New York State Administrative Procedure Act § 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 or this paragraph, 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.

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 forty-five 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, and the full text of the proposed rule has not been posted on a website maintained by the agency or another state entity, the last date for submission of comments shall be not less than sixty days after the date of publication of such notice, unless the rule is a consensus rule or a 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.

(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, if any, on which the full text has been posted;

(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 and a rural area flexibility analysis prepared pursuant to sections two hundred two-b and two hundred two-bb of this chapter, 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;

(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 thirty 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 thirty 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) [Formerly par. (b), redesignated by L.1992, c. 335.  See, also, par. (c) below.] 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;

(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 subparagraph (ii) of paragraph (a) of subdivision six of section two hundred two-a[FN1] 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 and a rural area flexibility analysis, when required by the provisions of subparagraph (ii) of paragraph (a) of subdivision seven of section two hundred two-b[FN2] and paragraph (b) of subdivision eight of section two hundred two-bb 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) 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  [FN3] 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.

(c) [As added by L.1992, c. 621.  See, also, par. (c) above.] 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 subparagraph (ii) of paragraph (a) of subdivision six of section two hundred two-a[FN1] 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 and rural area flexibility analysis, when required by the provisions of subparagraph (ii) of paragraph (a) of subdivision seven of section two hundred two-b[FN2] and paragraph (b) of subdivision eight of section two hundred two-bb 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, 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;

(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.

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, the administrative regulations review commission and the office of regulatory and management assistance 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.

(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 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 request.

(c) An agency shall notify every person who has submitted a written request to be notified of all proposed, revised, emergency and/or adopted 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.  An agency may charge any person requesting such notice a fee consisting of the cost of preparation, handling and postage.

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;

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;  and

(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.

(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.

[FN1]

 So in original.  Now State Administrative Procedure Act § 202-a, subd. 6, par. (ii).

[FN2]

 So in original.  Now State Administrative Procedure Act § 202-b, subd. 7, par. (ii).

[FN3]

 So in original.  Comma inadvertently omitted.


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