Rule Making
in New York
How
to prepare
SAPA
notices for
publication in the State Register
How
to file adopted
rules
for
publication in the Official
NY
CRR
New
Y
o
rk
State
Department
of
State
Division
of
Administrative
R
u
les
R
e
vised
May
2012
Kathy Hochul
, Governor
Rossana Rosado, Secretary of State
Department of State Rule Making in New York May 2012 i
Table of
Contents
RULE
MAKING
IN
NEW
YORK
Using this
Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
1 / What should I know about this manual?
1 / What acronyms should I know?
2 / Is there a quick way to locate rule making citations?
2 / Are specific rule making forms required?
I
n
t
r
o
d
u
c
t
i
o
n
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
3 / Are all rules alike?
3 / What steps do I take to get a rule adopted?
3 / What can I do if I need a rule to be effective right away?
P
r
e
-
P
r
o
p
o
s
a
l
Rule Review
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
4 / Does my rule require Executive Chamber approval?
4 / What criteria does RRU use to review rules?
4 / Does RRU send rules to anyone else for review?
4 / Is a rule subject to RRU review after publication?
4 / Where do I send rules for RRU review?
C
h
a
p
t
e
r
1.
How
to
P
r
o
p
o
s
e
a
Rule
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
5 / Narrative overview
5 / What is the State Register publication schedule?
6 / How do I complete the proposal form?
12 / How do I type text attachments?
12 / What is the prescribed format for text?
13 / What written instructions should I use?
14 / How do I number new text additions?
15 / What do I type to repeal a rule?
16 / How do I decide whether and when to amend a rule versus repeal-and-add new text?
16 / What do I put into a proposal package?
16 / Where do I send my proposal?
17 / Will I receive an acknowledgment?
17 / What does the State Register ID number mean?
C
h
a
p
t
e
r
2.
How
to
R
e
v
i
s
e
or
W
i
t
h
d
r
a
w
a
P
r
o
p
o
s
a
l
. . . . . . . . . . . . . . . . . . . . .
19
19 / Narrative overview
19 / What is a substantial revision?
20 / How do I revise a proposed rule making?
21 / How do I withdraw a proposed rule?
ii May 2012 Department of State Rule Making in New York
C
h
a
p
t
e
r
3.
How
to
Adopt
a
Rule
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
23 / Narrative overview
23 / How do I adopt a rule?
24 / What does a certification have to say?
25-26 Sample Certifications
27 / How do I complete the adoption form?
29 / Where do I deliver my adoption?
29 / Will I receive an acknowledgment?
29 / Can I change a newly adopted rule?
29 / How do I complete the amended adoption form?
C
h
a
p
t
e
r
4.
How
to
Adopt
an
E
m
e
r
g
e
n
c
y
Rule
. . . . . . . . . . . . . . . . . . . . . . .
31
31 / Narrative overview
32 / How do I adopt a rule on an emergency basis?
32 / Can I continue an emergency rule?
32 / Can I revise a proposal after adopting the rule as an emergency?
32 / Can I withdraw an emergency adoption?
32 / What do I file for an emergency rule making?
33 / Where do I deliver my emergency?
33 / Will I receive an acknowledgment?
34 / Can I change a newly adopted emergency rule?
C
h
a
p
t
e
r
5.
How
to
I
n
c
o
r
p
o
r
a
t
e
by
R
e
f
e
r
e
n
ce
. . . . . . . . . . . . . . . . . . . . . . . .
35
35 / Narrative overview
35 / When do I provide copies of the publications I intend to incorporate by reference?
35 / What information is required to be in the rule?
36 / Does the text of incorporated by reference material “count” for the 2,000-word publication limit?
36 / Can I reference previously filed publications?
36 / How do I prepare publications for filing?
37 / Is there a form to submit documents?
C
h
a
p
t
e
r
6.
How
to
P
u
b
li
s
h
a
R
e
g
u
l
a
t
o
r
y
A
g
e
n
d
a
. . . . . . . . . . . . . . . . . . . . .
39
39 / Narrative overview
39 / Do I have to publish a Regulatory Agenda?
39 / What is required to be in a Regulatory Agenda?
40 / When do I submit a Regulatory Agenda for publication in the State Register?
40 / Where do I send my Regulatory Agenda?
C
h
a
p
t
e
r
7.
Five
Y
e
a
r
Review
of
Existing Rules
. . . . . . . . . . . . . . . . . . . . . . . .
41
C
h
a
p
t
e
r
8. Guidance
D
o
c
u
m
e
n
t
s
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
Department of State Rule Making in New York May 2012 iii
Appendices
A. Subject Index / 45
B. Rule Making Forms and Formats (list) / 59
C. Rule Making Criteria (RRU) / 61
D. “202(6-a)” and “101-a” Officers / 63
E. Supreme Court Law Libraries / 65
Page Intentionally Left Blank
Department of State Rule Making in New York May 2012 1
USING
THIS
MANUAL
What should I know about this manual?
We have made every effort
to
establish and conform
to a
precise word scheme
in this
procedure
manual.
In every instance:
Must is used to denote a required action.
Should denotes an action recommended by the Department of State’s Division of Administrative
Rules, but which is not
required.
May is used for purely discretionary actions.
I/you
refers
to the
person preparing
the
Register
notice
or
performing
the
referenced task
or activity.
We/us refers to your colleagues in the Department of State’s Division of Administrative Rules.
What acronyms should I know?
Unlike many rules, the rule making process itself has surprisingly few acronyms. You should be
familiar with the following acronyms which are used throughout this manual:
— ARRC, the Administrative Regulations Review Commission, performs
Acronyms
T
ARRC
T
DAR
T
RRU
T
SAPA
T
RIS
T
RFA
T
RAFA
T
JIS
Legislative Branch reviews of rule making activities.
— DAR, the Department of State’s Division of Administrative Rules.
— RRU, the Regulatory Review Unit within the Division of the Budget receives
and reviews rule makings along with the Executive Chamber.
—
SAPA
,
the State Administrative Procedure Act,
governs
the rule making
process
in New York State. In signing a rule making notice, you certify that you have
reviewed Article 2 of SAPA and the notice complies with all applicable
provisions.
Nearly every proposal must include one or more of the following statements:
— RIS, a Regulatory Impact Statement;
— RFA, a Regulatory Flexibility Analysis (for Small Businesses and Local Governments);
— RAFA, a Rural Area Flexibility Analysis; and
— JIS, a Job Impact Statement.
2 May 2012 Department of State Rule Making in New York
Is there a quick way to locate rule making citations?
Appendix A
Subject
index
Yes.
Appendix
A is a subject index table of basic rule making
information.
It includes
an alphabetic list of major activities and functions, the appropriate SAPA, Executive
Law, Executive Order and NYCRR citation and a plain language overview of the
topic.
The index is provided as a tool; it is not a substitute for actually reading the law.
When you certify a Register notice you certify that you have, in fact, read and
understand
the mandates
within SAPA and the Executive Law.
Are specific rule making forms required?
We provide rule making notice forms that contain all of the information you must
address to ensure substantial compliance with SAPA regulations. We also provide
formats for the accompanying statements that must be attached to notice forms, to
help ensure that you address all required elements. You should refer to SAPA to
Appendix B
T
Forms
T
Formats
make sure the content of each element is complete. Appendix B is a list of current rule making forms
and formats which we amend as statutes or administrative needs require.
We
supply
pdf
forms
and
formats
on
our
website at
http://www.dos.ny.gov/info/e-file/e-forms.html.
Please Note: DAR now has an E-filing process for all rule makings. Instructions for completing
forms
and
submitting
to the
West
Data
Capture system
can be
found
on the
Department
of
State
website
at the above address.
Office
hours:
8:00 a.m. – 5:00 p.m.,
Monday-Friday
Department of State Rule Making in New York May 2012 3
INTRODUCTION
Are all rules alike?
No. SAPA
distinguishes
between rules and
administrative guidance documents.
This manual will help
you through the rule making and publication process to add, amend or repeal rules defined in SAPA as
§102(2)(a)(i) and (ii) rules.
Administrative
guidance documents are exactly that — guidance documents. They do not have the
full force and effect of law, and are not published in the NYCRR. (See Chapter 8 regarding guidance
documents.) SAPA §102(2)(b) also lists other types of documents that are not included in paragraph
(a) of §102(2).
Rules defined under subdivision (a)(i) are the type that implement or apply law, or which prescribe
a fee charged by or paid to an agency or the procedure or practice requirements of an agency. Rules
defined under subdivision (a)(ii) deal with rates, wages, security authorizations, etc.
The major process differences between the two types of rules is that proposals for (a)(i) rules are
generally accompanied by an RIS, RFA, RAFA and JIS and expire 365 days after publication in the
State Register (See Chapter 1 How to Propose a Rule), while (a)(ii)
proposals
do not expire and you are
not required to submit an RIS, RFA, RAFA or JIS.
Contact our Office of Counsel at (518) 474-6740 if you have any question about which process to
use to adopt a particular type of rule.
What steps do I take to get a rule adopted?
SAPA establishes a three-step process for all rule making activities of a permanent nature. To adopt a
new rule, or to amend or repeal an existing rule, you must:
1) propose it through publication of a notice in the State Register;
2) receive and consider public comment; and
3) adopt the rule by filing the full text with us for incorporation into the NYCRR, along with a
Notice of Adoption (again, for publication in the State
Register
).
Remember, state agencies subject
to
the Governor’s executive control must obtain approval
through
the Executive Chamber before submitting a proposal to us for publication in the State Register.
Consensus rules are excepted.
What can I do if I need a rule to be effective right away?
In cases that warrant an expedited process, you may file a Notice of Emergency Adoption with us to
make a rule effective on a temporary basis – a maximum of 90 days from the date filed – without
proposing the rule for permanent adoption. (Executive Chamber approval is required.)
You cannot re-adopt the emergency (i.e., file a second emergency) unless a corresponding Notice
of
Proposed
Rule
Making
is
submitted
to
initiate
the process through which you will
formally
adopt the
rule as a permanent rule (See Chapter 4, How to Adopt an Emergency Rule). Once you begin the
proposal process, you may re-adopt an emergency, however, each such re-adoption will be effective
for a maximum of 60 days, not 90 days.
Remember that in most cases Executive Chamber approval is necessary before the Notice of
Proposed Rule Making may be submitted for publication in the State Register.
4 May 2012 Department of State Rule Making in New York
PRE-PROPOSAL
RULE
REVIEW
Does my rule require Executive Chamber approval?
All agencies subject to the
Governor’s executive
control must submit all notices of
proposed
or revised
(proposed) rule makings to RRU along with the full text of the rule and the full text of each
accompanying statement before submitting a proposal to us for publication in the State Register.
While this requirement does not apply to proposed consensus rules, agencies must send such
rules to RRU
simultaneously
with
submissions
to DAR for
publication.
If you have any question about
whether a rule requires RRU review, contact them directly at (518) 486-6798 or (518) 486-4236.
What criteria does RRU use to review rules?
Appendix C contains the criteria that RRU uses to evaluate rules. If any review
criteria is not met, you may be required to provide further analysis.
Does RRU send rules to anyone else for review?
Appendix C
Rule
review
criteria
Yes. Once the information is complete, RRU submits it with a
recommendation
to the Secretary to the
Governor, Counsel to the Governor, and the Director of the Division of the Budget. You will
subsequently receive a notification: 1) approving publication of proposed (or revised proposed) rule
making in the State Register; 2) requiring modification prior to publication; or 3) disallowing
publication.
Is a rule subject to RRU review after publication?
Yes. After publication of the proposed or revised (proposed) rule making notice, RRU again reviews
the rule for any new information or factors. RRU notifies the agency of any perceived deficiencies
within established minimum comment periods (45 days for a proposal when full text is included or
posted on a State website, 60 days after publication in the State Register when a summary is included
and text is not posted on a State website; 30 days for a revised proposal) and the agency then responds
to
such notification. The agency response
is
reviewed and,
if
deemed adequate, the agency may
proceed
with the rule making.
Where do I send rules for RRU review?
Submit completed pdf rule making form with required attachments to:
[email protected] (See Appendix D for complete instructions.)
Department of State Rule Making in New York May 2012 5
Chapter 1
HOW
TO
PROPOSE
A
RULE
Narrative overview. The rule making process is constructed around the fundamental belief that the
people of this state have a right to participate in the
development
of its laws. Since
administrative
rules
have the full force and effect of laws, New York — along with the
federal government
and nearly every
other state and territory — maintains a systematic approach to ensure public comment during the
proposal stage, before an agency rule is formally adopted. As a participatory democracy, New York
State provides the public the opportunity to comment on proposed rules.
In New York, the weekly State Register provides public notice of proposed rule making activity.
You must use the Notice of Proposed Rule Making form to initiate a rule making, and include the text
of the rule, an RIS, RFA, RAFA and JIS (consensus rules excepting). You must obtain Executive
Chamber authorization to submit a proposal if your agency is subject to the Governor’s executive
control. The Notice of Proposed Rule Making must be used to add or repeal an entire new Part or even
a small section of the NYCRR, to make a major or minor amendment to a rule, or to repeal an obsolete
or invalid rule. The minimum public comment period is as required by SAPA, section 202(1)(a)(ii).
Generally your proposal will expire 365 days after publication or 365 days after the date of your last
scheduled public hearing, unless you take formal action to adopt the rule as explained more fully in
Chapter 3. Proposals for “(a)(ii)” rules (rates, wages, security offerings, etc.) do not expire.
Based on the assessment of public comment, you may decide to change the text of a proposed rule.
If you make substantial changes you must submit a second proposal, a Notice of Revised Rule Making,
for publication in the State Register. This action opens an additional comment period and may include
a revised RIS, RFA, RAFA or JIS if the change to the rule warrants a change to one or more of those
statements. As with your original proposal, RRU review of a revised proposal is required.
If you believe that no person is likely to object to a rule because the rule would merely (a) repeal
obsolete regulations, (b) implement or conform to non-discretionary statutory provisions, or (c) make
technical changes or is otherwise non-controversial, you may propose it as a consensus rule. A
consensus rule is exempt from RIS, RFA and RAFA requirements and not subject to rule review by
RRU. However, a JIS, or a statement explaining why a JIS is unnecessary, is required. Even though
Executive Chamber consent is not required prior to publication of a Notice of Proposed Rule Making
for a consensus rule, it is good practice to consult with RRU prior to publishing such a notice. This is
a good idea because any party, including RRU, may object to the adoption of a consensus rule. If an
objection is received, the proposing agency must withdraw the rule and start the more complicated
normal rule making process if it wishes to proceed with adoption of the rule.
What is the State Register publication schedule?
The
State Register
workweek begins each Wednesday morning; each issue takes
two
weeks
to produce.
We use the first week to review, log, compose, paginate, proof and revise each issue. Our printer has
the second week to print, collate, bind, label and deliver that issue.
Deadline
date
+ 15 days
=
issue
date
Every rule making notice filed in our office between a Wednesday and close of
business (COB) the following Tuesday is published in the Rule Making section of
the State Register that is printed, dated and mailed 15 days after the deadline date.
For
example,
all
notices received between Wednesday, January
4, 2012 and COB
Tuesday, January
10,
2012 would appear 15 days later in the January 25, 2012 issue.
6 May 2012 Department of State Rule Making in New York
Note: for non-E-filed rule makings
(http://www.dos.ny.gov/info/e-file/e-forms.html)
the deadline
is noon on Tuesday.
The rule making calendar and production schedules can be found at:
http://www.dos.ny.gov/info/index.html
Hint! Schedule wisely. People talk about the deadline day so often that we tend to overlook the fact there
is
a
submission week. Holidays aside, there are five working days on which you may submit your proposal for
publication. If you have a known problem, call us early in the cycle to schedule a review or resolve the problem.
If you call for assistance or submit material at the last minute and there is a problem, you run the risk of having
publication delayed at least a week while the compliance issue is resolved. Also keep in mind that we have the
authority to reject any rule that does not meet Executive Law, SAPA or Department of State requirements
governing adoption.
How do I complete the proposal form?
You must use the rule making forms on the Department of State website at:
http://www.dos.ny.gov/info/e-file/e-forms.html
Please note: there is now a Notice of Proposed Rule Making (Rate Making) form for proposals that
fall under SAPA §102(2)(a)(ii).
The Notice of Proposed Rule Making form asks for all of the information the law mandates to be
published
in the State Register and that we need for
calendaring
and
administrative
purposes; the items
generally follow the order in which the material appears in the State Register.
We will remove information from agency responses which is redundant or too descriptive and will
conform citation structure, if need be.
Select your agency from
drop-down
menu in upper right of form. Check
appropriate
box - obtained
Executive Chamber approval or Executive Chamber approval not required. We do not need a copy of
your approval email.
1. A. Proposed action. Click on the drop down. Pick the action that applies. Fill in the Parts
and/or sections pertaining to that action. Fill in the Title number being amended. For more than
one action use a separate line.
B. Consensus rule. Only T this box and attach a statement setting forth the agency’s
determination that no person is likely to object to the rule as written if you are proposing the rule
as a consensus rule.
C. Previous consensus rule. Only T this box and attach a brief description of the
objection if you previously proposed the rule as a consensus rule and then withdrew it following
an objection during that proposal’s comment period.
D. Review of Existing rules. Only T this box if you are proposing the rule pursuant to
SAPA §207(3), 5-year Review of Existing Rules.
Department of State Rule Making in New York May 2012 7
2. Statutory authority under which the rule is proposed. This item is a request for a legal
citation of the statutory authority that authorizes or empowers your agency to propose the rule in
question. It must be as specific as possible: cite to the subdivision and/or paragraph. It is not
unusual for an agency to have authority under more than one statute; in such cases, you must cite
each statute.
CITATION
FORMATS
Name of law, followed by sections and subdivisions; separate multiple laws with a semicolon:
— Public Health Law, section 1100
— Banking Law, section 14(1) and (4)(s); and Tax Law, section 1453(c)
with citation to a United States Code:
— Education Law, sections 102 and 303(1) and (2); and 26 USC, section 1397E
— Environmental Conservation Law, section 3-0301; and 55 USC, section 33(1)(b) and (c)
with citation to a chaptered law:
— General Business Law, sections 989 and 999; and L. 1999, ch. 70, section 55(a)
— Civil Service Law, section 6(1); and L. 2000, ch. 4, section 10(1)(a) and (b)
3. Subject of the rule. Make it short. There are limited characters in this field. Exactly what is
typed here will populate the Register, Action Pending Index and Quarterly Index.
4. Purpose of the rule. Every purpose should begin with the word, “To” and explain, in the
briefest
way
possible
,
why the rule is
needed
or what the rule will
accomplish.
The
purpose
should
tell the reader in one sentence what the text is about — without summarizing the entire text.
The purpose is the goal of the rule. Read in conjunction with the subject, the reader can
instantly understand the functional area and basic nature of the rule making.
Once again, make it short. There are limited characters in this field also. Exactly what is typed
here will populate the Register, Action Pending Index and Quarterly Index. If you need to
elaborate, you can do so in the statements attached to your rulemaking form.
5. Public hearings. You must T one of the boxes in Item 5 and if a hearing is scheduled you
must specify the time, date (using the drop down calendar) and location.
You should review the statutory provisions related to your agency and to the proposed rule in
order to determine whether a public hearing is required by law.
You must differentiate on the Notice of Proposed Rule Making form between a public hearing
that is required by law and a hearing that is purely optional on the part of your agency. Mandated
public hearings affect rule making schedules.
If your proposal is subject to a mandated public hearing, you cannot hold that hearing until at
least
45
days after publication
of the
notice
in the
State Register
unless
a
different
time is specified
in statute. Further, you must continue to accept public comments for an additional five days after
the last scheduled public hearing is held. That means you cannot take any action to adopt the rule
until at least the sixth day after the last scheduled, mandatory public hearing.
8 May 2012 Department of State Rule Making in New York
If you schedule public hearings, your proposal will expire 365 days after the last scheduled
hearing instead of 365 days after publication of the Notice of Proposed Rule Making in the State
Register.
If no public hearing is required or scheduled, you may skip Items 6 and 7 on the Notice of
Proposed Rule Making form.
6&7. Interpreter services and Accessibility. Public hearings are conducted with all members
of the public in mind. If you have scheduled a public hearing, you must complete Items 6 and 7
on the Notice of Proposed Rule Making form.
As Item 6 indicates, your agency must provide interpreter services to any hearing impaired
persons. Every proposal that indicates
a
public hearing
is to
be conducted also contains
a statement
informing the public that such services will be made available, at no charge, upon written request
to the agency.
Public hearings should be reasonably accessible to persons with a mobility impairment. If any
location is not suitable for persons with a mobility impairment, you should identify the location
and indicate efforts made to provide an accessible hearing site.
8. Terms (text) of the rule. You must T one box to describe the text of the rule attached to the
proposal. Remember, the Notice of Proposed Rule Making you submit to us is for State Register
publication purposes only. If the full text is more than 2,000 words, you must create and attach a
summary
of the text in under 2,000 words. Nearly all word
processing
software provides a feature
that will tell you exactly how many words are contained in a file.
If your rule is a
“102(2)(a)(ii)”
rule (rates, wages, security
authorizations,
etc.), you may attach
a description of the subject, purpose and substance of the rule in lieu of the full text or summary.
Once a box is checked in this item a yellow paperclip will show up to the left. Click on the clip,
navigate to where your text or summary is saved on your pc and attach it here. Note: All
attachments must be in MS Word - NOT pdf.
Note: If submitting a summary, the full text of the rule must be posted on a State
website.
If this is not
possible, absent
a
waiver from
the
Office
for
Technology,
the rule
making will then be subject to a 60-day public comment period.
There are specific labeling conventions and typing requirements for text submitted to us for
publication in the State Register. (See How do I type text attachments?)
9. Text contact. Item 9
identifies
the
individual
in your agency from
whom
the text of the rule and
attached statements may
be
obtained. Even
if you
publish
the full text of a rule and
statements,
you
must specify the name,
department/agency,
office address, telephone number and e-mail address
of the agency contact person from whom the public may request a copy of those items.
10. Submission contact. If different from the person named in Item 9, specify the name,
department/agency, office address, telephone number and e-mail address of the person to whom
Department of State Rule Making in New York May 2012 9
public comments should be sent. If the same person named in Item 9 will accept comments, leave
Item 10 blank.
11. Public
comment
will be
received
until . . . The
minimum public comment period
is: 45 days
after publication of the Notice of Proposed Rule Making in the State Register when full text is
included or posted on a state website, 60 days after publication in the State Register when a
summary is included and text is not posted on a state website; or 5 days after the last scheduled
public hearing required by statute (unless a different time is specified in statute). That does not
mean you cannot accept public comments after those minimum periods. In fact, a proposal does
not expire until 365 days after being published or after the last scheduled public hearing, and
agencies frequently accept comments for periods of time exceeding the minimums.
The purpose of this Item is to allow agencies to establish a specific deadline date for receipt of
public comments somewhere between the end of the minimum comment period and the date of
expiration. Generally it is expected that the date you provide will reflect an appropriate comment
period for the rule in question. If you do specify a date other than the minimum time frame
required, you must accept comment until that date; you cannot then take action to adopt the rule
prior to the end of that longer, self-imposed comment period.
12. Prior
emergency
published. This Item is
self-explanatory.
You must
specify
the publication
date and ID number of the most recent emergency previously published in the State Register for
the same action being proposed. (See Chapter 4 for an explanation of the emergency rule making
process.)
13. Expiration date. This Item is only applicable to proposals for rules defined as “102(2)(a)(ii)”
rules (rates, wages, security authorizations, etc.), which do not expire after 365 days. The vast
majority of state agency rules do expire after 365 days — you should only check this box if it
applies to your rule.
14.
Additional matter required by
statute.
Some agencies have authorizing statutes that
require
additional information not specifically required by SAPA. In such cases, check “yes” and enter
the necessary information.
15.
Regulatory
Agenda.
The
Division
of
Housing
and
Community
Renewal;
Workers’
Compensa-
tion Board; and the
departments
of
Agriculture
and Markets, Banking,
Education,
Environmental
Conservation, Health, Insurance, Labor, Motor Vehicles, State, and the offices of Children and
Family Services and
Temporary
and Disability
Assistance
and any other
department
specified by
the Governor must publish a Regulatory Agenda twice each year. (See SAPA §202-d)
Every agency required to publish a Regulatory Agenda is also required to complete Item 15. If
your
agency published
an
optional agenda
you
should
also
complete Item
15. (See
Chapter
6, How
to Publish a Regulatory Agenda)
Basically you T one of four boxes to indicate the issue and year in which the
(attached/proposed)
action was
published
as a
Regulatory
Agenda item, or
indicate
that the action
was not under consideration at the time your agency submitted a Regulatory Agenda.
10 May 2012 Department of State Rule Making in New York
16. Review of Existing Rules. (Item 1D applies) Pursuant to SAPA §207, unless the contrary is
specifically provided by another law, any rule which is adopted on or after January 1, 1997 shall
be reviewed after five years, and, thereafter, at five-year intervals.
If after review an agency determines that the rule should be modified, it shall publish a notice
of Proposed Rule Making. The agency must include a reasoned justification for modification of
the rule; an
assessment
of the public comments (submit a summary if over 2,000 words) that were
submitted to the agency in response to the listing of the rule in the regulatory agenda, and where
appropriate, include a statement of discussion of the degree to which changes in technology,
economic conditions or other factors
in
the area affected by the rule necessitate changes
in
the
rule.
Note: If an agency determines that a rule should continue without modification, it
shall publish a notice to that effect, which shall identify the rule and the statutory
authority
for the rule, and
include
a
statement
setting forth a
reasoned justification
for
continuation of the rule without modification and an assessment of public comments
which were submitted to the agency in response to the listing of the rule in the
regulatory agenda.
Check T the applicable box(es). Attach applicable statement.
17. RIS — Regulatory Impact Statement. Most proposals must be accompanied by an
RIS.
SAPA allows you to create and reference a Consolidated RIS for a series of closely related and
simultaneously proposed rules, or where a rule is virtually identical to rules proposed during the
same year. There is no form per se for an RIS, but we do provide a format that lists every element
required by SAPA.
Under the “Needs and Benefits” section of the RIS you must identify and provide an abstract
not to exceed 500 words for every study or data analysis your agency used to draft the proposed
rule.
Normally the 2,000-word limit holds true for the text of an RIS, however; an RIS may be longer
than 2,000 words when it includes an abstract. You may expand an RIS in 500-word
increments
for
each analysis reported. For instance, an RIS with one abstract may be 2,500 words, one with two
abstracts may be 3,000 words, etc.
Item 17 on the Notice of Proposed Rule Making form appears in three parts. Select a box in Part
A to identify whether your attached RIS contains the full text, a summary or is a Consolidated RIS.
If you are not
including
an RIS, you must
check
the
appropriate
box in Part B to
identify
why an RIS
is not attached. There are three possible reasons why an RIS may not be attached:
1) The rule is subject to a previously published Consolidated RIS. You must specify the ID
number and issue date of the proposal that included the original Consolidated RIS.
2) The rule is exempt because it is defined as a “102(2)(a)(ii)” rule (rates, wages, security
authorizations, etc.).
3) The rule is exempt because you are proposing it as a consensus rule making (Item 1 must
conform).
Select Part C if you are claiming an exemption pursuant to SAPA §202-a and attach a statement
to that effect.
Department of State Rule Making in New York May 2012 11
After selecting an item in Part A, B or C, if a statement is required, a yellow paperclip will show up
to the left. Click on the clip, navigate to where your RIS is saved on your pc and attach it here.
Note: All attachments must be in MS Word - NOT pdf.
18. RFA — Regulatory Flexibility Analysis (for Small Businesses and Local Govern-
ments). The RFA requirements are very similar to those for the RIS. Item 18 is also separated
into three parts.
You must select the appropriate box in Part A if you are attaching the full text, a summary or
a Consolidated RFA.
You must select the box in Part B if you are claiming the rule will not impose any adverse
economic impact and attach a statement explaining your finding and reasons upon which the
finding was made.
You must select the appropriate box in Part C if the rule is subject to a previously published
consolidated RFA or is exempt because it is a “102(2)(a)(ii)” rule or a consensus rule making.
After selecting an item in Part A, B or C, if a statement is required, a yellow paperclip will show up
to the left. Click on the clip, navigate to where your RFA is saved on your pc and attach it here.
Note: All attachments must be in MS Word - NOT pdf.
19. RAFA — Rural Area Flexibility Analysis. The RAFA requirements nearly replicate those
of the RFA. If you claim an exemption because the rule will not impose any adverse economic
impact on rural areas or any reporting, recordkeeping or compliance requirements on public or
private entities in rural areas, you must attach a statement
explaining
your finding and the reasons
upon which the finding was made.
See Appendix A, rural areas, for the citation and a description of what constitutes a rural area
for the purposes of the RAFA.
After selecting an item in Part A, B or C, if an attachment is required, a yellow paperclip will show up
to the left. Click on the clip, navigate to where your RAFA is saved on your pc and attach it here.
Note: All attachments must be in MS Word - NOT pdf.
20. JIS — Job Impact Statement. The requirements for a JIS differ from those of the RIS, RFA
and RAFA. While Part A of a JIS is used to describe whether your attachment is the full text, a
summary or a
Consolidated
JIS, the
differences
among the
requirements
for a JIS and those of the
RIS, RFA and RAFA are evident in Parts B and C.
Part B
1) (Somewhat similar to the RFA and RAFA) The rule will not have a substantial adverse effect
on jobs and employment opportunities, as apparent from its nature and purpose. In this case,
you must attach a statement that explains your finding. Except when it is readily apparent from
the subject matter of the rule that the rule could only have a positive effect or no effect, the
statement must include a summary of the information and methodology underlying your
determination.
2) A JIS/Request for Assistance is attached in lieu of the JIS.
12 May 2012 Department of State Rule Making in New York
Part C
1)
(Same
as RIS,
RFA,
RAFA) The rule is
subject
to a
previously published Consolidated
JIS. You
must specify the ID number and issue date of the proposal that included the original
Consolidated JIS.
2)
(Same
as RIS, RFA, RAFA) The rule is
exempt because
it is
defined
under
SAPA
§102(2)(a)(ii)
as a rate, wage, security authorization, etc.
3) The rule is submitted by the State Comptroller or Attorney General.
After selecting an item in Part A, B or C, if an attachment is required, a yellow paperclip will
show up to the left. Click on the clip, navigate to where your JIS is saved on your pc and attach
it here.
Note: All attachments must be in MS Word - NOT pdf.
Agency Certification. Every State Register notice form ends with a certification to be completed
by the person who prepared the form, not by the agency head or another designated party.
When you
complete
the
certification,
you are
indicating
that you have reviewed
Agency
Certification
the form and the information is correct to the best of your knowledge. You also are
certifying that you have reviewed appropriate SAPA and Department of State
requirements, and that the notice complies with all applicable provisions.
When you have completed the form, click on the Validate button in the upper right corner of the
form (this button appears on every page; only click on one). A message will pop up indicating whether
the form “verified ok” or is deficient in some specified way. Make any needed corrections and
“validate” again. Once the form verifies ok, save it. The form is now ready to be uploaded (E-filed) to
the West Data Capture System. Go
to
http://www.dos.ny.gov/info/e-file/submitpdf.html and follow
the
instructions.
How do I type text attachments?
There are two basic concepts you should understand about typing the text of a rule. Further, every text
attachment submitted to us for publication in the State Register — whether it is a rule or a statement,
in full text or a summary — must be typed in a prescribed format.
First, your rule must include visual instructions to clearly show the reader the material that is being
deleted and the material that is being added. Visual instructions are created through bracketing words
to be deleted (no strikethroughs) and underlining new material to be added. Detailed instructions may
be found in the following section, What is the prescribed format for text?
Second, your rule must include brief written
instructions
to clearly indicate the type of action being
taken (i.e., an amendment, addition, repeal) and to indicate the location of such action in the text.
What is the prescribed format for text?
We have to scan and code all paper submissions and re-code all electronic submissions. To do this
quickly, efficiently and accurately, we need you to prepare the text in a certain manner.
Department of State Rule Making in New York May 2012 13
One way to visualize the material you prepare for publication in the State Register is to think in
terms of manuscript preparation. Manuscripts, like draft documents, do not show boldface text or
headers; they do not show an elaborate indent structure. For our purposes, you must type
double-spaced,
unjustified text with a five-character indent for each new paragraph.
Only submit text being amended. Do not send a whole Part or section in order to amend only one
section or subdivision. Including extra text opens the door for unintentional adoption of language that
was accidentally omitted or inserted.
When you review your text for content, you should also review it to ensure that it conforms to our
basic format requirements. We can, and will, reject material that is unreadable.
Probably
the
most common problem
we see is that
some
text
submissions
are
formatted
too well.
Manuscript is plain — leave the coding to us. All text must be formatted and printed as shown
below:
1) Use plain, flat 8½" x 11" white
paper.
Bond and other
textured papers
can be the cause of broken
letters.
2) Print your original on a laser printer if you are submitting the original printed document to us.
3) Set narrow margins with one indent (tab stop) set 5 characters from the left margin:
— Top and bottom margins: 1"
— Left and right margins: ½"
— First and only tab stop: 5 characters from the left margin
4) Use a
common proportional-space typeface
in 10 or 12
point type.
Serif
fonts
(i.e., Times or New
Times Roman, like this text) or sans serif (i.e.,
Helvetica
or Arial) are acceptable; avoid single-
space typefaces (i.e., Courier). Please remember:
— Never use novelty typefaces like script or outline.
— Never use boldface type for subheads or for emphasis.
— Never use more than one typeface to create the text and attachments for a notice.
5) Double space all text.
6) Type your copy unjustified (i.e., flush to the left and ragged right margins.
What written instructions should I use?
When you propose a new rule you may: 1) add a whole new Part, section, subdivision, paragraph, etc.,
to your existing rules. A NYCRR Part (even some sections and
subdivisions)
can be quite long. Do not
underline
page after page of new text.
Instead,
you should use
language indicating
“A new
is added
to read as
follows:”,
or 2) amend an existing section using brackets (deleted text) and
underlining
(new
text).
14 May 2012 Department of State Rule Making in New York
See examples below:
HOW TO LABEL AND TYPE A LENGTHY NEW-TEXT
INSERT
A new section 200.10 is added to read as follows:
Section 200.10. New rule text. This is an example of new text to be placed in one of the Titles of
NYCRR. It is typed double-spaced with no type face changes. There is no underlined text indicating
new text or brackets denoting text to be deleted.
Note: No underlining is needed, the written instruction notifies the reader that new text follows. This
method should be used to type multi-page new Parts, subdivisions and sections (as in this illustration).
HOW TO LABEL AND TYPE AN
AMENDMENT
Section 101.1(a) is amended to read as follows:
(a) Rule making forms and formats are [easy] fun to fill out and type.
Note: Label your action, bracket material to be deleted and underline new text using your
computer’s format feature.
How do I number new text additions?
Sometimes it’s necessary to renumber existing rules to add text in the proper sequence. For instance,
if you want to add nectarines to an alphabetical list consisting of oranges and pears, you would not
want to simply add nectarines to the end of the list. You must always renumber existing items before
you add a new item; i.e., renumber (a) and (b) to be (b) and (c) and then add a new (a). If you try to add
first, you will find yourself with two subdivisions labeled (a) and your intentions will be unclear to the
reader.
It is
unnecessary
to type the text of a
renumbered
Part, section,
subdivision,
etc., unless you are also
amending text in the item. It is also unnecessary to specify each section in a Part that is merely being
renumbered to a new Part.
Warning. Be sure to update all internal cross-references when you renumber or repeal Parts, sections,
subdivisions, etc.
Department of State Rule Making in New York May 2012 15
HOW TO LABEL AND TYPE A NEW SECTION INSERT; NO AMENDMENT TO EXISTING TEXT
Sections 202.1 and 202.2 are renumbered sections 202.2 and 202.3, and a new section 202.1 is added
to read as follows:
Section 202.1 State agencies should write rules in plain language.
HOW TO LABEL AND TYPE A NEW SUBDIVISION INSERT WITH A SIMPLE AMENDMENT
Subdivisions (e) and (f) of section 202.3 are renumbered subdivisions (f) and (g) and a new
subdivision (e) is added to read as follows:
(e) It is getting really hard to come up with witty text examples.
Newly renumbered subdivision (g) is amended to read as follows:
(g) We reserve the right to [suggest improvements for] reject any submission.
HOW TO LABEL AND TYPE A WHOLE PART RENUMBERING; WITHOUT AMENDMENT
Part 200 is renumbered Part 145.
What do I type to repeal a rule?
You repeal a rule when you want to remove the entire text of an existing rule from the NYCRR. Do not
bracket and retype an entire Part, section or subdivision being repealed. A simple statement of the
action being taken is all that is necessary.
For example, Section 200.2(a) is repealed.
In this example, you will not type the full text of subdivision (a) in brackets. If there are three
subdivisions — say (a), (b) and (c) — and you only want to repeal subdivision (a), you must renumber
(b) and (c) as well. When you repeal and renumber you do the opposite of what you do when
adding
a
new item. In these cases you must repeal and then renumber.
For example,
Subdivision
(a) is repealed, and
subdivisions
(b) and (c) are
renumbered
subdivisions
(a) and (b). Or, for a section, Section 200.1 is repealed and sections 200.2–200.4 are renumbered to be
sections 200.1–200.3. Do not bracket and retype the deleted text when an entire subdivision or section
is being repealed.
Sometimes the sheer number of amendments in a Part or section make bracketing and underlining
hard to follow. In those cases, it may be more clear to your readers if you repeal the entire Part, section
or subdivision and replace it with new text.
For example, Section 200.2 is repealed and a new section 200.2 is adopted to read as follows:
(followed by the new text which should not be underlined.)
16 May 2012 Department of State Rule Making in New York
How do I decide whether and when to amend a rule versus repeal-
and-add new text?
Sometimes the number or nature of the changes are so dramatic and widespread that the only sensible
way to show the proposed changes would be to repeal an entire Part and add a new Part. This is not
always the case. If the changes to rules only affect one or two sections or subdivisions, repealing and
adding an entire 50-section Part to amend 1 or 2 sections or subdivisions would make it difficult for
people to locate the change. In addition, retyping the entire text of a lengthy Part to add one or two
sections makes it more likely that unintended rule text changes will be adopted.
Retyping an entire Part when only amending one or two sections creates the appearance of
implementing
all new rules every year. It also
creates
a lot of
unnecessary work,
and
blurs
the historical
continuity of your rules.
Examples.
Subdivisions (a) and (b) of section 30.1 are renumbered to be subdivisions (b) and
(c). New subdivision (a) is added to section 30.1 to read as follows: (a) nuclear
waste.
OR
Section 30.1 is amended to read as follows:
30.1 Workers shall not ingest the following nasty by-products:
(a) nuclear waste;
[(a)] (b) biochemical effluents; and
[(b)] (c) pond scum.
OR
Subdivisions (a)–(m) of section 30.1 are renumbered to be subdivisions (b)–(n). New
subdivision (a) is added to section 30.1 to read as follows: (a) nuclear waste;
What do I put into a proposal package?
Since implementing the E-filing system, hard copy submission of a Notice of Proposed Rule Making is no
longer necessary.
The Notice of Proposed Rule Making that you E-file (upload to the West Data Capture System) for
publication in the State Register contains the form and all necessary attachments. We do not publish
the full text of a rule or any statement if it exceeds 2,000 words. In those cases you must submit a
summary in under 2,000 words.
If you submit a
summary
for
publication,
you must have the full text
versions completed
by the time
you submit your rule making proposal. The full text of all summarized items must be sent to what are
commonly referred to as the “101-a and 202(6-a) officers.” (See Where do I send my proposal?)
Where do I send my proposal?
In addition to E-filing, you must also send each “202(6-a)” and “101-a” officer a copy of the notice
along with the full text of the rule and the full text of every attachment and any other information
required by Executive Law, section 101-a and SAPA, section 202(6-a). (See Appendix D for a list of
e-mail and mailing addresses and instructions.)
17 May 2012 Department of State Rule Making in New York
Will I receive an acknowledgment?
Yes. You will receive two e-mail acknowledgments for each rule making. The first is an automatic
acknowledgment sent from the West Data Capture System to the shared rule making mailbox that has
been created by each agency. This is sent right after you upload (E-file) your notice. This e-mail is
extremely important!
It will
confirm
whether your E-filing
submission succeeded
or failed. DAR is not
notified of E-filing failures.
The second e-mail
acknowledgment
comes from DAR after your notice is processed. It is e-mailed
to the person who certified the rule making form. This acknowledgment includes the identification
number assigned to your proposal and the NYCRR citation.
What does the State Register ID number mean?
We assign an
alpha-numeric
code to every notice. The ID number is comprised of a series of alpha and
numeric characters that identify the agency, the issue of the State Register in which the notice was
originally proposed, the year in which it was proposed, a serial number and finally, an alpha character
or characters that explain the action being taken.
The volume number of the State Register changes each year and each calendar year the first issue
published in January is numbered as issue one.
You must reference the ID number we assign to your proposal when and if you submit a revised
proposal, emergency adoption, withdrawal or adoption.
RULE MAKING ID
NUMBER
Agency Issue Year Serial Action
Code
Number
Published
Number
Code*
DOS 01 12 00001 P
Written as DOS-01-12-00001-P, this ID number identifies the item as a Department of
State proposal published in the first issue of the year 2009 under that issue’s unique
serial number 00001.
* Action codes include:
P = Proposal
RP = Revised Proposal
W = Withdrawal
A = Adoption
E = Emergency Adoption
EP = combined actions: Emergency Adoption and Proposal
ERP = combined actions: Emergency Adoption and Revised Proposal
EA = a permanent emergency [will not expire in 90 days; special for certain §102(2)(a)(ii) rules]
Department of State Rule Making in New York May 2012 19
Chapter
2
HOW
TO
REVISE
OR
WITHDRAW
A
PROPOSAL
Narrative overview
.
We previously stated that rule making is basically comprised of three steps —
proposal, assessment of public comment and adoption. This is an obvious simplification. If you need
to make substantial revisions to the text of the rule as proposed, you must publish a revised proposal
and open a second comment period before you can adopt the rule. In some cases you may actually need
to withdraw a proposal from consideration entirely. This chapter explains how to revise and withdraw
proposals.
We cannot accept a Notice of Adoption and rule text certified by the agency head after a proposal
has expired. Therefore it is important for rule making agencies to monitor expiration dates for their
proposals.
Whenever
a
proposed rule making expires, we publish
a
Notice
of
Expiration
in
the
Register
to serve
as notice to the public that the proposal has expired and cannot be reconsidered unless a new proposal
is published.
Revisions
.
If you “substantially revise” the text of the rule after it is proposed, you must submit a
Notice of Revised Rule Making to open another comment period before you adopt the rule.
A revised rule making is a proposal and is subject to the same level of rule review from the
Executive Chamber as your original proposal. The minimum comment period for a revised proposal is
30 days. If the changes to the text affect the original RIS, RFA, RAFA or JIS, you must also submit a
revised RIS, RFA, RAFA or JIS, respectively.
— If you submit a Notice of Revised Rule Making within 90 days of the proposal expiration date,
this notice itself extends the final expiration date an additional 90 days.
Withdrawals
.
Withdrawing
a proposal is easy. You simply E-file a Notice of
Withdrawal,
identify
the
proposal
and
indicate
the reason for
withdrawal.
You do not need to attach the text of the rule or any
accompanying statements, and you do not need to submit a hard copy of the notice.
What
is
a
substantial revision?
A substantial revision is any addition, deletion or other change in the text of a rule proposed for
adoption which materially alters its purpose, meaning or effect. This does not include changes which
merely define or clarify text. To determine if revised text is
“substantially
revised,” you must compare
it with the most recently published text.
You may make nonsubstantial changes to a proposed rule at the time you submit a Notice of
Adoption. However, SAPA requires a Notice of Revised Rule Making to be filed where changes are
substantial. If substantial revisions are made, the Notice of Revised Rule Making must be published at
least 30 days prior to adopting the rule to provide a second public comment period with a minimum of
30 days.
Consult your agency counsel to determine whether changes would constitute a substantial revision
[also see Motor Vehicle Manufacturers of the United States, Inc., v. Jorling, 152 Misc.2d 405, 577
N.Y.S.2d 346 (1991)].
20 May 2012 Department of State Rule Making in New York
How
do I
revise
a
proposed rule
making?
The Notice of Revised Rule Making form nearly replicates the Notice of
Notice
of
Revised
Rule
Making
Proposed Rule Making form. The obvious differences occur in Items 14-17
where you must specify if a Revised RIS, RFA, RAFA or JIS is attached. Also,
Item
18
requires
an
Assessment
of
Public Comment
that has
been received
since
the last (most recently) published proposal.
Do not forget that a revised rule making is a revised proposal and, as such,
is subject to rule review by the Executive Chamber.
1-4.
Proposed
action,
statutory authority, subject
and
purpose
of the
rule
.
Use the exact
language published in the State Register in the original Notice of Proposed Rule Making to
complete these four items except when changes to the rule affect such language.
5.
Terms
of the
rule
.
You must T one box to let us know if you are attaching the full text of the
revised rule, a summary of the revised rule or a
description
[as allowed for “(a)(ii)” rules, i.e., rate
makings]. Again, this notice is for publication purposes only — if the full text of a revised rule is
more than 2,000 words you must submit a summary in under 2,000 words.
Once a box is
checked
in this
item
a yellow
paperclip
will show up to the left. Click on the clip,
navigate to where your text or summary is saved on your pc and attach it here.
Note: All attachments must be in MS Word - NOT pdf.
6-8.
Public hearings, interpreter services
and
accessibility
.
The three public hearing ques-
tions replicate those on the original Notice of Proposed Rule Making.
9.
Revised
rule compared to
p
r
op
osed
r
u
le
.
Item 9 has three parts. In Section A, you must
provide
the
issue
date
(from
the
calendar
drop
down)
in
which
the
original proposal
was published
and the proposal’s ID number. Enter the ID number using lower-case letters. They will
automatically capitalize after tabbing to the next field. In Section B, you must list all previously
published revised rule makings for the rule. In Section C, you must identify the Parts, sections,
subdivisions or paragraphs in which substantial revisions have been made since the rule was last
(most recently) published.
10-11. Agency
contacts
.
Items 10 and 11 are self-explanatory. If the same person named in Item
10 will accept comments, leave Item 11 blank.
12.
Public
comment
will
be received
until
. . . The minimum public comment period is 30
days after
publication
of the Notice of Revised Rule Making in the State Register. Again, that does
not mean you cannot specify some later date between the end of the minimum comment period
and the date of expiration.
13.
Additional
matter
required
by
statute
.
Exactly as you did on the original proposal, T check
the appropriate box. Key in the appropriate information.
Department of State Rule Making in New York May 2012 21
14-17.
Revised RIS, RFA, RAFA
or
JIS.
You must attach a Revised RIS, RFA, RAFA or JIS only
if the changes you have made to the rule necessitate a revision to one of those statements.
Section A — If you are attaching a revised RIS, RFA, RAFA or JIS you must T one box to let
us know whether your attachment is full text or a summary.
Section B — If you are attaching a statement explaining why a revised RIS, RFA, RAFA or
JIS is not required you must T one box to explain why not.
Note: A JIS is not required for the State Comptroller or Attorney General.
After selecting the appropriate box, a yellow paperclip will show up to the left. Click on the clip,
navigate to where your statement is saved on your pc and attach it here.
Note: All attachments must be in MS Word - NOT pdf.
18.
Assessment
of
Public
Comment. You must attach an assessment of public comment (that
includes
legislative comment)
received since the proposal was
published.
As directed on the form
itself, you do not have to reiterate a previously published assessment — you may address only
those comments received since the last (most recently) published proposal.
Agency
Certification
.
The Agency Certification should be completed by the person who prepared
the form. You are indicating that you have reviewed the form and the information is correct to the best
of your
knowledge.
You are also certifying that you have reviewed
appropriate
SAPA and Department
of State requirements and that the notice complies with all applicable provisions.
When you have completed the form, click on the Validate button in the upper right corner of the
form (this button appears on every page; only click on one). A message will pop up indicating whether
the form has verified ok or is deficient in some way. Make any needed corrections and validate again.
Once the form verifies ok, save it. The form is now ready to be uploaded (E-filed) to the West Data
Capture system. Go to
http://www.dos.ny.gov/info/e-file/submitpdf.html
and follow the instructions.
Revised Rule
Making Package. Since implementing the E-filing system, hard copy submission of
a Notice of Revised Rule Making is no longer necessary.
How
do I
withdraw
a
proposed
rule?
Notice
of
Withdrawal
You must E-file a Notice of Withdrawal to formally remove the rule from consider-
ation if you decide that you will take no action to adopt a proposed rule. If you do
not take affirmative action to withdraw such a rule, we will automatically publish a
“Notice of Expiration” in the State Register when the proposal expires; meanwhile the proposal will
remain as an active proposal in the weekly Action Pending Index.
The notice form is simple. You must only provide us with the publication date of the issue that
contained the proposal, the rule ID, original
Proposed Action
and
Subject
as published and the
reason(s)
for withdrawal of the notice, along with your contact information.
When
you
have completed
the
form click
on the
Validate button
in the
upper right corner
of the form
(this button appears on every page; only click on one). A message will pop up indicating whether the
form
has
verified
ok or is
deficient
in some way. Make any
needed corrections
and
validate again.
Once
22 May 2012 Department of State Rule Making in New York
the form verifies ok, save it. The form is now ready to be uploaded (E-filed) to the West Data Capture
system. Go to
http://www.dos.ny.gov/info/e-file/submitpdf.html
and follow the instructions.
Since implementing the E-filing system, hard copy submission of a Notice of Withdrawal is no
longer necessary.
Department of State Rule Making in New York May 2012 23
Chapter
3
HOW
TO
ADOPT
A
R
U
LE
Narrative overview
.
For most state agencies, adoption occurs when the head of the agency approves
and signs the rule in its final form. For some authorities, boards, commissions and public benefit
corporations it may be necessary for the governing body to vote on the adoption. In those cases,
adoption occurs when the proposal is approved by the requisite number of votes.
People regularly refer to the adoption process or a rule’s adoption. That is why we call this chapter
How to Adopt a Rule and why it is a Notice of Adoption that gets published in the State Register. The
purpose of the notice is to inform the public that the agency has adopted the rule. Don’t let the
terminology confuse you. Just because a rule is adopted does not mean the rule is effective. Most rules
are not effective and, perhaps more importantly, not enforceable until they are filed with the Secretary
of State with a proper certification and the Notice of Adoption is published in the State Register. The
major exceptions
to this
effective date restriction include emergency rules
and
rules
that
deal with
rates,
wages and security
authorizations
[i.e., SAPA
§102(2)(a)(ii)
rules], which are effective upon filing (or
for a future date specified in the certification).
Adopting
a
proposed
rule
requires
two
simultaneous actions.
To
amend NYCRR,
you
must
file with
us a certification and the full text of the rule with bracketing to show material being deleted and
underlining to show new material being added. For publication in the State Register, you must
simultaneously submit a Notice of Adoption with required attachments. The Notice of Adoption must
be FILED with us on or before the proposal’s scheduled expiration date.
We use the text filed with the certification to update the NYCRR. Eventually that certification and
text of the rule are transmitted to the State Archives for permanent retention. The NYCRR is
supplemented semi-monthly. Every filing received in our office between the 1st and 15th of a month
is published in the first supplement for that month; and every filing received between the 16th and the
last day of a month is published in the second supplement of that month.
As described in Chapter 2, a proposal may either be adopted without change or adopted with
nonsubstantial revisions. If you need to make substantial revisions to your proposal, you cannot adopt
it without first publishing a Notice of Revised Rule Making to open another public comment period as
described in Chapter 2. A proposal may also be withdrawn from consideration.
When you adopt a rule you must include an Assessment of Public Comment. If nonsubstantial
revisions necessitate a change in any of the statements originally published with the proposal (RIS,
RFA, etc.) you must submit a Revised RIS, Revised RFA, etc., with the notice form.
How
do I adopt a
rule?
To adopt a rule your agency head or the head of the authority or governing board (usually the chair or
secretary) responsible for the rule making must sign a certification certifying the text of the rule.
Filing
a
Designation
Agency heads may designate another person to sign on their behalf. The
designation must be made in writing signed by the agency head or the head of the
authority or governing board and filed with the
Department
of State’s Miscellaneous
Records Bureau. The designation can be in the form of a letter from the head of the agency to the
Secretary of State, or can be a more formal document if that is preferred.
24 May 2012 Department of State Rule Making in New York
The
Miscellaneous Records Bureau operates
under the
Division
of
Corporations,
State
Records
and
Uniform Commercial Code. Designations should be addressed to:
Department of State
Miscellaneous Records Bureau
One Commerce Plaza, Suite 600
Albany, NY 12231-0001
You may hand deliver designations
to
Corporation’s Customer Service Desk
on
the 6th Floor
at One
Commerce Plaza between the hours of 9:00 a.m. and 4:30 p.m., Monday-Friday.
What does a
certification
have to say?
There is no standard form for a certification — it must be on agency letterhead. The word “Certifica-
tion” should be typed across the top of the page and it must contain specific types of information
depending on the adopting body and the nature of the adoption, set forth in the order shown:
1) A
statement certifying
that the rule was
duly adopted
or
other
rule
making action
was
duly
taken.
2) The name of the agency head or designee authorized to take the action for the agency or the
name of the authority, board, commission or public benefit corporation taking the action.
3) The date the action was taken (i.e., the date of adoption) and the date to be effective.
4) In the case of an authority, board, commission or public benefit corporation or if the action is
defined under SAPA §102(2)(a)(ii), the procedure by which the action was taken.
5) In the case of an authority, board, commission or public benefit corporation, the city in which
the meeting took place at which the action was taken.
6) A citation of the statutory authority for the action taken.
7) If the action taken was not subject to SAPA or was otherwise not required to comply with the
prior notice requirements, a statement to that effect and a citation of the statute providing for
such exemption or noncompliance.
8) If the action was taken as an emergency measure under SAPA 202, a statement of the agency’s
finding of the need for such action and the specific reasons underlying such finding. The
statement of reasons must set forth the specific facts or grounds supporting the finding made; a
paraphrasing of the provisions of SAPA 202 relating to emergency measures is not acceptable.
The agency may submit a separate statement of the findings and specific reasons underlying
them
together with the certification. In that case, however, a statement signed by the agency
head
certifying that these were the findings made must form part of that separate statement.
9) In all instances where the action taken is subject to SAPA (except as indicated above in Items
7-8), the date of publication of the Notice of Proposed Rule Making in the State Register and
either the date(s) and manner of publication of any other prior notice required by statute or, if
none, a
statement
to the effect that no other
publication
of a prior
notice
of the
action
being taken
was required by statute.
Department of State Rule Making in New York May 2012 25
SAMPLE CERTIFICATION BY STATE AGENCY
HEAD
C E R T I F I C A T I O
N
I hereby certify that the attached amendment to Part
of Title
of the Official Compilation of Codes,
Rules and Regulations of the State of New York was duly adopted by me, (name, title of agency head), on (date of
adoption) pursuant to authority vested in the (name of agency) by
Law, section
. This amendment
shall be effective (specify date, time frame OR “upon publication of a Notice of Adoption in the State Register”).
The notice of proposed rule making for this amendment was published in the State Register on (date) under ID
No. . No other publication of prior notice was required by statute.
1
(Date)
(Name - typed out)
(Title)
(Signature)
* * *
SAMPLE CERTIFICATION BY STATE AGENCY DESIGNEE
C E R T I F I C A T I O
N
I, (name, title of designee), having been duly authorized in writing filed with the New York State
Department
of State, hereby certify that the attached amendment to Part
of Title
of the Official Compilation of Codes,
Rules and Regulations of the State of New York was duly adopted by me, on (date of adoption) pursuant to
authority vested in the (name of agency) by Law, section . This amendment shall be effective
(specify date, time frame OR “upon publication of a Notice of Adoption in the State Register”).
The notice of proposed rule making for these amendments was published in the State Register on (date) under
ID No. . No other publication of prior notice was required by statute.
1
(Date)
(Name - typed out)
(Title)
(Signature)
* * *
ADDITIONAL PARAGRAPHS (2 AND 3) FOR EMERGENCY ADOPTION
2
I determined that it is necessary for the preservation of the general welfare that this amendment be
adopted on an emergency basis as authorized by section 202(6) of the State Administrative Procedure
Act, effective immediately upon filing with the Department of State. (In this case, delete reference to
effective date that ends paragraph 1 shown above in standard certifications.)
This amendment is adopted as an emergency measure because time is of the essence. (State the
agency’s finding of the need for emergency action and the specific reasons underlying such finding. Do
NOT paraphrase SAPA §202 or the finding will not be acceptable.)
1
IF OTHER PRIOR NOTICE WAS REQUIRED BY STATUTE, ENDING SENTENCE SHOULD READ:
As required by statute, additional prior notice was published on (date/s) in (manner of publication; e.g., magazine/s,
newspaper/s, agency bulletin/s, agency website, etc.).
2
You may submit a separate statement of the findings and specific reasons underlying those findings provided that
a statement signed by the agency head certifying that these were the findings made forms a part of such separate
statement.
26 May 2012 Department of State Rule Making in New York
SAMPLE CERTIFICATION BY AUTHORITY, BOARD, COMMISSION OR
PUBLIC
BENEFIT
CORPORATION
(CHAIRPERSON OR
SECRETARY)
C E R T I F I C A T I O
N
I, (name, title of authorized entity official), having been duly authorized in writing filed with the New
York
State Department of State, hereby certify that the attached amendment to Part
of Title
of the Official
Compilation of Codes, Rules and Regulations of the State of New York was duly adopted on (date of adoption)
pursuant to authority vested in the (Name of entity) by
Law, section
, by the unanimous vote of the
(members) (commissioners) present at a meeting held in (city), New York, on (date). This rule shall be effective
(specify date, time frame OR “upon publication of a Notice of Adoption in the State Register”).
The notice of proposed rule making for these amendments was published in the State Register on (date) under
ID No. . No other publication of prior notice was required by statute.
1
(Date)
(Name - typed out)
(Title)
(Signature)
* *
*
ADDITIONAL PARAGRAPHS (2 AND 3) FOR EMERGENCY ADOPTION
2
BY AN AUTHORITY, BOARD, COMMISSION OR PUBLIC BENEFIT
CORPORATION
The
(members)(commissioners)
further determined that it is necessary for the preservation of the general
welfare that this amendment be adopted on an emergency basis as authorized by section 202(6) of the State
Administrative Procedure Act, effective immediately upon filing with the Department of State. (In this case, delete
reference to effective date that ends paragraph 1 shown above.)
This amendment is adopted as an emergency measure because time is of the essence. (State the entity’s finding
of the need for emergency action and the specific reasons underlying such finding. Do NOT paraphrase SAPA
§202 or the finding will not be acceptable.)
1
IF OTHER PRIOR NOTICE WAS REQUIRED BY STATUTE, ENDING SENTENCE SHOULD READ:
As required by statute, additional prior notice was published on (date/s) in (manner of publication; e.g., magazine/s,
newspaper/s, agency bulletin, agency website, etc.).
2
You may submit a separate statement of the findings and specific reasons underlying those findings provided that
a statement signed by the authorized entity head certifying that these were the findings made forms a part of such
separate statement.
Department of State Rule Making in New York May 2012 27
How
do I complete the adoption form?
(You must use the rule making forms on the Department of State website at:
http://www.dos.ny.gov/info/e-file/e-forms.html)
The Notice of Adoption form asks for all of the information the law
Notice
of
Adoption
mandates to be published in the State Register and that we need for calendaring and administrative
purposes; the items generally follow the order in which the material appears in the State Register.
1.
Action
taken. This should be a reiteration of the “Proposed action” from your original Notice
of
Proposed Rule Making
or the modified version published with a
Notice
of
Revised Rule
Making.
Enter a short statement to tell the reader whether the action adds, amends, renumbers or repeals
the rule and specify which rule (e.g., Part, section or subdivision of Title NYCRR).
2.
Effective
date of
rule
.
You must specify an effective date for the newly adopted rule. Largely
self-explanatory, this section allows you to simply T a box and, if needed, specify an effective
date.
3-5.
Statutory authority, subject
and
purpose
.
Use the exact language published in the State
Register
in the
original
Notice
of
Proposed
Rule
Making
to
complete
these four items
except
when
changes to the rule affect such language.
6.
Terms (text)
and identification of rule. There are three sections to Item 6:
A. Identify the I.D. No. of the original notice of proposed or
emergency/proposed
rule making.
Do not use caps when typing the ID No. It will automatically cap when you tab to the next
field.
B. T the first box only if no changes were made to the text of the rule as proposed. You should
not attach the text of the rule or any accompanying statement that has not changed since
previously published. However,
if
one of the statements needs
to
be revised you must
complete
the appropriate item and attach the revised statement.
If you made nonsubstantial changes to the rule as previously published, you must T the
second
box,
identify
the
location
of those
changes
and
attach
a copy of the text as
adopted
(i.e.,
if you originally submitted full text you must attach the full text of the rule as adopted; if you
originally submitted a summary you must attach a summary). In this case you must complete
Items 9-12 and either attach a revised statement or an explanation as to why a revised
statement is not attached.
Note: You will need to submit electronic or hard copy certification and text for publication in
the
NYCRR whether
or not text or
substance
is
submitted
for
publication
in the State Register.
Hard copies must be received in DAR the same day you e-file!
If the rule deals with rates, wages, security authorizations, etc. [i.e., defined under
§102(2)(a)(ii)]
and you elect to
submit
an
original
copy of a
description
of the
substance
(text),
you must T the third box and specify the location of revisions, if any.
C. As requested on the form, enter the publication date and ID number of any previously
published notice(s) of revised rule making.
28 May 2012 Department of State Rule Making in New York
7. Agency contact. Item 7 is self-explanatory.
8.
Additional
matter
required
by
statute
.
Exactly as you did on the original proposal, you must
T the appropriate box. If yes, type in the required information.
9-12. Revised
RIS, RFA, RAFA or JIS
.
If you T the first box in Item 6 to indicate that no
changes were made to the text of the rule as proposed and all previously published RIS, RFA,
RAFA and JIS statements remain adequate, you may skip Items 9-12. However, if any statement
is inadequate or requires correction you must complete the appropriate Item (9, 10, 11 or 12).
Section A — If you are attaching a revised RIS, RFA, RAFA or JIS you must T one box to let
us know if your attachment is full text or a summary.
Section B — If the text of the rule changed and a statement is attached explaining why a
revised RIS, RFA, RAFA or JIS is not required you must T one box to explain why not.
Section C — If you do not have to attach a statement because your rule is a “rate making”
[SAPA §102(2)(a)(ii)] T this box.
Note: A JIS is not required for the State Comptroller or Attorney General.
When you type
a
Revised
RIS, RFA, RAFA
or
JIS, please remember
to
use the
word “Revised”
in the heading (e.g., Revised Regulatory Impact Statement).
13.
Assessment
of
Public
Comment. You must attach an assessment of public comment (that
includes
legislative comment)
received since the proposal was
published.
As directed on the form
itself, you do not have to reiterate a previously published assessment — you may address only
those comments received since the last (most recently) published proposal.
14. Referenced
m
a
t
e
r
i
a
l
.
T the first box if the rule does not include material incorporated by
reference; T the second box if there is incorporation by reference material and indicate where in
the text the reference(s) are located. See Chapter 5, How to Incorporate by Reference.
Agency
Certification
.
The Agency Certification should be completed by the person who prepared
the form. You are indicating that you have reviewed the form and the information is correct to the best
of your
knowledge.
You are also certifying that you have reviewed
appropriate
SAPA and Department
of State requirements and that the notice complies with all applicable provisions.
Adoption
Package. Remember that an adoption is printed in two separate publications.
1. For publication in NYCRR: Before E-filing the notice of Adoption form, attach* a scanned
copy of your signed
certification
prepared on agency letterhead in pdf format plus the full text
of the rule (with bracketing and underlining if needed) in Word format. Hard copy original
certification
with full text of rule
attached
can be
submitted
in lieu of the
electronic
submission
(original and two copies).
2. For
publication
in the State
Register
:
E-file the form. No hard copies of the form and attachments
are needed. DAR will print the form and any attachments from the E-filing.
* Instructions for attaching certification and text:
Click on the paper clip in the lower left-hand corner of the form. This will indicate the documents already attached
to the rule making form. Click on add to attach additional documents. Choose the additional documents (scanned
certification and text) to be included with the pdf form.
Department of State Rule Making in New York May 2012 29
Where
do I
deliver
my adoption?
If you choose not to submit your certification and text electronically, deliver the hard copy
certification
with original
signature attached
to the text of the rule plus two copies to DAR on the same
day you e-file to:
Department of State
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231-0001
Our office hours are 8:00 a.m. to 5:00 p.m., Monday-Friday.
At the same time you file an adoption with us, you must also send each
“202(6-a)” and “101-a” officer a copy of the notice along with the full text of
the rule and the full text of every
attachment
and any other
information
required
by Executive Law, section 101-a and SAPA, section 202(6-a). (See Appendix
D for a list of e-mail and mailing addresses and complete instructions.)
Appendix D
“202(6-a)”
and
“101-a”
officers
Will
I receive an acknowledgment?
Yes. You will receive two e-mail acknowledgments for each rule making. The first is an automatic
acknowledgment sent from West Group Data Capture to the shared mailbox that each agency created
for rule making. This is sent right after you upload (E-file) your notice. This e-mail is extremely
important! It will confirm whether your E-filing submission succeeded or failed. DAR is not notified
of E-filing failures.
The second e-mail
acknowledgment
comes from DAR after your notice is processed. It is e-mailed
to the person who certified the rule making form. This acknowledgment includes the identification
number assigned to your adoption and the NYCRR citation.
Can I change a
newly
adopted
rule?
Maybe. After a rule is filed and before its effective date, you may amend, suspend or repeal a rule in
situations where such action does not constitute a substantial revision to the rule [SAPA §203(2)].
Most rules are marked to become effective upon publication of a Notice of Adoption in the State
Register rather than on some specified, future date. In such a case, you have a limited amount of time
to submit an Amended Notice of Adoption. Remember, once a rule is effective you must initiate a new
proposal process to amend it in any way.
You must E-file the
Amended
Notice of
Adoption
form with us and notify (i.e., copy) the “202(6-a)”
and “101-a” officers if you amend a newly adopted rule.
How
do I complete the Amended
Adoption Form?
The
Amended
Notice of Adoption form is
essentially
the same as the Notice of Adoption form with the
exception of items 2 and 3.
2. Rule Identification. Provide the date in which the adopted rule was filed with the
Department of State, the one to four-digit file number that was assigned by the Department of
30 May 2012 Department of State Rule Making in New York
State and the intended effective date. Provide the date that the Notice of Adoption was
published in the State Register and the I.D. Number.
3.
Proposal Identification
.
Provide the date that the original Notice of Proposed Rule Making
was published in the State Register.
Amended
Adoption
Package
:
Amended Adoptions are packaged the same as Adoptions. An Assessment of Public Comment would
be included only if additional comment was received after the Notice of Adoption was filed with the
Department of State.
Department of State Rule Making in New York May 2012 31
Chapter
4
HOW
TO
ADOPT
AN
EMER
GENCY
R
U
LE
Narrative
overview. Nearly every state with a formal rule making process provides for some type
of expedited or temporary rule making. In New York we refer to this as emergency rule making.
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 the proposal
process would be contrary to the public interest, the agency may dispense with all or part of the
proposal requirements and adopt a rule on an emergency basis.
New York’s emergency rule making process allows you to adopt a rule on a temporary basis for a
maximum of 90 days. An emergency may be re-adopted, but each such re-adoption will be effective
for a maximum of 60 days and to file a re-adoption you must also take action to initiate the proposal
process to formally adopt the rule on a permanent basis. Emergency rules may be effective on the date
filed with the Department of State or on a future date specified in the certification.
For most state agencies, emergency adoption occurs
when the head of the agency approves and
signs
the rule in its final form. However, for some authorities, boards, commissions and public benefit
corporations, it may be necessary for the governing body to vote on the emergency adoption. In those
cases, adoption occurs when the emergency adoption is approved by the requisite number of votes.
Since an emergency will expire in 90 days and cannot be re-adopted unless a Notice of Proposed
Rule Making is submitted, we provide two notice forms that you may choose from:
— The Notice of Emergency Adoption is used to simply adopt the rule on an emergency
basis.
— The Notice of
Emergency Adoption
and
Proposed
Rule Making form
combines
the two separate
actions and allows you to adopt the rule on an emergency basis at the same time you initiate the
proposal process.
If your agency is subject to Executive Chamber rule review, you must obtain such approval to
submit a Notice of Emergency Adoption and Proposed Rule Making form.
As with a regular adoption, the act of emergency adoption requires two simultaneous actions. You
must file (electronically or hard copy) with DAR a certification and the full text of the rule with
bracketing and underlining to show amendments and E-file the
Notice of Emergency Adoption
or
Notice
of Emergency Adoption and Proposed Rule Making form for publication in the State Register.
If you use the Notice of Emergency Adoption and Proposed Rule Making form, the proposal part
of the notice is subject to the same requirements and calendaring issues as any other proposal. During
the course of the proposal period you may find it necessary to submit a Notice of Revised Rule Making.
We provide variations of all of these forms to allow you to adopt or re-adopt an emergency at the same
time you revise a proposal. For example, a Notice of Emergency Adoption and Revised Rule Making
form should be used to adopt or re-adopt an emergency for a rule when it is necessary to make
substantial revisions to the original proposal at the same time you publish notice that the text of the
proposal has been substantially revised.
32 May 2012 Department of State Rule Making in New York
How
do I adopt a
rule
on an emergency basis?
You must file a certification and the text of the rule when you E-file a Notice of
Emergency
Rules
Emergency Adoption
or a
Notice
of
Emergency Adoption
and
Proposed Rule
Making
form with all applicable attachments to adopt a rule on a temporary basis (the rule
will expire in a maximum of 90 days).
For samples and special instructions for emergency
certifications,
refer to Chapter 3, How to Adopt
a Rule.
Can I continue an emergency rule?
Emergency rules may be re-adopted, not continued. It is important to note, however, that you
must
submit a Notice of Proposed Rule Making to formally propose the rule for permanent adoption
before
taking any action to re-adopt an emergency rule. If your rule requires
Executive
First
emergency
effective for
90
days;
Second or
subsequent
effective for
60
days
Chamber authorization, you must obtain such authorization before the emergency
rule can be adopted.
The requirement to have a proposal before you re-adopt an emergency is the
reason so many agencies use the Notice of Emergency Adoption and Proposed Rule
Making form. This form provides the opportunity to file the emergency at the same
time you initiate the proposal process.
Can I
revise
a
proposal
after adopting the
rule
as an emergency?
Yes. You may submit a Notice of Revised Rule Making for any proposal. To do this at the same time
you adopt or re-adopt an emergency, use the Notice of Emergency Adoption and Revised Rule Making
form.
Can I
withdraw
an emergency adoption?
No. An emergency adoption is temporary and will expire, but it is still an adopted, effective rule. You
may not withdraw an emergency as if it were a proposal. If a situation changes and you need to change
the text of an emergency rule you must either wait until the emergency rule expires or adopt a new
emergency rule to supercede the previous one.
What do I file
for
an emergency
rule
making?
What you file for an emergency rule making depends on whether you are filing the emergency as a
single action
or in
combination
with a
proposal. Remember
that an
adoption
itself
requires
two separate
yet simultaneous actions (filing the text and certification and E-filing a notice for publication in the
State Register). If you choose to propose the rule at the same time, use the Notice of Emergency
Adoption and Proposed Rule Making form to combine the adoption and proposal notifications.
Department of State Rule Making in New York May 2012 33
Emergency Adoption
Package (same as Adoption package):
1. For publication in NYCRR: Before E-filing the Notice of Adoption form, attach* a scanned
copy of your signed certification prepared on agency letterhead in pdf format plus the full text
of the rule (with bracketing and underlining if needed) in MS Word format. Hard copy original
certification with explanation
of
emergency and full text
of
rule attached can
be
submitted
in lieu
of electronic submission (original and two copies).
2. For publication in the State Register:
• E-file your Notice of
Emergency Adoption
OR Notice of
Emergency Adoption
and Proposed
Rule Making
form.
• No hard copies of form and attachments are needed. DAR will print all from the E-filing.
Where
do I
deliver
my emergency?
If you choose not to submit your certification and text electronically, deliver the hard copy
certification
with original
signature attached
to the text of the rule plus two copies to DAR on the same
day you e-file to:
Department of State
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231-0001
Our office hours are 8:00 a.m. to 5:00 p.m., Monday-Friday.
At the same time you file an emergency adoption with us, you must also
send each “Exec. L. 101-a” and “SAPA
202(6a)”
officers a copy of the notice
along with the full text of the rule and the full text of every attachment. (See
Appendix D for a list of e-mail and mailing addresses and instructions.)
Appendix D
“202(6-a)”
and
“101-a”
officers
Will
I receive an acknowledgment?
Yes. You will receive two e-mail acknowledgments for each rule making. The first is an automatic
acknowledgment sent from the West Data Capture System to the shared mailbox that each agency
created
for rule
making.
This is sent right after you
upload (E-file)
your
notice.
This
e-mail
is extremely
important! It will confirm whether your E-filing submission succeeded or failed. DAR is not notified
of E-filing failures.
The second e-mail
acknowledgment
comes from DAR after your notice is processed. It is e-mailed
to the person who certified the rule making form. This acknowledgment includes the identification
number assigned to your emergency adoption or emergency/proposal and the NYCRR citation.
* Instructions for attaching certification and text:
Click on the paper clip in the lower left-hand corner of the form. This will indicate the documents that are already
attached
to the rule making form. Click on “add” to attach the
additional documents (scanned certification
and text)
to be included within the pdf form.
34 May 2012 Department of State Rule Making in New York
Can I change a
newly
adopted emergency rule?
You may only amend, suspend or repeal a newly adopted rule in situations where such action
does not constitute a substantial revision to the rule so long as you do so before the rule
becomes effective.
Theoretically it is possible to amend, suspend or repeal an emergency adoption — but only
in the unlikely case the emergency were to specify a future, effective date and you file a Notice
of Amended
Adoption
before that date. The vast
majority
of
emergency
rules are
effective
the
day they are filed with us and, thus cannot be amended, suspended or repealed.
Department of State Rule Making in New York May 2012 35
Chapter
5
HOW
T
O
INCORPORAT
E
BY
REFERENCE
Narrative
overview. Occasionally you might want to include federal material or other previously
published standards in a rule. Rather than restate the text of the material in the rule itself, you may
incorporate it by reference as long as you conform to precise identification and filing requirements.
The
incorporation
by
reference
requirements
essentially
in
effect
today
came
about
following
a
1983
ruling from the NYS Court of
Appeals.
That ruling stated that a state agency could not enforce material
that had been
incorporated
by
reference
unless the material had been filed with the
Department
of State
as required by the NYS Constitution, Article IV, section 8. See NYS Coalition of Public Employers v.
NYS Department of Labor, 60 N.Y. 2d 789, 469 N.Y.S. 2d 679 (1983).
Section
102
of
the
Executive
Law
permits
state agencies
to
continue referencing
outside
publications
as long as the publication is precisely identified in the NYCRR and filed with the Department of State.
When
previously incorporated
by
reference
materials are amended, and the agency wishes to incorpor-
ate the amendments in NYCRR, it must commence a Notice of Proposed Rule Making to incorporate
the changes. To ensure that the publication is available to regulated parties, copies must be available
for public use and inspection at designated agency offices as well as at the Department of State, the
Legislative Library and four designated Supreme Court law libraries.
Adopting a referenced publication presumably makes the publication a public document and, as
such, it must be copied and
distributed
upon request. To avoid any claim of
copyright infringement,
the
Department of State requires a certification that a referenced publication can be copied and distributed
to the public without violating copyrights.
When
do I
provide copies
of the
publications
I intend to
incorporate
by
reference?
Do not
submit
the
required
two
copies
of the
referenced documents
to the
Department
of State until you
formally adopt the rule. Do not submit the required copy to the Legislative Library or Supreme Court
law libraries until the rule is adopted.
You must provide copies of material to be incorporated by reference to RRU for rule review along
with your proposal if your agency’s rule making activity is subject to Executive Chamber review. The
text of referenced material also must be included in the Exec. Law §101-a and SAPA §202(6-a) notice
to officers (see Appendix D). Since the referenced text is part of the proposed rule, it must also be
available to those who request a copy for public comment. For these purposes an agency may provide
photocopies in lieu of an original publication.
What
information is
required to be in the rule?
Pursuant to Executive Law, section 102(1)(c) you must include in the text
of the rule an accurate and complete description of every publication you
incorporate by reference. You must state in the text of the rule that requires
adherence to the standards published in an incorporated document, the
following items:
— title or name of the publication;
Incorporation by
reference
Identification
requirements
Exec.
L. §102(1)(c)
36 May 2012 Department of State Rule Making in New York
— edition or volume title or number (if applicable);
— page numbers and section numbers (if applicable);
— name of the author or editor;
— name and address (if any) of the publisher;
— date of publication; and
—
location (adopting agency address)
where the
publication
may be
viewed.
(You may also list the
Department of State’s address as a source for viewing these materials in Albany.)
Does the text of incorporated material “count” for the 2,000-word
publication limit?
No. Referenced material is not counted when determining whether or not the text of a proposal or
adoption is 2,000 words or more. A summary of the text must be submitted for publication in the State
Register only if the text of the rule is 2,000 words or more excluding referenced material.
Can I reference
previously
filed
publications?
Yes. If your
agency
or
another agency
has
already
filed a
publication
you will not have to file additional
copies so long as the rule (as submitted for filing) is accompanied by a statement precisely identifying
the
previously
filed
publication, including
our file number and the date the
publication
was filed. If you
file
a
rule
referencing
a
document
previously
filed
by
another
agency,
the
accompanying
statement
must
include the name of the filing agency in addition to the file number and date the publication was filed.
This is referred to as a “re-ref.”
Call us at (518) 474-6957 if you wish to verify that a particular document is on file or to obtain a
current copy of our incorporation by reference library list.
Be very careful in citing incorporation by reference materials. In the case of an inaccurate citation,
we may have to certify that we have no record of the
publication
on file. Searches and
certifications
are
commonly requested pursuant to Article 45 of the Civil Practice Law and Rules of the State of New
York.
How
do I prepare
publications for filing?
You must file two copies of the original bound
publication
with the
Department
of State, one copy
with
the
Legislative
Library and one copy with each of the four
designated
Supreme Court law libraries
(see
Appendix E for a list of addresses). The material submitted to the Supreme
Court
Appendix
E
Supreme
Court
Law
Libraries
Libraries must be in electronic form and must meet the requirements of 22 NYCRR
123 (see Appendix E).
Certain paper reproductions are acceptable in filing documents with the
Department
of
State.
Specifically,
Federal
Register
and
Code
of
Federal
Regulations
materials may be downloaded from the National Archives and Records Adminis-
tration official website and then copied, bound, labeled and filed as
incorporation
by
reference documents.
If the material was published in a
permanently
bound volume, you must provide us with two copies
of that volume when you adopt the rule. If the material is soft-bound and under 100 pages or self-
Department of State Rule Making in New York May 2012 37
covered (i.e., the pages and cover consist of the same or similar paper), you must place one copy in
a
rigid-cover binder. Ring binders (such as standard three-ring binders) are not acceptable as rigid
cover
binders. Instead you must use pin-and-prong binders, post binders or other
similar
Incorporation
by reference
Labeling
requirements
types of binders that hold the publication compactly and securely.
Material published
in
loose-leaf,
like the
NYCRR,
may be filed in a
binder
so long
as that binder is specifically manufactured and imprinted by the publisher for storing
the pages. You must affix an adhesive label in the upper-left corner of the front cover
of every publication you file with us. The label must be clearly printed or typed and include the name
of the publication, edition or volume number and title (if applicable), author (or editor) and date of
publication.
Is
there a form to
submit
documents?
Yes. We provide an Incorporation by Reference Certification form that must be completed by the
agency’s general counsel for each publication incorporated by reference. The Incorporation by
Reference Certification form can be found on our we bsite at
http://www.dos.ny.gov/info/e-file/e-forms.html.
When planning to adopt a referenced publication you must consider whether or not the material is
protected by copyright. Adopting a referenced
publication presumably
makes it a public document. As
such, it must be copied and distributed upon request — both by your agency and the Department of
State. To avoid any claim of copyright infringement, the Department of State requires a certification
that the
referenced publication
can be copied and
distributed
to the public without
violating
copyrights.
INFORMATION REQUIRED ON AN INCORPORATION BY REFERENCE CERTIFICATION
(Form provided by the Department of State, Division of Administrative
Rules)
1. I, the undersigned General Counsel for the (Agency Name), hereby state that said agency has adopted the
following material:
Publication
Title
Volume
Number
Volume
Title
Section or
pages
Author
Publication
Date
Publisher's
Name/Address
Electronic location or
other
source
identification
2. The attached material is referenced in Title NYCRR,
sections
3. Based on the following facts, it is my opinion that the referenced publication is reasonably available to regulated
parties as required by Executive Law §102(1)(c):
4. Based on the following facts, it is my opinion that reproduction and distribution of all or part of the referenced
material will not violate any copyright:
5. G The original publication is being submitted to the Department of State.
G A paper reproduction of the referenced material is being submitted to the Department of State and I, the
undersigned General Counsel, hereby certify that I have personally supervised the comparison of the
attached document with the original publication and the attached is a true and accurate representation of the
publication.
General Counsel's
Signature
Name
Title
Agency
Date
Department of State Rule Making in New York May 2012 39
Chapter
6
HOW
TO
PUBLISH
A
REGULATORY
AGENDA
Narrative overview
.
Regulatory Agendas reinforce the concept that SAPA is all about public notice
and
public input
into the rule
making process.
A
Regulatory Agenda gives
you the
opportunity
to solicit
comments before you draft a formal Notice of Proposed Rule Making.
Failure to include a specific rule in a
Regulatory
Agenda does not mean that a proposal for that rule
cannot be made in the future. However, if an agency that is mandated to publish a Regulatory Agenda
does submit a proposal for a rule that was not previously published in its Regulatory Agenda, it must
indicate in the Notice of
Proposed
Rule Making that the rule was not under
consideration
at the time the
Regulatory Agenda was submitted for publication. An agency is not required to propose a rule which
appears in its Regulatory Agenda.
Do I have to
publish
a
Regulatory
Agenda?
The Division of Housing and Community Renewal; Workers’ Compensation Board; departments of
Agriculture and Markets, Education, Environmental Conservation, Financial Services, Health, Labor,
Motor Vehicles and State; and the offices of Children and Family Services, and Temporary and
Disability Assistance must publish semi-annual Regulatory Agendas in the State Register. An agency
specified
by the
Governor
or the
Governor’s designee
may be
required
to
publish
a
Regulatory
Agenda.
Any agency may publish a Regulatory Agenda at its discretion. The publication deadlines and
information required to be provided in a discretionary Regulatory Agenda are the same as those for a
mandated Regulatory Agenda.
Publication Requirements. Agencies which publish a Regulatory Agenda shall publish the
Regulatory Agenda on their respective websites whenever feasible. An agency that publishes its
Regulatory Agenda on its website shall have the option of maintaining a continuously updated
Regulatory Agenda, wherein a description of a rule is added when the agency begins to consider
proposing it and is removed when the agency is no longer considering proposing it. Such description
shall identify the date on which the description is first listed in the Regulatory Agenda and
conspicuously indicate that the description has been newly listed for a period of not less than 30 days
after such date. In any year that an agency maintains
a
continuously updated Regulatory Agenda,
it shall
not be required to publish a Regulatory Agenda in the last regular issue of the State Register in June.
The Regulatory Agendas of such agencies published in January shall inform the public that these
agencies maintain updated Regulatory Agendas on their websites and list the addresses of these
websites. The information concerning continuously updated Regulatory Agendas must be republished
in the last regular issue of the State Register in June.
What
is
required to be in a Regulatory
Agenda?
Every Regulatory Agenda must include a list and brief description of the subject matter of all rules
being considered for rule making. You must provide the name, public office, address and telephone
number (and may provide an e-mail address) of the agency
representative
who is
knowledgeable
about
the rule making, from whom information about the rule making may be obtained, and to whom
comments may be
addressed.
You must also identify each rule described in the Regulatory Agenda for
which a Regulatory Flexibility Analysis or Rural Area Flexibility Analysis may be required, and
Department of State Rule Making in New York May 2012 41
provide outreach to potentially affected small businesses, local governments, and/or public or private
interest located in rural areas for these rules.
Regulatory Agenda
text
must
be
typed
in the
prescribed format
in a
Word
or
WordPerfect
document
and e-mailed to
NYSRegist[email protected].
Type “Regulatory Agenda” in the subject line.
When do I submit a Regulatory Agenda for publication in the State
Register
?
Regulatory Agendas are published twice a year. They must appear in the first January and the last
June issue of the State Register.
Although the actual deadline dates vary year-to-year, at the latest you must have your Regulatory
Agenda ready
for
submission around mid-December
for the
first January issue
and
mid-June
for the last
June edition. Please do not feel as if you must wait until the last possible Tuesday deadline to submit
your Regulatory Agenda. We accept Regulatory Agendas during the three submission weeks prior to
the actual issue deadline date.
Refer to each year’s State Register Submission Deadlines to determine the final filing deadline for
any particular
Regulatory
Agenda. The State Register calendar and
submission
deadlines can be found
on our website at http://www.dos.ny.gov/info/index.html.
Where
do I send my
Regulatory
Agenda?
E-mail (preferable), mail or hand-deliver your Regulatory Agenda to:
Department of State
Division of Administrative Rules
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231-0001
email: [email protected]
Department of State Rule Making in New York May 2012 41
Chapter
7
FIVE
YEAR
REVIEW
OF
EXISTING
RULES
Review
of
existing rules.
Unless the contrary is
specifically
provided by another law, any rule which
is adopted on or after January 1, 1997 shall be reviewed after five years, and, thereafter, at five-year
intervals.
An agency shall submit for publication in the regulatory agenda published in January pursuant to
section two hundred two-d of SAPA a list of the rules which must be reviewed in the ensuing calendar
year. In addition to the information included in the agency’s regulatory agenda, the agency shall
provide
an analysis of the need for and legal basis of the rule, shall invite public comment on the continuation
or modification of the rule and shall indicate the last date for submission of comments which shall be
not less than forty-five days from the date of publication.
If an agency determines that a rule should be modified, it shall publish a notice of proposed rule
making for such rule. This notice of proposed rule making shall include a statement setting forth a
reasoned justification for modification of the rule and an assessment of public comments, prepared in
accordance with subdivision four-a of section two hundred two of SAPA, which were submitted to the
agency in response to the listing of the rule in the regulatory agenda. Where appropriate, the agency
shall also include in its statement a discussion of the degree to which changes in technology, economic
conditions or other factors in the area affected by the rule necessitate changes in the rule.
If an agency determines that a rule subject to the provisions of this section should continue without
modification, it shall publish a notice to that effect, which shall identify the rule and the statutory
authority for the rule, and include a statement setting forth a reasoned justification for continuation of
the rule without modification and an assessment of public comments which were submitted to the
agency in response to the listing of the rule in the regulatory agenda.
For publication purposes in the Register, DO NOT COMBINE the Rule Review Notice with the
Regulatory Agenda. They are two separate notices published in separate sections of the Register.
This provision does not apply to any rule which was adopted as a consensus rule.
The Rule Review should be e-mailed to NYSRegis[email protected]. A hard copy is not required
when e-mailing.
Department of State Rule Making in New York May 2012 45
Chapter
8
GUIDANCE
DOCUMENTS
Guidance documents. A guidance document means any guideline, memorandum or similar
document prepared by an agency that provides general information or guidance to assist regulated
parties in complying with any statute, rule or other legal requirement, but shall not include documents
that concern only the internal management of the agency.
Publication requirements.
Not less than once each year, every
agency
shall
submit
to the Secretary
of State for publication in the State Register a list of all guidance documents on which the agency
currently relies, and provide information on where and how regulated parties and members of the
public
may inspect and obtain copies of any such document. Unless otherwise provided for by law, an agency
may make such documents available as provided in the Freedom of Information Law, and may charge
fees pursuant to such law for copies of any such document.
Exemptions. The Secretary of State may exempt an agency from compliance with the publication
requirements upon a determination that the agency has published on its website the full text of all
guidance documents on which it currently relies. The Secretary of State shall publish a notice of such
determination identifying the website in the State Register.
If
an
agency
claims exemption
from
the
guidance
document
publication
requirements,
it
must
submit
a certification to the Secretary of State claiming such exemption and identifying the website location
or locations where the full text of all agency guidance documents are located. The form for submission
of this certification is available on our website at http://www.dos.ny.gov/info/e-file/e-forms.html.
Submission. The certification for a one-year exemption must be signed by the agency head and
submitted to DAR in hard copy.
If a list of your guidance documents is available on your website, fill out the Guidance Document
Certification form and choose item A. The form can be uploaded to the West Data Capture or e-mailed
to [email protected]. A signature is not required.
If you are submitting a list of your guidance documents for publication, e-mail the list (in Word or
WordPerfect) to [email protected].
Five
year
review of
guidance documents.
Not less than once every five years, every agency
shall
conduct a process for reviewing and updating all guidance documents on which it currently relies. In
conducting such process, the agency shall obtain feedback from regulated parties and members of the
public who are directly or indirectly affected by the guidelines.
Department of State Rule Making in New York May 2012 45
Appendix
A
SUBJECT
INDEX
This index is not intended to be a complete directory to the Executive Law and SAPA rule making process. We
designed this guide to provide a quick and easy way to locate major sections of law and a simple, plain language
description of major elements.
The Subject Index is a three-column table. The first column provides a citation, the second column is an
alphabetic list of the selected key functions and the third column is our plain language recap of the major
elements. You must refer directly to the appropriate statute for complete information.
CITATION TERM DESCRIPTION
SAPA §202(5)(c) adoption, notice of
(form)
SAPA §202(5) adoption, notice of
(proposal required)
SAPA §102(1) agency
(definition)
The actual notice published in the State Register. You must use a
prescribed form to advertise adoption of a rule.
You may not file a rule or submit a notice of adoption unless the rule
has been previously submitted through a notice of proposed rule
making and you have complied with SAPA adoption provisions
(excludes emergency adoptions).
ANY
department, board, bureau, commission, division, office,
council,
committee of the state, officer of the state,
OR
public benefit corporation
or
public authority,
at
least
one of whose
members is appointed by the governor, and which is authorized by law
to make rules or to make final decisions in adjudicatory proceedings.
K
Agency
does NOT include the:
- Governor,
- legislative or judicial branch agencies,
- agencies created by interstate compact or international agreement,
- Division of Military and Naval Affairs to the extent it exercises its
responsibility for military and naval affairs,
- Division of State Police,
- Division of Criminal Justice Services’ Identification and Intelli-
gence Unit,
- State Insurance Fund,
- Unemployment Insurance Appeal Board,
-
Workers’ Compensation Board (except they are required to
publish
a Regulatory Agenda under SAPA §202-d [WCL §117(2)]),
- Division of Parole (except for the purposes of Art. 2) and
- Department of Correctional Services (except for the purposes of
Art.
2).
SAPA §203(2)(a)
SAPA §203(2)(b)
amended notice of
adoption
(substantial revision
not allowed)
After a rule is filed and prior to the effective date you may amend,
suspend or repeal a rule without proposing the rule by filing an
Amended Notice of Adoption. The text of the rule being adopted must
be compared to the text of the rule being amended, suspended or
repealed for the purposes of text comparisons and the RIS and RFA.
K
You may not amend, suspend or repeal a newly adopted rule
through
the
amended notice
of
adoption process
if the
action
would
constitute a substantial revision (it is not considered a substantial
revision if the action taken only delays the effective date).
46 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §202(5)(b)
SAPA §202(4-a)(b)
assessment of
public comment
For “(a)(i)” rules, a required element in a notice of adoption (based on
written comments received by the agency and comments from public
hearing/s).
For “(a)(i)” rules
,
a
required element
in a
notice
of
revised rule
making
(based on the written comments submitted to the agency and any
comments presented at any public hearing held for the rule).
Exec. L. §102(1)(b) certification You must file a
certified
copy of every code, rule or regulation certified
by the agency head, or if a board or commission by the chairman or
secretary thereof.
Exec. L. §102(2) certification
(content)
Exec. L. §102(3) compilation
(NYCRR)
SAPA §202(1)(b)(i) consensus rule
(abbreviated notice)
A certification must cite the statutory authority, the date of adoption,
date of publication in the State Register of the proposed rule making,
and any other manner of publication of any additional prior notice. If
the rule is exempt from SAPA, the certification must so state. The
certification must be signed by the head of the department, authority,
board, etc.; except when signed by a person designated by the head of
the filing entity in writing and containing the signature of the desig-
nated person and such designation is filed in the Department of State.
We are responsible for preparing the master compilation of all codes,
rules and regulations (except those relating solely to the organization
or internal management of a department, board, etc.) in a form and
order as we may determine. The language of any existing code, rule or
regulation may not be changed except a title or explanatory caption.
An RIS, RFA, or RAFA is not required for a consensus rule. You must
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.
KThere
is no similar exemption for a JIS.
SAPA §102(11)
SAPA §202(1)(e)(iii)
consensus rule
(definition)
A rule proposed by an agency for adoption on an expedited basis
pursuant to the expectation that no person is likely to object to its
adoption because it merely:
-
repeals regulatory provisions which
are no
longer applicable
to any
person,
- implements or conforms to nondiscretionary statutory provisions,
OR
- makes technical changes or is otherwise noncontroversial.
K
No rule defined by the Public Service Law as a “major change” may
be adopted as a consensus rule.
SAPA §202(1)(b)(ii) consensus rule
(negative comment
received)
You must withdraw the notice of proposed rule making for any rule
proposed
as a
consensus rule
if the
agency receives
any
comment
which
contains any objection to the adoption of rule.
SAPA §103(1)(c)
SAPA 202(1)(b)(iii)
consensus rule
(public hearing,
publication)
For “(a)(i)” rules, your agency may dispense with any statutory
requirement for public hearing or publication of a notice in any
newspaper or publication other than the State Register unless such
requirement is explicitly directed at the rule which is being adopted.
For “(a)(ii)” rules, any public hearing required by law is deemed to be
“explicitly directed.”
Department of State Rule Making in New York May 2012 47
CITATION TERM DESCRIPTION
SAPA §202-bb(4)(b) consensus rule
(RAFA exemption)
SAPA §202-a(5)(c) consensus rule
(RIS exemption)
SAPA §202-bb(3)(b) consensus rule
(RFA exemption)
n/a consensus rule
(JIS required)
SAPA §202(3) continuation
(special extension)
An RAFA is not required for a rule proposed as a consensus rule.
An RIS is not required for a rule proposed as a consensus rule.
An RFA is not required for a rule proposed as a consensus rule.
Warning! there is no exemption from the requirement to submit a JIS
for a rule proposed as a consensus rule.
IF, within 90 days of
expiration
of a proposed rule, you submit a notice
of revised rule making, the rule making will be continued for an
additional 90 days beyond the date on which it was originally set to
expire.
SAPA §202(6-a)(a)
SAPA §202-b(2)
SAPA §202-bb(3)
SAPA §202(6-a)(b)
distribution
(notices
to Ex. L 101-a
SAPA 202(6-a)
officers)
(public availability)
You must transmit any rule making notice with the full text of the rule,
RIS, RFA (including a copy of any analysis and any finding, and
reasons for such finding), RAFA (including a copy of any analysis and
any finding, and reasons for such finding) or revisions thereof and any
other information submitted to us to the: Governor, Temporary
President of the Senate, Speaker of the Assembly, Administrative
Regulations Review Commission and the Regulatory Review Unit at
the same time you submit your notice to us.
You must make a copy of the complete text of the rule and all ancillary
statements available to the public at the same time you submit your
notice to us and send a copy to any person upon written request.
SAPA §202(6-a)(c) distribution
(public mailing lists)
(fees)
Each agency must notify every person who has submitted a written
request for such notification of all rule makings. Such requests expire
December 31 each year and must be renewed on or after December 1
for the succeeding year.
An agency may charge any person requesting a notice a fee consisting
of the cost of preparation, handling and postage.
SAPA §202(6)(a) emergency adoption
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 §202(1) (the proposal process) would be
contrary to the public interest, the agency may dispense with all or
part of such requirements and adopt a rule on an emergency basis.
SAPA §202(6)(d)
SAPA §202(6)(d)(viii)
SAPA §202(6)(d)(ix)
SAPA §201-a(2)(f)
emergency adoption,
notice of (form)
(RIS, RFA, RAFA,
JIS 30-day waiver)
The actual notice published in the State Register. You must use a
prescribed form to advertise emergency adoption of a rule.
You must attach an RIS, RFA, RAFA and or JIS OR a statement
indicating one will be published in the State Register within 30 days
of the effective date of the emergency rule.
SAPA, §202(6)(d)(iii) emergency adoption
and proposed rule
making, notice of
(form)
A prescribed form that combines the actions needed to simultaneously
advertise emergency adoption of a rule and to propose a new rule or the
amendment or repeal of an existing rule.
48 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §202(6)(b)
SAPA §202(6)(c)
emergency rule
(duration)
(re-adoption;
duration)
(permanent duration
for specific emergency
rules)
Unless otherwise provided in law, an emergency rule cannot be
effective for more than 90 days after being filed with the Secretary of
State unless within that time frame the agency completes the regular
rule making process (notice of proposed rule making, notice of
adoption, etc.).
If an emergency rule is re-adopted prior to expiration, the re-adoption
and any subsequent re-adoptions will remain in effect for no longer
than 60 days.
An emergency rule in regard to security authorizations, corporate or
financial structures or reorganization thereof, and for which a statute
does not require a public hearing be held prior to adoption, will not
expire if the agency finds the purpose of the rule would be frustrated if
subsequent notice procedures were required.
Executive Order No. 17 see 9 NYCRR section 7.17 - Establishing Measures to Evaluate Costs of Mandates on Local
Government to Advance Property Tax Relief.
Executive Order No. 25 see 9 NYCRR section 7.25 - Establishing a Regulatory Review and Reform Program.
SAPA §202(2)(a)
SAPA §203(3)
expiration date
(proposal)
(rejection)
For
“(a)(i)”
rules, a notice of
proposed
rule
making expires
within 365
days after the latter of: (i) publication in the State Register or (ii) the
date of the last public hearing announced in the notice — unless adopt-
ed and filed with the Secretary of State.
We must reject any rule filed for adoption after the expiration date of
its corresponding proposal.
SAPA §202(2)(b) expiration notice We automatically publish a notice of expiration in the State Register
when a proposal term
expires.
Exec. L. §102(4)(d) fee
(copying)
Photocopies of any code, rule or regulation must be made available to
the public upon payment of a fee not to exceed 25¢ per page.
Exec. L. §102(1)(a)
SAPA §203(1)
Constitution of the
State of New York,
Art. IV, §8
filing; effective date
(certification)
filing; publication
(rules and
regulations)
No code rule or regulation is effective until it is filed with the Secretary
of State, unless a later date is required by statute.
No rule is
effective
until filed with the
Secretary
of State and the Notice
of Adoption is published in the State Register unless a later date is
required by statute or specified in the rule, the rule is adopted as an
emergency, or if it is a “(a)(ii)” rule.
Each adopted rule must have a certification attached (See also, certi-
fication).
No rule or regulation made by any state department, board, bureau,
officer, authority or commission (except those related to the organiza-
tion or internal management), is effective until filed in the Department
of State. The Legislature must provide for the speedy publication of
such rules and regulations by appropriate laws.
Department of State Rule Making in New York May 2012 49
CITATION TERM DESCRIPTION
SAPA
§202-e
guidance
document
Not less than once each year,
every
agency shall submit
to the Secretary
of State for publication in the State Register a list of all Guidance
Documents on which the agency currently relies [SAPA §202-e(1)].
An agency may be exempted from compliance with the requirements
of
SAPA section 202-e(1)
if the agency has
published
on its
website
the
full text of all
Guidance Documents
on which it currently relies [SAPA
§202-e(2)]. If this applies to your agency, identify the website where
the full text of documents are located in a Certification signed by the
agency head.
Exec. L. §102(1)(e)
SAPA §202(7)(b)
incorporation by
reference
(authorization for
filing requirements)
(2,000 word limit)
The Secretary of State is authorized to promulgate rules establishing
procedure, forms, style and font for submission of every code, rule and
regulation incorporated by reference into the NYCRR.
Reference material is excluded from the 2,000 word limit for a rule.
Exec. L. §102(4)(c) incorporation by
reference
(distribution)
Exec. L. §102(1) (d) incorporation by
reference
(effective)
Exec. L. §102(4)(e) incorporation by
reference
(exclusion)
Exec. L. §102(1)(c) incorporation by
reference
(precise identification
required)
At the same time material incorporated by reference is filed with us,
you must transmit a copy (except a U.S. statute or code, rule or
regulation published
in the Code of Federal
Regulations
or the Federal
Register or material readily available online free of charge - provide
url) to the Legislative Library, and the four designated Supreme Court
Law Libraries.
No
amendment
to any material
incorporated
by
reference
shall become
effective unless adopted and filed with the Secretary of State.
The Secretary of State may exclude from the printed NYCRR any
material that is incorporated by reference.
Any code, rule or
regulation
which
includes
the text of any U.S. statute,
code, rule or regulation or any material previously published in the
Code of Federal Regulations or in the Federal Register or any
previously published data, criteria, standards, specifications, tech-
niques, illustrations or other information reasonably available to
regulated parties, must set forth in its text a precise identification of
such material, including at least the: applicable titles, dates, editions,
page numbers, section numbers, and authors, the names and addresses
of the publisher from whom a copy may be obtained, and the desig-
nated office/s
of the
adopting
agency
where
the
material
is
available
for
public inspection and copying.
SAPA §201-a(1) job impact In developing a rule, agencies must strive to accomplish the objectives
of applicable statutes in a manner that minimizes any unnecessary
adverse impacts on existing jobs and promotes development of new
employment opportunities, including opportunities for self-employ-
ment, for the residents of the state.
SAPA §201-a(2)(b)
SAPA §201-a(2)(c)
job impact statement
(content)
(options)
For “(a)(i)” rules only, the elements required to be in a JIS.
When the available information is insufficient to determine whether a
rule will have a substantial adverse impact on jobs or employment
opportunities, you may publish a statement soliciting the information
you need.
50 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §201-a(2)(h) job impact statement,
consolidated
A
consolidated
JIS may be
submitted
for a
series
of
closely related
rules
treated as one rule.
SAPA §201-a(2)(d)
SAPA §201-a(2)(e)
job impact statement,
revised
(2,000 word limit)
(statement)
You must submit a Revised JIS when:
- (i) the original JIS is deemed inadequate or incomplete;
- (ii) substantial revisions to a proposed rule necessitate modifica-
tion/s to the statement;
- (iii) information received from others allows a more complete
evaluation.
The same word limit applies to a Revised JIS as the original JIS.
If after requesting information you still cannot determine whether the
rule will have a substantial adverse impact, you may adopt the rule.
However, you must submit a Revised JIS including a statement of the
measures taken to evaluate the potential impacts.
SAPA §202(9) notice forms Authority under which we provide standard rule making notice forms
to be used by all agencies.
SAPA §202(9)(iii) notice rejections
(noncompliance)
Authority under which we reject notices that are not in substantial
compliance. Also provides for giving prompt notice of rejection to the
agency and advising the agency of corrective action.
Exec. L. §102(4)(a)
Exec. L. §102(4)(b)
NYCRR
(public access)
We provide public access to the NYCRR for inspection and copying
Each agency must make readily available
at a
designated agency
office,
for public inspection and copying, the full text of all codes, rules and
regulations adopted by the agency.
K
Access must include documents incorporated by reference.
Exec. L §105 NYCRR
(references)
(certain approvals
required prior to
adoption)
Amendments must refer to the appropriate Title and to the section or
paragraph published in the NYCRR.
In the case of proposed regulations, prior to the adoption of any
resolution establishing a code, rule or regulation, an agency must seek
approval in writing of the proposed title, captions and numbers of such
code, rule or regulation and any Parts, paragraphs or sections thereof.
Exec. L. §104
19 NYCRR 261.4
NYCRR
(style; numbering)
The Secretary of State may advise rule making agencies that codes,
rules and regulations be uniform in style and form, be properly
numbered and captioned and be free from obsolete matter.
Exec. L. §102(5) NYCRR
(title)
The Official Compilation of Codes, Rules and Regulations of the State
of New York is the title of the compilation printed by the Secretary of
State and presumptively establishes the codes, rules and regulations of
the State of New York, except rules that relate solely to the organiza-
tion or internal management of a department, board, bureau, authority,
commission or other agency of the state. Publication of NYCRR was
initiated on January 1, 1945. Official supplements include any new
codes, rules and regulations and any changes that add, amend or repeal
same.
SAPA
§201
plain
language
You must strive
to
ensure that,
to the
maximum
extent practical, agency
rules and statements are clear and coherent, using words with common
and everyday meanings.
Department of State Rule Making in New York May 2012 51
CITATION TERM DESCRIPTION
SAPA §207(3) proposed rule
making
(as a result of
5-year review)
SAPA §202(1)(f) proposed rule
making, notice of
(form)
SAPA §202(1)(c) proposed rule
making, notice of
(other publication)
SAPA §202(1)(d) proposed rule
making, notice of
(public hearing)
If you determine, as a result of a 5-year review, that a rule should be
modified, you must publish a notice of proposed rule making and, in
addition to the information required for such a notice, including a
reasoned
justification
for
modification
of the rule and an assessment of
public comments prepared in accordance with that required for a
revised rule making. Where appropriate, you must also include a
discussion of the degree to which changes in technology, economic
conditions or other factors in the area affected by the rule necessitated
changes to the rule.
The notice and supporting documents that must be published in the
State Register for a proposed rule making; we provide a form to
identify the specific statutory authority and other important
information
concerning the proposed rule.
The requirement to publish a notice of proposed rule making in the
State Register does not preclude you from also publishing in newspa-
pers of general circulation or in trade or professional publications.
The requirement to publish a notice of proposed rule making in the
State Register does not preclude you from also initiating a public
hearing for an “(a)(ii)” rule; any such notice must be published within
a reasonable time prior to such hearing.
SAPA §202(1)(a)
SAPA §202(4-a)(a)
public comment
(last date)
A notice of proposed rule making must include the last date for
submission of comments.
A notice of revised rule making must include the last date for submis-
sion of comments.
SAPA §202(1)(a) public comment
period
(proposed rule)
SAPA §202(9)(b)(ii) public comment, elec-
tronic submission
Agencies must accept public comment for, and must not schedule any
public hearing that is required by statute until, at least 45 days after the
notice of proposed rule making is published in the Register unless a
different time is specified by statute.
K
Because the Register is published every Wednesday, the 45-day
period
always expires
on a
Saturday. Pursuant
to the
General
Construc-
tion Law, you must accept public comment at least through close of
business the following Monday and action to adopt cannot be taken
until the next business day: Tuesday. When Monday is a holiday, you
must accept comment through close of business the following Tuesday
and cannot take action to adopt until the next business day
thereafter: Wednesday.
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.
SAPA §202(9)(a)(iv) publication We are responsible for publishing all notices and statements that are
required to be published in the State Register as soon as practical.
K
The State Register is published each Wednesday. Every notice
received in DAR by close of business each Tuesday is published in the
weekly issue dated 15 days later. Our office hours are 8:00 a.m. – 5:00
p.m.
52 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §202-d(1) regulatory agenda Specified agencies must and any other agency may submit a regulatory
agenda for publication in the first January issue and the last June issue
of the State Register to solicit
comments concerning
any rule which the
agency is considering proposing, but for which no notice of proposed
rule making has been submitted.
A regulatory agenda is a list and brief description of subject matter
being considered and contact information.
An agency that prepares a regulatory agenda and has a website must
also post the agenda on its website whenever feasible.
SAPA §202-d(2) regulatory agenda
(publication not
a prerequisite for
future adoption)
SAPA §207(2) regulatory agenda
(subsequent, periodic
review required)
SAPA §202-b(1) regulatory flexibility
analysis for small
business and local
governments (RFA)
SAPA §202-b(2) regulatory flexibility
analysis
(content)
You may adopt rules that did not appear in a regulatory agenda or in a
form different
than the one
summarized
in a
regulatory agenda.
If a rule
proposed by an agency that is required to publish a regulatory agenda
was not included in a regulatory agenda, the notice of proposed rule
making must include a statement that the rule was not
considered
at the
time the regulatory agenda was submitted for publication. The agency
is not required to adopt a rule summarized in a regulatory agenda.
You must submit for publication in the regulatory agenda published in
January (pursuant to §202-d) a list of the rules scheduled for five-year
review. In addition to regulatory agenda items required under §202-d,
you must also provide an analysis of the need for and legal basis of
each rule scheduled for review and invite public comment on the
continuation or modification of such rules and the last day for submis-
sion of comments which shall be not less than 45 days from the date of
publication.
In developing a rule, agencies must consider utilizing approaches to
accomplish the objectives of a statute while minimizing any adverse
economic impact on small businesses or local governments; consider:
- (a) differing
compliance/reporting
requirements or timetables that
take into account available resources;
- (b) use of performance rather than design standards;
- (c) whole or partial rule
exemptions
that do not
endanger
the public
health, safety or general welfare.
For §102(2)(a)(i) rules the RFA must:
- (a) describe the types and estimate the number of small businesses
and local governments to which the rule will apply;
- (b) describe any reporting, recordkeeping and other compliance
requirements; and professional services needed;
- (c) estimate any costs to implement and continue to comply with
the rule;
- (d) provide an assessment of the economic and technological
feasibility of compliance by small businesses and local govern-
ments;
- (e) indicate how the rule was designed to minimize adverse
economic impacts on small businesses and local governments;
- (f) describe how the agency ensured the participation of small
businesses and local governments in developing the rule; and
- (g) if applicable, explain why no cure period is included in rule
text for rules that either establish or modify a violation or penalties
associated with a violation.
Department of State Rule Making in New York May 2012 53
CITATION TERM DESCRIPTION
SAPA §202-b(5) (options) Quantifiable or numerical descriptions are allowed, or more general
descriptive statements if quantification is not practicable or reliable.
SAPA §202-b(6) regulatory flexibility
analysis
(ensure participation)
You must assure that small
businesses
and local
governments
have had
the opportunity to participate in the rule making process through:
- (a) publication of a general notice in appropriate publications;
- (b) direct notification of interested, affected parties
- (c) special open conferences;
- (d) adoption or modification of agency procedural rules to reduce
the cost or complexity of participation.
SAPA §202-b(3)(a)
regulatory flexibility
analysis
(exemptions)
“(a)(ii)” rules and rules that do not impose adverse economic impacts
or
recordkeeping compliance requirements
on
small businesses
or local
governments are exempt from the RFA requirement; agency must
provide statement of findings and the reasons upon which the finding
was made that the rule would impose no adverse economic impacts.
SAPA §202-b(3)(b)
SAPA §202-b(4) regulatory flexibility
analysis, consolidated
SAPA §202-b(7) regulatory flexibility
analysis, revised
(2,000 word limit)
An RFA is not required for a rule proposed as a consensus rule.
A consolidated RFA may be submitted for a series of closely related
rules treated as one rule.
You must submit a revised RFA when:
-
(i) the information
in
the analysis is inadequate or incomplete
(must
be submitted as soon as practicable);
- (ii) substantial revisions to a proposed rule necessitate modifica-
tion/s to the analysis;
-
(iii) nonsubstantial revisions
to the
most recently published
version
of the proposed rule necessitate modification/s to the analysis.
The same word limit applies to a Revised RFA as the original RFA
SAPA §202-a(1) regulatory impact In developing a rule agencies must, to the extent consistent with the
objectives of applicable statutes, consider using approaches which are
designed to avoid undue deleterious economic impacts or overly
burdensome impacts.
54 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §202-a(3)
SAPA §202-a(5)(a)
SAPA §202-a(5)(b)
SAPA §202-a(5)(c)
SAPA §202-a(4)(a)
and (b)
regulatory impact
statement (RIS)
(content)
(exemptions)
regulatory impact
statement,
consolidated
For §102(2)(a)(i) rules, the RIS must:
- (a) identify and describe the statutory authority
- (b) describe the purpose of, necessity and benefits of the rule;
- (c) estimate any costs to implement and continue to comply with
the rule;
- (d) describe any paperwork and reporting requirements;
- (e) describe any mandates on local government;
- (f) identify any duplication with other state or federal legal
requirements;
- (g) identify whether any alternatives were considered;
- (h) state whether and, if so why, the rule exceeds any minimum
federal standards; and
-
(i) estimate
the
time needed
for
regulated parties
to
comply with
the
rule.
An RIS
exemption
may be claimed for a rule
involving
only a technical
amendment; a statement in the rule making notice must include the
reason/s for claiming exemption. Examples of a technical amendment
include: change of address, correction of spelling or punctuation,
similar nonsubstantial changes.
“(a)(ii)” rules are exempt from RIS requirement.
An RIS is not required for a rule proposed as a consensus rule.
For purposes of paperwork reduction a consolidated RIS may be
submitted for:
- a series of closely related rules treated as one rule
- any series of virtually identical rules proposed in the same year.
SAPA §202-a(6) regulatory impact
statement, revised
(2,000 word limit)
You must submit a revised RIS when:
- (i) the information in the statement is inadequate or incomplete
(must be submitted as soon as practicable);
- (ii) substantial revisions to a proposed rule necessitate modifica-
tions to the statement (describe reason/s for the change/s and
include modified language);
-
(iii) nonsubstantial revisions
to
the most recently published
version
of the proposed rule necessitate modification/s to the statement
(describe reason/s for
the change/s and include modified
language).
The same word limit applies to a Revised RIS as the original RIS.
SAPA §202(4-a)(a)
SAPA §202(4-a)(c)
revised rule making,
notice of
(last date for public
comment)
For “(a)(i)” rules, prior to adoption, you must submit a notice of
revised rule making for any proposed rule which contains a substantial
revision. (See SAPA §102(9))
The notice of revised rule making must indicate the last date for
submission of comments.
K
You cannot submit a revised rule making for a rule proposed as a
consensus rule.
SAPA §202(4-a)(c) revised rule making
notice of (form)
The actual notice published in the State Register. You must use a
prescribed form to substantially revise a proposed rule.
Department of State Rule Making in New York May 2012 55
CITATION TERM DESCRIPTION
SAPA §202(4-a)(a) revised rule making
(public comment)
Agencies must accept public comment for at least 30 days after the
notice of revised rule making is published in the Register unless a
different time is specified by statute.
K
Because the Register is published every Wednesday, the 30-day
period always
expires on a Friday.
Pursuant to the General
Construction
Law, you must accept public comment at least through close of
business that Friday.
SAPA §102(2)(a)(i)
SAPA §102(2)(a)(ii)
rule (definition of
“(a)(i)” rule)
rule (definition of
“(a)(ii)” rule)
The whole or part of each agency statement, regulation or code of
general applicability that:
- implements or applies law, OR
- prescribes a fee charged by or paid to any agency or the procedure
or practice requirements of any agency, including the amendment,
suspension or repeal thereof
AND rules include the amendment, suspension, repeal, approval or
prescription for the future of:
- rates,
- wages,
- security authorizations,
- corporate or financial structures or reorganization thereof,
- prices,
- facilities,
- appliances,
- services or allowances therefor or of valuations, costs or account-
ing, OR
- practices bearing on any of the foregoing whether of general or
particular
applicability.
SAPA §102(2)(b) rule exemptions A list of those types of documents or guidance materials specifically
not included in the definition of a rule.
SAPA §207(1) rule review
(periodic; adopted)
(exemptions)
SAPA §207(4) rule review
(results of “no
change” to be
published)
SAPA §102(10) rural area
(definition)
Unless specifically contrary
to
another
law, any rule
adopted
on or after
January 1, 1997 must be reviewed after five years and, there-after, at
five-year intervals.
K
5-year review does NOT apply
to minor, obsolete, invalid rules
and
rates, tariffs, etc., defined as §102(2)(a)(ii) rules.
If you determine, as a result of a 5-year review, that a rule should
continue without modification, you must publish a notice to that effect
in the State Register. The notice must identify the rule and its statutory
authority and include a reasoned justification for continuation without
modification
and
an
assessment
of
public
comment
received
in
response
to
publication
in the
regulatory agenda and prepared
in
accordance
with
that required for a revised rule making.
Those portions of the state as defined in §481(7) Exec. L.
44 counties have a population less than 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango,
Clinton,
Columbia,
Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton,
Herkimer,
Jefferson,
Lewis,
Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga,
Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne,
Wyoming and Yates.
9 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome,
Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga and Orange.
56 May 2012 Department of State Rule Making in New York
CITATION TERM DESCRIPTION
SAPA §202-bb(2)(b) rural area flexibility
analysis (RAFA)
In developing a rule, agencies must consider utilizing approaches to
accomplish the objectives of a statute while minimizing any adverse
impact on public and private sector interests in rural areas; consider:
- (i) differing compliance/reporting requirements or timetables that
take into account available resources;
- (ii) increased use of performance or outcome standards rather than
design or input standards;
- (iii) whole or partial rule exemptions that do not endanger the
public health, safety or general welfare.
SAPA §202-bb(3)
SAPA §202-bb(4)(a)
SAPA §202-bb(4)(b)
SAPA §202-bb(6)
rural area flexibility
analysis (content)
(exemptions)
(options)
For § 102(2)(a)(i) rules the RAFA must:
(a) describe the types and estimate the number of rural areas in
which the rule will apply;
(b) describe any reporting, recordkeeping and other compliance
requirements, and any professional services needed to comply
with the rule;
(c) estimate any costs to
implement
and continue to comply with the
rule;
(d) indicate how the rule was designed to minimize any adverse
impacts on entities in rural areas; and
(e) describe how the agency ensured the participation of public and
private interests in rural areas.
“(a)(ii)” rules and rules that do not impose adverse impacts or
recordkeeping compliance requirements
on public or private entities in
rural areas are exempt from the RAFA requirement; agency must
provide statement of finds and reasons upon which the findings was
made that the rule would impose no adverse impact.
An RAFA is not required with a rule proposed as a consensus rule.
Quantifiable or numerical descriptions are allowed, or more general
descriptive statements if quantification is not practicable or reliable.
SAPA §202-bb(7) rural area flexibility
analysis
(notification
requirements)
SAPA §202-bb(5) rural area flexibility
analysis,
consolidated
You must assure that public and
private interests
in
rural areas have
had
the opportunity to participate in the rule making process through:
- (i) publication of a general notice in appropriate publications;
- (ii) direct notification of interested, affected parties;
- (iii) special open conferences;
- (iv) adoption or modification of agency procedural rules to reduce
the cost or complexity of participation.
A consolidated RAFA may be submitted for a series of closely related
rules treated as one rule.
Department of State Rule Making in New York May 2012 57
CITATION TERM DESCRIPTION
SAPA §202-bb(8) rural area flexibility
analysis, revised
(2,000 word limit)
SAPA §102(8) small business
(definition)
SAPA §102(9) substantial revision
(definition)
SAPA §202(4) withdrawal, notice of
(form)
You must submit a revised RAFA when:
- (a) the information in the analysis is inadequate or
incomplete
(must be submitted as soon as practicable);
- (b) substantial revisions to a proposed rule necessitate modifica-
tions to the analysis;
- (c) nonsubstantial revisions to the most recently published version
of the proposed rule necessitate modification/s to the analysis.
The same word limit applies to a Revised RAFA as the original RAFA
Any business which is resident in this state, independently owned and
operated and that employs 100 or less people.
Any addition, deletion or other change in the text of a proposed rule
which materially alters its purpose, meaning or effect.
K
Substantial revision does NOT include any change that merely
defines or clarifies text. For the purposes of publication in the State
Register, the revised text must be compared to the originally proposed
text or, if previously revised, to the text in the most recently published
revision.
You may withdraw a notice of proposed rule making (terminate a rule
making) by submitting a notice of withdrawal.
Department of State Rule Making in New York May 2012 59
Appendix
B
RULE
MAKING
FORMS
AND
FORMAT
S
The
Department
of State prescribes forms and provides formats for all rule making notices and attachments that you
must submit for publication purposes. These are available in PDF format at our website:
http://www.dos.ny.gov/info/e-file/e-forms.html
Please remember that you must use these prescribed notice forms.
Notice
forms
Notice of Proposed Rule Making
Notice of Proposed Rule Making (rate making)
Notice of Revised Rule Making
Notice of Withdrawal
Notice of Adoption
Amended Notice of Adoption
Notice of Emergency Adoption
Notice of Emergency Adoption and Proposed Rule Making
Notice of Emergency Adoption and Revised Rule Making
Guidance Documents Certification by Agency Head
Formats
(SAPA)
Regulatory Impact Statement
Regulatory Flexibility Analysis (for Small Businesses and Local Governments)
Rural Area Flexibility Analysis
Job Impact Statement
Notice of Public Hearing and Public Notice
Regulatory Agenda
Other
Notice of Availability of State and Federal Funds
Incorporation by Reference Certification
Department of State Rule Making in New York May 2012 61
Appendix
C
RULE
MAKING
CRITERIA
(RRU)
Executive Chamber reviews agency material for compliance with the following criteria:
1. The rule:
a) is clearly within the authority delegated by law;
b) is consistent with and necessary to achieve a specific legislative purpose;
c) is clearly written so that its meaning will be easily understood by those persons affected by it;
d) does not unnecessarily duplicate or exceed existing federal or state statutes or rules;
e) is consistent with existing state statutes and rules;
f) is
consistent
with state
statutory requirements,
will
produce public benefits which
will outweigh
the costs, if any, imposed on affected parties;
g) does not impose a mandate on local governments or school districts which is not fully funded,
except as specifically required by state statute;
h)
prescribes methodologies
or
requirements
that allow regulated parties
flexibility
and encourage
innovation in meeting the legislative or administrative requirements and objectives underlying
the rule;
i) is based on credible assessments, using recognized standards, of the degree and nature of the
risks
which
may
be
regulated,
including
a
comparison
with
every-day
risks
familiar
to
the
public;
j) gives preference to the least costly, least burdensome regulatory and paperwork requirements
needed to accomplish legislative and administrative objectives;
k) is based upon the best scientific, technical and economic information that can reasonably and
affordably be obtained; and
l) if possible and practical, favors market-oriented solutions and performance standards over
command-and-control regulation.
2. The agency has complied with SAPA §§ 202-a, 202-b, 202-bb and 201-a, relating to the regulatory
impact statement, regulatory flexibility analysis for small businesses and local
governments,
rural area
flexibility analysis and job impact statement, respectively.
Department of State Rule Making in New York May 2012 63
Appendix
D
§202(6-a)
and
§101-a
OFFICERS
At the same time a rule making notice is submitted to the DOS for publication in the State Register, a
copy with full text of the rule and any attached statements must also be sent to certain designated
parties. It is now possible and recommended to send electronic copies to both Administrative
Regulations Review Commissions (Assembly and Senate) and the Regulatory Review Unit within the
Division of the Budget.
E-mail instead of hard copy submission to Senate and Assembly ARRC does not constitute any
change in the types of documents agencies must send. For example, full text of rules AND regulatory
impact statements and other required statements and documents that have been summarized must be
included with the completed pdf rule making form.
E-mailing Instructions: For every summary that is provided, attach the full text of that rule or
statement to your pdf rule making form. To do so, click on the paper clip in the lower left-hand corner
of the form. This will indicate the documents already attached to the rule making form. Click on “add”
to attach additional documents. Choose the additional documents to be included within the pdf form.
Send the completed pdf form containing all attachments via e-mail to:
Assembly ARRC: [email protected]
Senate ARRC: [email protected]
RRU: [email protected]
The Senate Majority Leader still requires hard copy submission:
Majority Leader
New York State Senate
Legislative Office Building
Room 909
Albany, NY 12247
Incorporation by Reference materials: Electronic Document Submission
When an electronic version is available, include the completed Incorporation by Reference
Certification, DOS-1196 (Rev. 1/05). The certification provides the URL where the document can be
located.
Note: Unsigned electronic copies of the certification may be submitted to RRU
and ARRC. Only signed hard copies will be accepted by the Department of State
(see Chapter 5 How to Incorporate by Reference for DOS requirements).
Hard Copy Submission — of Rule Making documents
Administrative Regulations Review Commission (Assembly):
Administrative Regulations Review Commission
New York State Assembly
Albany, NY 12248
64 May 2012 Department of State Rule Making in New York
Administrative Regulations Review Commission (Senate):
Director
Administrative Regulations Review Commission
State Capitol
Albany, NY 12247
Department of State Rule Making in New York May 2012 65
Appendix
E
SUPREME
COURT
LAW
LIBRARIES
Four Supreme Court Law Libraries are designated to serve as repositories of materials* incorporated
by reference into the NYCRR.
Supreme Court Law
Library/Civil Branch
851 Grand Concourse
Bronx, NY 10451
(First Judicial Department)
Supreme Court Law Library
Steuben County Courthouse
Three Pulteney Square East
Bath, NY 14810
(Fourth Judicial Department)
Supreme Court Law Library
360 Adams Street
Brooklyn, NY 11201
(Second Judicial Department)
Supreme Court Law Library
72 Clinton Street
Plattsburgh, NY 12901
(Third Judicial Department)
The Office of Court Administration has specific requirements for these filings as follows:
General filing requirements [22 NYCRR Part 123]. No material submitted to a Supreme Court law
library pursuant to §102(4)(c) of the Executive Law will be accepted for filing therewith unless the
following requirements are met:
a. All material submitted must be (i) in electronic form or (ii) in the form of microfiche or
ultrafiche cards, and must comply with the provisions of subdivision (b1) and (b2) herein,
respectively, unless the submitting agency shall certify that such material cannot be obtained
commercially in either form, in which event the material shall be in the form prescribed by
subdivision (c) herein.
(b1)
Form
for
materials submitted
in
electronic form. Materials submitted
in
electronic form
shall
be in such form as approved by the Chief Administrator of the Courts, which may include
electronic disks or transmissions between computers or other machines. There also shall be
included within each submission the information set forth in subdivision (b2).
(b2) Form for material submitted in microfiche or ultrafiche.
1. Material submitted in the form of microfiche or ultrafiche cards shall display the full text of
the code, manual, volume or publication of which it is a part.
2. There shall be included with such cards a separate written index of the material displayed
thereon, including the following information for each entry:
i. the name of the
publication,
including the volume number and volume title if applicable;
ii. the name of the publisher or the name of the organization responsible for writing the
material, whichever is more useful for identification purposes;
*No material which is a United States statute or a code, rule or regulation published in the Code of Federal Regulations
or in the Federal Register shall be submitted to the Supreme Court Libraries.
66 May 2012 Department of State Rule Making in New York
iii. the date of publication;
iv. the name of the State agency adopting the publication; and
v. cross-references to the NYCRR sections which reference the publication pursuant to
section 102(1)(c) of the Executive Law.
c. Form for material submitted when electronic form, microfiche and ultrafiche are unavailable.
1. i. If the material were published in a permanently bound volume, the bound volume itself
must be submitted for filing. Neither
photocopies
nor pages from bound volumes will be
accepted.
ii. If a soft-bound publication contains fewer than 100 pages, it must be placed in a rigid-
cover binder.
iii. If the publication is self-covering, i.e., the cover and the inside pages are made of the
same or similar stock, the publication must be placed in a rigid-cover binder.
2.
Loose-leaf
publications
must
be
bound
in
the
loose-leaf
binder
specifically
manufactured
and
imprinted by the publisher for sorting the pages.
3. The following information must appear on an adhesive label placed in the upper left-hand
corner of the front cover of each publication or, if the publication is enclosed in a binder, in
the upper left-hand corner of the front cover of the binder:
i. the name of the publication, including the volume number title if applicable;
ii. the name of the publisher or the name of the organization responsible for writing the
material, whichever is more useful for identification purposes;
iii. the date of the publication;
iv. the name of the State agency adopting the publication; and
v. cross-references to the NYCRR sections which reference the publication pursuant to
section 102(1)(c) of the Executive Law.
4. A rigid-cover binder may not contain more than one publication nor more than one edition
of a periodical or series publication.
d. If for any reason the nature of the material makes it impractical for a State agency to comply
with any of the
provisions
of this section, the agency may request the Chief
Administrator
of the
Courts to grant an exemption therefrom.
e. No material which is a United States statute or a code, rule or regulation published in the Code
of Federal Regulations or in the Federal Register shall be submitted.
