of a license.
6. "Person" means any individual, partnership, corporation,
association, or public or private organization of any character other
than an agency engaged in the particular rule making, declaratory
ruling, or adjudication.
7. "Party" means any person or agency named or admitted as a party or
properly seeking and entitled as of right to be admitted as a party; but
nothing herein shall be construed to prevent an agency from admitting
any person or agency as a party for limited purposes.
8. "Small business" means any business which is resident in this
state, independently owned and operated, and employs one hundred or less
individuals.
9. "Substantial revision" means any addition, deletion or other change
in the text of a rule proposed for adoption, which materially alters its
purpose, meaning or effect, but shall not include any change which
merely defines or clarifies such text and does not materially alter its
purpose, meaning or effect. To determine if the revised text of a
proposed rule contains a substantial revision, the revised text shall be
compared to the text of the rule for which a notice of proposed rule
making was published in the state register; provided, however, if a
notice of revised rule making was previously published in the state
register, the revised text shall be compared to the revised text for
which the most recent notice of revised rule making was published.
10. "Rural area" means those portions of the state so defined by
subdivision seven of section four hundred eighty-one of the executive
law.
11. "Consensus rule" means a rule proposed by an agency for adoption
on an expedited basis pursuant to the expectation that no person is
likely to object to its adoption because it merely (a) repeals
regulatory provisions which are no longer applicable to any person, (b)
implements or conforms to non-discretionary statutory provisions, or (c)
makes technical changes or is otherwise non-controversial.
13. "Data" means written information or material, including, but not
limited to, statistics or measurements used as the basis for reasoning,
calculations or conclusions in a study.
14. "Guidance document" means any guideline, memorandum or similar
document prepared by an agency that provides general information or
guidance to assist regulated parties in complying with any statute, rule
or other legal requirement, but shall not include documents that concern
only the internal management of the agency or declaratory rulings issued
pursuant to section two hundred four of this chapter.
Small business regulation guides. 1. For each rule or group
of related rules which significantly impact a substantial number of
small businesses, the agency which adopted the rule shall post on its
website one or more guides explaining the actions a small business may
take to comply with such rule or group of rules if the agency determines
that such guide or guides will assist small businesses in complying with
the rule, and shall designate each such posting as a "small business
regulation guide". The guide shall explain the actions a small business
may take to comply with a rule or group of rules, identify any sources
of information or assistance available to facilitate small business
regulatory compliance, and, where appropriate, include information on
(a) the most common regulatory violations that small businesses are
cited for by the agency, (b) statistical information on the frequency of
violations of various regulations by small businesses and (c) any
actions that small businesses can reasonably undertake to minimize or
prevent the occurrence of such violations, including any relevant
information and analysis.
2. The agency shall, in its sole discretion, taking into account the
subject matter of the rule and the language of relevant statutes, ensure
that the guide is written using sufficiently plain language that it is
likely to be understood by affected small businesses. Agencies shall
cooperate with other state agencies in developing such guides.
Small business liaison. The departments of agriculture and
markets, environmental conservation, labor, transportation, and taxation
and finance shall designate an existing employee to serve as the liaison
to small businesses regulated by such agency. The direct contact
information of the small business liaison shall be prominently posted
and easily accessible on the agency website. The small business liaison
shall:
(a) serve as an initial primary contact for small businesses to
contact with any inquiries;
(b) be equipped to provide small businesses with basic information on
the agency and its regulations;
(c) help small businesses navigate the agency bureaucracy to identify
and contact the appropriate staff person within the agency, either at
the state or regional level, for more specific information pertaining to
the small business;
(d) hear the concerns of small businesses, report those concerns to
appropriate agency staff and offer possible solutions to such concerns;
(e) advocate within the agency on behalf of small businesses, and make
recommendations to the agency head on matters affecting small
businesses;
(f) initiate and encourage small business education and outreach
programs on behalf of the agency, as appropriate;
(g) collaborate with the appropriate agency staff on any small
business regulation guide pursuant to section one hundred two-a and any
small business regulatory flexibility analysis pursuant to section two
hundred two-b of this chapter; and
(h) coordinate his or her activities with the division for small
business within the department of economic development, and the small
business development center.
Construction; severability. 1. (a) Except with respect to the
provisions of paragraph (c) of this subdivision, or of paragraph (b) of
subdivision one and subdivision six of section two hundred two of this
chapter, the provisions of this chapter shall not be construed to limit
or repeal additional requirements imposed by statute or otherwise.
(b) The provisions of section two hundred two of this chapter shall
not relieve any agency from compliance with any statute requiring that
its rules be filed with or approved by designated persons or bodies
before such rules become effective.
(c) Notwithstanding the requirements of any statute, when adopting a
consensus rule as defined in this chapter, an agency may in its
discretion dispense with any statutory requirement for public hearing or
publication of a notice in any newspaper or publication other than the
state register, unless such requirement is explicitly directed at the
rule which is being adopted.
2. The provisions of this chapter shall not be deemed to repeal
section six hundred fifty-nine of the labor law.
3. The provisions of this chapter shall apply only to rule making,
adjudicatory and licensing proceedings commencing on or after the
effective date of this chapter.
4. If any provision of this chapter or the application thereof to any
person or circumstances is adjudged invalid by a court of competent
jurisdiction, such judgment shall not affect or impair the validity of
the other provisions of the chapter or the application thereof to other
persons and circumstances.
Access to studies and data. 1. An agency, upon request, shall,
within thirty days, make available for inspection and copying any
scientific or statistical study, report or analysis, including any such
study, report or analysis prepared by a person or entity pursuant to a
contract with the agency or funded in whole or in part through a grant
from the agency that is used as the basis of a proposed rule and any
supporting data; provided, however, that the agency shall provide for
inspection only of any such study, report or analysis due to copyright
restrictions.
2. An agency that contracts with a person or entity for the
performance of a study or awards a grant for such purpose shall require
as a condition or term of such contract or grant that the person or
entity shall provide to the agency the study, any data supporting the
study, and identity of the principal person or persons who performed
such study for disclosure in accordance with the provisions of this
section and of article six of the public officers law.
ARTICLE 2 Rule Making
Adoption of procedures; plain language. This article
establishes minimum procedures for all agencies, provided, however, an
agency may adopt by rule additional procedures not inconsistent with
statute. Each agency shall strive to ensure that, to the maximum extent
practical, its rules, regulations and related documents are written in a
clear and coherent manner, using words with common and everyday
meanings.
Job impact. 1. In developing a rule, an agency shall strive
to accomplish the objectives of applicable statutes in a manner which
minimizes any unnecessary adverse impacts on existing jobs and promotes
the development of new employment opportunities, including opportunities
for self-employment, for the residents of the state.
2. Before proposing a rule for adoption or adopting a rule on an
emergency basis, an agency shall evaluate the potential impact of the
rule on jobs and employment opportunities.
(a) When it is apparent from the nature and purpose of the rule that
it will not have a substantial adverse impact on jobs and employment
opportunities, the agency shall include in the notice of proposed rule
making or the notice of emergency adoption a statement that the agency
has determined that the rule will not have a substantial adverse impact
on jobs and employment opportunities; provided, however, that, where
appropriate, such statement shall indicate that the agency has
determined the rule will have a positive impact on jobs and employment
opportunities, or will have no impact on jobs and employment
opportunities. Except where it is evident from the subject matter of the
rule that the rule could only have a positive impact or no impact on
jobs and employment opportunities, the agency shall include in the
statement prepared pursuant to this paragraph a summary of the
information and methodology underlying its determination.
(b) When it is apparent from the nature and purpose of the rule that
it may have a substantial adverse impact on jobs or employment
opportunities, the agency shall issue a job impact statement which
contains information on:
(i) the nature of the impact the rule will have on jobs and employment
opportunities;
(ii) the categories of jobs or employment opportunities affected by
the rule;
(iii) the approximate number of jobs or employment opportunities
affected in each category;
(iv) any region of the state where the rule would have a
disproportionate adverse impact on jobs or employment opportunities; and
(v) any measures which the agency has taken to minimize any
unnecessary adverse impacts on existing jobs and to promote the
development of new employment opportunities.
(c) When the information available to an agency is insufficient to
enable it to determine whether a rule will have a substantial adverse
impact on jobs or employment opportunities, or to prepare a job impact
statement pursuant to paragraph (b) of this subdivision, the agency
shall issue a statement indicating the information which it needs to
complete a job impact statement and requesting the assistance of other
state agencies and the public in obtaining such information.
(d) An agency shall issue a revised job impact statement when:
(i) the information presented in the statement is inadequate or
incomplete;
(ii) the proposed rule contains any substantial revisions which
necessitate that such statement be modified; or
(iii) the agency has issued a statement pursuant to paragraph (c) of
this subdivision, and has received information from other state agencies
or the public which enable it to provide a more complete evaluation of
the potential impact of the rule on jobs and employment opportunities.
(e) If, after requesting the assistance of other state agencies and
the public pursuant to paragraph (c) of this subdivision, an agency is
still unable to determine whether the rule will have a substantial
adverse impact on jobs and employment opportunities, it may adopt the
rule. When adopting a rule pursuant to this paragraph, the agency shall
issue a revised job impact statement which includes information on the
measures the agency took to evaluate the potential impact of the rule on
jobs and employment opportunities.
(f) When adopting a rule on an emergency basis, an agency may defer
the issuance of any statement pursuant to this section, provided that
the statement is published in the state register within thirty days of
the effective date of the emergency rule.
(g) When any statement issued pursuant to this section exceeds two
thousand words, the agency shall prepare a summary of such statement in
less than two thousand words for publication in the state register in
which it shall identify the website of the agency, or of another state
entity, on which the full text of the statement has been posted.
(h) An agency may consider a series of closely related and
simultaneously proposed rules as one rule for the purpose of submitting
a consolidated job impact statement.
(i) Where a rule would have a measurable impact on opportunities for
self-employment, the agency shall include a discussion of such impact in
any statement prepared pursuant to this section.
3. (a) The commissioner of labor and the commissioner of economic
development may review any statement issued pursuant to this section,
and may consult informally with any agency preparing such a statement
and advise it on the potential impact of a rule on jobs and employment
opportunities.
(b) When the commissioner of labor and the commissioner of economic
development concur in a determination that additional evaluation of the
potential impact of a proposed rule on jobs and employment opportunities
is needed to assist in the minimization of any unnecessary adverse
impacts of the rule on jobs or employment opportunities, they shall
issue a statement of concurrence and transmit a copy of such statement
to the agency and to the secretary of state for publication in the state
register. The statement of concurrence shall:
(i) identify each proposed rule which is the subject of the statement
of concurrence;
(ii) set forth the basis for the determination that additional
evaluation of the potential impact of the rule is needed to assist in
the minimization of any unnecessary adverse impacts on jobs or
employment opportunities, and, where relevant, identify each aspect of
the job impact statement which is incomplete or deficient;
(iii) include appropriate recommendations for additional evaluation of
the impact of the rule or of any measures which the agency should
consider to minimize any adverse impacts of the rule on jobs or
employment opportunities; and
(iv) specify a time period of not more than ninety days for the agency
to perform such additional evaluation or consider such recommendations.
(c) An agency shall strive to perform such additional evaluation or
consider such measures as are recommended in a statement of concurrence
within the time period set forth therein. No agency shall adopt the rule
which is the subject of the statement of concurrence until:
(i) the agency has performed the additional evaluation or considered
the measures recommended in the statement of concurrence, and has issued
a revised job impact statement, which is acceptable to the commissioners
of economic development and labor, setting forth any changes which it
will make to the rule to minimize any adverse impacts on jobs or
employment opportunities; or
(ii) after the expiration of the time period set forth in the
statement of concurrence.
(d) The statement of concurrence shall be considered public comment
for the purpose of this article and shall be summarized and analyzed in
any assessment of public comment.
4. Nothing in this section shall be construed as preventing an agency
from adopting a rule on an emergency basis at any time.
5. Copies of any statement prepared pursuant to this section,
including any statement of concurrence, shall be distributed as provided
in subdivision six-a of section two hundred two of this article.
6. For the purposes of this section:
(a) "rule" shall mean any rule proposed or any rule adopted on an
emergency basis pursuant to this article, except for:
(i) any rule defined in subparagraph (ii) of paragraph (a) of
subdivision two of section one hundred two of this article;
(ii) any rule defined in subdivisions ten, eleven or twelve of section
one hundred two of this article; or
(iii) any rule proposed or adopted by the state comptroller or the
attorney general.
(b) "impact on jobs or employment opportunities" shall mean a change
in the number of jobs and employment opportunities, including
opportunities for self-employment, primarily attributable to the
adoption of a rule, which would otherwise be available to the residents
of the state in the two-year period commencing on the date the rule
takes effect.
(c) "substantial adverse impact on jobs or employment opportunities"
shall mean a decrease of more than one hundred full-time annual jobs and
employment opportunities, including opportunities for self-employment,
in the state, or the equivalent in part-time or seasonal employment,
which would otherwise be available to the residents of the state in the
two-year period commencing on the date the rule takes effect.
Rule making procedure. 1. Notice of proposed rule making. (a)
Prior to the adoption of a rule, an agency shall submit a notice of
proposed rule making to the secretary of state for publication in the
state register and shall afford the public an opportunity to submit
comments on the proposed rule. Unless a different time is specified by
statute, the notice of proposed rule making must appear in the state
register at least sixty days prior to either
(i) the addition, amendment or repeal of a rule for which statute does
not require that a public hearing be held prior to adoption, or
(ii) the first public hearing on a proposed rule for which such
hearing is so required.
The notice of proposed rule making shall indicate the last date for
submission of comments on the proposed rule, which, unless a different
time is specified in statute or this paragraph, shall be not less than
sixty days after the date of publication of such notice, or, if statute
requires that a public hearing be held prior to adoption, not less than
five days after the date of the last public hearing scheduled to be held
on the proposed rule. Notwithstanding any other provision of this
paragraph, when the notice of proposed rule making contains only a
description of the subject, purpose and substance of the rule as
provided in subparagraph (v) of paragraph (f) of this subdivision, the
full text of the proposed rule shall be posted on a website maintained
by the agency or another state entity and shall remain posted until such
proposed rule is adopted, revised, withdrawn or expires pursuant to this
article, except that such web posting shall not be required for any rule
defined in subparagraph (ii) of paragraph (a) of subdivision two of
section one hundred two of this chapter.
(b) (i) When an agency submits a notice of proposed rule making as
provided in paragraph (a) of this subdivision solely for the purpose of
proposing a consensus rule for adoption, the agency may dispense with
any requirement for public hearing and the requirements of subparagraphs
(ii), (iii), (iv), (vi) and (vii) of paragraph (f) of this subdivision;
provided, however, that such notice shall include a statement setting
forth a clear and concise explanation of the basis for the agency's
determination that no person is likely to object to the adoption of the
rule as written.
(ii) If any public comment is received on the rule which contains any
objection to adoption of a consensus rule, the agency must withdraw the
notice of proposed rule making for the consensus rule and may submit a
notice of proposed rule making for such rule making which complies with
all of the relevant provisions of this subdivision.
(iii) Unless otherwise provided by law, a rule defined in subparagraph
(ii) of paragraph (a) of subdivision two of section one hundred two of
this chapter may be adopted as a consensus rule in accordance with the
provisions of this paragraph; provided, however, that for the purposes
of paragraph (c) of subdivision one of section one hundred three of this
chapter, any public hearing required by law to be held on any such rule
shall be deemed to be explicitly directed at such rule. No such rule
which is defined by the public service law as a "major change" may be
adopted as a consensus rule.
(c) When appropriate in the judgment of the agency, a notice may also
be published in newspapers of general circulation and in trade, industry
or professional publications as the agency may select, and may be posted
on the agency's internet website, and may be transmitted to newspapers
and trade, industry or professional publications by electronic means in
accordance with article three of the state technology law.
(d) The requirement for publication of a notice of proposed rule
making in the state register shall not preclude the initiation of a
public hearing with respect to the proposal of any rule defined in
subparagraph (ii) of paragraph (a) of subdivision two of section one
hundred two of this chapter where notice otherwise consistent with the
provisions of this subdivision has been given, provided, however, in all
situations notice must be published within a reasonable time prior to
the hearing.
(e) When an agency submits a notice of proposed rule making for a rule
which was proposed for adoption as a consensus rule and subsequently
withdrawn pursuant to paragraph (b) of this subdivision, such notice
shall identify the prior notice of proposed rule making and shall
briefly describe the objection or objections which caused the prior
notice of proposed rule making to be withdrawn.
(f) The notice of proposed rule making shall:
(i) cite the statutory authority, including particular sections and
subdivisions, under which the rule is proposed for adoption;
(ii) give the date, time and place of any public hearing or hearings
which are scheduled;
(iii) state whether or not the place of any public hearing or hearings
shall be reasonably accessible to persons with a mobility impairment;
for purposes hereof, "persons with a mobility impairment" shall mean
those persons with a physical impairment which is permanent and severely
limits that person's mobility, or a person who is unable to ambulate
without the aid of a wheelchair or other prosthetic device; provided,
however, that the failure of such accessibility in accordance herewith,
upon diligent effort to have provided same, shall have no effect upon
any actions or proceedings taken at any such subject hearings;
(iv) include a statement that interpreter services shall be made
available to deaf persons, at no charge, upon written request to such
agency representative as shall be designated pursuant to subparagraph
(viii) of this paragraph within a reasonable time prior to any scheduled
public hearing or hearings. If interpreter services are requested, the
agency conducting the rule making proceeding in all instances shall
appoint a qualified interpreter who is certified by a recognized
national or New York state credentialing authority to interpret the
proceedings to, and the testimony of, such deaf person. Such agency
shall determine a reasonable fee for all such interpreting services
which shall be a charge upon the agency;
(v) contain the complete text of the proposed rule, provided, however,
if such text exceeds two thousand words, the notice shall contain only a
description of the subject, purpose and substance of such rule in less
than two thousand words and shall identify the address of the website on
which the full text has been posted;
(vi) include a regulatory impact statement prepared pursuant to
section two hundred two-a of this article, provided, however, if such
statement exceeds two thousand words, the notice shall include only a
summary of such statement in less than two thousand words and the full
text of such statement shall be posted on a website maintained by the
agency or another state entity until such statement is revised or the
proposed rule is adopted or withdrawn or expires pursuant to this
article;
(vii) include a regulatory flexibility analysis and a rural area
flexibility analysis prepared pursuant to sections two hundred two-b and
two hundred two-bb of this article, provided, however, if an analysis
exceeds two thousand words, the notice shall include only a summary of
such analysis in less than two thousand words and the full text of such
analysis shall be posted on a website maintained by the agency or
another state entity until such analysis is revised or the proposed rule
is adopted or withdrawn or expires pursuant to this article;
(viii) give the name, public office address and telephone number of an
agency representative, who is knowledgeable on the proposed rule, from
whom the complete text of such rule and any scientific or statistical
study, report and analysis that served as the basis for the rule and any
supporting data, the regulatory impact statement, the regulatory
flexibility analysis, and the rural area flexibility analysis may be
obtained; from whom information about any public hearing may be
obtained; and to whom written data, views and arguments may be
submitted; and
(ix) include any additional matter required by statute.
2. Expiration of notice of proposed rule making; notice of expiration.
(a) Except with respect to any notice of proposed rule making
concerning a rule defined in subparagraph (ii) of paragraph (a) of
subdivision two of section one hundred two of this chapter, a notice of
proposed rule making shall expire and be ineffective for the purposes of
this section, unless the proposed rule is adopted by the agency and
filed with the secretary of state in the manner prescribed by law,
within three hundred sixty-five days after the latter of:
(i) the publication in the state register of a notice of proposed rule
making for the rule; or
(ii) the date of the last public hearing announced in a notice of
proposed rule making for the rule.
(b) When a notice so expires, the secretary of state shall publish a
notice of expiration in the state register. Such notice shall contain
such information as is determined, in the discretion of the secretary of
state, to serve the public interest.
3. Continuation of notice of proposed rule making. If, within ninety
days of the date on which a rule will expire, an agency submits a notice
of revised rule making for the rule, the rule making will be continued
for an additional ninety days beyond the date on which it would have
expired.
4. Withdrawal of notice of proposed rule making; notice of withdrawal.
An agency may withdraw a notice of proposed rule making and terminate a
rule making proceeding by submitting a notice of withdrawal to the
secretary of state for publication in the state register. Such notice
shall include a statement of the reason or reasons for withdrawal of the
proposed rule.
4-a. Notice of revised rule making. (a) Except with respect to any
rule defined in subparagraph (ii) of paragraph (a) of subdivision two of
section one hundred two of this chapter, prior to the adoption of a
rule, an agency shall submit a notice of revised rule making to the
secretary of state for publication in the state register for any
proposed rule which contains a substantial revision. The public shall be
afforded an opportunity to submit comments on the revised text of a
proposed rule. Unless a different time is specified in statute, the
notice of revised rule making must appear in the state register at least
forty-five days prior to the adoption of the rule. The notice of revised
rule making shall indicate the last date for submission of comments on
the revised text of the proposed rule, which, unless a different time is
specified in statute, shall be not less than forty-five days after the
date of publication of such notice.
(b) Each agency shall publish and make available to the public an
assessment of public comment for a rule revised pursuant to this
subdivision. Such assessment shall be based upon any written comments
submitted to the agency and any comments presented at any public hearing
held on the proposed rule by the agency. The assessment shall contain:
(i) a summary and an analysis of the issues raised and significant
alternatives suggested by any such comments; (ii) a statement of the
reasons why any significant alternatives were not incorporated into the
rule; and (iii) a description of any changes made in the rule as a
result of such comments. If no comments have been received, the notice
of revised rule making shall state that no comments were received by the
agency. Any subsequent assessment published pursuant to this paragraph
or paragraph (b) of subdivision five of this section need only include
comments not addressed in any previously published assessment of public
comment for the rule; provided, however, that the notice of revised rule
making or adoption shall contain the date any previous notice of revised
rule making containing an assessment of public comment was published in
the state register.
(c) The notice of revised rule making shall:
(i) cite the statutory authority, including particular sections and
subdivisions, under which the rule is proposed for adoption;
(ii) contain the complete revised text of the proposed rule, provided,
however, if such text exceeds two thousand words, the notice may contain
only a description of the subject, purpose and substance of such rule in
less than two thousand words and shall identify the website of the
agency, or of another state entity, on which the complete revised text
has been posted;
(iii) identify the substantial revisions to the text of the rule;
(iv) give the date, time and place of any public hearing or hearings
on the rule which are to be held subsequent to the publication of the
notice;
(v) include a revised regulatory impact statement, when required by
the provisions of paragraph (b) of subdivision six of section two
hundred two-a of this article, provided, however, if such statement
exceeds two thousand words, the notice shall include only a summary of
such statement in less than two thousand words and shall identify the
website of the agency, or of another state entity, on which the complete
revised text has been posted;
(vi) include a revised regulatory flexibility analysis and a rural
area flexibility analysis, when required by the provisions of paragraph
(b) of subdivision seven of section two hundred two-b and paragraph (b)
of subdivision eight of section two hundred two-bb of this article,
provided, however, if such analysis exceeds two thousand words, the
notice shall include only a summary of such analysis in less than two
thousand words and shall identify the website of the agency, or of
another state entity, on which the full text of the revised analysis has
been posted;
(vii) give the name, address and telephone number of an agency
representative knowledgeable on the rule, from whom the complete revised
text of such rule, any revised regulatory impact statement any revised
regulatory flexibility analysis and any revised rural area flexibility
analysis may be obtained; from whom information about any additional
public hearing may be obtained; and to whom written data, views and
arguments may be submitted;
(viii) state whether the notice shall also extend the rule making
period for an additional ninety days as provided in subdivision three of
this section;
(ix) include the assessment of public comment, prepared pursuant to
paragraph (b) of this subdivision provided, however, that, if such
assessment exceeds two thousand words, the notice shall include only a
summary of such assessment in less than two thousand words; and
(x) include any additional matter required by statute.
(d) An agency may not submit a notice of revised rule making for a
rule which has been proposed as a consensus rule.
5. Notice of adoption. (a) When an agency files a rule with the
secretary of state, such agency shall also submit a notice of adoption
to the secretary of state for publication in the state register. Except
as provided in subdivision six of this section, an agency may not file a
rule with, or submit a notice of adoption to, the secretary of state
unless the agency has previously submitted a notice of proposed rule
making and complied with the provisions of this section.
(b) Except with respect to any rule defined in subparagraph (ii) of
paragraph (a) of subdivision two of section one hundred two of this
chapter, each agency shall publish and make available to the public an
assessment of public comment for a rule adopted pursuant to this
subdivision or paragraph (e) of subdivision six of this section. Such
assessment shall be based upon any written comments submitted to the
agency and any comments presented at any public hearing held on the
proposed rule by the agency. The assessment shall contain: (i) a summary
and an analysis of the issues raised and significant alternatives
suggested by any such comments, (ii) a statement of the reasons why any
significant alternatives were not incorporated into the rule and (iii) a
description of any changes made in the rule as a result of such
comments. If any comments included estimates of projected costs of the
proposed rule to the state, local governments or regulated persons,
which differed significantly from those presented by the agency in its
regulatory impact statement, regulatory flexibility analysis, or rural
area flexibility analysis, the assessment shall also summarize the
agency's assessment of such estimates. If no comments have been
received, the notice of adoption shall state that no comments were
received by the agency. Comments submitted or presented to the agency by
a legislative committee or commission or by a member or members of the
senate or assembly shall be considered public comment and shall be
summarized and analyzed in the assessment.
(c) The notice of adoption shall:
(i) cite the statutory authority, including particular sections and
subdivisions, under which the rule is adopted;
(ii) contain the complete text of the rule as adopted, provided,
however, if such text exceeds two thousand words, the notice shall
contain only a description of the subject, purpose and substance of such
rule in less than two thousand words;
(iii) state whether there have been any changes in the text of the
rule as adopted when compared with the text of the latest published
version of the proposed rule, and if such changes have occurred, cite
the particular sections, subdivisions and paragraphs so changed;
(iv) give the effective date of the rule;
(v) include a revised regulatory impact statement, when required by
the provisions of paragraph (b) of subdivision six of section two
hundred two-a of this article, provided, however, if such statement
exceeds two thousand words, the notice shall include only a summary of
such statement in less than two thousand words;
(vi) include a revised regulatory flexibility analysis and a rural
area flexibility analysis, when required by the provisions of paragraph
(b) of subdivision seven of section two hundred two-b and paragraph (b)
of subdivision eight of section two hundred two-bb of this article,
provided, however, if such statement exceeds two thousand words, the
notice shall include only a summary of such statement in less than two
thousand words;
(vii) include the assessment of public comment, prepared pursuant to
paragraph (b) of this subdivision, provided, however, if such assessment
exceeds two thousand words, the notice shall include only a summary of
such assessment in less than two thousand words;
(viii) give the name, public office address and telephone number of an
agency representative from whom the complete text of the rule and any
revised regulatory impact statement, revised regulatory flexibility
analysis, rural area flexibility analysis or assessment of comments may
be obtained; and
(ix) state whether any notice of revised rule making had been
submitted for such rule making and specify the date or dates that such
notice or notices appeared in the state register; and
(x) include any additional matter required by statute.
6. Notice of emergency adoption. (a) Notwithstanding any other
provision of law, if an agency finds that the immediate adoption of a
rule is necessary for the preservation of the public health, safety or
general welfare and that compliance with the requirements of subdivision
one of this section would be contrary to the public interest, the agency
may dispense with all or part of such requirements and adopt the rule on
an emergency basis.
(b) Unless otherwise provided by law, such emergency rule shall not
remain in effect for longer than ninety days after being filed with the
secretary of state unless within such time the agency complies with the
requirements of subdivision one of this section and adopts the rule
pursuant to the provisions of subdivision five of this section,
provided, however, if such emergency rule is readopted prior to the
expiration of such ninety day period such readoption and any subsequent
readoptions shall remain in effect for no longer than sixty days.
(c) An emergency rule which is in regard to security authorizations,
corporate or financial structures or reorganization thereof, and for
which statute does not require that a public hearing be held prior to
adoption, shall not expire pursuant to the provisions of paragraph (b)
of this subdivision if the agency finds that the purpose of the rule
would be frustrated if subsequent notice procedures were required.
(d) A notice of emergency adoption shall:
(i) cite the statutory authority, including particular sections and
subdivisions, under which the rule is adopted;
(ii) state whether the notice shall also constitute a notice of
proposed rule making for the purposes of subdivision one of this
section, and if so, give the date, time and place of any public hearing
or hearings which are scheduled;
(iii) state whether the notice shall also constitute a notice of
revised rule making for the purposes of subdivision four-a of this
section, and if so, include all information required by such
subdivision; and
(iv) contain the findings required by paragraphs (a) and (c) of this
subdivision and include a statement fully describing the specific
reasons for such findings and the facts and circumstances on which such
findings are based. Such statement shall include, at a minimum, a
description of the nature and, if applicable, location of the public
health, safety or general welfare need requiring adoption of the rule on
an emergency basis; a description of the cause, consequences, and
expected duration of such need; an explanation of why compliance with
the requirements of subdivision one of this section would be contrary to
the public interest; and an explanation of why the current circumstance
necessitates that the public and interested parties be given less than
the minimum period for notice and comment provided for in subdivision
one of this section;
(v) give the effective date of the rule;
(vi) state the specific date the emergency rule will expire;
(vii) contain the complete text of the rule as adopted, provided,
however, if such text exceeds two thousand words, the notice shall
contain only a description of the subject, purpose and substance of such
rule in less than two thousand words and shall identify the address of
the website, if any, on which the full text has been posted;
(viii) include a regulatory impact statement prepared pursuant to
section two hundred two-a of this chapter or a statement setting forth
that the regulatory impact statement will appear in the state register
within thirty days of the effective date of the emergency rule,
provided, however, if either statement exceeds two thousand words, the
notice shall include only a summary of such statement in less than two
thousand words;
(ix) include a regulatory flexibility analysis prepared pursuant to
section two hundred two-b and a rural area flexibility analysis pursuant
to section two hundred two-bb of this chapter or a statement that the
regulatory flexibility analysis and/or rural area flexibility analysis
will appear in the state register within thirty days of the effective
date of the emergency rule, provided, however, if such analysis or
statement exceeds two thousand words, the notice shall include only a
summary of such analysis or statement in less than two thousand words;
(x) give the name, public office address and telephone number of an
agency representative, knowledgeable on the rule, from whom a complete
text of such rule, the regulatory impact statement, regulatory
flexibility analysis, and the rural area flexibility analysis may be
obtained; from whom information about any public hearing may be
obtained; and to whom written data, views and arguments may be
submitted; and
(xi) include any additional matter required by statute.
(e) If, prior to the expiration of a rule adopted pursuant to
paragraph (a) of this subdivision, the agency finds that the readoption
of such rule on an emergency basis is necessary for the preservation of
the public health, safety or general welfare, the agency may readopt the
rule on an emergency basis. No readoption shall be filed with the
secretary of state unless the agency has submitted a notice of proposed
rule making pursuant to subdivision one of this section. No second or
subsequent readoption shall be filed with the secretary of state unless
the agency at the same time submits an assessment of public comments
prepared pursuant to paragraph (b) of subdivision five of this section.
(f) When the notice of emergency adoption contains only a description
of the subject, purpose and substance of the rule as provided in
subparagraph (vii) of paragraph (d) of this subdivision, the full text
of the rule shall be posted on a website maintained by the agency or
another state entity as soon as practicable, but not later than the date
the notice of emergency adoption is published in the state register.
6-a. Distribution of rule making information. (a) An agency shall
transmit a copy of any rule making notice prepared pursuant to this
article to the governor, the temporary president of the senate, the
speaker of the assembly and the administrative regulations review
commission at the time such notice is submitted to the secretary of
state for publication in the state register. Such transmittal shall
include the complete rule text, regulatory impact statement, regulatory
flexibility analysis, rural area flexibility analysis, or revisions
thereof, and any other information submitted to the secretary of state
pursuant to this article. Furthermore, such transmittal may be completed
by electronic means in accordance with article three of the state
technology law.
(b) An agency shall make a copy of the complete text of any proposed,
adopted or emergency rule, regulatory impact statement, regulatory
flexibility analysis, rural area flexibility analysis, or revisions
thereof available, in written or electronic forms, to the public at the
time such documents are submitted to the secretary of state for
publication in the state register and shall send to any person a copy of
such text upon written or electronic request.
(c) An agency shall notify every person who has submitted a written or
electronic request to be notified of all proposed, revised, emergency
and/or adopted rules which may affect such person. The agency may allow
requests for only the rules of particular divisions or programs within
the agency that are of interest to such person. Written requests shall
expire annually on the thirty-first day of December with renewals for
the succeeding year to be accepted on or after December first.
Electronic requests shall not expire, but shall continue until the
person submits a request to discontinue such notification. Notices
issued pursuant to such requests shall be sent to the last address or
electronic mail address specified by the person. An agency may charge
any person requesting such notice a fee consisting of the cost of
preparation, handling and postage; provided, however, that no fee shall
be charged for electronic notices. As an alternative to sending a
document electronically, an agency may identify the document and provide
a link to the section of its website containing the full text of such
document.
7. Rule text requirements. (a) Except with respect to any rule defined
in subparagraph (ii) of paragraph (a) of subdivision two of section one
hundred two of this chapter, the complete text of any proposed or
adopted rule shall identify new language by underscoring or italics,
enclose in brackets any words which are to be deleted, and give the
citation of any rule which is to be repealed.
(b) Notwithstanding any provision herein to the contrary, an agency
may:
(i) with regard to a notice published in the state register concerning
a rule defined in subparagraph (ii) of paragraph (a) of subdivision two
of section one hundred two of this chapter, elect to include either the
complete text of the proposed or adopted rule in two thousand words or
less, or a description of the subject, purpose and substance of such
rule in less than two thousand words; and
(ii) with regard to a notice published in any newspaper or publication
other than the state register, elect to include either the complete text
or a description of the subject, purpose and substance of the proposed
or adopted rule.
(c) For the purposes of determining if the length of the text of a
rule to be published pursuant to this section exceeds two thousand
words, such text shall exclude any previously published portion of the
rule which is precisely identified in the text thereof pursuant to
paragraph c of subdivision one of section one hundred two of the
executive law;
(d) When a notice published pursuant to this section refers to any
rule, text or other information that has been posted on a website
maintained by a state entity in lieu of publication:
(i) the text or information shall be posted not later than the date
the notice is published in the state register, and to the extent
practicable shall be maintained on such website during the entire period
for which such notice is effective; and
(ii) the notice shall provide sufficient information to enable the
public to access such information without extensive searching, and shall
conform to any guidance prescribed by the secretary of state pursuant to
subdivision nine of this section.
8. Judicial review. A proceeding may be commenced to contest a rule on
the grounds of noncompliance with the procedural requirements of this
section, section two hundred two-a and section two hundred two-b of this
chapter, provided, however, such proceeding must be commenced within
four months from the effective date of such rule. Each rule shall be
promulgated in substantial compliance with the provisions of such
sections, provided, however, the inadvertent failure to send notice to
any person shall not serve to invalidate any rule promulgated hereunder.
9. Secretary of state. (a) The secretary of state shall:
(i) prescribe standard forms to be used by agencies when submitting
for publication in the state register the notices required by this
section;
(ii) promptly review each notice submitted by an agency for such
publication;
(iii) reject those notices which are not in substantial compliance
with the provisions of this section, give prompt notice of such
rejection to the agency, and advise such agency on the corrective action
required;
(iv) publish all notices and statements, required by this section and
section two hundred one-a of this chapter, in the state register as soon
as practicable; and
(v) prescribed guidance, developed in consultation with the office of
information technology services, for online posting of text and
information pursuant to this section.
(b)(i) The secretary of state may, in addition to publication of the
state register, publish an electronic copy of the state register which
shall be freely available on the internet.
(ii) Whenever an agency provides an electronic mail address for the
submission of comments regarding a notice, the secretary of state shall
provide a direct link between the electronic copy of the state register
and that electronic mail address, permitting a person viewing the
electronic copy of the state register to immediately submit comments by
electronic mail.
(iii) The secretary of state shall provide that the direct link
between the electronic copy of the state register and the electronic
mail address provided by an agency.
(iv) Nothing contained in this paragraph shall impose upon the
secretary of state or any agency any responsibility for delivery or
failure of delivery of comments submitted through the direct link
between the electronic copy of the state register and the electronic
mail address provided by an agency in the event of any failure,
incompatibility, or lack of function in any computer or communications
hardware or software, regardless of whether such hardware or software is
or is not within the control of the secretary of state or agency.
Regulatory impact. 1. In developing a rule, an agency shall,
to the extent consistent with the objectives of applicable statutes,
consider utilizing approaches which are designed to avoid undue
deleterious economic effects or overly burdensome impacts of the rule
upon persons, including persons residing in New York state's rural
areas, directly or indirectly affected by it or upon the economy or
administration of state or local governmental agencies. Such approaches
shall include, but not be limited to, the specification of performance
standards rather than design standards.
2. Each agency shall, except as provided in subdivision five of this
section, issue a regulatory impact statement for a rule proposed for
adoption or a rule adopted on an emergency basis.
3. Each regulatory impact statement shall contain:
(a) Statutory authority. A statement analyzing the statutory authority
for the rule, including but not limited to the agency's interpretation
of the legislative objectives of such authority;
(b) Needs and benefits. A statement setting forth the purpose of,
necessity for, and benefits derived from the rule, a citation for and
summary, not to exceed five hundred words, of each scientific or
statistical study, report or analysis that served as the basis for the
rule, an explanation of how it was used to determine the necessity for
and benefits derived from the rule, and the name of the person that
produced each study, report or analysis;
(c) Costs. A statement detailing the projected costs of the rule,
which shall indicate:
(i) the costs for the implementation of, and continuing compliance
with, the rule to regulated persons;
(ii) the costs for the implementation of, and continued administration
of, the rule to the agency and to the state and its local governments;
and
(iii) the information, including the source or sources of such
information, and methodology upon which the cost analysis is based; or
(iv) where an agency finds that it cannot fully provide a statement of
such costs, a statement setting forth its best estimate, which shall
indicate the information and methodology upon which such best estimate
is based and the reason or reasons why a complete cost statement cannot
be provided;
(d) Paperwork. A statement describing the need for any reporting
requirements, including forms and other paperwork, which would be
required as a result of the rule;
(e) Local government mandates. A statement describing any program,
service, duty or responsibility imposed by the rule upon any county,
city, town, village, school district, fire district or other special
district;
(f) Duplication. A statement identifying relevant rules and other
legal requirements of the state and federal governments, including those
which may duplicate, overlap or conflict with the rule. If the statement
indicates that the rule would duplicate, overlap or conflict with any
other relevant rule or legal requirement, the statement should also
identify all efforts which the agency has or will undertake to resolve,
or minimize the impact of, such duplication, overlap or conflict on
regulated persons, including, but not limited to, seeking waivers of or
exemptions from such other rules or legal requirements, seeking
amendment of such other rules or legal requirements, or entering into a
memorandum of understanding or other agreement concerning such other
rules or legal requirements;
(g) Alternative approaches. A statement indicating whether any
significant alternatives to the rule were considered by the agency,
including a discussion of such alternatives and the reasons why they
were not incorporated into the rule;
(h) Federal standards. A statement identifying whether the rule
exceeds any minimum standards of the federal government for the same or
similar subject areas and, if so, an explanation of why the rule exceeds
such standards; and
(i) Compliance schedule. A statement indicating the estimated period
of time necessary to enable regulated persons to achieve compliance with
the rule.
4. To reduce paperwork on the agencies, an agency may:
(a) Consider a series of closely related and simultaneously proposed
rules as one rule for the purpose of submitting a consolidated
regulatory impact statement; and
(b) Submit a consolidated regulatory impact statement for any series
of virtually identical rules proposed in the same year.
5. (a) An agency may claim an exemption from the requirements of this
section for a rule that involves only a technical amendment, provided,
however, the agency shall state in the notice, prepared pursuant to
section two hundred two of this chapter, the reason or reasons for
claiming such exemption.
(b) A rule defined in subparagraph (ii) of paragraph (a) of
subdivision two of section one hundred two of this chapter shall be
exempt from the requirements of this section.
(c) A rule determined by an agency to be a consensus rule and proposed
pursuant to subparagraph (i) of paragraph (b) of subdivision one of
section two hundred two of this article shall be exempt from the
requirements of this section.
6. Each agency shall issue a revised regulatory impact statement when:
(a) the information presented in the statement is inadequate or
incomplete, provided, however, such revised statement shall be submitted
as soon as practicable to the secretary of state for publication in the
state register, provided, further, if such statement exceeds two
thousand words, the notice shall include only a summary of such
statement in less than two thousand words;
(b) a proposed rule contains any substantial revisions and such
revisions necessitate that such statement be modified. A revised
statement shall describe the reasons for such changes and shall include
any modifications in the regulatory impact statement that are necessary
as a result of such changes; or
(c) there are no substantial revisions in the proposed rule but there
are changes in the text of the rule as adopted when compared with the
text of the latest published version of the proposed rule and such
changes would necessitate that such statement be modified. A revised
statement shall describe the reasons for such changes and shall include
any modifications in the regulatory impact statement that are necessary
as a result of such changes.
Regulatory flexibility for small businesses. 1. In developing
a rule, the agency shall consider utilizing approaches that will
accomplish the objectives of applicable statutes while minimizing any
adverse economic impact of the rule on small businesses and local
governments. Consistent with the objectives of applicable statutes, the
agency shall consider such approaches as:
(a) the establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small businesses and local governments or the time needed
by small businesses or local governments to come into compliance with
the rule;
(b) the use of performance rather than design standards; and
(c) an exemption from coverage by the rule, or by any part thereof,
for small businesses and local governments so long as the public health,
safety or general welfare is not endangered.
1-a. In developing a rule for which a regulatory flexibility analysis
is required and which involves the establishment or modification of a
violation or of penalties associated with a violation, the agency shall:
(a) include a cure period or other opportunity for ameliorative action,
the successful completion of which will prevent the imposition of
penalties on the party or parties subject to enforcement; or (b) include
in the regulatory flexibility analysis an explanation of why no such
cure period was included in the rule.
2. In proposing a rule for adoption or in adopting a rule on an
emergency basis, the agency shall issue a regulatory flexibility
analysis regarding the rule being proposed for adoption or the emergency
rule being adopted. A copy of such analysis and any finding, and reasons
for such finding, pursuant to subdivision three of this section, shall
be submitted to the governor, the temporary president of the senate, the
speaker of the assembly, the office of business permits and regulatory
assistance and the administrative regulations review commission at the
time such analysis is submitted to the secretary of state for
publication and, upon written request, a copy shall be sent to any other
person. Each regulatory flexibility analysis shall contain:
(a) a description of the types and an estimate of the number of small
businesses and local governments to which the rule will apply;
(b) a description of (i) the reporting, recordkeeping and other
compliance requirements of the rule, and (ii) the kinds of professional
services that a small business or local government is likely to need in
order to comply with such requirements;
(c) an estimate of the initial capital costs and an estimate of the
annual cost of complying with the rule, with an indication of any likely
variation in such costs for small businesses or local governments of
different types and of differing sizes;
(d) an assessment of the economic and technological feasibility of
compliance with such rule by small businesses and local governments;
(e) an indication of how the rule is designed to minimize any adverse
economic impact of such rule on small businesses and local governments,
including information regarding whether the approaches suggested in
subdivision one of this section or other similar approaches were
considered; and
(f) a statement indicating how the agency complied with subdivision
six of this section.
3. (a) This section shall not apply to any rule defined in
subparagraph (ii) of paragraph (a) of subdivision two of section one
hundred two of this chapter, nor shall it apply to any rule which does
not impose an adverse economic impact on small businesses or local
governments and which the agency finds would not impose reporting,
recordkeeping or other compliance requirements on small businesses or
local governments. The agency's finding and the reasons upon which the
finding was made, including what measures the agency took to ascertain
that the rule would not impose such compliance requirements, or adverse
economic impact on small businesses or local governments, shall be
included in the rule making notice as required by section two hundred
two of this chapter.
(b) A rule determined by an agency to be a consensus rule and proposed
pursuant to subparagraph (i) of paragraph (b) of subdivision one of
section two hundred two of this article shall be exempt from the
requirements of this section.
4. In order to avoid duplicative action, an agency may consider a
series of closely related rules as one rule for the purpose of complying
with subdivision two of this section.
5. In complying with the provisions of subdivision two of this
section, an agency may provide either a quantifiable or numerical
description of the effects of a rule or more general descriptive
statements if quantification is not practicable or reliable.
6. When any rule is proposed for which a regulatory flexibility
analysis is required, the agency shall assure that it has actively
solicited the participation of small businesses and local governments in
the rule making through activities in addition to publication in the
state register and posting on the agency's website, such as:
(a) the publication of a general notice for the proposed rule making
in publications likely to be obtained by small businesses and local
governments of the types affected by the proposed rule;
(b) the direct notification of interested small businesses and local
governments affected by the proposed rule or organizations representing
the interests of such entities;
(c) the conduct of special open conferences concerning the proposed
rule for small businesses and local governments affected by the rule;
and
(d) the adoption or modification of agency procedural rules to reduce
the cost or complexity of participation in the rule making by small
businesses and local governments.
7. Each agency shall issue a revised regulatory flexibility analysis
when:
(a) the information presented in the analysis submitted pursuant to
this section is inadequate or incomplete, provided, however, such
revised analysis shall be submitted as soon as practicable to the
secretary of state for publication in the state register, provided,
further, if such statement exceeds two thousand words, the notice shall
include only a summary of such statement in less than two thousand
words;
(b) a proposed rule contains any substantial revisions and such
revisions necessitate that such analysis be modified; or
(c) there are no substantial revisions in the proposed rule but there
are changes in the text of the rule as adopted when compared with the
text of the latest published version of the proposed rule and such
changes would necessitate that such analysis be modified.
Rural area flexibility analysis. 1. Intent. The legislature
hereby finds, determines and declares that:
(a) The capacity of public and private sector interests in rural areas
to respond to state agency regulations is often constrained by an
operating environment distinctly different from that found in suburban
and metropolitan areas of the state;
(b) Factors such as population sparsity, small community size, limited
access to financial and technical assistance, undeveloped services
delivery systems, lack of economies of scale and extensive reliance on
part-time and volunteer services providers inhibits rural ability to
effectively address increasingly complex and stringent regulatory
requirements;
(c) In order to maximize sensitivity to rural strengths and
limitations, the state must continue to promote a framework which
enhances state and local cooperation in meeting rural needs; and
(d) Enhancement of this chapter to include a more thorough assessment
of regulatory impact and alternatives for rural areas can provide an
improved dialogue on critical issues, while fostering a more cohesive
and effective state/local partnership.
2. Authorization. (a) In addition to, and consistent with, the
provisions of sections two hundred two-a and two hundred two-b of this
article, agencies shall seek approaches that allow them to address their
statutory responsibilities while considering the impact of their actions
on public and private sector interests located in rural areas of the
state.
(b) In developing a rule, the agency shall consider utilizing
approaches that will accomplish the objectives of applicable statutes
while minimizing any adverse impact of the rule on public and private
sector interests in rural areas. Consistent with the objectives of
applicable statutes, the agency shall consider such approaches as:
(i) the establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to rural areas;
(ii) increased use of performance or outcome standards rather than
design or input standards; and
(iii) an exemption from coverage by the rule, or by any part thereof,
so long as the public health, safety or general welfare is not
endangered.
3. In proposing a rule for adoption or in adopting a rule on an
emergency basis, the agency shall issue a rural area flexibility
analysis regarding the rule being proposed for adoption or the emergency
rule being adopted. A copy of such analysis and any finding, and reasons
for such finding, pursuant to this section, shall be submitted in
writing, and may be transmitted electronically in accordance with
article three of the state technology law, to the governor, the
temporary president of the senate, the speaker of the assembly, the
office for regulatory and management assistance and the administrative
regulations review commission at the time such analysis is submitted or
electronically transmitted to the secretary of state for publication
and, upon written or electronic request, a copy shall be sent or
electronically transmitted to any other person. Each rural area
flexibility analysis shall contain:
(a) A description of the types and an estimate of the number of rural
areas to which the rule will apply;
(b) A description of (i) the reporting, recordkeeping and other
compliance requirements of the rule, and (ii) the kinds of professional
services that are likely to be needed in a rural area in order to comply
with such requirements;
(c) An estimate of the initial capital costs and an estimate of the
annual cost of complying with the rule, with an indication of any likely
variation in such costs for different types of public and private
entities in rural areas;
(d) An indication of how the rule is designed to minimize any adverse
impact of such rule on rural areas, including information regarding
whether the approaches suggested in subdivision two of this section or
other similar approaches were considered; and
(e) A statement indicating how the agency complied with subdivision
seven of this section.
4. (a) This section shall not apply to any rule defined in
subparagraph (ii) of paragraph (a) of subdivision two of section one
hundred two of this chapter, nor shall it apply to any rule which does
not impose an adverse impact on rural areas and which the agency finds
would not impose reporting, recordkeeping or other compliance
requirements on public or private entities in rural areas. The agency's
finding and the reasons upon which the finding was made, including what
measures the agency took to ascertain that the rule would not impose
such compliance requirements or adverse impact, shall be included in the
rule making notice as required by section two hundred two of this
chapter.
(b) A rule determined by an agency to be a consensus rule and proposed
pursuant to subparagraph (i) of paragraph (b) of subdivision one of
section two hundred two of this article shall be exempt from the
requirements of this section.
5. In order to avoid duplicative action, an agency may consider a
series of closely related rules as one rule for the purpose of complying
with subdivision three of this section.
6. In complying with the provisions of subdivision three of this
section, an agency may provide either a quantifiable or numerical
description of the effects of a rule or more general descriptive
statements if quantification is not practicable or reliable.
7. When any rule is proposed for which a rural area flexibility
analysis is required, the agency shall assure that public and private
interests in rural areas have been given an opportunity to participate
in the rule making through such activities as:
(a) the publication of a general notice of the proposed rule making;
(b) notification of public and private interests in rural areas
directly affected by the proposed rule;
(c) the conduct of special public hearings or meetings concerning the
proposed rule for those public and private interests affected by the
rule; and
(d) the adoption or modification of agency procedural rules that will
minimize the cost or complexity of participation in the rule making.
8. Each agency shall issue a revised rural area flexibility analysis
when:
(a) the information presented in the analysis submitted pursuant to
this section is inadequate or incomplete, provided, however, such
revised analysis shall be submitted as soon as practicable to the
secretary of state for publication in the state register, provided,
further, if such statement exceeds two thousand words, the notice shall
include only a summary of such statement in less than two thousand
words;
(b) a proposed rule contains any substantial revisions and such
revisions necessitate that such analysis be modified; or
(c) there are no substantial revisions in the proposed rule but there
are changes in the text of the rule as adopted when compared with the
text of the latest published version of the proposed rule and such
changes would necessitate that such analysis be modified.
Regulatory agenda. * 1. (a) The departments of health,
education, environmental conservation, financial services, labor,
agriculture and markets, motor vehicles and state, the offices of
children and family services and temporary and disability assistance,
the division of housing and community renewal, the state gaming
commission, the office of mental health, the office for people with
developmental disabilities and the workers' compensation board, and any
other department or agency specified by the governor or his or her
designee shall, and any other agency may, in its discretion, submit in
writing or electronically in accordance with article three of the state
technology law to the secretary of state, for publication in any regular
issue of the state register published during the month of January, a
regulatory agenda to solicit comments concerning any rule which the
agency is considering to propose, but for which no notice of proposed
rule making has been submitted pursuant to subdivision one of section
two hundred two of this article.
(b) A regulatory agenda shall be comprised of a list and brief
description of subject matter being considered for rule making and the
name, public office, address, e-mail address and telephone number of the
agency representative, knowledgeable on such regulatory agenda, from
whom any information may be obtained, including any draft version of a
potential rule that an agency is making publicly available, and to whom
written comments may be submitted concerning such regulatory agenda.
(c) Agencies shall publish the regulatory agendas and information
related to such agendas on their respective websites. An agency may
update the regulatory agenda on its website by adding a description of a
rule which the agency has begun to consider proposing after publication
of its regulatory agenda in the state register. Such description shall
identify the date on which the description is first listed in the
regulatory agenda and shall conspicuously indicate that the description
has been newly listed for a period of not less than thirty days after
such date. Updating a regulatory agenda on its website shall not require
an agency to submit any additional information for publication in the
state register related to such update.
(d) An agency shall identify each rule described in its regulatory
agenda for which a regulatory flexibility analysis or a rural area
flexibility analysis may be required, and shall provide outreach as
appropriate to potentially affected small businesses, local governments
and public and private interests in rural areas. Such outreach may
include solicitation of input from potentially affected parties through
electronic means or through any of the activities listed in subdivision
six of section two hundred two-b and subdivision seven of section two
hundred two-bb of this article.
* NB Effective until December 31, 2028
* 1. An agency may, in its discretion, submit in writing or
electronically in accordance with article three of the state technology
law to the secretary of state, for publication in the first regular
issue of the state register published during the months of January, May
and September, a regulatory agenda to afford the agency an opportunity
to solicit comments concerning any rule which the agency is considering
proposing, but for which no notice of proposed rule making has been
submitted pursuant to subdivision one of section two hundred two of this
article. A regulatory agenda shall be comprised of summaries of such
rules. Each summary shall, in less than two thousand words, contain, in
so far as practicable:
(a) a description of the rule which the agency is considering;
(b) a citation to the statutory authority, including particular
sections and subdivisions, which authorizes the rule;
(c) a schedule of the dates for hearings, meetings or other
opportunities for public participation in the development of the rule,
if any;
(d) the probable date on which the agency anticipates submitting,
pursuant to section two hundred two of this chapter, a notice of
proposed rule making for such rule if known;
(e) the name, public office, address and telephone number of the
agency representative, knowledgeable on such rule, from whom any
information may be obtained and to whom written comments may be
submitted concerning such rule; and
(f) any other information which the agency determines will serve the
public interest.
* NB Effective December 31, 2028
* 2. Nothing in this section shall:
(a) preclude an agency from adopting a rule for which a summary has
not appeared in a regulatory agenda or from adopting a rule different
than one summarized in a regulatory agenda; provided, however, that if a
rule is proposed by an agency required to submit a regulatory agenda
pursuant to subdivision one of this section on a matter not included in
a regulatory agenda, the proposing agency shall indicate in the notice
of proposed rule making that the rule was not under consideration at the
time the regulatory agenda was submitted for publication; or
(b) require an agency to adopt a rule for which a summary has appeared
in a regulatory agenda.
* NB Effective until December 31, 2028
* 2. Nothing in this section shall:
(a) preclude an agency from adopting a rule for which a summary has
not appeared in a regulatory agenda or from adopting a rule different
than one summarized in a regulatory agenda; or
(b) require an agency to adopt a rule for which a summary has appeared
in a regulatory agenda.
* NB Effective December 31, 2028
3. The secretary of state shall adopt rules necessary for the
publication of regulatory agendas, including but not limited to standard
forms to be used for the submission of regulatory agendas, a schedule
prescribing when such agendas must be submitted for publication, and any
identification number system.
Guidance documents; availability to public. 1. Not less than
once each year, every agency shall submit to the secretary of state for
publication in the state register a list of all guidance documents on
which the agency currently relies, and provide information on where and
how regulated parties and members of the public may inspect and obtain
copies of any such document; provided, however, that the department of
environmental conservation shall be exempt from the requirements of this
subdivision. Unless otherwise provided for by law, an agency may make
such documents available as provided in the freedom of information law,
and may charge fees pursuant to such law for copies of any such
document.
2. The secretary of state may exempt an agency from compliance with
the requirements of subdivision one of this section upon a determination
that the agency has published on its website the full text of all
guidance documents on which it currently relies. The secretary of state
shall publish a notice of such determination identifying the website in
the state register.
3. Nothing in this section shall be construed as authorizing or
requiring the publication of any guidance document where such
publication is prohibited or limited by law.
4. Not less than once every five years, every agency shall conduct a
process for reviewing and updating all guidance documents on which it
currently relies. In conducting such process, the agency shall obtain
feedback from regulated parties and members of the public who are
directly or indirectly affected by the guidelines.
5. The secretary of state may adopt regulations to implement the
provisions of this section.
* § 202-f. Public hearings. 1. Whenever a public hearing is held on a
proposed rule pursuant to this chapter, unless otherwise provided in
law, an agency is authorized to utilize innovative techniques to enhance
public participation in rule making, including but not limited to
allowing the public to ask questions of agency personnel for a portion
of such hearing, organizing such hearing as a roundtable discussion,
scheduling an evening or weekend hearing, and using digital,
broadcasting and/or teleconferencing technologies; provided, however,
that no such innovative techniques shall be used in a manner which
diminishes the ability which members of the public would otherwise have
to comment on the proposed rule at a public hearing. Each agency listed
in subdivision four of this section shall, and any other agency may,
include in its annual report a description and analysis of its use of
innovative techniques pursuant to this subdivision.
2. Except as provided in subdivision three of this section, if the
workers' compensation board, the state education department, the
department of financial services, the department of labor, or the office
of temporary and disability assistance receive a petition subscribed by
not fewer than five hundred persons residing in this state, or if the
department of health or department of environmental conservation receive
a petition subscribed by not fewer than seven hundred fifty persons
residing in this state, requesting a public hearing on any rule or rules
which have been proposed by the agency, or have been described in the
regulatory agenda submitted by the agency pursuant to section two
hundred two-d of this article, which an agency may require to be
submitted on a petition form it has promulgated, such agency shall hold
at least one public hearing on the rule or rules; provided, however,
that any such petition on a rule which has been proposed must be
received by the agency not later than the thirtieth day before the last
date for submission of comments. Any rule issued by the department of
health that is also subject to review by the public health and health
planning commission shall not be subject to the provisions of this
subdivision. Any agency that receives a petition after the thirtieth day
before the last date for submission of comments and any agency not
listed in subdivision four of this section may elect to hold a hearing
upon receipt of a petition. Due consideration shall be given to any
request in a petition that a hearing be conducted in a particular
region.
3. An agency shall not be required to hold a public hearing pursuant
to subdivision two of this section (a) on a rule for which a hearing is
required by law and has been scheduled or held; (b) on a consensus rule;
(c) on a rule defined in subparagraph (ii) of paragraph (a) of
subdivision two of section one hundred two of this chapter; or (d) a
rule adopted on an emergency basis until a notice of proposed rulemaking
has been issued. When a public hearing has been requested for any rule
described in a regulatory agenda, the agency shall not be required to
schedule a public hearing until such time as the rule is proposed
pursuant to this chapter.
4. The following agencies shall engage in the reporting provided for
in subdivision one of this section and hold hearings as provided for in
subdivisions two and three of this section: the workers' compensation
board and the departments of education, environmental conservation,
health, financial services, labor and family assistance.
* NB Repealed January 1, 2027
Filing; effective date. 1. Except as provided in subdivision
two of this section, no rule shall become effective until it is filed
with the secretary of state and the notice of adoption is published in
the state register pursuant to subdivision five of section two hundred
two of this article, unless: (i) a later date is required by statute or
is specified in the rule, (ii) adopted as an emergency rule pursuant to
subdivision six of section two hundred two of this article, or (iii)
defined as a rule in subparagraph (ii) of paragraph (a) of subdivision
two of section one hundred two of this chapter. Each rule submitted for
filing shall have attached thereto the certificate required under
subdivision two of section one hundred two of the executive law.
2. (a) An agency may, after a rule is filed with the secretary of
state pursuant to subdivision one of this section and prior to the
effective date of such rule, amend, suspend or repeal such rule prior to
the effective date without complying with the provisions of subdivision
one of section two hundred two of this article. If an agency amends,
suspends or repeals a rule pursuant to this subdivision, such agency
shall file a notice of adoption pursuant to subdivision five of section
two hundred two of this article, provided, however, that such notice of
adoption shall identify the rule which is being amended, suspended or
repealed pursuant to this subdivision, provided, further, for the
purposes of compliance with subparagraphs (iii), (v) and (vi) of
paragraph (c) of subdivision five of such section two hundred two, the
text of the rule as adopted pursuant to subdivision one of this section
shall be compared with the text of the rule being amended, suspended or
repealed pursuant to this subdivision.
(b) An agency may not amend, suspend or repeal a rule pursuant to this
subdivision if such action would constitute a substantial revision of
the rule as adopted. To determine if such action constitutes a
substantial revision of the adopted rule, such amendment, suspension or
repeal shall be compared with the text of the rule which was filed with
the secretary of state pursuant to subdivision one of this section. The
provisions of this paragraph shall not apply if such amendment,
suspension or repeal only delays the effective date of such rule.
3. The secretary of state shall reject any rule submitted for filing
by an agency where the notice of proposed rule making for such rule has
expired pursuant to the provisions of section two hundred two of this
chapter.
4. If a rule requires a regulated party to develop a written plan or
compliance document which must be submitted to or retained for
inspection by the agency, the agency is required to, upon request of one
or more regulated parties, prepare a model of such a written plan or
compliance document to provide guidance as to the content and form of
such written plan or compliance document and the minimum elements which
such written plan or compliance document should contain. The
availability of any such model plan or document shall be communicated to
regulated parties through publication in the state register and by any
other means which the agency determines to be efficient and effective,
and shall be made available to regulated parties and the public within
the time frame established for submission of the written plan or
compliance documents. Unless otherwise prohibited by law, when an
agency has prepared a model plan or document pursuant to this
subdivision, it may extend the final date for submitting a written plan
or compliance document for an additional period, not to exceed ninety
days, if such an extension is deemed necessary to permit regulated
parties to use the model plan as guidance in developing their written
plans or compliance documents. Whenever a model plan is prepared, the
agency shall cause a notice to be published in the state register
indicating that it has prepared a model plan and identifying the written
plan or compliance document for which the model plan or document has
been prepared. Such notice shall also indicate whether the final date
for submitting a written plan or compliance document has been extended
pursuant to this subdivision, and, if so, shall set forth the new final
date for submission.
Declaratory rulings by agencies. 1. On petition of any person,
an agency may issue a declaratory ruling with respect to (i) the
applicability to any person, property, or state of facts of any rule or
statute enforceable by it, or (ii) whether any action by it should be
taken pursuant to a rule. Each agency shall prescribe by rule the form
for such petitions and the procedure for their submission, consideration
and disposition. A declaratory ruling shall be binding upon the agency
unless it is altered or set aside by a court. The agency may not
retroactively change a valid declaratory ruling, but nothing in this
section shall prevent an agency from prospectively changing any
declaratory ruling. A declaratory ruling shall be made available to the
public. A declaratory ruling shall be subject to review in the manner
provided for in article seventy-eight of the civil practice law and
rules.
2. (a) Within thirty days of receipt of a petition with respect to
paragraph (ii) of subdivision one of this section, an agency shall issue
either a declaratory ruling or a statement declining to issue a
declaratory ruling, unless the agency's rules provide for a different
time period not to exceed sixty days from receipt of such petition.
(c) Notwithstanding any inconsistent provision of law, a person may
submit a petition in the manner provided for in article seventy-eight of
the civil practice law and rules without first applying for a
declaratory ruling pursuant to paragraph (ii) of subdivision one of this
section, or to the office for an advisory opinion pursuant to this
subdivision. A person may concurrently petition the court pursuant to
article seventy-eight of the civil practice law and rules and petition
the agency and the office pursuant to this subdivision.
Alternate methods for implementing regulatory mandates. 1. As
used in this section:
(a) "local government" means any county, city, town, village, school
district, fire district or other special district;
(b) "regulatory mandate" means any rule which requires one or more
local governments to create a new program, increase the level of service
for an existing program or otherwise comply with mandatory requirements;
and
(c) "petition" means a document submitted by a local government
seeking approval of an alternate method for implementing a regulatory
mandate.
2. A petition shall include:
(a) an indication that submission has been approved by the governing
body of the local government or by an officer duly authorized by the
governing body to do so;
(b) an identification of the regulatory mandate which is the subject
of the petition and information sufficient to establish that the
proposed alternate method of implementation is consistent with and will
effectively carry out the objectives of the regulatory mandate;
(c) information on the process used by the local government to ensure
that all stakeholders have been appropriately involved in the process of
developing the alternate method, including where relevant the date of
any hearing, forum or other meeting to seek input on the alternate
method;
(d) documentation that the petition has been submitted to the
authorized agents of any certified or recognized employee organizations
representing employees who would be effected by implementation of the
alternate method;
(e) a proposed plan and timetable for compiling and reporting
information to facilitate evaluation of the effectiveness of the
alternate method;
(f) if the state provides financial assistance for complying with the
regulatory mandate, any proposed amount or percentage of such assistance
which would be returned to the state due to savings from implementing
the alternate method; and
(g) the name, public office address and telephone number of the
representative of the local government who will coordinate requests for
additional information on the petition.
3. Two or more local governments may submit a petition jointly,
provided that each local government meets the requirements of paragraphs
(a), (c), (d) and (g) of subdivision two of this section, and provided
that the petition addresses the manner in which responsibility for
implementation will be allocated between or among the participating
local governments.
4. The agency shall cause a notice of the petition to be published in
the state register and shall receive comments on the petition for a
period of thirty days. Such notice shall either include the full text of
the information set forth in the petition or shall set forth the address
of a website on which the full text has been posted. The notice shall
include the name, public office address and telephone number, and may
include a fax number and electronic mail address, of an agency
representative from whom additional information on the petition can be
obtained and to whom comments on the petition may be submitted.
5. (a) Not later than thirty days after the last day of the comment
period, the agency shall approve or disapprove the petition. The agency
may approve the petition without change or with such conditions or
modifications as the agency deems appropriate. Notice of the agency
determination shall be provided in writing to the local government and
shall be published in the state register. The agency shall not grant a
petition unless it determines that the petition has met the requirements
of subdivision two of this section and that the local government has
established that the alternate method is consistent with and will
effectively carry out the objectives of the regulatory mandate;
provided, however, that no petition shall be approved which would result
in the contravention of any environmental, health or safety standard or
would reduce any benefits or rights accorded by law or rule to third
parties. In approving a petition, an agency may waive a statutory
provision only if it is specifically authorized by law to waive such
provision. An approval shall include a timetable for agency evaluation
of the effectiveness of the alternate method.
(b) Notwithstanding the provisions of paragraph (a) of this
subdivision, upon receipt of an objection to a petition from the
authorized agent of any certified or recognized employee organization
representing employees who would be affected by implementation of the
alternate method, the agency shall provide any such organizations with
an opportunity for a hearing. If an adjudicatory proceeding is
requested, the petition shall not be approved unless the agency
determines by a preponderance of the evidence that implementing the
alternate method would not affect such employees by contravening any
environmental, health or safety standard, reducing any rights or
benefits or violating the terms of any negotiated agreement, and that
all other requirements of this section have been met. The provisions of
this subdivision are in addition to and shall not be construed to impair
or modify any rights of such employees under any other law, regulation
or contract.
6. Nothing in this section shall require a local government to
commence or continue an alternate method of implementation if it
determines in its sole discretion not to do so, except to the extent
that a local government has committed to commencing or continuing an
alternate method in a joint petition submitted pursuant to subdivision
three of this section. A state agency may rescind its approval of a
petition at any time if it determines, based on the information reported
pursuant to paragraph (e) of subdivision two of this section or other
information available to it, that the alternate method is not
effectively carrying out the objectives of the regulatory mandate or is
being implemented in a manner detrimental to the public interest.
7. Notwithstanding any other provision of law, implementation of an
alternate method approved by an agency pursuant to this section shall be
deemed to lawfully meet all requirements of the regulatory mandate. An
agency shall retain the authority to enforce compliance with the
alternate method in the same manner as it may enforce compliance with
the underlying rule. Any action on a petition by a state agency shall be
subject to review pursuant to article seventy-eight of the civil
practice law and rules.
8. In accordance with the timetable established pursuant to
subdivision four of this section, the agency shall evaluate the
effectiveness of the alternate method in carrying out the objectives of
the regulatory mandate. The evaluation shall identify any savings or
other benefits, and any costs or other disadvantages, of implementing
the alternate method, and shall address the desirability of
incorporating the alternate method into the rules of the agency. Notice
of availability of the evaluation shall be published in the state
register.
Right to judicial review of rules. Unless an exclusive
procedure or remedy is provided by law, judicial review of rules may be
had upon petition presented under article seventy-eight of the civil
practice law and rules, or in an action for a declaratory judgment where
applicable and proper. The agency shall be made a party to the
proceedings. Such a special proceeding or action may not be maintained
unless the petitioner has first requested the agency to pass upon the
validity or applicability of the rule in question and action has been
taken upon such a request or more than thirty days has elapsed since
such request has been filed and no final action has been taken thereon
or the agency has not provided for the issuance of such declaratory
rulings under section two hundred four. Unless the agency acts upon such
request within thirty days of its filing, such request shall be deemed
to have been denied. Nothing in this section shall be construed to grant
or deny to any person standing to petition under article seventy-eight
of the civil practice law and rules or to bring an action for a
declaratory judgment or to prohibit the determination of the validity or
applicability of the rule in any other action or proceeding in which its
invalidity or inapplicability is properly asserted.
Overlapping regulations; compliance determinations. 1. It is
the declared policy of this state to protect and encourage jobs,
investment and economic activity and to promote the public health,
safety and welfare by administering all regulatory requirements imposed
by the state in a fair and reasonable manner.
2. Any person subject to a requirement imposed by a state statute or
rule and to a similar requirement imposed by the federal government, may
pursuant to section two hundred four of this chapter, petition the
agency administering the state requirement for a declaratory ruling as
to whether compliance with the federal requirement will be accepted as
compliance with the state requirement. Upon receipt of such petition,
the agency shall submit a copy thereof to the office of business permits
and regulatory assistance.
3. If the agency determines that compliance with the federal
requirement would not satisfy the purposes or relevant provisions of the
state statute involved, the agency shall so inform the petitioner in
writing stating the reasons therefor and may issue a declaratory ruling
to that effect. A copy of such written statement of reasons and any such
declaratory ruling shall be submitted by the agency to the office of
business permits and regulatory assistance.
4. If the agency determines that compliance with the federal
requirement would satisfy the purposes and relevant provisions of the
state statute involved but that it would not satisfy the relevant
provisions of the state rule involved, the agency shall so inform the
petitioner and the office of business permits and regulatory assistance
and may initiate a rulemaking proceeding in accordance with this chapter
to consider revising such rule to accept compliance with such federal
requirement in a manner that is consistent with the requirements and
purposes of the state statute.
5. If the agency determines that compliance with the federal
requirement would satisfy the purposes and relevant provisions of the
state statute involved, and that it would satisfy the relevant
provisions of the state rule involved, the agency shall issue a
declaratory ruling indicating its intention to accept compliance with
the federal requirement as compliance with the state requirement, and
the terms and conditions under which it intends to do so. A copy of such
declaratory ruling shall be submitted by the agency to the office of
business permits and regulatory assistance.
6. The office of business permits and regulatory assistance may
consider agency compliance with this section when performing its review
function under section two hundred two-c of this chapter.
Review of existing rules. 1. (a) Unless the contrary is
specifically provided by paragraph (b) of this subdivision or by another
law, any rule which is adopted on or after the effective date of this
section shall be reviewed in the calendar year specified in the notice
of adoption for the rule, provided that at a minimum every rule shall be
initially reviewed no later than in the fifth calendar year after the
year in which the rule is adopted, and, thereafter, every rule shall be
re-reviewed at five-year intervals.
(b) For any rule for which a regulatory flexibility analysis, rural
area flexibility analysis or job impact statement is required, the
initial review shall occur no later than in the third calendar year
after the year in which the rule is adopted; provided, however, that the
agency may propose a different review period in such analysis or
statement, along with its justification for doing so, and shall invite
public comment thereon. The review period specified for the rule and an
assessment of any comments on this issue shall accompany the notice of
adoption.
2. An agency shall submit for publication in the regulatory agenda
published in January pursuant to section two hundred two-d of this
article a list of the rules which must be reviewed pursuant to
subdivision one of this section in the ensuing calendar year. In
addition to the information required by such section two hundred two-d,
for each rule so listed the agency shall provide an analysis of the need
for and legal basis of such rule, shall invite public comment on the
continuation or modification of the rule and shall indicate the last
date for submission of comments which shall be not less than forty-five
days from the date of publication. An agency shall also publish the list
of rules that must be reviewed pursuant to this section on its website.
If the original notice of proposed rule making for a listed rule
required the preparation of a regulatory flexibility analysis, a rural
area flexibility analysis, or a job impact statement, the agency shall
so indicate and shall provide outreach as appropriate to potentially
affected small businesses, local governments and public and private
interests in rural areas that the rule is being reviewed. Such outreach
may include solicitation of input through electronic means or through
any of the activities listed in subdivision six of section two hundred
two-b and subdivision seven of section two hundred two-bb of this
article.
3. If an agency determines that a rule subject to the provisions of
this section should be modified, it shall publish a notice of proposed
rule making for such rule, which, in addition to the information
otherwise required by this article, shall include a statement setting
forth a reasoned justification for modification of the rule and an
assessment of public comments, prepared in accordance with subdivision
four-a of section two hundred two of this article, which were submitted
to the agency in response to the listing of the rule in the regulatory
agenda. Where appropriate, the agency shall also include in its
statement a discussion of the degree to which changes in technology,
economic conditions, time required to comply, or other factors in the
area affected by the rule necessitate changes in the rule.
4. If an agency determines that a rule subject to the provisions of
this section should continue without modification, it shall publish a
notice to that effect, which shall identify the rule and the statutory
authority for the rule, and include a statement setting forth a reasoned
justification for continuation of the rule without modification and an
assessment of public comments, prepared in accordance with subdivision
four-a of section two hundred two of this chapter, which were submitted
to the agency in response to the listing of the rule in the regulatory
agenda.
5. This section shall not apply to any rule which was adopted as a
consensus rule or as a minor, obsolete or invalid rule, or to a rule
defined in subparagraph (ii) of paragraph (a) of subdivision two of
section one hundred two of this chapter.
ARTICLE 3 Adjudicatory Proceedings
Hearings. 1. In an adjudicatory proceeding, all parties shall
be afforded an opportunity for hearing within reasonable time.
2. All parties shall be given reasonable notice of such hearing, which
notice shall include (a) a statement of the time, place, and nature of
the hearing; (b) a statement of the legal authority and jurisdiction
under which the hearing is to be held; (c) a reference to the particular
sections of the statutes and rules involved, where possible; (d) a short
and plain statement of matters asserted; and (e) a statement that
interpreter services shall be made available to deaf persons, at no
charge, pursuant to this section. Upon application of any party, a more
definite and detailed statement shall be furnished whenever the agency
finds that the statement is not sufficiently definite or not
sufficiently detailed. The finding of the agency as to the sufficiency
of definiteness or detail of the statement or its failure or refusal to
furnish a more definite or detailed statement shall not be subject to
judicial review. Any statement furnished shall be deemed, in all
respects, to be a part of the notice of hearing.
3. Agencies shall adopt rules governing the procedures on adjudicatory
proceedings and appeals, in accordance with provisions of article two of
this chapter, and shall prepare a summary of such procedures in plain
language. Agencies shall make such summaries available to the public
upon request, and a copy of such summary shall be provided to any party
cited by the agency for violation of the laws, rules or orders enforced
by the agency.
4. All parties shall be afforded an opportunity to present written
argument on issues of law and an opportunity to present evidence and
such argument on issues of fact, provided however that nothing contained
herein shall be construed to prohibit an agency from allowing parties to
present oral argument within a reasonable time. In fixing the time and
place for hearings and oral argument, due regard shall be had for the
convenience of the parties.
5. Unless precluded by statute, disposition may be made of any
adjudicatory proceeding by stipulation, agreed settlement, consent
order, default, or other informal method.
6. Whenever any deaf person is a party to an adjudicatory proceeding
before an agency, or a witness therein, such agency in all instances
shall appoint a qualified interpreter who is certified by a recognized
national or New York state credentialing authority to interpret the
proceedings to, and the testimony of, such deaf person. The agency
conducting the adjudicatory proceeding shall determine a reasonable fee
for all such interpreting services which shall be a charge upon the
agency.
Record. 1. The record in an adjudicatory proceeding shall
include: (a) all notices, pleadings, motions, intermediate rulings; (b)
evidence presented; (c) a statement of matters officially noticed except
matters so obvious that a statement of them would serve no useful
purpose; (d) questions and offers of proof, objections thereto, and
rulings thereon; (e) proposed findings and exceptions, if any; (f) any
findings of fact, conclusions of law or other recommendations made by a
presiding officer; and (g) any decision, determination, opinion, order
or report rendered.
2. The agency shall make a complete record of all adjudicatory
proceedings conducted before it. For this purpose, unless otherwise
required by statute, the agency may use whatever means it deems
appropriate, including but not limited to the use of stenographic
transcriptions or electronic recording devices. Upon request made by any
party upon the agency within a reasonable time, but prior to the time
for commencement of judicial review, of its giving notice of its
decision, determination, opinion or order, the agency shall prepare the
record together with any transcript of proceedings within a reasonable
time and shall furnish a copy of the record and transcript or any part
thereof to any party as he may request. Except when any statute provides
otherwise, the agency is authorized to charge not more than its cost for
the preparation and furnishing of such record or transcript or any part
thereof, or the rate specified in the contract between the agency and a
contractor if prepared by a private contractor.
3. Findings of fact shall be based exclusively on the evidence and on
matters officially noticed.
4. Affirmation of truth of statement. The statement of any person
wherever made, subscribed and affirmed by that person to be true under
the penalties of perjury, may be used in an administrative proceeding in
New York in lieu of and with the same force and effect as an affidavit.
Such affirmation shall be in substantially the following form:
I affirm this ___ day of ______, ____, under the penalties of perjury
under the laws of New York, which may include a fine or imprisonment,
that the foregoing is true, and I understand that this document may be
filed in an administrative hearing.
(Signature)
Presiding officers. Except as otherwise provided by statute,
the agency, one or more members of the agency, or one or more hearing
officers designated and empowered by the agency to conduct hearings
shall be presiding officers. Hearings shall be conducted in an
impartial manner. Upon the filing in good faith by a party of a timely
and sufficient affidavit of personal bias or disqualification of a
presiding officer, the agency shall determine the matter as part of the
record in the case, and its determination shall be a matter subject to
judicial review at the conclusion of the adjudicatory proceeding.
Whenever a presiding officer is disqualified or it becomes impractical
for him to continue the hearing, another presiding officer may be
assigned to continue with the case unless it is shown that substantial
prejudice to the party will result therefrom.
Powers of presiding officers. Except as otherwise provided by
statute, presiding officers are authorized to:
1. Administer oaths and affirmations.
2. Sign and issue subpoenas in the name of the agency, at the request
of any party, requiring attendance and giving of testimony by witnesses
and the production of books, papers, documents and other evidence and
said subpoenas shall be regulated by the civil practice law and rules.
Nothing herein contained shall affect the authority of an attorney for a
party to issue such subpoenas under the provisions of the civil practice
law and rules.
3. Provide for the taking of testimony by deposition.
4. Regulate the course of the hearings, set the time and place for
continued hearings, and fix the time for filing of briefs and other
documents.
5. Direct the parties to appear and confer to consider the
simplification of the issues by consent of the parties.
6. Recommend to the agency that a stay be granted in accordance with
section three hundred four, three hundred six or three hundred seven of
the military law.
Disclosure. Each agency having power to conduct adjudicatory
proceedings may adopt rules providing for discovery and depositions to
the extent and in the manner appropriate to its proceedings.
Evidence. 1. Irrelevant or unduly repetitious evidence or
cross-examination may be excluded. Except as otherwise provided by
statute, the burden of proof shall be on the party who initiated the
proceeding. No decision, determination or order shall be made except
upon consideration of the record as a whole or such portion thereof as
may be cited by any party to the proceeding and as supported by and in
accordance with substantial evidence. Unless otherwise provided by any
statute, agencies need not observe the rules of evidence observed by
courts, but shall give effect to the rules of privilege recognized by
law. Objections to evidentiary offers may be made and shall be noted in
the record. Subject to these requirements, an agency may, for the
purpose of expediting hearings, and when the interests of parties will
not be substantially prejudiced thereby, adopt procedures for the
submission of all or part of the evidence in written form.
2. All evidence, including records and documents in the possession of
the agency of which it desires to avail itself, shall be offered and
made a part of the record, and all such documentary evidence may be
received in the form of copies or excerpts, or by incorporation by
reference. In case of incorporation by reference, the materials so
incorporated shall be available for examination by the parties before
being received in evidence.
3. A party shall have the right of cross-examination.
4. Official notice may be taken of all facts of which judicial notice
could be taken and of other facts within the specialized knowledge of
the agency. When official notice is taken of a material fact not
appearing in the evidence in the record and of which judicial notice
could not be taken, every party shall be given notice thereof and shall
on timely request be afforded an opportunity prior to decision to
dispute the fact or its materiality.
Decisions, determinations and orders. 1. A final decision,
determination or order adverse to a party in an adjudicatory proceeding
shall be in writing or stated in the record and shall include findings
of fact and conclusions of law or reasons for the decision,
determination or order. Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of
the underlying facts supporting the findings. If, in accordance with
agency rules, a party submitted proposed findings of fact, the decision,
determination or order shall include a ruling upon each proposed
finding. A copy of the decision, determination or order shall be
delivered or mailed forthwith to each party and to his attorney of
record.
2. Unless required for the disposition of ex parte matters authorized
by law, members or employees of an agency assigned to render a decision
or to make findings of fact and conclusions of law in an adjudicatory
proceeding shall not communicate, directly or indirectly, in connection
with any issue of fact, with any person or party, nor, in connection
with any issue of law, with any party or his representative, except upon
notice and opportunity for all parties to participate. Any such agency
member (a) may communicate with other members of the agency, and (b) may
have the aid and advice of agency staff other than staff which has been
or is engaged in the investigative or prosecuting functions in
connection with the case under consideration or factually related case.
This subdivision does not apply (a) in determining applications for
initial licenses for public utilities or carriers; or (b) to proceedings
involving the validity or application of rates, facilities, or practices
of public utilities or carriers.
3. (a) Each agency shall maintain an index by name and subject of all
written final decisions, determinations and orders rendered by the
agency in adjudicatory proceedings. For purposes of this subdivision,
such index shall also include by name and subject all written final
decisions, determinations and orders rendered by the agency pursuant to
a statute providing any party an opportunity to be heard, other than a
rule making. Such index and the text of any such written final
decision, determination or order shall be available for public
inspection and copying. Each decision, determination and order shall be
indexed within sixty days after having been rendered.
(b) An agency may delete from any such index, decision, determination
or order any information that, if disclosed, would constitute an
unwarranted invasion of personal privacy under the provisions of
subdivision two of section eighty-nine of the public officers law and
may also delete at the request of any person all references to trade
secrets that, if disclosed, would cause substantial injury to the
competitive position of such person. Information which would reveal
confidential material protected by federal or state statute, shall be
deleted from any such index, decision, determination or order.
Streamlined optional adjudicatory proceedings for small
businesses. Unless otherwise prohibited by law, an agency may adopt
regulations providing for use at the option of a small business of
streamlined adjudicatory proceedings conducted by mail, electronic mail,
telephone conference or videoconference. In adopting such regulations,
the agency shall:
1. consider the types of programs and issues for which such
streamlined proceedings may reasonably be conducted, taking into account
(a) the complexity of the matters to be resolved in the proceeding, (b)
the severity of potential sanctions, (c) any necessity for personal
appearances, including but not limited to requirements for sworn
testimony or cross-examination, and (d) any potential reduction in the
costs and burdens of participating in the proceeding for the agency and
for other parties, and shall appropriately limit the availability of
streamlined proceedings to programs and issues in which the public
interest in fair outcomes can continue to be assured;
2. ensure that a streamlined proceeding may only be used at the option
of the respondent small business with the consent of the agency and any
other necessary party to the proceeding, and that the rights of
respondents and other parties will not be diminished in any respect by
virtue of participation in a streamlined proceeding;
3. specify the format or formats for remote conduct of streamlined
proceedings;
4. establish procedures for requesting and scheduling such
proceedings, for the conduct of such proceedings, and for the
development of a complete record as provided in section three hundred
two of this article; and
5. provide that, in the event that it becomes impractical or
inappropriate to continue a proceeding commenced pursuant to this
section as a streamlined proceeding, such proceeding may be rescheduled
as an adjudicatory proceeding pursuant to section three hundred one of
this article without prejudice to any party.
ARTICLE 4 Licenses
Licenses. 1. When licensing is required by law to be preceded
by notice and opportunity for hearing, the provisions of this chapter
concerning adjudicatory proceedings apply. For purposes of this act,
statutes providing an opportunity for hearing shall be deemed to include
statutes providing an opportunity to be heard.
2. When a licensee has made timely and sufficient application for the
renewal of a license or a new license with reference to any activity of
a continuing nature, the existing license does not expire until the
application has been finally determined by the agency, and, in case the
application is denied or the terms of the new license limited, until the
last day for seeking review of the agency order or a later date fixed by
order of the reviewing court, provided that this subdivision shall not
affect any valid agency action then in effect summarily suspending such
license.
3. If the agency finds that public health, safety, or welfare
imperatively requires emergency action, and incorporates a finding to
that effect in its order, summary suspension of a license may be
ordered, effective on the date specified in such order or upon service
of a certified copy of such order on the licensee, whichever shall be
later, pending proceedings for revocation or other action. These
proceedings shall be promptly instituted and determined.
4. When the hearing seeks the revocation of a license or permit
previously granted by the agency, either party shall, upon demand and at
least seven days prior to the hearing, disclose the evidence that the
party intends to introduce at the hearing, including documentary
evidence and identification of witnesses, provided, however, the
provisions of this subdivision shall not be deemed to require the
disclosure of information or material otherwise protected by law from
disclosure, including information and material protected because of
privilege or confidentiality. If, after such disclosure, a party
determines to rely upon other witnesses or information, the party shall,
as soon as practicable, supplement its disclosure by providing the names
of such witnesses or the additional documents.
Electronic filing of applications for certain business permits.
1. Notwithstanding any provision of law to the contrary, a state agency
may, by promulgation of regulations, permit an application for a
business permit or other license subject to the provisions of this
section to be filed with such agency, subscribed and affirmed by the
applicant as true under penalty of perjury where statute otherwise
requires that such signature be acknowledged, verified or sworn under
oath.
2. Notwithstanding any provision of law to the contrary, a state
agency may, by promulgation of regulations, permit any application for a
business permit or other license subject to the provisions of this
section to be submitted to such agency by electronic means, provided
that any signature required thereon shall meet the requirements of
subdivision three of section three hundred two of the state technology
law, and the use of electronic records shall meet the requirements of
subdivision one of section three hundred five of the state technology
law.
3. This section shall apply to applications for the issuance,
modification or renewal of any permit, license, certificate, approval,
registration, charter, or similar form of permission or authority
required by law, or by state agency rules having the force and effect of
law, which is required for a business undertaking, project or activity
for an applicant, but shall not include bonds or other forms of security
required to be submitted by applicants, any individual licenses for
practicing a profession prescribed in title eight of the education law,
filings under the uniform commercial code, or routine licenses and
permits for individual privileges, including licenses for operating a
motor vehicle.
ARTICLE 5 Representation
Representation. Any person compelled to appear in person or who
voluntarily appears before any agency or representative thereof shall be
accorded the right to be accompanied, represented and advised by
counsel. In a proceeding before an agency, every party or person shall
be accorded the right to appear in person or by or with counsel. Nothing
herein shall be construed either to grant or to deny to any person who
is not a lawyer the right to appear for or represent others before any
agency.