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§  202.  Rule making procedure. 1. Notice of proposed rule making. (a)  Prior to the adoption of a rule, an agency  shall  submit  a  notice  of  proposed  rule  making  to the secretary of state for publication in the  state register and shall afford the  public  an  opportunity  to  submit  comments  on  the proposed rule. Unless a different time is specified by  statute or this paragraph, the  notice  of  proposed  rule  making  must  appear in the state register at least forty-five days prior to either    (i) the addition, amendment or repeal of a rule for which statute does  not require that a public hearing be held prior to adoption, or    (ii)  the  first  public  hearing  on  a  proposed rule for which such  hearing is so required.    The notice of proposed rule making shall indicate the  last  date  for  submission  of  comments on the proposed rule, which, unless a different  time is specified in statute or this paragraph, shall be not  less  than  forty-five  days  after  the  date of publication of such notice, or, if  statute requires that a public hearing be held prior  to  adoption,  not  less  than five days after the date of the last public hearing scheduled  to be held on the proposed rule. Notwithstanding any other provision  of  this  paragraph, when the notice of proposed rule making contains only a  description of the  subject,  purpose  and  substance  of  the  rule  as  provided  in  subparagraph (v) of paragraph (f) of this subdivision, and  the full text of the proposed rule has not  been  posted  on  a  website  maintained  by  the  agency  or  another state entity, the last date for  submission of comments shall be not less than sixty days after the  date  of  publication of such notice, unless the rule is a consensus rule or a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section one hundred two of this chapter.    (b) (i) When an agency submits a notice of  proposed  rule  making  as  provided  in paragraph (a) of this subdivision solely for the purpose of  proposing a consensus rule for adoption, the agency  may  dispense  with  any requirement for public hearing and the requirements of subparagraphs  (ii),  (iii), (iv), (vi) and (vii) of paragraph (f) of this subdivision;  provided, however, that such notice shall include  a  statement  setting  forth  a  clear  and  concise  explanation of the basis for the agency's  determination that no person is likely to object to the adoption of  the  rule as written.    (ii)  If any public comment is received on the rule which contains any  objection to adoption of a consensus rule, the agency must withdraw  the  notice  of  proposed rule making for the consensus rule and may submit a  notice of proposed rule making for such rule making which complies  with  all of the relevant provisions of this subdivision.    (iii) Unless otherwise provided by law, a rule defined in subparagraph  (ii)  of  paragraph (a) of subdivision two of section one hundred two of  this chapter may be adopted as a consensus rule in accordance  with  the  provisions  of  this paragraph; provided, however, that for the purposes  of paragraph (c) of subdivision one of section one hundred three of this  chapter, any public hearing required by law to be held on any such  rule  shall  be  deemed  to  be explicitly directed at such rule. No such rule  which is defined by the public service law as a "major  change"  may  be  adopted as a consensus rule.    (c)  When appropriate in the judgment of the agency, a notice may also  be published in newspapers of general circulation and in trade, industry  or professional publications as the agency may select.    (d) The requirement for publication  of  a  notice  of  proposed  rule  making  in  the  state  register  shall not preclude the initiation of a  public hearing with respect to the  proposal  of  any  rule  defined  in  subparagraph  (ii)  of  paragraph  (a) of subdivision two of section one  hundred two of this chapter where notice otherwise consistent  with  theprovisions of this subdivision has been given, provided, however, in all  situations  notice  must  be published within a reasonable time prior to  the hearing.    (e) When an agency submits a notice of proposed rule making for a rule  which  was  proposed  for  adoption as a consensus rule and subsequently  withdrawn pursuant to paragraph (b) of  this  subdivision,  such  notice  shall  identify  the  prior  notice  of  proposed  rule making and shall  briefly describe the objection or  objections  which  caused  the  prior  notice of proposed rule making to be withdrawn.    (f) The notice of proposed rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) give the date, time and place of any public hearing  or  hearings  which are scheduled;    (iii) state whether or not the place of any public hearing or hearings  shall  be  reasonably  accessible to persons with a mobility impairment;  for purposes hereof, "persons with a  mobility  impairment"  shall  mean  those persons with a physical impairment which is permanent and severely  limits  that  person's  mobility,  or a person who is unable to ambulate  without the aid of a wheelchair or other  prosthetic  device;  provided,  however,  that the failure of such accessibility in accordance herewith,  upon diligent effort to have provided same, shall have  no  effect  upon  any actions or proceedings taken at any such subject hearings;    (iv)  include  a  statement  that  interpreter  services shall be made  available to deaf persons, at no charge, upon written  request  to  such  agency  representative  as  shall be designated pursuant to subparagraph  (viii) of this paragraph within a reasonable time prior to any scheduled  public hearing or hearings. If interpreter services are  requested,  the  agency  conducting  the  rule  making  proceeding in all instances shall  appoint a  qualified  interpreter  who  is  certified  by  a  recognized  national  or  New  York  state  credentialing authority to interpret the  proceedings to, and the testimony of,  such  deaf  person.  Such  agency  shall  determine  a  reasonable  fee  for all such interpreting services  which shall be a charge upon the agency;    (v) contain the complete text of the proposed rule, provided, however,  if such text exceeds two thousand words, the notice shall contain only a  description of the subject, purpose and substance of such rule  in  less  than  two  thousand words and shall identify the address of the website,  if any, on which the full text has been posted;    (vi) include  a  regulatory  impact  statement  prepared  pursuant  to  section  two  hundred  two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vii)  include  a  regulatory  flexibility  analysis  and a rural area  flexibility analysis prepared pursuant to sections two hundred two-b and  two hundred two-bb of this chapter, provided, however,  if  an  analysis  exceeds  two  thousand words, the notice shall include only a summary of  such analysis in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency representative, who is knowledgeable on the proposed  rule,  from  whom  the  complete  text of such rule and any scientific or statistical  study, report and analysis that served as the basis for the rule and any  supporting  data,  the  regulatory  impact  statement,  the   regulatory  flexibility  analysis,  and  the  rural area flexibility analysis may be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (ix) include any additional matter required by statute.2. Expiration of notice of proposed rule making; notice of expiration.  (a)   Except  with  respect  to  any  notice  of  proposed  rule  making  concerning  a  rule  defined  in  subparagraph  (ii) of paragraph (a) of  subdivision two of section one hundred two of this chapter, a notice  of  proposed rule making shall expire and be ineffective for the purposes of  this  section,  unless  the  proposed  rule is adopted by the agency and  filed with the secretary of state  in  the  manner  prescribed  by  law,  within three hundred sixty-five days after the latter of:    (i) the publication in the state register of a notice of proposed rule  making for the rule; or    (ii)  the  date  of  the  last public hearing announced in a notice of  proposed rule making for the rule.    (b) When a notice so expires, the secretary of state shall  publish  a  notice  of  expiration  in the state register. Such notice shall contain  such information as is determined, in the discretion of the secretary of  state, to serve the public interest.    3. Continuation of notice of proposed rule making. If,  within  ninety  days of the date on which a rule will expire, an agency submits a notice  of  revised  rule making for the rule, the rule making will be continued  for an additional ninety days beyond the date on  which  it  would  have  expired.    4. Withdrawal of notice of proposed rule making; notice of withdrawal.  An  agency may withdraw a notice of proposed rule making and terminate a  rule making proceeding by submitting  a  notice  of  withdrawal  to  the  secretary  of  state  for publication in the state register. Such notice  shall include a statement of the reason or reasons for withdrawal of the  proposed rule.    4-a. Notice of revised rule making. (a) Except  with  respect  to  any  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section  one  hundred  two  of  this chapter, prior to the adoption of a  rule, an agency shall submit a notice of  revised  rule  making  to  the  secretary  of  state  for  publication  in  the  state  register for any  proposed rule which contains a substantial revision. The public shall be  afforded an opportunity to submit comments on  the  revised  text  of  a  proposed  rule.  Unless  a  different  time is specified in statute, the  notice of revised rule making must appear in the state register at least  thirty days prior to the adoption of the rule.  The  notice  of  revised  rule  making  shall indicate the last date for submission of comments on  the revised text of the proposed rule, which, unless a different time is  specified in statute, shall be not less than thirty days after the  date  of publication of such notice.    (b)  Each  agency  shall  publish  and make available to the public an  assessment of public  comment  for  a  rule  revised  pursuant  to  this  subdivision.  Such  assessment  shall be based upon any written comments  submitted to the agency and any comments presented at any public hearing  held on the proposed rule by the agency. The assessment  shall  contain:  (i)  a  summary  and  an  analysis  of the issues raised and significant  alternatives suggested by any such comments; (ii)  a  statement  of  the  reasons  why any significant alternatives were not incorporated into the  rule; and (iii) a description of any changes  made  in  the  rule  as  a  result  of  such comments. If no comments have been received, the notice  of revised rule making shall state that no comments were received by the  agency. Any subsequent assessment published pursuant to  this  paragraph  or  paragraph  (b) of subdivision five of this section need only include  comments not addressed in any previously published assessment of  public  comment for the rule; provided, however, that the notice of revised rule  making or adoption shall contain the date any previous notice of revisedrule  making containing an assessment of public comment was published in  the state register.    * (c) The notice of revised rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) contain the complete revised text of the proposed rule, provided,  however, if such text exceeds two thousand words, the notice may contain  only a description of the subject, purpose and substance of such rule in  less than two thousand words;    (iii) identify the substantial revisions to the text of the rule;    (iv) give the date, time and place of any public hearing  or  hearings  on  the  rule  which are to be held subsequent to the publication of the  notice;    (v) include a revised regulatory impact statement,  when  required  by  the  provisions of subparagraph (ii) of paragraph (a) of subdivision six  of section two hundred two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vi)  include  a  revised  regulatory flexibility analysis and a rural  area  flexibility  analysis,  when  required  by   the   provisions   of  subparagraph  (ii)  of paragraph (a) of subdivision seven of section two  hundred two-b and paragraph (b) of  subdivision  eight  of  section  two  hundred  two-bb  of  this  chapter, provided, however, if such statement  exceeds two thousand words, the notice shall include only a  summary  of  such statement in less than two thousand words;    (vii)  give  the  name,  address  and  telephone  number  of an agency  representative knowledgeable on the rule, from whom the complete revised  text of such rule, any revised regulatory impact statement  any  revised  regulatory  flexibility  analysis and any revised rural area flexibility  analysis may be obtained; from whom  information  about  any  additional  public  hearing  may  be  obtained;  and to whom written data, views and  arguments may be submitted;    (viii) state whether the notice shall  also  extend  the  rule  making  period for an additional ninety days as provided in subdivision three of  this section;    (ix)  include  the  assessment of public comment, prepared pursuant to  paragraph (b) of this  subdivision  provided,  however,  that,  if  such  assessment  exceeds  two thousand words, the notice shall include only a  summary of such assessment in less than two thousand words; and    (x) include any additional matter required by statute.    * NB There are 2 par (c)'s    * (c) An agency may not submit a notice of revised rule making  for  a  rule which has been proposed as a consensus rule.    * NB There are 2 par (c)'s    5.  Notice  of  adoption.  (a)  When  an  agency files a rule with the  secretary of state, such agency shall also submit a notice  of  adoption  to  the secretary of state for publication in the state register. Except  as provided in subdivision six of this section, an agency may not file a  rule with, or submit a notice of adoption to,  the  secretary  of  state  unless  the  agency  has  previously submitted a notice of proposed rule  making and complied with the provisions of this section.    (b) Except with respect to any rule defined in  subparagraph  (ii)  of  paragraph  (a)  of  subdivision  two  of section one hundred two of this  chapter, each agency shall publish and make available to the  public  an  assessment  of  public  comment  for  a  rule  adopted  pursuant to this  subdivision or paragraph (e) of subdivision six of  this  section.  Such  assessment  shall  be  based  upon any written comments submitted to the  agency and any comments presented at any  public  hearing  held  on  theproposed rule by the agency. The assessment shall contain: (i) a summary  and  an  analysis  of  the  issues  raised  and significant alternatives  suggested by any such comments, (ii) a statement of the reasons why  any  significant alternatives were not incorporated into the rule and (iii) a  description  of  any  changes  made  in  the  rule  as  a result of such  comments. If any comments included estimates of projected costs  of  the  proposed  rule  to  the  state,  local governments or regulated persons,  which differed significantly from those presented by the agency  in  its  regulatory  impact  statement, regulatory flexibility analysis, or rural  area flexibility analysis,  the  assessment  shall  also  summarize  the  agency's  assessment  of  such  estimates.  If  no  comments  have  been  received, the notice of adoption  shall  state  that  no  comments  were  received by the agency. Comments submitted or presented to the agency by  a  legislative  committee or commission or by a member or members of the  senate or assembly shall be  considered  public  comment  and  shall  be  summarized and analyzed in the assessment.    (c) The notice of adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) contain the complete text  of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (iii) state whether there have been any changes in  the  text  of  the  rule  as  adopted  when  compared  with the text of the latest published  version of the proposed rule, and if such changes  have  occurred,  cite  the particular sections, subdivisions and paragraphs so changed;    (iv) give the effective date of the rule;    (v)  include  a  revised regulatory impact statement, when required by  the provisions of subparagraph (ii) of paragraph (a) of subdivision  six  of section two hundred two-a of this chapter, provided, however, if such  statement  exceeds  two  thousand words, the notice shall include only a  summary of such statement in less than two thousand words;    (vi) include a revised regulatory flexibility analysis and rural  area  flexibility  analysis,  when  required by the provisions of subparagraph  (ii) of paragraph (a) of subdivision seven of section two hundred  two-b  and  paragraph (b) of subdivision eight of section two hundred two-bb of  this chapter, provided, however, if such statement exceeds two  thousand  words, the notice shall include only a summary of such statement in less  than two thousand words;    (vii)  include  the assessment of public comment, prepared pursuant to  paragraph (b) of this subdivision, provided, however, if such assessment  exceeds two thousand words, the notice shall include only a  summary  of  such assessment in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency  representative  from  whom the complete text of the rule and any  revised regulatory  impact  statement,  revised  regulatory  flexibility  analysis,  rural area flexibility analysis or assessment of comments may  be obtained; and    (ix) state  whether  any  notice  of  revised  rule  making  had  been  submitted  for  such rule making and specify the date or dates that such  notice or notices appeared in the state register; and    (x) include any additional matter required by statute.    6.  Notice  of  emergency  adoption.  (a)  Notwithstanding  any  other  provision  of  law,  if an agency finds that the immediate adoption of a  rule is necessary for the preservation of the public health,  safety  or  general welfare and that compliance with the requirements of subdivision  one of this section would be contrary to the public interest, the agencymay dispense with all or part of such requirements and adopt the rule on  an emergency basis.    (b)  Unless  otherwise  provided by law, such emergency rule shall not  remain in effect for longer than ninety days after being filed with  the  secretary  of state unless within such time the agency complies with the  requirements of subdivision one of this  section  and  adopts  the  rule  pursuant  to  the  provisions  of  subdivision  five  of  this  section,  provided, however, if such emergency rule  is  readopted  prior  to  the  expiration  of such ninety day period such readoption and any subsequent  readoptions shall remain in effect for no longer than sixty days.    (c) An emergency rule which is in regard to  security  authorizations,  corporate  or  financial  structures  or reorganization thereof, and for  which statute does not require that a public hearing be  held  prior  to  adoption,  shall  not expire pursuant to the provisions of paragraph (b)  of this subdivision if the agency finds that the  purpose  of  the  rule  would be frustrated if subsequent notice procedures were required.    (d) A notice of emergency adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) state whether the  notice  shall  also  constitute  a  notice  of  proposed  rule  making  for  the  purposes  of  subdivision  one of this  section, and if so, give the date, time and place of any public  hearing  or hearings which are scheduled;    (iii)  state  whether  the  notice  shall  also constitute a notice of  revised rule making for the  purposes  of  subdivision  four-a  of  this  section,   and   if   so,  include  all  information  required  by  such  subdivision; and    (iv) contain the findings required by paragraphs (a) and (c)  of  this  subdivision  and  include  a  statement  fully  describing  the specific  reasons for such findings and the facts and circumstances on which  such  findings  are  based.  Such  statement  shall  include,  at a minimum, a  description of the nature and, if applicable,  location  of  the  public  health, safety or general welfare need requiring adoption of the rule on  an  emergency  basis;  a  description  of  the  cause, consequences, and  expected duration of such need; an explanation of  why  compliance  with  the requirements of subdivision one of this section would be contrary to  the  public interest; and an explanation of why the current circumstance  necessitates that the public and interested parties be given  less  than  the  minimum  period  for notice and comment provided for in subdivision  one of this section;    (v) give the effective date of the rule;    (vi) state the specific date the emergency rule will expire;    (vii) contain the complete text of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (viii) include a regulatory  impact  statement  prepared  pursuant  to  section  two  hundred two-a of this chapter or a statement setting forth  that the regulatory impact statement will appear in the  state  register  within  thirty  days  of  the  effective  date  of  the  emergency rule,  provided, however, if either statement exceeds two thousand  words,  the  notice  shall  include only a summary of such statement in less than two  thousand words;    (ix) include a regulatory flexibility analysis  prepared  pursuant  to  section two hundred two-b and a rural area flexibility analysis pursuant  to  section  two  hundred two-bb of this chapter or a statement that the  regulatory flexibility analysis and/or rural area  flexibility  analysis  will  appear  in  the state register within thirty days of the effectivedate of the emergency rule,  provided,  however,  if  such  analysis  or  statement  exceeds  two  thousand words, the notice shall include only a  summary of such analysis or statement in less than two thousand words;    (x)  give  the  name, public office address and telephone number of an  agency representative, knowledgeable on the rule, from whom  a  complete  text   of   such  rule,  the  regulatory  impact  statement,  regulatory  flexibility analysis, and the rural area  flexibility  analysis  may  be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (xi) include any additional matter required by statute.    (e)  If,  prior  to  the  expiration  of  a  rule  adopted pursuant to  paragraph (a) of this subdivision, the agency finds that the  readoption  of  such rule on an emergency basis is necessary for the preservation of  the public health, safety or general welfare, the agency may readopt the  rule on an emergency basis.  No  readoption  shall  be  filed  with  the  secretary  of state unless the agency has submitted a notice of proposed  rule making pursuant to subdivision one of this section.  No  second  or  subsequent  readoption shall be filed with the secretary of state unless  the agency at the same time submits an  assessment  of  public  comments  prepared pursuant to paragraph (b) of subdivision five of this section.    6-a.  Distribution  of  rule  making  information. (a) An agency shall  transmit a copy of any rule making  notice  prepared  pursuant  to  this  article  to  the  governor,  the  temporary president of the senate, the  speaker  of  the  assembly,  the   administrative   regulations   review  commission and the office of regulatory and management assistance at the  time  such notice is submitted to the secretary of state for publication  in the state register. Such transmittal shall include the complete  rule  text,  regulatory  impact  statement,  regulatory  flexibility analysis,  rural area flexibility analysis, or revisions  thereof,  and  any  other  information  submitted  to  the  secretary  of  state  pursuant  to this  article.    (b) An agency shall make a copy of the complete text of any  proposed,  adopted  or  emergency  rule,  regulatory  impact  statement, regulatory  flexibility analysis, rural  area  flexibility  analysis,  or  revisions  thereof available to the public at the time such documents are submitted  to  the  secretary  of  state  for publication in the state register and  shall send to any person a copy of such text upon written request.    (c) An agency shall notify every person who has  submitted  a  written  request  to  be  notified  of  all  proposed,  revised, emergency and/or  adopted rules which may affect such person. Such requests  shall  expire  annually  on  the  thirty-first  day  of  December with renewals for the  succeeding year to be accepted  on  or  after  December  first.  Notices  issued  pursuant  to  such requests shall be sent in writing to the last  address specified by  the  person.  An  agency  may  charge  any  person  requesting  such  notice  a  fee  consisting of the cost of preparation,  handling and postage.    7. Rule text requirements. (a) Except with respect to any rule defined  in subparagraph (ii) of paragraph (a) of subdivision two of section  one  hundred  two  of  this  chapter,  the  complete  text of any proposed or  adopted rule shall identify new language  by  underscoring  or  italics,  enclose  in  brackets  any  words  which are to be deleted, and give the  citation of any rule which is to be repealed.    (b) Notwithstanding any provision herein to the  contrary,  an  agency  may:    (i) with regard to a notice published in the state register concerning  a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two  of section one hundred two of this chapter, elect to include either  thecomplete  text  of the proposed or adopted rule in two thousand words or  less, or a description of the subject, purpose  and  substance  of  such  rule in less than two thousand words; and    (ii) with regard to a notice published in any newspaper or publication  other than the state register, elect to include either the complete text  or  a  description of the subject, purpose and substance of the proposed  or adopted rule.    (c) For the purposes of determining if the length of  the  text  of  a  rule  to  be  published  pursuant  to  this section exceeds two thousand  words, such text shall exclude any previously published portion  of  the  rule  which  is  precisely  identified  in  the text thereof pursuant to  paragraph c of subdivision  one  of  section  one  hundred  two  of  the  executive law;    8. Judicial review. A proceeding may be commenced to contest a rule on  the  grounds  of  noncompliance with the procedural requirements of this  section, section two hundred two-a and section two hundred two-b of this  chapter, provided, however, such proceeding  must  be  commenced  within  four  months  from  the  effective date of such rule. Each rule shall be  promulgated in  substantial  compliance  with  the  provisions  of  such  sections,  provided,  however, the inadvertent failure to send notice to  any person shall not serve to invalidate any rule promulgated hereunder.    9. Secretary of state. (a) The secretary of state shall:    (i) prescribe standard forms to be used by  agencies  when  submitting  for  publication  in  the  state  register  the notices required by this  section;    (ii) promptly review each notice  submitted  by  an  agency  for  such  publication;    (iii)  reject  those  notices  which are not in substantial compliance  with the  provisions  of  this  section,  give  prompt  notice  of  such  rejection to the agency, and advise such agency on the corrective action  required; and    (iv)  publish all notices and statements, required by this section and  section two hundred one-a of this chapter, in the state register as soon  as practicable.    (b)(i) The secretary of state may, in addition to publication  of  the  state  register,  publish an electronic copy of the state register which  shall be freely available on the internet.    (ii) Whenever an agency provides an electronic mail  address  for  the  submission  of comments regarding a notice, the secretary of state shall  provide a direct link between the electronic copy of the state  register  and  that  electronic  mail  address,  permitting  a  person viewing the  electronic copy of the state register to immediately submit comments  by  electronic mail.    (iii)  The  secretary  of  state  shall  provide  that the direct link  between the electronic copy of the state  register  and  the  electronic  mail  address provided by an agency shall also deliver to the governor's  office of regulatory reform a copy of all comments submitted.    (iv) Nothing  contained  in  this  paragraph  shall  impose  upon  the  secretary  of  state  or  any  agency any responsibility for delivery or  failure of delivery  of  comments  submitted  through  the  direct  link  between  the  electronic  copy  of the state register and the electronic  mail address provided  by  an  agency  in  the  event  of  any  failure,  incompatibility,  or  lack of function in any computer or communications  hardware or software, regardless of whether such hardware or software is  or is not within the control of the secretary of state or agency.

State Codes and Statutes

Statutes > New-york > Sap > Article-2 > 202

§  202.  Rule making procedure. 1. Notice of proposed rule making. (a)  Prior to the adoption of a rule, an agency  shall  submit  a  notice  of  proposed  rule  making  to the secretary of state for publication in the  state register and shall afford the  public  an  opportunity  to  submit  comments  on  the proposed rule. Unless a different time is specified by  statute or this paragraph, the  notice  of  proposed  rule  making  must  appear in the state register at least forty-five days prior to either    (i) the addition, amendment or repeal of a rule for which statute does  not require that a public hearing be held prior to adoption, or    (ii)  the  first  public  hearing  on  a  proposed rule for which such  hearing is so required.    The notice of proposed rule making shall indicate the  last  date  for  submission  of  comments on the proposed rule, which, unless a different  time is specified in statute or this paragraph, shall be not  less  than  forty-five  days  after  the  date of publication of such notice, or, if  statute requires that a public hearing be held prior  to  adoption,  not  less  than five days after the date of the last public hearing scheduled  to be held on the proposed rule. Notwithstanding any other provision  of  this  paragraph, when the notice of proposed rule making contains only a  description of the  subject,  purpose  and  substance  of  the  rule  as  provided  in  subparagraph (v) of paragraph (f) of this subdivision, and  the full text of the proposed rule has not  been  posted  on  a  website  maintained  by  the  agency  or  another state entity, the last date for  submission of comments shall be not less than sixty days after the  date  of  publication of such notice, unless the rule is a consensus rule or a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section one hundred two of this chapter.    (b) (i) When an agency submits a notice of  proposed  rule  making  as  provided  in paragraph (a) of this subdivision solely for the purpose of  proposing a consensus rule for adoption, the agency  may  dispense  with  any requirement for public hearing and the requirements of subparagraphs  (ii),  (iii), (iv), (vi) and (vii) of paragraph (f) of this subdivision;  provided, however, that such notice shall include  a  statement  setting  forth  a  clear  and  concise  explanation of the basis for the agency's  determination that no person is likely to object to the adoption of  the  rule as written.    (ii)  If any public comment is received on the rule which contains any  objection to adoption of a consensus rule, the agency must withdraw  the  notice  of  proposed rule making for the consensus rule and may submit a  notice of proposed rule making for such rule making which complies  with  all of the relevant provisions of this subdivision.    (iii) Unless otherwise provided by law, a rule defined in subparagraph  (ii)  of  paragraph (a) of subdivision two of section one hundred two of  this chapter may be adopted as a consensus rule in accordance  with  the  provisions  of  this paragraph; provided, however, that for the purposes  of paragraph (c) of subdivision one of section one hundred three of this  chapter, any public hearing required by law to be held on any such  rule  shall  be  deemed  to  be explicitly directed at such rule. No such rule  which is defined by the public service law as a "major  change"  may  be  adopted as a consensus rule.    (c)  When appropriate in the judgment of the agency, a notice may also  be published in newspapers of general circulation and in trade, industry  or professional publications as the agency may select.    (d) The requirement for publication  of  a  notice  of  proposed  rule  making  in  the  state  register  shall not preclude the initiation of a  public hearing with respect to the  proposal  of  any  rule  defined  in  subparagraph  (ii)  of  paragraph  (a) of subdivision two of section one  hundred two of this chapter where notice otherwise consistent  with  theprovisions of this subdivision has been given, provided, however, in all  situations  notice  must  be published within a reasonable time prior to  the hearing.    (e) When an agency submits a notice of proposed rule making for a rule  which  was  proposed  for  adoption as a consensus rule and subsequently  withdrawn pursuant to paragraph (b) of  this  subdivision,  such  notice  shall  identify  the  prior  notice  of  proposed  rule making and shall  briefly describe the objection or  objections  which  caused  the  prior  notice of proposed rule making to be withdrawn.    (f) The notice of proposed rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) give the date, time and place of any public hearing  or  hearings  which are scheduled;    (iii) state whether or not the place of any public hearing or hearings  shall  be  reasonably  accessible to persons with a mobility impairment;  for purposes hereof, "persons with a  mobility  impairment"  shall  mean  those persons with a physical impairment which is permanent and severely  limits  that  person's  mobility,  or a person who is unable to ambulate  without the aid of a wheelchair or other  prosthetic  device;  provided,  however,  that the failure of such accessibility in accordance herewith,  upon diligent effort to have provided same, shall have  no  effect  upon  any actions or proceedings taken at any such subject hearings;    (iv)  include  a  statement  that  interpreter  services shall be made  available to deaf persons, at no charge, upon written  request  to  such  agency  representative  as  shall be designated pursuant to subparagraph  (viii) of this paragraph within a reasonable time prior to any scheduled  public hearing or hearings. If interpreter services are  requested,  the  agency  conducting  the  rule  making  proceeding in all instances shall  appoint a  qualified  interpreter  who  is  certified  by  a  recognized  national  or  New  York  state  credentialing authority to interpret the  proceedings to, and the testimony of,  such  deaf  person.  Such  agency  shall  determine  a  reasonable  fee  for all such interpreting services  which shall be a charge upon the agency;    (v) contain the complete text of the proposed rule, provided, however,  if such text exceeds two thousand words, the notice shall contain only a  description of the subject, purpose and substance of such rule  in  less  than  two  thousand words and shall identify the address of the website,  if any, on which the full text has been posted;    (vi) include  a  regulatory  impact  statement  prepared  pursuant  to  section  two  hundred  two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vii)  include  a  regulatory  flexibility  analysis  and a rural area  flexibility analysis prepared pursuant to sections two hundred two-b and  two hundred two-bb of this chapter, provided, however,  if  an  analysis  exceeds  two  thousand words, the notice shall include only a summary of  such analysis in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency representative, who is knowledgeable on the proposed  rule,  from  whom  the  complete  text of such rule and any scientific or statistical  study, report and analysis that served as the basis for the rule and any  supporting  data,  the  regulatory  impact  statement,  the   regulatory  flexibility  analysis,  and  the  rural area flexibility analysis may be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (ix) include any additional matter required by statute.2. Expiration of notice of proposed rule making; notice of expiration.  (a)   Except  with  respect  to  any  notice  of  proposed  rule  making  concerning  a  rule  defined  in  subparagraph  (ii) of paragraph (a) of  subdivision two of section one hundred two of this chapter, a notice  of  proposed rule making shall expire and be ineffective for the purposes of  this  section,  unless  the  proposed  rule is adopted by the agency and  filed with the secretary of state  in  the  manner  prescribed  by  law,  within three hundred sixty-five days after the latter of:    (i) the publication in the state register of a notice of proposed rule  making for the rule; or    (ii)  the  date  of  the  last public hearing announced in a notice of  proposed rule making for the rule.    (b) When a notice so expires, the secretary of state shall  publish  a  notice  of  expiration  in the state register. Such notice shall contain  such information as is determined, in the discretion of the secretary of  state, to serve the public interest.    3. Continuation of notice of proposed rule making. If,  within  ninety  days of the date on which a rule will expire, an agency submits a notice  of  revised  rule making for the rule, the rule making will be continued  for an additional ninety days beyond the date on  which  it  would  have  expired.    4. Withdrawal of notice of proposed rule making; notice of withdrawal.  An  agency may withdraw a notice of proposed rule making and terminate a  rule making proceeding by submitting  a  notice  of  withdrawal  to  the  secretary  of  state  for publication in the state register. Such notice  shall include a statement of the reason or reasons for withdrawal of the  proposed rule.    4-a. Notice of revised rule making. (a) Except  with  respect  to  any  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section  one  hundred  two  of  this chapter, prior to the adoption of a  rule, an agency shall submit a notice of  revised  rule  making  to  the  secretary  of  state  for  publication  in  the  state  register for any  proposed rule which contains a substantial revision. The public shall be  afforded an opportunity to submit comments on  the  revised  text  of  a  proposed  rule.  Unless  a  different  time is specified in statute, the  notice of revised rule making must appear in the state register at least  thirty days prior to the adoption of the rule.  The  notice  of  revised  rule  making  shall indicate the last date for submission of comments on  the revised text of the proposed rule, which, unless a different time is  specified in statute, shall be not less than thirty days after the  date  of publication of such notice.    (b)  Each  agency  shall  publish  and make available to the public an  assessment of public  comment  for  a  rule  revised  pursuant  to  this  subdivision.  Such  assessment  shall be based upon any written comments  submitted to the agency and any comments presented at any public hearing  held on the proposed rule by the agency. The assessment  shall  contain:  (i)  a  summary  and  an  analysis  of the issues raised and significant  alternatives suggested by any such comments; (ii)  a  statement  of  the  reasons  why any significant alternatives were not incorporated into the  rule; and (iii) a description of any changes  made  in  the  rule  as  a  result  of  such comments. If no comments have been received, the notice  of revised rule making shall state that no comments were received by the  agency. Any subsequent assessment published pursuant to  this  paragraph  or  paragraph  (b) of subdivision five of this section need only include  comments not addressed in any previously published assessment of  public  comment for the rule; provided, however, that the notice of revised rule  making or adoption shall contain the date any previous notice of revisedrule  making containing an assessment of public comment was published in  the state register.    * (c) The notice of revised rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) contain the complete revised text of the proposed rule, provided,  however, if such text exceeds two thousand words, the notice may contain  only a description of the subject, purpose and substance of such rule in  less than two thousand words;    (iii) identify the substantial revisions to the text of the rule;    (iv) give the date, time and place of any public hearing  or  hearings  on  the  rule  which are to be held subsequent to the publication of the  notice;    (v) include a revised regulatory impact statement,  when  required  by  the  provisions of subparagraph (ii) of paragraph (a) of subdivision six  of section two hundred two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vi)  include  a  revised  regulatory flexibility analysis and a rural  area  flexibility  analysis,  when  required  by   the   provisions   of  subparagraph  (ii)  of paragraph (a) of subdivision seven of section two  hundred two-b and paragraph (b) of  subdivision  eight  of  section  two  hundred  two-bb  of  this  chapter, provided, however, if such statement  exceeds two thousand words, the notice shall include only a  summary  of  such statement in less than two thousand words;    (vii)  give  the  name,  address  and  telephone  number  of an agency  representative knowledgeable on the rule, from whom the complete revised  text of such rule, any revised regulatory impact statement  any  revised  regulatory  flexibility  analysis and any revised rural area flexibility  analysis may be obtained; from whom  information  about  any  additional  public  hearing  may  be  obtained;  and to whom written data, views and  arguments may be submitted;    (viii) state whether the notice shall  also  extend  the  rule  making  period for an additional ninety days as provided in subdivision three of  this section;    (ix)  include  the  assessment of public comment, prepared pursuant to  paragraph (b) of this  subdivision  provided,  however,  that,  if  such  assessment  exceeds  two thousand words, the notice shall include only a  summary of such assessment in less than two thousand words; and    (x) include any additional matter required by statute.    * NB There are 2 par (c)'s    * (c) An agency may not submit a notice of revised rule making  for  a  rule which has been proposed as a consensus rule.    * NB There are 2 par (c)'s    5.  Notice  of  adoption.  (a)  When  an  agency files a rule with the  secretary of state, such agency shall also submit a notice  of  adoption  to  the secretary of state for publication in the state register. Except  as provided in subdivision six of this section, an agency may not file a  rule with, or submit a notice of adoption to,  the  secretary  of  state  unless  the  agency  has  previously submitted a notice of proposed rule  making and complied with the provisions of this section.    (b) Except with respect to any rule defined in  subparagraph  (ii)  of  paragraph  (a)  of  subdivision  two  of section one hundred two of this  chapter, each agency shall publish and make available to the  public  an  assessment  of  public  comment  for  a  rule  adopted  pursuant to this  subdivision or paragraph (e) of subdivision six of  this  section.  Such  assessment  shall  be  based  upon any written comments submitted to the  agency and any comments presented at any  public  hearing  held  on  theproposed rule by the agency. The assessment shall contain: (i) a summary  and  an  analysis  of  the  issues  raised  and significant alternatives  suggested by any such comments, (ii) a statement of the reasons why  any  significant alternatives were not incorporated into the rule and (iii) a  description  of  any  changes  made  in  the  rule  as  a result of such  comments. If any comments included estimates of projected costs  of  the  proposed  rule  to  the  state,  local governments or regulated persons,  which differed significantly from those presented by the agency  in  its  regulatory  impact  statement, regulatory flexibility analysis, or rural  area flexibility analysis,  the  assessment  shall  also  summarize  the  agency's  assessment  of  such  estimates.  If  no  comments  have  been  received, the notice of adoption  shall  state  that  no  comments  were  received by the agency. Comments submitted or presented to the agency by  a  legislative  committee or commission or by a member or members of the  senate or assembly shall be  considered  public  comment  and  shall  be  summarized and analyzed in the assessment.    (c) The notice of adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) contain the complete text  of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (iii) state whether there have been any changes in  the  text  of  the  rule  as  adopted  when  compared  with the text of the latest published  version of the proposed rule, and if such changes  have  occurred,  cite  the particular sections, subdivisions and paragraphs so changed;    (iv) give the effective date of the rule;    (v)  include  a  revised regulatory impact statement, when required by  the provisions of subparagraph (ii) of paragraph (a) of subdivision  six  of section two hundred two-a of this chapter, provided, however, if such  statement  exceeds  two  thousand words, the notice shall include only a  summary of such statement in less than two thousand words;    (vi) include a revised regulatory flexibility analysis and rural  area  flexibility  analysis,  when  required by the provisions of subparagraph  (ii) of paragraph (a) of subdivision seven of section two hundred  two-b  and  paragraph (b) of subdivision eight of section two hundred two-bb of  this chapter, provided, however, if such statement exceeds two  thousand  words, the notice shall include only a summary of such statement in less  than two thousand words;    (vii)  include  the assessment of public comment, prepared pursuant to  paragraph (b) of this subdivision, provided, however, if such assessment  exceeds two thousand words, the notice shall include only a  summary  of  such assessment in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency  representative  from  whom the complete text of the rule and any  revised regulatory  impact  statement,  revised  regulatory  flexibility  analysis,  rural area flexibility analysis or assessment of comments may  be obtained; and    (ix) state  whether  any  notice  of  revised  rule  making  had  been  submitted  for  such rule making and specify the date or dates that such  notice or notices appeared in the state register; and    (x) include any additional matter required by statute.    6.  Notice  of  emergency  adoption.  (a)  Notwithstanding  any  other  provision  of  law,  if an agency finds that the immediate adoption of a  rule is necessary for the preservation of the public health,  safety  or  general welfare and that compliance with the requirements of subdivision  one of this section would be contrary to the public interest, the agencymay dispense with all or part of such requirements and adopt the rule on  an emergency basis.    (b)  Unless  otherwise  provided by law, such emergency rule shall not  remain in effect for longer than ninety days after being filed with  the  secretary  of state unless within such time the agency complies with the  requirements of subdivision one of this  section  and  adopts  the  rule  pursuant  to  the  provisions  of  subdivision  five  of  this  section,  provided, however, if such emergency rule  is  readopted  prior  to  the  expiration  of such ninety day period such readoption and any subsequent  readoptions shall remain in effect for no longer than sixty days.    (c) An emergency rule which is in regard to  security  authorizations,  corporate  or  financial  structures  or reorganization thereof, and for  which statute does not require that a public hearing be  held  prior  to  adoption,  shall  not expire pursuant to the provisions of paragraph (b)  of this subdivision if the agency finds that the  purpose  of  the  rule  would be frustrated if subsequent notice procedures were required.    (d) A notice of emergency adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) state whether the  notice  shall  also  constitute  a  notice  of  proposed  rule  making  for  the  purposes  of  subdivision  one of this  section, and if so, give the date, time and place of any public  hearing  or hearings which are scheduled;    (iii)  state  whether  the  notice  shall  also constitute a notice of  revised rule making for the  purposes  of  subdivision  four-a  of  this  section,   and   if   so,  include  all  information  required  by  such  subdivision; and    (iv) contain the findings required by paragraphs (a) and (c)  of  this  subdivision  and  include  a  statement  fully  describing  the specific  reasons for such findings and the facts and circumstances on which  such  findings  are  based.  Such  statement  shall  include,  at a minimum, a  description of the nature and, if applicable,  location  of  the  public  health, safety or general welfare need requiring adoption of the rule on  an  emergency  basis;  a  description  of  the  cause, consequences, and  expected duration of such need; an explanation of  why  compliance  with  the requirements of subdivision one of this section would be contrary to  the  public interest; and an explanation of why the current circumstance  necessitates that the public and interested parties be given  less  than  the  minimum  period  for notice and comment provided for in subdivision  one of this section;    (v) give the effective date of the rule;    (vi) state the specific date the emergency rule will expire;    (vii) contain the complete text of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (viii) include a regulatory  impact  statement  prepared  pursuant  to  section  two  hundred two-a of this chapter or a statement setting forth  that the regulatory impact statement will appear in the  state  register  within  thirty  days  of  the  effective  date  of  the  emergency rule,  provided, however, if either statement exceeds two thousand  words,  the  notice  shall  include only a summary of such statement in less than two  thousand words;    (ix) include a regulatory flexibility analysis  prepared  pursuant  to  section two hundred two-b and a rural area flexibility analysis pursuant  to  section  two  hundred two-bb of this chapter or a statement that the  regulatory flexibility analysis and/or rural area  flexibility  analysis  will  appear  in  the state register within thirty days of the effectivedate of the emergency rule,  provided,  however,  if  such  analysis  or  statement  exceeds  two  thousand words, the notice shall include only a  summary of such analysis or statement in less than two thousand words;    (x)  give  the  name, public office address and telephone number of an  agency representative, knowledgeable on the rule, from whom  a  complete  text   of   such  rule,  the  regulatory  impact  statement,  regulatory  flexibility analysis, and the rural area  flexibility  analysis  may  be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (xi) include any additional matter required by statute.    (e)  If,  prior  to  the  expiration  of  a  rule  adopted pursuant to  paragraph (a) of this subdivision, the agency finds that the  readoption  of  such rule on an emergency basis is necessary for the preservation of  the public health, safety or general welfare, the agency may readopt the  rule on an emergency basis.  No  readoption  shall  be  filed  with  the  secretary  of state unless the agency has submitted a notice of proposed  rule making pursuant to subdivision one of this section.  No  second  or  subsequent  readoption shall be filed with the secretary of state unless  the agency at the same time submits an  assessment  of  public  comments  prepared pursuant to paragraph (b) of subdivision five of this section.    6-a.  Distribution  of  rule  making  information. (a) An agency shall  transmit a copy of any rule making  notice  prepared  pursuant  to  this  article  to  the  governor,  the  temporary president of the senate, the  speaker  of  the  assembly,  the   administrative   regulations   review  commission and the office of regulatory and management assistance at the  time  such notice is submitted to the secretary of state for publication  in the state register. Such transmittal shall include the complete  rule  text,  regulatory  impact  statement,  regulatory  flexibility analysis,  rural area flexibility analysis, or revisions  thereof,  and  any  other  information  submitted  to  the  secretary  of  state  pursuant  to this  article.    (b) An agency shall make a copy of the complete text of any  proposed,  adopted  or  emergency  rule,  regulatory  impact  statement, regulatory  flexibility analysis, rural  area  flexibility  analysis,  or  revisions  thereof available to the public at the time such documents are submitted  to  the  secretary  of  state  for publication in the state register and  shall send to any person a copy of such text upon written request.    (c) An agency shall notify every person who has  submitted  a  written  request  to  be  notified  of  all  proposed,  revised, emergency and/or  adopted rules which may affect such person. Such requests  shall  expire  annually  on  the  thirty-first  day  of  December with renewals for the  succeeding year to be accepted  on  or  after  December  first.  Notices  issued  pursuant  to  such requests shall be sent in writing to the last  address specified by  the  person.  An  agency  may  charge  any  person  requesting  such  notice  a  fee  consisting of the cost of preparation,  handling and postage.    7. Rule text requirements. (a) Except with respect to any rule defined  in subparagraph (ii) of paragraph (a) of subdivision two of section  one  hundred  two  of  this  chapter,  the  complete  text of any proposed or  adopted rule shall identify new language  by  underscoring  or  italics,  enclose  in  brackets  any  words  which are to be deleted, and give the  citation of any rule which is to be repealed.    (b) Notwithstanding any provision herein to the  contrary,  an  agency  may:    (i) with regard to a notice published in the state register concerning  a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two  of section one hundred two of this chapter, elect to include either  thecomplete  text  of the proposed or adopted rule in two thousand words or  less, or a description of the subject, purpose  and  substance  of  such  rule in less than two thousand words; and    (ii) with regard to a notice published in any newspaper or publication  other than the state register, elect to include either the complete text  or  a  description of the subject, purpose and substance of the proposed  or adopted rule.    (c) For the purposes of determining if the length of  the  text  of  a  rule  to  be  published  pursuant  to  this section exceeds two thousand  words, such text shall exclude any previously published portion  of  the  rule  which  is  precisely  identified  in  the text thereof pursuant to  paragraph c of subdivision  one  of  section  one  hundred  two  of  the  executive law;    8. Judicial review. A proceeding may be commenced to contest a rule on  the  grounds  of  noncompliance with the procedural requirements of this  section, section two hundred two-a and section two hundred two-b of this  chapter, provided, however, such proceeding  must  be  commenced  within  four  months  from  the  effective date of such rule. Each rule shall be  promulgated in  substantial  compliance  with  the  provisions  of  such  sections,  provided,  however, the inadvertent failure to send notice to  any person shall not serve to invalidate any rule promulgated hereunder.    9. Secretary of state. (a) The secretary of state shall:    (i) prescribe standard forms to be used by  agencies  when  submitting  for  publication  in  the  state  register  the notices required by this  section;    (ii) promptly review each notice  submitted  by  an  agency  for  such  publication;    (iii)  reject  those  notices  which are not in substantial compliance  with the  provisions  of  this  section,  give  prompt  notice  of  such  rejection to the agency, and advise such agency on the corrective action  required; and    (iv)  publish all notices and statements, required by this section and  section two hundred one-a of this chapter, in the state register as soon  as practicable.    (b)(i) The secretary of state may, in addition to publication  of  the  state  register,  publish an electronic copy of the state register which  shall be freely available on the internet.    (ii) Whenever an agency provides an electronic mail  address  for  the  submission  of comments regarding a notice, the secretary of state shall  provide a direct link between the electronic copy of the state  register  and  that  electronic  mail  address,  permitting  a  person viewing the  electronic copy of the state register to immediately submit comments  by  electronic mail.    (iii)  The  secretary  of  state  shall  provide  that the direct link  between the electronic copy of the state  register  and  the  electronic  mail  address provided by an agency shall also deliver to the governor's  office of regulatory reform a copy of all comments submitted.    (iv) Nothing  contained  in  this  paragraph  shall  impose  upon  the  secretary  of  state  or  any  agency any responsibility for delivery or  failure of delivery  of  comments  submitted  through  the  direct  link  between  the  electronic  copy  of the state register and the electronic  mail address provided  by  an  agency  in  the  event  of  any  failure,  incompatibility,  or  lack of function in any computer or communications  hardware or software, regardless of whether such hardware or software is  or is not within the control of the secretary of state or agency.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Sap > Article-2 > 202

§  202.  Rule making procedure. 1. Notice of proposed rule making. (a)  Prior to the adoption of a rule, an agency  shall  submit  a  notice  of  proposed  rule  making  to the secretary of state for publication in the  state register and shall afford the  public  an  opportunity  to  submit  comments  on  the proposed rule. Unless a different time is specified by  statute or this paragraph, the  notice  of  proposed  rule  making  must  appear in the state register at least forty-five days prior to either    (i) the addition, amendment or repeal of a rule for which statute does  not require that a public hearing be held prior to adoption, or    (ii)  the  first  public  hearing  on  a  proposed rule for which such  hearing is so required.    The notice of proposed rule making shall indicate the  last  date  for  submission  of  comments on the proposed rule, which, unless a different  time is specified in statute or this paragraph, shall be not  less  than  forty-five  days  after  the  date of publication of such notice, or, if  statute requires that a public hearing be held prior  to  adoption,  not  less  than five days after the date of the last public hearing scheduled  to be held on the proposed rule. Notwithstanding any other provision  of  this  paragraph, when the notice of proposed rule making contains only a  description of the  subject,  purpose  and  substance  of  the  rule  as  provided  in  subparagraph (v) of paragraph (f) of this subdivision, and  the full text of the proposed rule has not  been  posted  on  a  website  maintained  by  the  agency  or  another state entity, the last date for  submission of comments shall be not less than sixty days after the  date  of  publication of such notice, unless the rule is a consensus rule or a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section one hundred two of this chapter.    (b) (i) When an agency submits a notice of  proposed  rule  making  as  provided  in paragraph (a) of this subdivision solely for the purpose of  proposing a consensus rule for adoption, the agency  may  dispense  with  any requirement for public hearing and the requirements of subparagraphs  (ii),  (iii), (iv), (vi) and (vii) of paragraph (f) of this subdivision;  provided, however, that such notice shall include  a  statement  setting  forth  a  clear  and  concise  explanation of the basis for the agency's  determination that no person is likely to object to the adoption of  the  rule as written.    (ii)  If any public comment is received on the rule which contains any  objection to adoption of a consensus rule, the agency must withdraw  the  notice  of  proposed rule making for the consensus rule and may submit a  notice of proposed rule making for such rule making which complies  with  all of the relevant provisions of this subdivision.    (iii) Unless otherwise provided by law, a rule defined in subparagraph  (ii)  of  paragraph (a) of subdivision two of section one hundred two of  this chapter may be adopted as a consensus rule in accordance  with  the  provisions  of  this paragraph; provided, however, that for the purposes  of paragraph (c) of subdivision one of section one hundred three of this  chapter, any public hearing required by law to be held on any such  rule  shall  be  deemed  to  be explicitly directed at such rule. No such rule  which is defined by the public service law as a "major  change"  may  be  adopted as a consensus rule.    (c)  When appropriate in the judgment of the agency, a notice may also  be published in newspapers of general circulation and in trade, industry  or professional publications as the agency may select.    (d) The requirement for publication  of  a  notice  of  proposed  rule  making  in  the  state  register  shall not preclude the initiation of a  public hearing with respect to the  proposal  of  any  rule  defined  in  subparagraph  (ii)  of  paragraph  (a) of subdivision two of section one  hundred two of this chapter where notice otherwise consistent  with  theprovisions of this subdivision has been given, provided, however, in all  situations  notice  must  be published within a reasonable time prior to  the hearing.    (e) When an agency submits a notice of proposed rule making for a rule  which  was  proposed  for  adoption as a consensus rule and subsequently  withdrawn pursuant to paragraph (b) of  this  subdivision,  such  notice  shall  identify  the  prior  notice  of  proposed  rule making and shall  briefly describe the objection or  objections  which  caused  the  prior  notice of proposed rule making to be withdrawn.    (f) The notice of proposed rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) give the date, time and place of any public hearing  or  hearings  which are scheduled;    (iii) state whether or not the place of any public hearing or hearings  shall  be  reasonably  accessible to persons with a mobility impairment;  for purposes hereof, "persons with a  mobility  impairment"  shall  mean  those persons with a physical impairment which is permanent and severely  limits  that  person's  mobility,  or a person who is unable to ambulate  without the aid of a wheelchair or other  prosthetic  device;  provided,  however,  that the failure of such accessibility in accordance herewith,  upon diligent effort to have provided same, shall have  no  effect  upon  any actions or proceedings taken at any such subject hearings;    (iv)  include  a  statement  that  interpreter  services shall be made  available to deaf persons, at no charge, upon written  request  to  such  agency  representative  as  shall be designated pursuant to subparagraph  (viii) of this paragraph within a reasonable time prior to any scheduled  public hearing or hearings. If interpreter services are  requested,  the  agency  conducting  the  rule  making  proceeding in all instances shall  appoint a  qualified  interpreter  who  is  certified  by  a  recognized  national  or  New  York  state  credentialing authority to interpret the  proceedings to, and the testimony of,  such  deaf  person.  Such  agency  shall  determine  a  reasonable  fee  for all such interpreting services  which shall be a charge upon the agency;    (v) contain the complete text of the proposed rule, provided, however,  if such text exceeds two thousand words, the notice shall contain only a  description of the subject, purpose and substance of such rule  in  less  than  two  thousand words and shall identify the address of the website,  if any, on which the full text has been posted;    (vi) include  a  regulatory  impact  statement  prepared  pursuant  to  section  two  hundred  two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vii)  include  a  regulatory  flexibility  analysis  and a rural area  flexibility analysis prepared pursuant to sections two hundred two-b and  two hundred two-bb of this chapter, provided, however,  if  an  analysis  exceeds  two  thousand words, the notice shall include only a summary of  such analysis in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency representative, who is knowledgeable on the proposed  rule,  from  whom  the  complete  text of such rule and any scientific or statistical  study, report and analysis that served as the basis for the rule and any  supporting  data,  the  regulatory  impact  statement,  the   regulatory  flexibility  analysis,  and  the  rural area flexibility analysis may be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (ix) include any additional matter required by statute.2. Expiration of notice of proposed rule making; notice of expiration.  (a)   Except  with  respect  to  any  notice  of  proposed  rule  making  concerning  a  rule  defined  in  subparagraph  (ii) of paragraph (a) of  subdivision two of section one hundred two of this chapter, a notice  of  proposed rule making shall expire and be ineffective for the purposes of  this  section,  unless  the  proposed  rule is adopted by the agency and  filed with the secretary of state  in  the  manner  prescribed  by  law,  within three hundred sixty-five days after the latter of:    (i) the publication in the state register of a notice of proposed rule  making for the rule; or    (ii)  the  date  of  the  last public hearing announced in a notice of  proposed rule making for the rule.    (b) When a notice so expires, the secretary of state shall  publish  a  notice  of  expiration  in the state register. Such notice shall contain  such information as is determined, in the discretion of the secretary of  state, to serve the public interest.    3. Continuation of notice of proposed rule making. If,  within  ninety  days of the date on which a rule will expire, an agency submits a notice  of  revised  rule making for the rule, the rule making will be continued  for an additional ninety days beyond the date on  which  it  would  have  expired.    4. Withdrawal of notice of proposed rule making; notice of withdrawal.  An  agency may withdraw a notice of proposed rule making and terminate a  rule making proceeding by submitting  a  notice  of  withdrawal  to  the  secretary  of  state  for publication in the state register. Such notice  shall include a statement of the reason or reasons for withdrawal of the  proposed rule.    4-a. Notice of revised rule making. (a) Except  with  respect  to  any  rule defined in subparagraph (ii) of paragraph (a) of subdivision two of  section  one  hundred  two  of  this chapter, prior to the adoption of a  rule, an agency shall submit a notice of  revised  rule  making  to  the  secretary  of  state  for  publication  in  the  state  register for any  proposed rule which contains a substantial revision. The public shall be  afforded an opportunity to submit comments on  the  revised  text  of  a  proposed  rule.  Unless  a  different  time is specified in statute, the  notice of revised rule making must appear in the state register at least  thirty days prior to the adoption of the rule.  The  notice  of  revised  rule  making  shall indicate the last date for submission of comments on  the revised text of the proposed rule, which, unless a different time is  specified in statute, shall be not less than thirty days after the  date  of publication of such notice.    (b)  Each  agency  shall  publish  and make available to the public an  assessment of public  comment  for  a  rule  revised  pursuant  to  this  subdivision.  Such  assessment  shall be based upon any written comments  submitted to the agency and any comments presented at any public hearing  held on the proposed rule by the agency. The assessment  shall  contain:  (i)  a  summary  and  an  analysis  of the issues raised and significant  alternatives suggested by any such comments; (ii)  a  statement  of  the  reasons  why any significant alternatives were not incorporated into the  rule; and (iii) a description of any changes  made  in  the  rule  as  a  result  of  such comments. If no comments have been received, the notice  of revised rule making shall state that no comments were received by the  agency. Any subsequent assessment published pursuant to  this  paragraph  or  paragraph  (b) of subdivision five of this section need only include  comments not addressed in any previously published assessment of  public  comment for the rule; provided, however, that the notice of revised rule  making or adoption shall contain the date any previous notice of revisedrule  making containing an assessment of public comment was published in  the state register.    * (c) The notice of revised rule making shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is proposed for adoption;    (ii) contain the complete revised text of the proposed rule, provided,  however, if such text exceeds two thousand words, the notice may contain  only a description of the subject, purpose and substance of such rule in  less than two thousand words;    (iii) identify the substantial revisions to the text of the rule;    (iv) give the date, time and place of any public hearing  or  hearings  on  the  rule  which are to be held subsequent to the publication of the  notice;    (v) include a revised regulatory impact statement,  when  required  by  the  provisions of subparagraph (ii) of paragraph (a) of subdivision six  of section two hundred two-a of this chapter, provided, however, if such  statement exceeds two thousand words, the notice shall  include  only  a  summary of such statement in less than two thousand words;    (vi)  include  a  revised  regulatory flexibility analysis and a rural  area  flexibility  analysis,  when  required  by   the   provisions   of  subparagraph  (ii)  of paragraph (a) of subdivision seven of section two  hundred two-b and paragraph (b) of  subdivision  eight  of  section  two  hundred  two-bb  of  this  chapter, provided, however, if such statement  exceeds two thousand words, the notice shall include only a  summary  of  such statement in less than two thousand words;    (vii)  give  the  name,  address  and  telephone  number  of an agency  representative knowledgeable on the rule, from whom the complete revised  text of such rule, any revised regulatory impact statement  any  revised  regulatory  flexibility  analysis and any revised rural area flexibility  analysis may be obtained; from whom  information  about  any  additional  public  hearing  may  be  obtained;  and to whom written data, views and  arguments may be submitted;    (viii) state whether the notice shall  also  extend  the  rule  making  period for an additional ninety days as provided in subdivision three of  this section;    (ix)  include  the  assessment of public comment, prepared pursuant to  paragraph (b) of this  subdivision  provided,  however,  that,  if  such  assessment  exceeds  two thousand words, the notice shall include only a  summary of such assessment in less than two thousand words; and    (x) include any additional matter required by statute.    * NB There are 2 par (c)'s    * (c) An agency may not submit a notice of revised rule making  for  a  rule which has been proposed as a consensus rule.    * NB There are 2 par (c)'s    5.  Notice  of  adoption.  (a)  When  an  agency files a rule with the  secretary of state, such agency shall also submit a notice  of  adoption  to  the secretary of state for publication in the state register. Except  as provided in subdivision six of this section, an agency may not file a  rule with, or submit a notice of adoption to,  the  secretary  of  state  unless  the  agency  has  previously submitted a notice of proposed rule  making and complied with the provisions of this section.    (b) Except with respect to any rule defined in  subparagraph  (ii)  of  paragraph  (a)  of  subdivision  two  of section one hundred two of this  chapter, each agency shall publish and make available to the  public  an  assessment  of  public  comment  for  a  rule  adopted  pursuant to this  subdivision or paragraph (e) of subdivision six of  this  section.  Such  assessment  shall  be  based  upon any written comments submitted to the  agency and any comments presented at any  public  hearing  held  on  theproposed rule by the agency. The assessment shall contain: (i) a summary  and  an  analysis  of  the  issues  raised  and significant alternatives  suggested by any such comments, (ii) a statement of the reasons why  any  significant alternatives were not incorporated into the rule and (iii) a  description  of  any  changes  made  in  the  rule  as  a result of such  comments. If any comments included estimates of projected costs  of  the  proposed  rule  to  the  state,  local governments or regulated persons,  which differed significantly from those presented by the agency  in  its  regulatory  impact  statement, regulatory flexibility analysis, or rural  area flexibility analysis,  the  assessment  shall  also  summarize  the  agency's  assessment  of  such  estimates.  If  no  comments  have  been  received, the notice of adoption  shall  state  that  no  comments  were  received by the agency. Comments submitted or presented to the agency by  a  legislative  committee or commission or by a member or members of the  senate or assembly shall be  considered  public  comment  and  shall  be  summarized and analyzed in the assessment.    (c) The notice of adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) contain the complete text  of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (iii) state whether there have been any changes in  the  text  of  the  rule  as  adopted  when  compared  with the text of the latest published  version of the proposed rule, and if such changes  have  occurred,  cite  the particular sections, subdivisions and paragraphs so changed;    (iv) give the effective date of the rule;    (v)  include  a  revised regulatory impact statement, when required by  the provisions of subparagraph (ii) of paragraph (a) of subdivision  six  of section two hundred two-a of this chapter, provided, however, if such  statement  exceeds  two  thousand words, the notice shall include only a  summary of such statement in less than two thousand words;    (vi) include a revised regulatory flexibility analysis and rural  area  flexibility  analysis,  when  required by the provisions of subparagraph  (ii) of paragraph (a) of subdivision seven of section two hundred  two-b  and  paragraph (b) of subdivision eight of section two hundred two-bb of  this chapter, provided, however, if such statement exceeds two  thousand  words, the notice shall include only a summary of such statement in less  than two thousand words;    (vii)  include  the assessment of public comment, prepared pursuant to  paragraph (b) of this subdivision, provided, however, if such assessment  exceeds two thousand words, the notice shall include only a  summary  of  such assessment in less than two thousand words;    (viii) give the name, public office address and telephone number of an  agency  representative  from  whom the complete text of the rule and any  revised regulatory  impact  statement,  revised  regulatory  flexibility  analysis,  rural area flexibility analysis or assessment of comments may  be obtained; and    (ix) state  whether  any  notice  of  revised  rule  making  had  been  submitted  for  such rule making and specify the date or dates that such  notice or notices appeared in the state register; and    (x) include any additional matter required by statute.    6.  Notice  of  emergency  adoption.  (a)  Notwithstanding  any  other  provision  of  law,  if an agency finds that the immediate adoption of a  rule is necessary for the preservation of the public health,  safety  or  general welfare and that compliance with the requirements of subdivision  one of this section would be contrary to the public interest, the agencymay dispense with all or part of such requirements and adopt the rule on  an emergency basis.    (b)  Unless  otherwise  provided by law, such emergency rule shall not  remain in effect for longer than ninety days after being filed with  the  secretary  of state unless within such time the agency complies with the  requirements of subdivision one of this  section  and  adopts  the  rule  pursuant  to  the  provisions  of  subdivision  five  of  this  section,  provided, however, if such emergency rule  is  readopted  prior  to  the  expiration  of such ninety day period such readoption and any subsequent  readoptions shall remain in effect for no longer than sixty days.    (c) An emergency rule which is in regard to  security  authorizations,  corporate  or  financial  structures  or reorganization thereof, and for  which statute does not require that a public hearing be  held  prior  to  adoption,  shall  not expire pursuant to the provisions of paragraph (b)  of this subdivision if the agency finds that the  purpose  of  the  rule  would be frustrated if subsequent notice procedures were required.    (d) A notice of emergency adoption shall:    (i)  cite  the  statutory authority, including particular sections and  subdivisions, under which the rule is adopted;    (ii) state whether the  notice  shall  also  constitute  a  notice  of  proposed  rule  making  for  the  purposes  of  subdivision  one of this  section, and if so, give the date, time and place of any public  hearing  or hearings which are scheduled;    (iii)  state  whether  the  notice  shall  also constitute a notice of  revised rule making for the  purposes  of  subdivision  four-a  of  this  section,   and   if   so,  include  all  information  required  by  such  subdivision; and    (iv) contain the findings required by paragraphs (a) and (c)  of  this  subdivision  and  include  a  statement  fully  describing  the specific  reasons for such findings and the facts and circumstances on which  such  findings  are  based.  Such  statement  shall  include,  at a minimum, a  description of the nature and, if applicable,  location  of  the  public  health, safety or general welfare need requiring adoption of the rule on  an  emergency  basis;  a  description  of  the  cause, consequences, and  expected duration of such need; an explanation of  why  compliance  with  the requirements of subdivision one of this section would be contrary to  the  public interest; and an explanation of why the current circumstance  necessitates that the public and interested parties be given  less  than  the  minimum  period  for notice and comment provided for in subdivision  one of this section;    (v) give the effective date of the rule;    (vi) state the specific date the emergency rule will expire;    (vii) contain the complete text of  the  rule  as  adopted,  provided,  however,  if  such  text  exceeds  two  thousand words, the notice shall  contain only a description of the subject, purpose and substance of such  rule in less than two thousand words;    (viii) include a regulatory  impact  statement  prepared  pursuant  to  section  two  hundred two-a of this chapter or a statement setting forth  that the regulatory impact statement will appear in the  state  register  within  thirty  days  of  the  effective  date  of  the  emergency rule,  provided, however, if either statement exceeds two thousand  words,  the  notice  shall  include only a summary of such statement in less than two  thousand words;    (ix) include a regulatory flexibility analysis  prepared  pursuant  to  section two hundred two-b and a rural area flexibility analysis pursuant  to  section  two  hundred two-bb of this chapter or a statement that the  regulatory flexibility analysis and/or rural area  flexibility  analysis  will  appear  in  the state register within thirty days of the effectivedate of the emergency rule,  provided,  however,  if  such  analysis  or  statement  exceeds  two  thousand words, the notice shall include only a  summary of such analysis or statement in less than two thousand words;    (x)  give  the  name, public office address and telephone number of an  agency representative, knowledgeable on the rule, from whom  a  complete  text   of   such  rule,  the  regulatory  impact  statement,  regulatory  flexibility analysis, and the rural area  flexibility  analysis  may  be  obtained;  from  whom  information  about  any  public  hearing  may  be  obtained;  and  to  whom  written  data,  views  and  arguments  may  be  submitted; and    (xi) include any additional matter required by statute.    (e)  If,  prior  to  the  expiration  of  a  rule  adopted pursuant to  paragraph (a) of this subdivision, the agency finds that the  readoption  of  such rule on an emergency basis is necessary for the preservation of  the public health, safety or general welfare, the agency may readopt the  rule on an emergency basis.  No  readoption  shall  be  filed  with  the  secretary  of state unless the agency has submitted a notice of proposed  rule making pursuant to subdivision one of this section.  No  second  or  subsequent  readoption shall be filed with the secretary of state unless  the agency at the same time submits an  assessment  of  public  comments  prepared pursuant to paragraph (b) of subdivision five of this section.    6-a.  Distribution  of  rule  making  information. (a) An agency shall  transmit a copy of any rule making  notice  prepared  pursuant  to  this  article  to  the  governor,  the  temporary president of the senate, the  speaker  of  the  assembly,  the   administrative   regulations   review  commission and the office of regulatory and management assistance at the  time  such notice is submitted to the secretary of state for publication  in the state register. Such transmittal shall include the complete  rule  text,  regulatory  impact  statement,  regulatory  flexibility analysis,  rural area flexibility analysis, or revisions  thereof,  and  any  other  information  submitted  to  the  secretary  of  state  pursuant  to this  article.    (b) An agency shall make a copy of the complete text of any  proposed,  adopted  or  emergency  rule,  regulatory  impact  statement, regulatory  flexibility analysis, rural  area  flexibility  analysis,  or  revisions  thereof available to the public at the time such documents are submitted  to  the  secretary  of  state  for publication in the state register and  shall send to any person a copy of such text upon written request.    (c) An agency shall notify every person who has  submitted  a  written  request  to  be  notified  of  all  proposed,  revised, emergency and/or  adopted rules which may affect such person. Such requests  shall  expire  annually  on  the  thirty-first  day  of  December with renewals for the  succeeding year to be accepted  on  or  after  December  first.  Notices  issued  pursuant  to  such requests shall be sent in writing to the last  address specified by  the  person.  An  agency  may  charge  any  person  requesting  such  notice  a  fee  consisting of the cost of preparation,  handling and postage.    7. Rule text requirements. (a) Except with respect to any rule defined  in subparagraph (ii) of paragraph (a) of subdivision two of section  one  hundred  two  of  this  chapter,  the  complete  text of any proposed or  adopted rule shall identify new language  by  underscoring  or  italics,  enclose  in  brackets  any  words  which are to be deleted, and give the  citation of any rule which is to be repealed.    (b) Notwithstanding any provision herein to the  contrary,  an  agency  may:    (i) with regard to a notice published in the state register concerning  a  rule defined in subparagraph (ii) of paragraph (a) of subdivision two  of section one hundred two of this chapter, elect to include either  thecomplete  text  of the proposed or adopted rule in two thousand words or  less, or a description of the subject, purpose  and  substance  of  such  rule in less than two thousand words; and    (ii) with regard to a notice published in any newspaper or publication  other than the state register, elect to include either the complete text  or  a  description of the subject, purpose and substance of the proposed  or adopted rule.    (c) For the purposes of determining if the length of  the  text  of  a  rule  to  be  published  pursuant  to  this section exceeds two thousand  words, such text shall exclude any previously published portion  of  the  rule  which  is  precisely  identified  in  the text thereof pursuant to  paragraph c of subdivision  one  of  section  one  hundred  two  of  the  executive law;    8. Judicial review. A proceeding may be commenced to contest a rule on  the  grounds  of  noncompliance with the procedural requirements of this  section, section two hundred two-a and section two hundred two-b of this  chapter, provided, however, such proceeding  must  be  commenced  within  four  months  from  the  effective date of such rule. Each rule shall be  promulgated in  substantial  compliance  with  the  provisions  of  such  sections,  provided,  however, the inadvertent failure to send notice to  any person shall not serve to invalidate any rule promulgated hereunder.    9. Secretary of state. (a) The secretary of state shall:    (i) prescribe standard forms to be used by  agencies  when  submitting  for  publication  in  the  state  register  the notices required by this  section;    (ii) promptly review each notice  submitted  by  an  agency  for  such  publication;    (iii)  reject  those  notices  which are not in substantial compliance  with the  provisions  of  this  section,  give  prompt  notice  of  such  rejection to the agency, and advise such agency on the corrective action  required; and    (iv)  publish all notices and statements, required by this section and  section two hundred one-a of this chapter, in the state register as soon  as practicable.    (b)(i) The secretary of state may, in addition to publication  of  the  state  register,  publish an electronic copy of the state register which  shall be freely available on the internet.    (ii) Whenever an agency provides an electronic mail  address  for  the  submission  of comments regarding a notice, the secretary of state shall  provide a direct link between the electronic copy of the state  register  and  that  electronic  mail  address,  permitting  a  person viewing the  electronic copy of the state register to immediately submit comments  by  electronic mail.    (iii)  The  secretary  of  state  shall  provide  that the direct link  between the electronic copy of the state  register  and  the  electronic  mail  address provided by an agency shall also deliver to the governor's  office of regulatory reform a copy of all comments submitted.    (iv) Nothing  contained  in  this  paragraph  shall  impose  upon  the  secretary  of  state  or  any  agency any responsibility for delivery or  failure of delivery  of  comments  submitted  through  the  direct  link  between  the  electronic  copy  of the state register and the electronic  mail address provided  by  an  agency  in  the  event  of  any  failure,  incompatibility,  or  lack of function in any computer or communications  hardware or software, regardless of whether such hardware or software is  or is not within the control of the secretary of state or agency.