Amd §§202, 202-bb & 202-d, St Ad Proc Act; amd §§101-a, 146, 148 & 149, Exec L; amd §87, Leg L
Authorizes state agencies to publish and transmit certain rule making notices by electronic means; provides for the provision of the state register by electronic means; authorizes the legislative administrative regulations review commission to accept data transmitted by electronic means.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5153
SPONSOR: Schimminger TITLE OF BILL:
An act to amend the state administrative procedure act, the executive
law and the legislative law, in relation to the transmittal of certain
records by electronic means
PURPOSE OF THE BILL:
The purpose of this bill is to incorporate into the rule-making process
the ability of state agencies, if they choose to, to transmit rule-mak-
ing notices by electronic transmission as provided for pursuant to the
State Technology Law. Currently, pursuant to the State Administrative
Procedure Act (SAPA) all notices of proposed rule-making, revised rule-
making, adoptions, and the Regulatory Impact Statements (RIS) and Regu-
latory Flexibly Analysis (RFA), must be tiled with the Secretary of
State for publication in the State Register and copies of such rule-mak-
ing notices must be transmitted to all New York State Legislative Lead-
ers. Enacting this bill would allow state agencies to submit those rule-
making notices electronically, either in addition to, or in lieu of the
paper copies that are transmitted. The goal of this bill is to reduce
the use of paper, when appropriate, o reduce the cost of preparing and
transmitting such notices. Hence, this is an ecofriendly bill that not
only should help to reduce paper waste, but reduce costs currently borne
by state agencies.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Amends SAPA section 202(1) to clearly authorize that the
notice of proposed rule-making may be transmitted to newspapers elec-
tronically and may be posted on the state agency web-site.
Section 2: Amends SAPA section 202 (6-a) that relates to the distrib-
ution of rule-making information to clearly state that state agencies
may transmit all rule-making notices, including but not limited to all
notices that are required to be transmitted and printed in the State
Register or sent to Legislative Leaders pursuant to Section 202. This
would include all rule-making notices that relate to a proposal,
revision, continuation, expiration or adoption or an RIS or RFA.
Further, it clearly authorizes a state agency to transmit rule-making
notice requests to the general public electronically, if so requested.
Section 3: Amends SAPA section 202-bb that relates to the preparation
and transmission of the Rural Area Flexibility Analysis. Under this
provision of SAPA, such Analysis could be transmitted electronically as
provided by the State Technology Law.
Sections 4 and 5: Amend SAPA section 202-d that relates to the issuance
and transmittal of the Regulatory Agenda Notice to be published in the
State Register. This provision allows such notice to be transmitted
electronically.
Section 6: Amends Executive Law section 101-a that relates to the legis-
lative notification of the proposal, adoption, amendment, suspension or
repeal of agency rules. Under the provisions of this bill, such notifi-
cation can be sent in writing or transmitted electronically in accord-
ance with the State Technology Law.
Section 7: Amends Executive Law section 146 that establishes the stand-
ards to be used by the Department of State when it publishes the State
Register. The State Register is the compilation of notices that each
state agency must publish to announce public hearings or to inform the
public of its rule-making activities. Under this provision of law, the
Department of State (DOS) would need to post the State Register on its
website. While DOS does so now, this bill brings the law up to date with
what DOS is in fact doing with regard to posting the State Register on
the internet. In addition, the Secretary of State shall accept from the
state agency all rule-making notices, statements and analysis as
required by SAPA, data, rules & regulation, and other information by
electronic means as provided for by the State Technology Law.
Section 8: Amends Executive Law section 148 as it relates to the
distribution of the State Register. This provision allows for the trans-
mission of the State Register to the general public electronically in
addition to first or second class mail.
Section 9: Amends Executive Law section 149 that relates to the format
of the State Register. Under this provision, it incorporates the stand-
ard that DOS in transmitting the State Register electronically should
comply as best as it can to the provisions of this section.
Section 10: Amends Legislative Law section 87 that relates to the powers
and duties of the Legislative Administration Regulations Review Commis-
sion (ARRC). This provision authorizes ARRC to request and receive data,
rules, regulations and other information by electronic means, in addi-
tion to all rule-making notices, statements and analysis as provided for
pursuant to SAPA.
Section 11: Effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
Updated to reflect changes in current law.
EXISTING LAW:
There is no clear statutory authorization or statutory language which
clearly addresses the ability of (or parameters of such transmission) a
state agency to transmit rule-making notices to DOS for publication in
the State Register, to Legislative Leaders, the ARRC, to newspapers and
other periodicals, or to the general public by electronic means in addi-
tion to its transmittal of hard paper copies to such governmental agen-
cies that are required by law to obtain such notices.
JUSTIFICATION:
This bill should help to give state agencies better guidance on their
ability to transmit statutorily required rule-making notices, statements
and analysis as provided for pursuant to SAPA, and other notices to
appropriate government agencies by electronic means. By enacting this
law, state agencies, if they wish to, could more easily transmit their
documents electronically instead of transmitting paper copies of such
governmental documents by mail or courier. This bill should help to
increase response times to public inquiries for information, reduce
printing costs for rule-making notices, and reduce the storage space
needed to store such documents. Over all, this bill should help to make
the operation of government less costly and reduce waste generated by
the unnecessary printing of rule-making notices, RIS and RFA statements.
PRIOR LEGISLATIVE HISTORY:
2017-2018: A.6167-A/S.1237-A;
2015-2016: A.5649/S.642;
2013-2014: A.9813-A/S.6847-A.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This bill should help to reduce the cost of state government and
increase its response times to inquiries from the general public.
EFFECTIVE DATE:
120 days after it shall have become law.
STATE OF NEW YORK
________________________________________________________________________
5153
2019-2020 Regular Sessions
IN ASSEMBLY
February 7, 2019
___________
Introduced by M. of A. SCHIMMINGER -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the state administrative procedure act, the executive
law and the legislative law, in relation to the transmittal of certain
records by electronic means
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (c) of subdivision 1 of section 202 of the state
2 administrative procedure act, as added by chapter 17 of the laws of
3 1984, is amended to read as follows:
4 (c) When appropriate in the judgment of the agency, a notice may also
5 be published in newspapers of general circulation and in trade, industry
6 or professional publications as the agency may select, and may be posted
7 on the agency's internet website, and may be transmitted to newspapers
8 and trade, industry or professional publications by electronic means in
9 accordance with article three of the state technology law.
10 § 2. Subdivision 6-a of section 202 of the state administrative proce-
11 dure act, as added by chapter 850 of the laws of 1990, paragraphs (a),
12 (b) and (c) as amended by chapter 295 of the laws of 2017, is amended to
13 read as follows:
14 6-a. Distribution of rule making information. (a) An agency shall
15 transmit a copy of any rule making notice prepared pursuant to this
16 article to the governor, the temporary president of the senate, the
17 speaker of the assembly and the administrative regulations review
18 commission at the time such notice is submitted to the secretary of
19 state for publication in the state register. Such transmittal shall
20 include the complete rule text, regulatory impact statement, regulatory
21 flexibility analysis, rural area flexibility analysis, or revisions
22 thereof, and any other information submitted to the secretary of state
23 pursuant to this article. Furthermore, such transmittal may be completed
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08953-01-9
A. 5153 2
1 by electronic means in accordance with article three of the state tech-
2 nology law.
3 (b) An agency shall make a copy of the complete text of any proposed,
4 adopted or emergency rule, regulatory impact statement, regulatory flex-
5 ibility analysis, rural area flexibility analysis, or revisions thereof
6 available, in written or electronic forms, to the public at the time
7 such documents are submitted to the secretary of state for publication
8 in the state register and shall send to any person a copy of such text
9 upon written or electronic request.
10 (c) An agency shall notify every person who has submitted a written or
11 electronic request to be notified of all proposed, revised, emergency
12 and/or adopted rules which may affect such person. The agency may allow
13 requests for only the rules of particular divisions or programs within
14 the agency that are of interest to such person. Written requests shall
15 expire annually on the thirty-first day of December with renewals for
16 the succeeding year to be accepted on or after December first. Elec-
17 tronic requests shall not expire, but shall continue until the person
18 submits a request to discontinue such notification. Notices issued
19 pursuant to such requests shall be sent to the last address or electron-
20 ic mail address specified by the person. An agency may charge any person
21 requesting such notice a fee consisting of the cost of preparation,
22 handling and postage; provided, however, that no fee shall be charged
23 for electronic notices. As an alternative to sending a document elec-
24 tronically, an agency may identify the document and provide a link to
25 the section of its website containing the full text of such document.
26 § 3. The opening paragraph of subdivision 3 of section 202-bb of the
27 state administrative procedure act, as added by chapter 171 of the laws
28 of 1994, is amended to read as follows:
29 In proposing a rule for adoption or in adopting a rule on an emergency
30 basis, the agency shall issue a rural area flexibility analysis regard-
31 ing the rule being proposed for adoption or the emergency rule being
32 adopted. A copy of such analysis and any finding, and reasons for such
33 finding, pursuant to this section, shall be submitted in writing, and
34 may be transmitted electronically in accordance with article three of
35 the state technology law, to the governor, the temporary president of
36 the senate, the speaker of the assembly, the office for regulatory and
37 management assistance and the administrative regulations review commis-
38 sion at the time such analysis is submitted or electronically transmit-
39 ted to the secretary of state for publication and, upon written or elec-
40 tronic request, a copy shall be sent or electronically transmitted to
41 any other person. Each rural area flexibility analysis shall contain:
42 § 4. Paragraph (a) of subdivision 1 of section 202-d of the state
43 administrative procedure act, as amended by chapter 418 of the laws of
44 2016, is amended to read as follows:
45 (a) The departments of health, education, environmental conservation,
46 financial services, labor, agriculture and markets, motor vehicles and
47 state, the offices of children and family services and temporary and
48 disability assistance, the division of housing and community renewal,
49 the state gaming commission, the office of mental health, the office for
50 people with developmental disabilities and the workers' compensation
51 board, and any other department or agency specified by the governor or
52 his or her designee shall, and any other agency may, in its discretion,
53 submit in writing or electronically in accordance with article three of
54 the state technology law to the secretary of state, for publication in
55 any regular issue of the state register published during the month of
56 January, a regulatory agenda to solicit comments concerning any rule
A. 5153 3
1 which the agency is considering to propose, but for which no notice of
2 proposed rule making has been submitted pursuant to subdivision one of
3 section two hundred two of this article.
4 § 5. The opening paragraph of subdivision 1 of section 202-d of the
5 state administrative procedure act, as added by chapter 698 of the laws
6 of 1984, is amended to read as follows:
7 An agency may, in its discretion, submit in writing or electronically
8 in accordance with article three of the state technology law to the
9 secretary of state, for publication in the first regular issue of the
10 state register published during the months of January, May and Septem-
11 ber, a regulatory agenda to afford the agency an opportunity to solicit
12 comments concerning any rule which the agency is considering proposing,
13 but for which no notice of proposed rule making has been submitted
14 pursuant to subdivision one of section two hundred two of this [chapter]
15 article. A regulatory agenda shall be comprised of summaries of such
16 rules. Each summary shall, in less than two thousand words, contain, in
17 so far as practicable:
18 § 6. Subdivisions 2 and 3 of section 101-a of the executive law,
19 subdivision 2 as amended by chapter 455 of the laws of 2017 and subdivi-
20 sion 3 as amended by chapter 483 of the laws of 1988, are amended to
21 read as follows:
22 2. Except as provided in subdivision three of this section, at least
23 sixty days prior to either the adoption of any rule, or, if a public
24 hearing is required by statute, at least sixty days prior to the first
25 public hearing on a proposed rule, the agency proposing to take such
26 action shall send in writing or may transmit electronically in accord-
27 ance with article three of the state technology law, a notification of
28 such proposed action to the temporary president of the senate and the
29 speaker of the assembly. This notification shall: (a) refer to the stat-
30 utory authority under which the action is proposed, (b) give the time
31 and place of any public hearing that may be scheduled concerning the
32 proposed action, or state the manner in which data, views or arguments
33 may be submitted to the agency concerning the proposed action, (c)
34 contain a copy of the complete text of the proposed rule, and (d)
35 contain a fiscal statement setting forth the fiscal consequences of the
36 proposed action on the state and its local governments.
37 3. If the agency finds that it is necessary for the preservation of
38 the public health, safety or general welfare to dispense with the
39 requirements of subdivision two of this section, the agency may dispense
40 with such requirements and adopt the rule, as an emergency measure.
41 Within five days of the filing of such emergency measure in the office
42 of the department of state, the agency taking such action shall send or
43 transmit, as the case may be, the temporary president of the senate and
44 the speaker of the assembly a notification containing the information
45 required by subdivision two of this section; provided, however, such
46 notification shall also: (a) include a brief statement setting forth the
47 reasons why the agency finds that it is necessary for the preservation
48 of the public health, safety or general welfare to dispense with the
49 requirements of subdivision two of this section and adopt the rule as an
50 emergency measure, and (b) provide the date the emergency measure will
51 terminate if the agency does not intend to adopt such measure as a
52 permanent rule, or indicate that the agency intends to adopt such meas-
53 ure as a permanent rule, in which case compliance with the notification
54 requirements of this section shall be deemed satisfied. The effective-
55 ness of any such emergency measure, unless adopted as a permanent rule
56 in the manner prescribed by law, shall not exceed ninety days after the
A. 5153 4
1 filing of such measure in the office of the department of state,
2 provided, however, if such emergency measure is readopted prior to the
3 expiration of such ninety day period such readoption and any subsequent
4 readoptions shall remain in effect for no longer than sixty days.
5 § 7. Section 146 of the executive law, as amended by chapter 17 of the
6 laws of 1984, paragraph (d) of subdivision 1 as amended by chapter 189
7 of the laws of 1996, subdivision 4-a as amended by chapter 41 of the
8 laws of 1994, is amended to read as follows:
9 § 146. Publication of certain public notices. 1. The department of
10 state shall publish, pursuant to the schedule in section one hundred
11 forty-seven of this article, and post on its internet website a publica-
12 tion to be known as the state register, in which shall be published and
13 posted from time to time as received by such department:
14 (a) rules, orders, designations, and notices submitted by the chief
15 administrator of the courts;
16 (b) notices and advertisements required by state statute or federal
17 law, rule or regulation to be published by an agency in a newspaper;
18 (c) notices required by statute to be published in newspapers in
19 actions against foreign corporations;
20 (d) notices and job impact statements required by the state adminis-
21 trative procedure act to be published in the state register; and
22 (e) any other matter required by statute to be published in the state
23 register.
24 2. The secretary of state may, at his or her discretion, publish and
25 post in the state register any notice or information which is not other-
26 wise required by statute to be submitted to him or her by an agency or
27 public corporation for publication in the state register, in instances
28 where such publication and posting will serve the public interest.
29 3. With regard to rule making notices required to be published and
30 posted in the state register pursuant to article two of the state admin-
31 istrative procedure act, the secretary of state may, at his or her
32 discretion, publish and post the complete text of a proposed or adopted
33 rule, which is not otherwise required to be published and posted in the
34 state register, in instances where such publication and posting will
35 serve the public interest. The secretary of state shall accept from a
36 state agency all rulemaking notices, statements and analyses as required
37 by the state administrative procedure act, data, rules, and regulations
38 as provided for by article three of the state technology law.
39 4. With regard to a notice of adoption published in the state register
40 pursuant to article two of the state administrative procedure act, for
41 which the corresponding notice of proposed rule making published and
42 posted in the state register included the complete text of the rule, the
43 secretary of state may, at his or her discretion, include only the
44 changes in such text in the notice of adoption.
45 4-a. Notice of the availability of any state or federal funding which
46 is to be distributed by any agency upon application by any municipality,
47 school board, school district, not-for-profit organization or any other
48 individual or organization entitled to apply for such funding pursuant
49 to any law, rule or regulation governing the distribution of such funds
50 shall be published and posted in the state register. Such notice shall
51 appear in the register no later than forty-five days prior to the last
52 day for receipt of applications for such funding. Such notice shall not
53 be required: (i) whenever a notice has been published in the procurement
54 opportunities newsletter pursuant to article four-C of the economic
55 development law; (ii) for state or federal transportation funding; and
56 (iii) in those instances where an entity has been specifically desig-
A. 5153 5
1 nated by law or legislative resolution to receive funding. Failure to
2 publish the notice in a timely manner shall not be a basis for setting
3 aside an award or challenging a contract or other legal claim.
4 5. The publication and posting of notices and advertisements in the
5 state register shall be additional to their publication in newspapers,
6 whenever publication in newspapers is required by statute.
7 6. The secretary of state shall promulgate rules establishing proce-
8 dure, forms, font and style for submission of material by any person,
9 agency or public corporation for publication and posting in the state
10 register.
11 § 8. Subdivision 3 of section 148 of the executive law, as amended by
12 chapter 636 of the laws of 1981, is amended to read as follows:
13 3. Subscriptions to the state register shall be made available to the
14 public by either first or second class mail, or in electronic form at
15 the election of the subscriber. A reasonable rate for a subscription to
16 printed copies of the regular issue and quarterly index required by
17 subdivision three of section one hundred forty-seven of this article, to
18 be not more than eighty dollars per year for first class mail delivery
19 and not more than forty dollars per year for second class mail delivery,
20 shall be set by the secretary of state. The secretary of state may
21 charge no more than one dollar and fifty cents per single copy of a
22 printed regular issue or quarterly index of the state register. Rates
23 shall not be set at such a level that the anticipated total subscription
24 revenues exceed the total cost of producing, printing and distributing
25 the state register.
26 § 9. Subdivision 1 of section 149 of the executive law, as amended by
27 chapter 17 of the laws of 1984, is amended and a new subdivision 4 is
28 added to read as follows:
29 1. The printed version of the state register shall be an eight and
30 one-half by eleven inch booklet with three holes punched in the left
31 hand margin to make such register suitable for storage in an eight and
32 one-half by eleven inch loose-leaf binder.
33 4. To the extent practicable, every version of the state register
34 transmitted by electronic means shall substantially comply with the
35 provisions of this section.
36 § 10. Section 87 of the legislative law is amended by adding a new
37 subdivision 4 to read as follows:
38 4. The commission shall be authorized to request and receive, from a
39 state agency, all rulemaking notices, statements and analyses as
40 provided for pursuant to the state administrative procedure act, data,
41 rules, regulations and other information by electronic means as provided
42 for by article three of the state technology law.
43 § 11. This act shall take effect on the one hundred twentieth day
44 after it shall have become a law, provided that the amendments to para-
45 graph (a) of subdivision 1 of section 202-d of the state administrative
46 procedure act, made by section four of this act, shall be subject to the
47 expiration and reversion of such subdivision pursuant to section 2 of
48 chapter 402 of the laws of 1994, as amended, when upon such date the
49 provisions of section five of this act shall take effect; and provided,
50 further, that effective immediately, the addition, amendment and/or
51 repeal of any rule or regulation necessary for the implementation of
52 this act on its effective date are authorized and directed to be made
53 and completed on or before such effective date.
