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S02842 Summary:

S02842 Actions:

S02842 Committee Votes:

S02842 Floor Votes:

S02842 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2842
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 29, 2019
                                       ___________
 
        Introduced  by  Sen.  KAPLAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Commerce, Economic  Devel-
          opment and Small Business
 
        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
        S. 2842                             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
        S. 2842                             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
        S. 2842                             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-
        S. 2842                             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.