---------------------------------------------------------------
NEW YORK STATE
STATE ADMINISTRATIVE PROCEDURE ACT
(SAPA)
ARTICLE 2
RULE MAKING
Sec. 201. Adoption of procedures.
Sec. 202. Rule making procedure.
Sec. 202-a. Regulatory impact.
Sec. 202-b. Regulatory flexibility.
Sec. 202-c. Regulatory review.
Sec. 202-d. Regulatory agenda.
Sec. 203. Filing; effective date.
Sec. 204. Declaratory rulings by agencies.
Sec. 205. Right to judicial review of rules.
Sec. 206. Overlapping regulations; compliance determinations.
---------------------------------------------------------------
Sec. 201. ADOPTION OF PROCEDURES.
This article establishes minimum procedures for all agencies,
provided, however, an agency may adopt by rule additional
procedures not inconsistent with statute.
---------------------------------------------------------------
Sec. 202. 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 forty-five 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.
(b) The agency shall also notify every person who has
submitted a written request to be notified by the
agency of all proposed rules which may affect such
person. Such 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. Notices issued pursuant to such requests shall
be sent in writing to the last address specified by the
person. The agency may charge any person requesting
such notice a fee consisting of the cost of
preparation, handling and postage for the notice.
(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.
(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) A copy of the complete text of the proposed rule, the
regulatory impact statement, and the regulatory
flexibility analysis shall be available to the public
on the date notice is first given pursuant to this
subdivision.
(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 of the deaf 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;
(vi) include a regulatory impact statement prepared
pursuant to section two hundred two-a of this
chapter, 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 a regulatory flexibility analysis
prepared pursuant to section two hundred two-b
of this chapter, 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;
(viii) give the name, public office address and
telephone number of an agency representative,
knowledgeable on the proposed rule, from whom
the complete text of such rule, the regulatory
impact statement and the regulatory 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 one hundred eighty
days after either:
(i) the publication in the state register of a notice
of proposed rule making concerning a rule for
which statute does not require that a public
hearing be held prior to adoption; or
(ii) the date of the last public hearing scheduled in a
notice of proposed rule making concerning a rule
for which such hearing is so required.
(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 the
secretary of state, at his discretion, determines will
serve the public interest.
3. Continuation of notice of proposed rule making; notice of
continuation.
(a) A notice of proposed rule making shall not expire if,
prior to the expiration date of the notice, a notice of
continuation appears in the state register. A notice of
continuation shall extend the expiration date of a
notice of proposed rule making for an additional ninety
days. No notice of proposed rule making may be
continued more than twice. The agency which has
submitted a notice of continuation may not adopt the
proposed rule until at least thirty days after such
notice appears in the state register.
(b) A notice of continuation shall contain:
(i) a description of the subject, purpose and
substance of the proposed rule; and
(ii) a description of any substantive changes in the
proposed rule which the agency has made.
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.
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. The agency shall transmit a copy of
the notice of adoption which shall include a copy of
the complete text of the rule to the governor, the
temporary president of the senate, the speaker of the
assembly, the administrative regulations review
commission and the office of business permits and
regulatory assistance at the time such notice is
submitted 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
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 summarize the issues raised, including
significant alternatives suggested by any such
comments, summarize the agency's assessment of the
issues and state any changes made in the rule as a
result of such comments. If no comments have been
received, the notice of adoption shall state that no
comments were received by the agency.
(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 substantive
changes in the text of the rule as adopted when
compared with the text 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 subparagraph
(ii) of paragraph (a) of subdivision six of
section two hundred two-a of this chapter,
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, when required by the provisions of
subparagraph (ii) of paragraph (a) of
subdivision seven of section two hundred two-b
of this chapter, 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 of assessment
of comments may be obtained; and
(ix) 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 sixty 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.
(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) contain the findings required by paragraphs (a)
and (c) of this subdivision and include a
statement fully describing the specific reasons
for such findings;
(iv) give the effective date of the rule;
(v) state the date the rule will terminate;
(vi) 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;
(vii) 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;
(viii) include a regulatory flexibility analysis
prepared pursuant to section two hundred two-b
of this chapter or a statement that the
regulatory 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;
(ix) 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, and the regulatory 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
(x) include any additional matter required by
statute.
(e) If, prior to the expiration of a rule readopted
pursuant to paragraph (a) of this subdivision, the
agency finds that a second 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
second 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 third 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.
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 off 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.
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. 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 and section two
hundred two-c of this chapter;
(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; and
(iv) publish all notices, required by this section and
section two hundred two-c of this chapter, in the
state register as soon as practicable.
---------------------------------------------------------------
Sec. 202-a. 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 directly or indirectly
affected by it or upon the economy or administration of
state or local government agencies.
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. A copy of such statement 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 statement is submitted to
the secretary of state for publication and, upon written
request, a copy shall be sent to any other person.
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
necessity for, and the benefits to be derived from, the
rule;
(c) Costs. A statement indicating the projected costs (i)
for the implementation of, and continuing compliance
with, the rule to the state, its local governments and
regulated persons and (ii) to the agency for the
implementation and continued administration of the
rule. Where an agency finds that it cannot fully
provide an estimate of any such costs, it shall include
a statement setting forth the reason or reasons why
such estimate is not provided;
(d) Paperwork. A statement describing the need for any
reporting requirements, forms and other paperwork,
which would be required as a result of the rule;
(e) Duplication. A statement comparing the requirements of
the rule with any related state and federal
requirements; and
(f) 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.
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.
6. (a) Each agency shall issue a revised regulatory
impact statement when:
(i) 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; or
(ii) there are substantive changes in the text of the
rule as adopted when compared with the text of the
proposed rule and such changes would necessitate
that such statement be modified. A revised
statement shall describe the reasons for the
changes and shall include any modifications in the
regulatory impact statement that are necessary as
a result of such changes.
(b) A copy of such revised statement 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 statement is submitted to the secretary of
state for publication and, upon written request, a copy
shall be sent to any other person.
---------------------------------------------------------------
Sec. 202-b. REGULATORY FLEXIBILITY.
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. 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;
(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 so long as the public
health, safety or general welfare is not endangered.
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 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 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 of different types and of
differing sizes;
(d) an indication of how the rule is designed to minimize
any adverse economic impact of such rule on small
businesses; including information regarding whether the
approaches suggested in subdivision one of this section
or other similar approaches were considered; and
(e) a statement indicating how the agency complied with
subdivision six of this section.
3. 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 and which the agency finds would not
impose reporting, recordkeeping or other compliance
requirements on small businesses. 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, shall be included in the rule
making notice as required by section two hundred two of this
chapter.
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 small
businesses have been given an opportunity to participate in
the rule making through such activities as:
(a) the publication of a general notice for the proposed
rule making in publications likely to be obtained by
small businesses of the types affected by the proposed
rule;
(b) the direct notification of interested small businesses
affected by the proposed rule;
(c) the conduct of special open conferences concerning the
proposed rule for small businesses 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.
7. (a) Each agency shall issue a revised regulatory
flexibility analysis when:
(i) 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: or
(ii) there are substantive changes in the text of the
rule as adopted when compared with the text of the
proposed rule and such changes would necessitate
that such analysis be modified.
(b) A copy of such revised analysis 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.
---------------------------------------------------------------
Sec. 202-c. REGULATORY REVIEW.
1. For the purposes of this section:
(a) "Office" shall mean, unless a contrary meaning is
clearly intended, the office of business permits and
regulatory assistance created pursuant to article
thirty-nine of the executive law; and
(b) "Rule" shall mean the adoption, suspension, amendment
or repeal, of any rule as defined by subdivision two of
section one hundred two of this chapter, but shall not
include a rule as defined in subparagraph (ii) of
paragraph (a) of subdivision two of section one hundred
two of this chapter or, rules proposed or adopted by
the state comptroller or the attorney general, rules
regarding jurisdictional classifications pursuant to
subdivision one of section six of the civil service law
and the alteration of hunting or fishing seasons
pursuant to article eleven of the environmental
conservation law.
2. An agency shall submit a copy of the complete text of the
proposed rule, regulatory impact statement prepared pursuant
to section two hundred two-a of this chapter and regulatory
flexibility analysis prepared pursuant to section two
hundred two-b of this chapter to the office at the time the
notice of proposed rule making is submitted to the secretary
of state for publication in the state register, unless such
rule is of a type determined not to be reviewed pursuant to
subdivision thirteen of section eight hundred seventy-eight
of the executive law, and the agency has received a notice
thereof.
3. In the case of a rule adopted on a emergency basis, the
review procedure provided for in this section shall commence
when the agency proceeds to adopt the rule on a permanent
basis, submits a notice of proposed rule making pursuant to
subdivision one of section two hundred two of this chapter
and provides the office with a copy of the complete text of
the rule, the regulatory impact statement prepared pursuant
to section two hundred two-a of this chapter and the
regulatory flexibility analysis prepared pursuant to section
two hundred two-b of this chapter.
4. Upon receipt of such materials, the office shall conduct a
review of the proposed rule, the regulatory impact statement
and the regulatory flexibility analysis using as criteria
whether:
(a) The proposed rule (i) is clearly within the authority
delegated by law, (ii) is consistent with and necessary
to achieve a specific legislative purpose, (iii) is
clearly written so that its meaning will be easily
understood by those persons affected by it, (iv) does
not unnecessarily duplicate existing federal or state
statutes or rules, and (v) is consistent with existing
state statute and rules; and
(b) The agency proposing the rule has complied with the
provisions of sections two hundred two-a and two-b of
this chapter and has provided information in the
regulatory impact statement and the regulatory
flexibility analysis prepared pursuant to such sections
adequate to enable interested persons to evaluate the
impact of the proposed rule.
5. In the event the office concludes that any of the criteria
listed in subdivision four of this section have not been
met, the office shall so notify the agency proposing the
rule. Such notification shall be in writing and shall be
sent within forty-five days of the publication of the notice
of proposed rule making for the rule in the state register.
The notification shall indicate the need for further
demonstration of compliance with such criteria and how the
agency failed to comply with such criteria. A copy of such
notification shall be submitted by the office to the
secretary of state for publication in the state register and
shall identify the rule making, identify the agency and
state that the proposed rule shall not be adopted by the
agency until at least thirty days after the agency proposing
the rule has responded to the office on the matters
contained in such notification.
6. The agency proposing the rule shall, in responding to such
notification by the office, provide further clarifications
or justifications of its rule, regulatory impact statement
or regulatory impact analysis, propose changes in the rule,
submit a revised statement or analysis or may withdraw the
proposal. A copy of the agency response material shall be
sent by the agency to the governor, the secretary to the
governor, the temporary president of the senate, the speaker
of the assembly and the administrative regulations review
commission at the time such material is sent to the office.
Should the agency fail to respond to the office within
thirty days from receipt of the notification from the
office, the proposed rule shall be deemed to be withdrawn,
and the office shall submit a notice of withdrawal for the
rule to the secretary of state for publication in the state
register.
7. (a) Upon receipt of the agency response material, the
office shall conduct a review of the proposed rule,
regulatory impact statement, regulatory flexibility
analysis and agency response material according to the
criteria contained in subdivision four in this section.
In the event the office concludes that any of the
criteria listed in subdivision four of this section
have still not been met, the office shall so notify the
agency in writing within fifteen days of the receipt of
such material. The notification shall indicate the
criteria that have not been met and how the agency
failed to comply with such criteria. A copy of such
notification shall be submitted by the office to the
secretary of state for publication in the state
register and shall identify the rule making and the
agency, indicate the need for further demonstration of
compliance with such criteria, and state that the
agency shall hold a public hearing on at least ten days
notice.
(b) Upon receipt of such notification, the agency shall
hold a public hearing on at least ten days notice, such
notice to be published within fifteen days of the
receipt of the second notification by the office that
any of the criteria have not been met. The notice of
public hearing shall state that the hearing is being
held as a result of the issuance of a second
notification by the office. The notice shall also
indicate the issues raised by the office in the second
notification. The notice of public hearing shall be
published in at least three newspapers of general
circulation in the state, and in such trade, industry,
professional or other publications as the agency may
select. In addition, the agency shall notify the
office, the governor, the secretary to the governor,
the temporary president of the senate, the speaker of
the assembly, the administrative regulations review
commission, and any other person who has indicated to
the agency an interest in the proposed rule. In the
event the agency fails to give such notice within
fifteen days after receipt of the second notification
by the office, or fails to commence the hearing within
forty-five days of the receipt of such notification,
the rule shall be deemed to be withdrawn, and the
office shall submit a notice of withdrawal for the rule
to the secretary of state for publication in the state
register.
(c) Such public hearing shall be in addition to any other
hearing required or permitted by law. The agency shall
present, or cause to be presented, at the hearing
material in response to the issues identified in the
second notification to the agency by the office and
shall receive such testimony as may be offered at such
hearing. Upon the close of such hearing, the agency
shall prepare and send to the governor, with copies to
the secretary to the governor, the temporary president
of the senate, the speaker of the assembly, the office,
the administrative regulations review commission, and
any other person who has indicated to the agency an
interest in the proposed rule, a brief report
indicating whether the agency intends to proceed with
the rule making and including the agency response to
the issues raised by the office. The proposed rule may
not be adopted until ten days after such report has
been sent to the governor, and in no event shall the
proposed rule be adopted sooner than forty-five days
from receipt by the agency of the notification issued
pursuant to paragraph (a) of this subdivision.
(d) In the event the office does not issue a notification
pursuant to paragraph (a) of this subdivision, the
office shall, within fifteen days of receipt of the
agency response material, so notify the agency in
writing. A copy of such notification shall be submitted
by the office to the secretary of state for publication
in the state register at the time such notification is
submitted to the agency, and shall identify the rule
making and the agency.
8. In the event the office concludes that the minimum period,
available pursuant to subdivision one of section two hundred
two of this chapter is insufficient for the public to submit
comments on a proposed rule, the office shall so notify the
agency proposing the rule. Such notification shall be in
writing and shall be sent to the agency within twenty-one
days after the publication of the notice of proposed rule
making for the rule in the state register. Upon receipt of
such notification, the agency shall extend such period as
required by subdivision one of section two hundred two of
this chapter by fifteen days, and shall promptly notify any
person who had indicated to the agency an interest in the
proposed rule. A copy of any written notification by the
office pursuant to this subdivision shall be submitted to
the secretary of state for publication in the state
register, and shall indicate that the proposed rule may not
be adopted prior to the expiration of this fifteen day
extension. A notification by the office pursuant to this
subdivision shall extend the period, provided for in
subdivision five of this section for the office to notify
the agency of the need for further demonstration of
compliance with the criteria listed in subdivision four of
this section, by fifteen days.
9. In the event the office does not send to the agency in a
timely fashion the notification specified in subdivision
five or seven of this section, the proposed rule may be
deemed by the agency to meet the criteria contained in
subdivision four of this section.
10. A copy of any notification by the office pursuant to
subdivision five, six, seven or eight of this section shall
be sent by the office to the governor, the secretary to the
governor, the temporary president of the senate, the speaker
of the assembly and the administrative regulations review
commission by the office at the time such notification is
submitted to the secretary of state for publication in the
state register.
11. An agency may consult informally with the office regarding
proposed rules, regulatory impact statements and regulatory
flexibility analysis at any time prior to the submission of
such materials. Such informal consultation shall not be
binding on the office or the agency.
---------------------------------------------------------------
Sec. 202-d. REGULATORY AGENDA.
1. An agency may, in its direction, submit 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 chapter.
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.
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.
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.
---------------------------------------------------------------
Sec. 203. 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 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 article- provided, however,
that no rule for which the notice of adoption submitted
therewith states that there have been any substantive
changes in the text of the rule as adopted when compared
with the text of the proposed rule, or includes a revised
regulatory impact statement or a revised regulatory
flexibility analysis, shall become effective until twenty
one days after such rule is filed with the secretary of
state, unless a later date is required by statute or is
specified in the rule. 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. 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 (b) of subdivision five of such section two
hundred two, the proposed rule shall mean the rule being
amended, suspended or repealed pursuant to this subdivision.
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.
---------------------------------------------------------------
Sec. 204. 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.
(b) Where an agency declines to issue a declaratory ruling
described in paragraph (ii) of subdivision one of this
section, or rules that agency action need not be taken
pursuant to a rule, such declination and any
declaratory ruling described in paragraph (ii) of
subdivision one of this section may be reviewed, upon
petition of the original petitioner, by the office of
business permits and regulatory assistance established
pursuant to article thirty nine of the executive law.
Within sixty days of receipt of such petition, the
office shall issue an advisory opinion as to whether
the action in question should be taken pursuant to
agency rule making. The office of business permits and
regulatory assistance shall promulgate such rules and
regulations as may be necessary for it to carry out the
provisions of this subdivision, including rules
governing participation by the affected agency in the
review process.
(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.
---------------------------------------------------------------
Sec. 205. 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 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.
---------------------------------------------------------------
Sec. 206. 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.
---------------------------------------------------------------
