N.Y. State Administrative Procedure Act § 202: Rule making procedure

§ 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 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proposed rule is adopted, revised, withdrawn or expires pursuant to this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.