NY State Senate Bill 2017-S5982A

Senate Bill S5982A

2017-2018 Legislative Session

Relates to the filing of objections to agency rules by the administrative regulations review commission

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 02, 2018	referred to governmental operations delivered to assembly passed senate
Mar 14, 2018	amended on third reading 5982a
Jan 30, 2018	advanced to third reading
Jan 29, 2018	2nd report cal.
Jan 23, 2018	1st report cal.293
Jan 03, 2018	referred to investigations and government operations
Jun 21, 2017	recommitted to rules
May 16, 2017	ordered to third reading cal.980 committee discharged and committed to rules
May 09, 2017	referred to investigations and government operations

Votes

- May 2, 2018 - Floor Vote
  S5982A
  
  62
  
  Aye
  
  1
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: May 2, 2018
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Alcantara
      
      Amedore
      
      Avella
      
      Bailey
      
      Benjamin
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Croci
      
      DeFrancisco
      
      Dilan
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Helming
      
      Hoylman-Sigal
      
      Jacobs
      
      Kaminsky
      
      Kavanagh
      
      Kennedy
      
      Klein
      
      Krueger
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Marchione
      
      Mayer
      
      Montgomery
      
      Murphy
      
      O'Mara
      
      Ortt
      
      Parker
      
      Peralta
      
      Persaud
      
      Phillips
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Valesky
      
      Young
      
      nay (1)
      
      LaValle
  May 16, 2017 - Rules Committee Vote
  S5982A
  
  15
  
  Aye
  
  9
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: May 16, 2017
      
      aye (15)
      
      Bonacic
      
      DeFrancisco
      
      Dilan
      
      Flanagan
      
      Griffo
      
      Hannon
      
      LaValle
      
      Lanza
      
      Larkin
      
      Little
      
      Marcellino
      
      Ranzenhofer
      
      Robach
      
      Seward
      
      Valesky
      
      nay (9)
      
      Breslin
      
      Carlucci
      
      Gianaris
      
      Krueger
      
      Montgomery
      
      Parker
      
      Savino
      
      Squadron
      
      Stewart-Cousins
      
      aye wr (1)
      
      Kennedy
  Jan 23, 2018 - Investigations And Government Operations Committee Vote
  S5982A
  
  5
  
  Aye
  
  3
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Investigations And Government Operations Committee Vote: Jan 23, 2018
      
      aye (5)
      
      Golden
      
      Lanza
      
      Murphy
      
      O'Mara
      
      Phillips
      
      nay (3)
      
      Benjamin
      
      Hoylman-Sigal
      
      Kavanagh
      
      aye wr (1)
      
      Carlucci

Bill Amendments

Original

A (Active)

2017-S5982 - Details

Current Committee:: Assembly Governmental Operations
Law Section:: Legislative Law
Laws Affected:: Amd §87, Leg L; amd §202, St Ad Proc Act; amd §102, Exec L

2017-S5982 - Summary

Relates to the filing of objections to agency rules by the administrative regulations review commission.

2017-S5982 - Sponsor Memo

                                 BILL NUMBER:  S5982

 TITLE OF BILL :

An act to amend the legislative law, the state administrative
procedure act and the executive law, in relation to the filing of
objections to agency rules by the administrative regulations review
commission

 PURPOSE :

To provide the administrative regulations review commission (ARRC)
with a process by which a majority of ARRC members may notify agencies
that they object to rules or portions of rules for being arbitrary,
capricious, in violation of rule making procedures, irrational or
otherwise unreasonable.

 SUMMARY OF PROVISIONS :

Section 1 adds new subdivision 4 to section 87 of legislative law to
provide ARRC with the ability to formally object to an administrative
rule or a portion of a rule that has already been adopted, or that had
proposed, but has not yet been adopted by an agency. There a typically
six members of ARRC, three members in both the Senate and the
Assembly.

Should a majority of all ARRC members, at least 4 of 6 members, or at
least 3 of 5 members agree that an administrative rule, or a portion
of a rule is likely defective because it is either (i) arbitrary,
capricious, an abuse of agency discretion, or is otherwise not in
accordance with law; or (ii) is contrary to constitutional, right,
power, privilege or immunity; or (iii) is inconsistent with, or in
excess of statutory jurisdiction, authority, or limitations, or is
short of statutory right; or (iv) has been adopted or has been
proposed without substantial observance of the procedures required by
law; or (v) is otherwise irrational or unreasonable with respect to
statutory authority, compliance with legislative intent, impact on the
economy and on government operations of the state or local
governments, or impact on regulated and affected parties, members of
ARRC will have the power to write a formal letter of objection to the
state agency that has adopted or has introduced the rule at issue.

A letter of objection must include at least a brief description of the
objectionable issue, as well as the signatures of each ARRC member
that objects to the administrative rule. A letter of objection must be
mailed or delivered to the agency responsible for the rule at issue
and a certified copy of the letter of objection must be filed with the
Department of State, Division of Administrative Rules (DAR).  Should a
letter of objection appear to be valid, and include a brief
description of the objected to issue(s), as well as all requisite
signatures, DAR will be required to print the letter of objection in
the next weekly issue of the State Register, which has not finished
print/publication. Should DAR receive a certified copy of a letter of
objection that does not appear valid, that letter must be returned to
ARRC immediately with a brief description of the deficiency.

Upon receipt of a valid letter of objection regarding a proposed rule
that has not been adopted, the agency responsible for promulgating the
rule at issue, must provide ARRC with a written letter of response
acknowledging receipt of the objection and consideration of the
issue(s) that ARRC has objected to. A copy of this letter must also be
provided to DAR. Such a written response must include at least a brief
explanation of the agency's decision to accommodate the objection and
include the signature of the agency's most senior executive
(Commissioner, Director, Acting Commissioner, or the signature of the
most senior member of Counsel's office for that Agency. The agency's
letter in response to the objection must be provided to DAR in time to
publish at, or before the Notice of Adoption for the rule at issue, is
published in the State Register.

Upon receipt of a valid letter of objection regarding a rule that has
already been adopted, the agency must acknowledge receipt of the
objection within 45 days with a written letter of response. The
written response must sent to ARRC and a copy must be sent to DAR as
well. The letter in response must include a brief statement confirming
receipt of the objection and consideration of the objected to issue,
as well as possible solutions. A valid written response must be signed
by the most senior executive of that agency or the most senior Counsel
for that agency. Should a written response appear to be invalid, DAR
must return that letter immediately with a brief explanation of the
defective issue.

ARCC cannot compel any State Agency to change an administrative rule
or a portion of a rule that has yet to be adopted, or that has already
been adopted; nor can an agency be forced to consider the substantive
issue(s) stated in a letter of objection. Upon receipt of a letter of
objection, an agency will have a few options:

1) An agency may consider the objection and agree to change the rule
in order to accommodate the objection. For a rule that has not been
adopted, this will likely require a Notice of Withdrawal or a Notice
of Revised Rule Making pursuant to the rule making requirements of
Section 202 of the State Administrative Procedure Act (SAPA). Should
an agency agree to change a rule that has already been adopted, such
information should be stated in the written letter of response to the
objection. Written responses will be printed in the State Register.
Changing an adopted rule will likely require a Notice of Proposed Rule
Making so that a new corrected rule can be introduced for promulgation
under the rule making requirements of Section 202 of SAPA.

2) An agency may decide that additional time is needed to consider the
objection, as well as possible solutions. An agency must do so with a
valid written response to ARRC and DAR, that requests up to an
additional forty-five days to consider and decide a response to a
letter of objection. Up to additional forty-five days can requested
for any rule that has been adopted, as well as any rule that has been
introduced, but has not yet been adopted. DAR will publish any valid
written response requesting additional time to consider an objection.

3) An agency may decide that it disagrees with the objection and
refuse to change the rule. A valid written and signed response must be
sent to ARRC and copied to DAR, including a brief explanation of the
decision to not change to rule at issue.

An agency has the option to refuse any change in response to a letter
of objection. However, an agency's refusal to accommodate an
objection, or an agency's decision to ignore a letter of objection
could result in that agency losing the high level of deference that is
typically provided to agencies in adjudicatory hearings and legal
proceedings under SAPA and Article 78 of Civil Practice Law and Rules
(CPLR).

Should a petitioner challenge the validity of an administrative rule
or seek relief or damages resulting from an implementation of an
administrative rule in any adjudicatory proceeding, or an action for
declaratory judgment or any other legal proceeding under SAPA or
Article 78 of the CPLR and that petitioner's claim matches the
specific issue(s) raised in a letter objection written by ARRC to the
respondent (state agency); the petitioner must be allowed to submit
the letter of objection and any written responses to the objection, or
assert that an agency failed to issue any letter of response, into
evidence.
If a petitioner alleges that a rule in whole, or in part is defective
for a reason(s) and such a claim is consistent and with the reason(s)
provided in a letter of objection, and the petitioner presents this
evidence to the administrative law judge (ALJ), agency tribunal, state
supreme court or state appellate court judge or judges, the burden of
proof regarding this specific claim is shifted form the moving party
(petitioner) to the respondent (state agency). Regarding such a
specific claim, the judge(s) will impose a higher standard of review
on the agency and the agency will have the burden that the rule is
not, or was not promulgated by the means that were objected to, in
ARRC's letter of objection.

A petitioner must meet all other requirements, including standing and
statute of limitations requirements under SAPA and Article 78 of the
CPLR. The burden of proof will be the moving party's for all other
claims that do not meet these specific criteria. However, should an
agency decide against accommodating a valid letter of objection or
decide to ignore such an objection raised by ARRC, that agency could
risk losing the high level of deference that is typically afforded
under judicial review in legal proceedings.

DAR will be required to include all valid letters of objection and
written agency responses to objections in the official compilation of
codes, rules and regulations of the State of New York (NYCRR).
Letters of objection and responses to objections will be made
available to member of the public upon request. Letters of objection
and responses to objections will be included in all unofficial
versions of the NYCRR, including the online version linked to, on the
Department of State website.

 EXISTING LAW :

None.

 JUSTIFICATION :

Occasionally state agencies promulgate rules that are burdensome and
harmful to regulated parties. Unfortunately, such regulations are very
difficult to successfully challenge because petitioners typically face
heavy burdens of proof to show that an agency's decision to promulgate
an onerous rule was arbitrary, capricious, inconsistent with statutory
authority, irrational or unreasonable.  Generally, agencies are
afforded a high degree of deference under judicial review. There is a
legal presumption that administrative rules are valid and agencies
need only show that their decisions to propose and adopt a rule were
rational.

This piece of legislation provides ARRC with the power to formally
object to all or part of an administrative rule. If the opinion of a
majority of the members of ARRC, a rule is invalid or defective due to
or more reasons, ARRC may notify the appropriate agency with a letter
of objection. This bill does not compel agencies to change rules in
order to appease ARRC. However, this bill does seek to encourage
agencies to consider changing rules to accommodate the concerns raised
by ARRC in written letters of objection. Agencies should be motivated
to address issues that ARRC objects to because failure to make such
changes could result in the burden of proof for a specific claim,
being shifted from the moving party to the agency under judicial
review. The possibility that the burden of proof could be shifted to
an agency, should motivate agencies to propose and adopt less
burdensome administrative rules in a manner that is consistent with
the requirements of the state administrative procedure act (SAPA).

 LEGISLATIVE HISTORY :

S.6500 / A.8970 (2014); S.4034 (2015-16), passed Senate 2015.
 FISCAL IMPLICATIONS :

None.

 LOCAL FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
Immediately.

2017-S5982 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5982
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 9, 2017
                                ___________
 
 Introduced  by  Sen.  JACOBS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the legislative law, the state administrative  procedure
   act  and the executive law, in relation to the filing of objections to
   agency rules by the administrative regulations review commission
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  87 of the legislative law is amended by adding a
 new subdivision 4 to read as follows:
   4. THE COMMISSION SHALL HAVE THE POWER TO OBJECT TO ALL, OR A  PORTION
 OF  ANY  ADMINISTRATIVE RULE OR REGULATION THAT HAS BEEN ADOPTED OR THAT
 HAS BEEN PROPOSED BY AN AGENCY PURSUANT TO THE RULE MAKING PROCEDURES OF
 SECTION TWO HUNDRED TWO  OF  THE  STATE  ADMINISTRATIVE  PROCEDURE  ACT.
 SHOULD  IN  THE  PERFORMANCE OF ITS DUTIES, A MAJORITY OF MEMBERS OF THE
 COMMISSION FIND THAT AN ADMINISTRATIVE RULE OR A PORTION OF AN  ADMINIS-
 TRATIVE   RULE   IS  (I)  ARBITRARY,  CAPRICIOUS,  AN  ABUSE  OF  AGENCY
 DISCRETION, OR IS OTHERWISE NOT IN  ACCORDANCE  WITH  LAW;  OR  (II)  IS
 CONTRARY TO CONSTITUTIONAL, RIGHT POWER, PRIVILEGE OR IMMUNITY; OR (III)
 IS INCONSISTENT WITH, OR IN EXCESS OF STATUTORY JURISDICTION, AUTHORITY,
 OR LIMITATIONS, OR IS SHORT OF STATUTORY RIGHT; OR (IV) HAS BEEN ADOPTED
 OR  HAS  BEEN  PROPOSED WITHOUT SUBSTANTIAL OBSERVANCE OF THE PROCEDURES
 REQUIRED BY LAW; OR (V) IS OTHERWISE  IRRATIONAL  OR  UNREASONABLE  UPON
 CONSIDERATION  OF  ANY OR ALL OF THE CRITERIA SPECIFIED IN THIS SUBDIVI-
 SION, THE COMMISSION  MAY,  IN  WRITING,  NOTIFY  THE  AGENCY  OF  THEIR
 OBJECTION AND REASON OR REASONS FOR THEIR OBJECTION. A WRITTEN LETTER OF
 OBJECTION  MUST BE MAILED OR DELIVERED TO THE AGENCY RESPONSIBLE FOR THE
 ADOPTION OR PROPOSAL  OF  THE  OBJECTED  TO  RULE.  A  VALID  LETTER  OF
 OBJECTION  MUST  BE  SIGNED  BY  EACH  MEMBER OF THE COMMISSION THAT HAS
 DECIDED TO OBJECT TO THE RULE IN ITS ENTIRETY, OR IN PART.  THE  COMMIS-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11519-01-7

 S. 5982                             2
 
 SION MUST ALSO FILE A CERTIFIED COPY OF THE LETTER OF OBJECTION WITH THE
 DEPARTMENT OF STATE, DIVISION OF ADMINISTRATIVE RULES.
   § 2. Paragraph (a) of subdivision 9 of section 202 of the state admin-
 istrative  procedure  act  is  amended by adding three new subparagraphs
 (vi), (vii) and (viii) to read as follows:
   (VI) FOLLOWING RECEIPT OF A VALID LETTER OF OBJECTION THAT IS  WRITTEN
 AND  SIGNED  BY  A  MAJORITY  OF THE MEMBERS OF THE ADMINISTRATIVE REGU-
 LATIONS REVIEW COMMISSION, PUBLISH SUCH LETTER IN THE NEXT ISSUE OF  THE
 STATE REGISTER.
   (VII)  FOLLOWING  RECEIPT OF A VALID RESPONSE TO A LETTER OF OBJECTION
 WRITTEN AND SIGNED BY THE COMMISSIONER,  DIRECTOR  OR  COUNSEL  OF  THAT
 AGENCY,  PUBLISH  SUCH  WRITTEN  RESPONSE IN THE NEXT ISSUE OF THE STATE
 REGISTER.
   (VIII) REJECT ANY LETTER OF OBJECTION OR ANY  WRITTEN  RESPONSE  TO  A
 LETTER  OF  OBJECTION  THAT  IS DEFICIENT FOR LACKING AT LEAST A MINIMAL
 EXPLANATION OF AN OBJECTIONABLE ISSUE, OR  THE  REQUISITE  SIGNATURE  OR
 SIGNATURES,  AND  GIVE PROMPT NOTICE OF DEFICIENCY TO THE ADMINISTRATIVE
 REGULATIONS REVIEW COMMISSION OR AGENCY.
   § 3. Section 202 of the state administrative procedure act is  amended
 by adding a new subdivision 10 to read as follows:
   10. OBJECTION. (A) IF IN THE PERFORMANCE OF THEIR DUTIES, AS SPECIFIED
 IN  SUBDIVISION  ONE  OF  SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW, A
 MAJORITY OF THE MEMBERS OF THE ADMINISTRATIVE REGULATIONS REVIEW COMMIS-
 SION DECIDE TO OBJECT TO AN ADMINISTRATIVE  RULE  OR  A  PORTION  OF  AN
 ADMINISTRATIVE  RULE THAT HAS BEEN ADOPTED OR THAT HAS BEEN PROPOSED, AN
 OBJECTION MUST BE MADE IN ACCORDANCE WITH THE  PROCEDURES  SPECIFIED  IN
 SUBDIVISION FOUR OF SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW.
   (B) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO A RULE
 THAT  HAS BEEN PROPOSED, BUT HAS NOT BEEN ADOPTED MUST READ AND CONSIDER
 THE OBJECTION AND ISSUE A WRITTEN RESPONSE  PRIOR  TO  ADOPTION  OF  THE
 OBJECTED  TO RULE. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO LETTERS OF
 OBJECTION TO THE DEPARTMENT OF STATE, DIVISION OF  ADMINISTRATIVE  RULES
 FOR PUBLICATION IN THE STATE REGISTER. A WRITTEN RESPONSE TO A LETTER OF
 OBJECTION MUST STATE THAT THE AGENCY HAS EITHER (I) AGREED TO CHANGE THE
 RULE  IN  WHOLE,  OR  IN  PART IN ACCORDANCE WITH THE OBJECTION AND WILL
 PUBLISH THE REQUISITE NOTICE OF REVISED RULE MAKING, OR (II) NEEDS ADDI-
 TIONAL TIME TO CONSIDER THE OBJECTION  AND  POSSIBLE  CHANGES  AND  WILL
 PUBLISH  A  NOTICE  OF  WITHDRAWAL, OR (III) THAT THE AGENCY HAS DECIDED
 AGAINST MAKING ANY CHANGES TO THE PROPOSED RULE.  WRITTEN  RESPONSES  TO
 LETTERS  OF OBJECTION MUST STATE THAT THE OBJECTION WAS READ AND CONSID-
 ERED AND INCLUDE AT LEAST A BRIEF EXPLANATION OF THE AGENCY'S  RATIONALE
 FOR EITHER AGREEING WITH THE OBJECTION, OR REQUIRING ADDITIONAL TIME FOR
 CONSIDERATION,  OR  FOR DISAGREEING WITH THE OBJECTION. ANY AGENCY DECI-
 SION TO STOP, EXTEND, OR PROCEED WITH PROMULGATION OF ALL OR PART OF  AN
 OBJECTED  TO  RULE,  MUST  BE  DONE  IN  ACCORDANCE WITH THE RULE MAKING
 REQUIREMENTS OF THIS SECTION.
   (C) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO ALL OR
 PART OF A RULE  THAT  HAS  BEEN  ADOPTED  MUST  READ  AND  CONSIDER  THE
 OBJECTION AND ISSUE A WRITTEN RESPONSE WITHIN FORTY-FIVE DAYS OF RECEIV-
 ING  THE LETTER OF OBJECTION. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO
 LETTERS OF OBJECTION TO THE ADMINISTRATIVE REGULATIONS REVIEW COMMISSION
 AS WELL AS A CERTIFIED COPY OF ANY SUCH RESPONSE TO  THE  DEPARTMENT  OF
 STATE,  DIVISION  OF  ADMINISTRATIVE  RULES FOR PUBLICATION IN THE STATE
 REGISTER. A WRITTEN RESPONSE TO A LETTER OF OBJECTION  MUST  STATE  THAT
 THE  AGENCY EITHER (I) AGREES TO CHANGE THE RULE IN WHOLE, OR IN PART IN
 ACCORDANCE WITH THE OBJECTION AND WILL PUBLISH A NOTICE OF PROPOSED RULE

 S. 5982                             3
 
 MAKING NEEDED TO PROMULGATE A NEW CORRECTED RULE, OR  (II)  NEEDS  ADDI-
 TIONAL  TIME  TO  CONSIDER  THE OBJECTION AND POSSIBLE CHANGES, OR (III)
 THAT THE AGENCY HAS DECIDED AGAINST MAKING  ANY  CHANGES  TO  THE  RULE.
 WRITTEN  RESPONSES  TO  LETTERS  OF  OBJECTION MUST ACKNOWLEDGE THAT THE
 OBJECTION WAS READ AND CONSIDERED AND INCLUDE AT LEAST A BRIEF  EXPLANA-
 TION OF THE AGENCY'S DECISION TO AGREE WITH THE OBJECTION, OR TO REQUIRE
 ADDITIONAL  TIME FOR CONSIDERATION OF THE OBJECTION, OR TO DISAGREE WITH
 THE OBJECTION. SHOULD AN AGENCY DECIDE THAT ADDITIONAL TIME IS NEEDED TO
 CONSIDER THE OBJECTION AS WELL AS POSSIBLE SOLUTIONS, AN AGENCY WILL  BE
 PROVIDED  UP  TO  AN  ADDITIONAL  FORTY-FIVE  DAYS  TO PROVIDE A WRITTEN
 RESPONSE TO THE OBJECTION.
   (D) AN AGENCY WILL NOT BE COMPELLED BY THE ADMINISTRATIVE  REGULATIONS
 REVIEW COMMISSION TO CHANGE AN ADOPTED OR PROPOSED RULE IN RESPONSE TO A
 LETTER  OF  OBJECTION; HOWEVER REFUSAL TO DO SO, CAN BE USED AS EVIDENCE
 BY A PETITIONER IN  ACTION  CHALLENGING  AN  ADMINISTRATIVE  RULE  OR  A
 PORTION OF AN ADMINISTRATIVE RULE IN AN ADJUDICATORY HEARING PURSUANT TO
 ARTICLE  THREE  OF  THIS  CHAPTER, OR AN ACTION FOR DECLARATORY JUDGMENT
 PURSUANT TO SECTION TWO HUNDRED FIVE OF THIS ARTICLE, OR IN A PROCEEDING
 MADE AGAINST AN AGENCY PURSUANT TO ARTICLE SEVENTY-EIGHT  OF  THE  CIVIL
 PRACTICE LAW AND RULES.
   (E)  SHOULD  A  PETITIONER  (I)  CHALLENGE AN ADMINISTRATIVE RULE OR A
 PORTION OF AN ADMINISTRATIVE RULE, OR SEEK RELIEF FOR DAMAGES  RESULTING
 FROM  AN  ADMINISTRATIVE  RULE, AND (II) INCLUDE AS EVIDENCE, A RELEVANT
 LETTER OF OBJECTION, AS WELL  AS  AN  AGENCY  WRITTEN  RESPONSE  STATING
 REFUSAL TO ACCOMMODATE THE OBJECTION, OR ASSERT THE ABSENCE OF ANY AGEN-
 CY  RESPONSE  TO  THE  OBJECTION,  AND (III) CHALLENGE THE SAME ISSUE OR
 ISSUES, AS IS STATED IN THE LETTER OF  OBJECTION,  THEN  THE  BURDEN  OF
 PROOF  THAT  THE  RULE  IS  NOT DEFECTIVE DUE TO THE PARTICULAR ISSUE OR
 ISSUES ALLEGED, WILL MOVE FROM THE PETITIONER TO THE AGENCY.
   (F) SHOULD A PETITIONER ESTABLISH EACH OF THE THREE REQUIREMENTS SPEC-
 IFIED IN PARAGRAPH (E) OF THIS SUBDIVISION, THE ADMINISTRATIVE JUDGE  OR
 TRIBUNAL, OR THAT STATE SUPREME COURT OR APPELLATE COURT JUDGE OR JUDGES
 SHALL CONSIDER THE ISSUE OR ISSUES, OBJECTED TO IN BOTH THE PETITIONER'S
 ACTION  AND IN A LETTER OF OBJECTION AND IMPOSE A HEIGHTENED STANDARD OF
 REVIEW UPON THE AGENCY TO PROVE THAT  THE  ADMINISTRATIVE  RULE  OR  THE
 PORTION  OF  THE  RULE IN QUESTION, IS NOT DEFECTIVE DUE TO THE SPECIFIC
 REASON OR REASONS AS CLAIMED BY THE PETITIONER  AND  THE  ADMINISTRATIVE
 REGULATIONS  REVIEW  COMMISSION  IN  THE LETTER OF OBJECTION. OTHER THAN
 MOVING THE BURDEN OF PROOF UNDER THESE CRITERIA, NO OTHER  COMPONENT  OF
 SUBDIVISION  EIGHT OF THIS SECTION, SECTION TWO HUNDRED FIVE, OR ARTICLE
 THREE OF THIS CHAPTER, OR ARTICLE SEVENTY-EIGHT OF  THE  CIVIL  PRACTICE
 LAW AND RULES SHALL BE AMENDED BY THIS SUBDIVISION.
   §  4.  Section  102  of  the  executive law is amended by adding a new
 subdivision 6 to read as follows:
   6. ALL LETTERS OF OBJECTION THAT STATE AT LEAST A BRIEF EXPLANATION OF
 AN OBJECTIONABLE ISSUE PERTAINING TO AN ADOPTED OR A  PROPOSED  ADMINIS-
 TRATIVE RULE IN ITS ENTIRETY, OR IN PART, THAT ARE WRITTEN AND SIGNED BY
 A  MAJORITY  OF  THE  MEMBERS  OF  THE ADMINISTRATIVE REGULATIONS REVIEW
 COMMISSION; AS WELL AS ANY WRITTEN RESPONSE TO  A  LETTER  OF  OBJECTION
 THAT  INCLUDES AT LEAST A BRIEF RESPONSE TO THE OBJECTION AND THE SIGNA-
 TURE OF THE COMMISSIONER, DIRECTOR OR COUNSEL OF A STATE AGENCY MUST  BE
 INCLUDED  IN THE OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF
 THE STATE OF NEW  YORK.  ALL  SUCH  LETTERS  OF  OBJECTION  AND  WRITTEN
 RESPONSES TO OBJECTIONS SHALL BE MADE AVAILABLE TO MEMBERS OF THE PUBLIC
 AND  SHALL  BE  INCLUDED WITHIN ANY PUBLISHED UNOFFICIAL COMPILATIONS OF
 THE CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK, INCLUDING THE

 S. 5982                             4
 
 UNOFFICIAL VERSION THAT IS LINKED TO ON THE DEPARTMENT OF STATE WEBSITE.
 LETTERS OF OBJECTION AND WRITTEN AGENCY RESPONSES TO OBJECTIONS SHALL BE
 RECEIVED, RECORDED AND COMPILED CONSISTENT WITH ALL  OTHER  REQUIREMENTS
 OF  THIS  SECTION AND SECTIONS ONE HUNDRED ONE-A, ONE HUNDRED ONE-B, ONE
 HUNDRED THREE, ONE HUNDRED FOUR, ONE HUNDRED FIVE, ONE HUNDRED  SIX  AND
 ONE HUNDRED SIX-A OF THIS ARTICLE.
   § 5. This act shall take effect immediately.

2017-S5982A (ACTIVE) - Details

Current Committee:: Assembly Governmental Operations
Law Section:: Legislative Law
Laws Affected:: Amd §87, Leg L; amd §202, St Ad Proc Act; amd §102, Exec L

2017-S5982A (ACTIVE) - Summary

Relates to the filing of objections to agency rules by the administrative regulations review commission.

2017-S5982A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5982A

SPONSOR: JACOBS
 
TITLE OF BILL:  An act to amend the legislative law, the state admin-
istrative procedure act and the executive law, in relation to the filing
of objections to agency rules by the administrative regulations review
commission

 
PURPOSE:

To provide ARRC with a process by which a majority of ARRC members may
notify agencies that they object to rules or portions of rules for being
arbitrary, capricious, in violation of rule making procedures, irration-
al or otherwise unreasonable.

 
SUMMARY OF PROVISIONS:

Section 1: Adds new subdivision 4 to section 87 of legislative law to
provide ARRC with the ability to formally object to an administrative
rule or a portion of a rule that has been adopted, or that has been
proposed, but not yet adopted by an agency. There are typically six

members of ARRC, three members in both the Senate and the Assembly.

Section 2: Should a majority of all ARRC members, at least 4 of 6
members, or at least 3 of 5 members agree that an administrative rule,
or a portion of a rule is likely defective because it is either (i)
arbitrary, capricious, an abuse of agency discretion, or is otherwise
not in accordance with law; or (ii) is contrary to constitutional right,
power, privilege or immunity; or (iii) is inconsistent with, or in
excess of statutory jurisdiction, authority, or limitations, or is short
of statutory right; or (iv) has been adopted or has been proposed with-
out substantial observance of the procedures required by law; members of
ARRC will have the power to write a formal letter of objection to the
state agency that has adopted or has introduced the rule at issue.

Section 3: A letter of objection must include at least a brief
description of the objectionable issue, as well as the signatures of
each ARRC member that objects to the administrative rule. A letter of
objection must be mailed or delivered to the agency responsible for the
rule at issue and a certified copy of the letter of objection must be
filed with the Department of State, Division of Administrative Rules
(DAR). Should a letter of objection appear to be valid, and include a
brief description of the objected to issue(s), as well as all requisite
signatures, DAR will be required to print the letter of objection in the
next weekly issue of the State Register, which has not finished
print/publication. Should DAR receive a certified copy of a letter of
objection that does not appear valid, that letter must be returned to
ARRC immediately with a brief description of the deficiency.

Upon receipt of a valid letter of objection regarding a proposed rule
that has not been adopted, the agency responsible for promulgating the
rule at issue, must provide ARRC with a written letter of response
acknowledging receipt of the objection and consideration of the issue(s)
that ARRC has objected to. A copy of this letter must also be provided
to DAR. Such a written response must include at least a brief explana-
tion of the agency's decision to accommodate the objection and include
the signature of the agency's most senior executive (Commissioner,
Director, Acting Commissioner, or the signature of the most senior
member of Counsel's office for that Agency). The agency's letter in
response to the objection must be provided to DAR in time to publish at,
or before the Notice of Adoption for the rule at issue, is published in
the State Register.

Section 4: Upon receipt of a valid letter of objection regarding a rule
that has already been adopted, the agency must acknowledge receipt of
the objection within 45-days with a written letter of response. The
written response must sent to ARRC and a copy must be sent to DAR as
well. The letter in response must include a brief statement confirming
receipt of the objection and consideration of the objected to issue, as
well as possible solutions. A valid written response must be signed by
the most senior executive of that agency or the most senior counsel for
that agency. Should a written response appear to be invalid, DAR must
return that letter immediately with a brief explanation of the defective
issue.

ARRC cannot compel any state agency to change an administrative rule or
a portion of a rule that has yet to be adopted, or that has already been
adopted; nor can an agency be forced to consider the substantive
issue(s) stated in a letter of objection. Upon receipt of a letter of
objection, an agency will have a few options:

1) An agency may consider the objection and agree to change the rule in
order to accommodate the objection. For a rule that has not been
adopted, this will likely require a Notice of Withdrawal or a Notice of
Revised Rule Making pursuant to the rule making requirements of Section
202 of the State Administrative Procedure Act (SAPA). Should an agency
agree to change a rule that has already been adopted, such information
should be stated in the written letter of response to the objection.
Written responses will be printed in the State Register.  Changing an
adopted rule will likely require a Notice of Proposed Rule Making so
that a new corrected rule can be introduced for promulgation under the
rule making requirements of Section 202 of SAPA.

2) An agency may decide that additional time is needed to consider the
objection, as well as possible solutions. An agency must do so with a
valid written response to ARRC and DAR, that requests up to an addi-
tional 45-days to consider and decide a response to a letter of
objection. Up to additional 45-days can requested for any rule that has
been adopted, as well as any rule that has been introduced, but has not
yet been adopted. DAR will publish any valid written response requesting
additional time to consider an objection.

3) An agency may decide that it disagrees with the objection and refuse
to change the rule. A valid written and signed response must be sent to
ARRC and copied to DAR, including a brief explanation of the decision to
not change to rule at issue.

DAR will be required to include all valid letters of objection and writ-
ten agency responses to objections in the official compilation of codes,
rules and regulations of the State of New York (NYCRR).  Letters of
objection and responses to objections will be made available to member
of the public upon request. Letters of objection and responses to
objections will be included in all unofficial versions of the NYCRR,
including the online version linked to, on the Department of State
website.

Section 5: establishes the effective date.
 
EXISTING LAW:

None

 
JUSTIFICATION:

Occasionally state agencies promulgate rules that are burdensome and
harmful to regulated parties. Unfortunately, such regulations are very
difficult to successfully challenge because petitioners typically face
heavy burdens of proof to show that an agency's decision to promulgate
an onerous rule was arbitrary, capricious, inconsistent with statutory
authority, irrational or unreasonable.  Generally, agencies are afforded
a high degree of deference under judicial review. There is a legal
presumption that administrative rules are valid and agencies need only
show that their decisions to propose and adopt a rule were rational.
This piece of legislation provides ARRC with the power to formally
object to all or part of an administrative rule. If the opinion of a
majority of the members of ARRC, a rule is invalid or defective due to
stated reasons, ARRC may notify the appropriate agency with a letter of
objection. This bill does not compel agencies to change rules in order
to appease ARRC. However, this bill does seek to encourage agencies to
consider changing rules to accommodate the concerns raised by ARRC in
written letters of objection.

 
LEGISLATIVE HISTORY:

S.6500/A.8970 (2014); S.4034 (2015-16); passed senate 2015.

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2017-S5982A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5982--A
     Cal. No. 293
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 9, 2017
                                ___________
 
 Introduced  by  Sen.  JACOBS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations -- recommitted to the Committee on Investigations  and
   Government  Operations  in  accordance  with  Senate Rule 6, sec. 8 --
   reported favorably from said committee, ordered to  first  and  second
   report,  ordered  to  a  third reading, amended and ordered reprinted,
   retaining its place in the order of third reading
 
 AN ACT to amend the legislative law, the state administrative  procedure
   act  and the executive law, in relation to the filing of objections to
   agency rules by the administrative regulations review commission
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  87 of the legislative law is amended by adding a
 new subdivision 4 to read as follows:
   4. THE COMMISSION SHALL HAVE THE POWER TO OBJECT TO ALL, OR A  PORTION
 OF  ANY  ADMINISTRATIVE RULE OR REGULATION THAT HAS BEEN ADOPTED OR THAT
 HAS BEEN PROPOSED BY AN AGENCY PURSUANT TO THE RULE MAKING PROCEDURES OF
 SECTION TWO HUNDRED TWO  OF  THE  STATE  ADMINISTRATIVE  PROCEDURE  ACT.
 SHOULD  IN  THE  PERFORMANCE OF ITS DUTIES, A MAJORITY OF MEMBERS OF THE
 COMMISSION FIND THAT AN ADMINISTRATIVE RULE OR A PORTION OF AN  ADMINIS-
 TRATIVE   RULE   IS  (I)  ARBITRARY,  CAPRICIOUS,  AN  ABUSE  OF  AGENCY
 DISCRETION, OR IS OTHERWISE NOT IN  ACCORDANCE  WITH  LAW;  OR  (II)  IS
 CONTRARY TO CONSTITUTIONAL RIGHT, POWER, PRIVILEGE OR IMMUNITY; OR (III)
 IS INCONSISTENT WITH, OR IN EXCESS OF STATUTORY JURISDICTION, AUTHORITY,
 OR LIMITATIONS, OR IS SHORT OF STATUTORY RIGHT; OR (IV) HAS BEEN ADOPTED
 OR  HAS  BEEN  PROPOSED WITHOUT SUBSTANTIAL OBSERVANCE OF THE PROCEDURES
 REQUIRED BY LAW; THE COMMISSION MAY, IN WRITING, NOTIFY  THE  AGENCY  OF
 THEIR  OBJECTION  AND  REASON  OR REASONS FOR THEIR OBJECTION. A WRITTEN
 LETTER OF OBJECTION MUST BE MAILED OR DELIVERED TO THE AGENCY  RESPONSI-
 BLE FOR THE ADOPTION OR PROPOSAL OF THE OBJECTED TO RULE. A VALID LETTER
 OF  OBJECTION  MUST  BE SIGNED BY EACH MEMBER OF THE COMMISSION THAT HAS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD11519-03-8

 S. 5982--A                          2
 
 DECIDED TO OBJECT TO THE RULE IN ITS ENTIRETY, OR IN PART.  THE  COMMIS-
 SION MUST ALSO FILE A CERTIFIED COPY OF THE LETTER OF OBJECTION WITH THE
 DEPARTMENT OF STATE, DIVISION OF ADMINISTRATIVE RULES.
   § 2. Paragraph (a) of subdivision 9 of section 202 of the state admin-
 istrative  procedure  act  is  amended by adding three new subparagraphs
 (vi), (vii) and (viii) to read as follows:
   (VI) FOLLOWING RECEIPT OF A VALID LETTER OF OBJECTION THAT IS  WRITTEN
 AND  SIGNED  BY  A  MAJORITY  OF THE MEMBERS OF THE ADMINISTRATIVE REGU-
 LATIONS REVIEW COMMISSION, PUBLISH SUCH LETTER IN THE NEXT ISSUE OF  THE
 STATE REGISTER.
   (VII)  FOLLOWING  RECEIPT OF A VALID RESPONSE TO A LETTER OF OBJECTION
 WRITTEN AND SIGNED BY THE COMMISSIONER,  DIRECTOR  OR  COUNSEL  OF  THAT
 AGENCY,  PUBLISH  SUCH  WRITTEN  RESPONSE IN THE NEXT ISSUE OF THE STATE
 REGISTER.
   (VIII) REJECT ANY LETTER OF OBJECTION OR ANY  WRITTEN  RESPONSE  TO  A
 LETTER  OF  OBJECTION  THAT  IS DEFICIENT FOR LACKING AT LEAST A MINIMAL
 EXPLANATION OF AN OBJECTIONABLE ISSUE, OR  THE  REQUISITE  SIGNATURE  OR
 SIGNATURES,  AND  GIVE PROMPT NOTICE OF DEFICIENCY TO THE ADMINISTRATIVE
 REGULATIONS REVIEW COMMISSION OR AGENCY.
   § 3. Section 202 of the state administrative procedure act is  amended
 by adding a new subdivision 10 to read as follows:
   10. OBJECTION. (A) IF IN THE PERFORMANCE OF THEIR DUTIES, AS SPECIFIED
 IN  SUBDIVISION  ONE  OF  SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW, A
 MAJORITY OF THE MEMBERS OF THE ADMINISTRATIVE REGULATIONS REVIEW COMMIS-
 SION DECIDE TO OBJECT TO AN ADMINISTRATIVE  RULE  OR  A  PORTION  OF  AN
 ADMINISTRATIVE  RULE THAT HAS BEEN ADOPTED OR THAT HAS BEEN PROPOSED, AN
 OBJECTION MUST BE MADE IN ACCORDANCE WITH THE  PROCEDURES  SPECIFIED  IN
 SUBDIVISION FOUR OF SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW.
   (B) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO A RULE
 THAT  HAS BEEN PROPOSED, BUT HAS NOT BEEN ADOPTED MUST READ AND CONSIDER
 THE OBJECTION AND ISSUE A WRITTEN RESPONSE  PRIOR  TO  ADOPTION  OF  THE
 OBJECTED  TO RULE. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO LETTERS OF
 OBJECTION TO THE DEPARTMENT OF STATE, DIVISION OF  ADMINISTRATIVE  RULES
 FOR PUBLICATION IN THE STATE REGISTER. A WRITTEN RESPONSE TO A LETTER OF
 OBJECTION MUST STATE THAT THE AGENCY HAS EITHER (I) AGREED TO CHANGE THE
 RULE  IN  WHOLE,  OR  IN  PART IN ACCORDANCE WITH THE OBJECTION AND WILL
 PUBLISH THE REQUISITE NOTICE OF REVISED RULE MAKING, OR (II) NEEDS ADDI-
 TIONAL TIME TO CONSIDER THE OBJECTION  AND  POSSIBLE  CHANGES  AND  WILL
 PUBLISH  A  NOTICE  OF  WITHDRAWAL, OR (III) THAT THE AGENCY HAS DECIDED
 AGAINST MAKING ANY CHANGES TO THE PROPOSED RULE.  WRITTEN  RESPONSES  TO
 LETTERS  OF OBJECTION MUST STATE THAT THE OBJECTION WAS READ AND CONSID-
 ERED AND INCLUDE AT LEAST A BRIEF EXPLANATION OF THE AGENCY'S  RATIONALE
 FOR EITHER AGREEING WITH THE OBJECTION, OR REQUIRING ADDITIONAL TIME FOR
 CONSIDERATION,  OR  FOR DISAGREEING WITH THE OBJECTION. ANY AGENCY DECI-
 SION TO STOP, EXTEND, OR PROCEED WITH PROMULGATION OF ALL OR PART OF  AN
 OBJECTED  TO  RULE,  MUST  BE  DONE  IN  ACCORDANCE WITH THE RULE MAKING
 REQUIREMENTS OF THIS SECTION.
   (C) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO ALL OR
 PART OF A RULE  THAT  HAS  BEEN  ADOPTED  MUST  READ  AND  CONSIDER  THE
 OBJECTION AND ISSUE A WRITTEN RESPONSE WITHIN FORTY-FIVE DAYS OF RECEIV-
 ING  THE LETTER OF OBJECTION. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO
 LETTERS OF OBJECTION TO THE ADMINISTRATIVE REGULATIONS REVIEW COMMISSION
 AS WELL AS A CERTIFIED COPY OF ANY SUCH RESPONSE TO  THE  DEPARTMENT  OF
 STATE,  DIVISION  OF  ADMINISTRATIVE  RULES FOR PUBLICATION IN THE STATE
 REGISTER. A WRITTEN RESPONSE TO A LETTER OF OBJECTION  MUST  STATE  THAT
 THE  AGENCY EITHER (I) AGREES TO CHANGE THE RULE IN WHOLE, OR IN PART IN

 S. 5982--A                          3
 
 ACCORDANCE WITH THE OBJECTION AND WILL PUBLISH A NOTICE OF PROPOSED RULE
 MAKING NEEDED TO PROMULGATE A NEW CORRECTED RULE, OR  (II)  NEEDS  ADDI-
 TIONAL  TIME  TO  CONSIDER  THE OBJECTION AND POSSIBLE CHANGES, OR (III)
 THAT  THE  AGENCY  HAS  DECIDED  AGAINST MAKING ANY CHANGES TO THE RULE.
 WRITTEN RESPONSES TO LETTERS OF  OBJECTION  MUST  ACKNOWLEDGE  THAT  THE
 OBJECTION  WAS READ AND CONSIDERED AND INCLUDE AT LEAST A BRIEF EXPLANA-
 TION OF THE AGENCY'S DECISION TO AGREE WITH THE OBJECTION, OR TO REQUIRE
 ADDITIONAL TIME FOR CONSIDERATION OF THE OBJECTION, OR TO DISAGREE  WITH
 THE OBJECTION. SHOULD AN AGENCY DECIDE THAT ADDITIONAL TIME IS NEEDED TO
 CONSIDER  THE OBJECTION AS WELL AS POSSIBLE SOLUTIONS, AN AGENCY WILL BE
 PROVIDED UP TO AN  ADDITIONAL  FORTY-FIVE  DAYS  TO  PROVIDE  A  WRITTEN
 RESPONSE TO THE OBJECTION.
   (D)  AN AGENCY WILL NOT BE COMPELLED BY THE ADMINISTRATIVE REGULATIONS
 REVIEW COMMISSION TO CHANGE AN ADOPTED OR PROPOSED RULE IN RESPONSE TO A
 LETTER OF OBJECTION; HOWEVER REFUSAL TO DO SO, CAN BE USED  AS  EVIDENCE
 BY  A  PETITIONER  IN  ACTION  CHALLENGING  AN  ADMINISTRATIVE RULE OR A
 PORTION OF AN ADMINISTRATIVE RULE IN AN ADJUDICATORY HEARING PURSUANT TO
 ARTICLE THREE OF THIS CHAPTER, OR AN  ACTION  FOR  DECLARATORY  JUDGMENT
 PURSUANT TO SECTION TWO HUNDRED FIVE OF THIS ARTICLE, OR IN A PROCEEDING
 MADE  AGAINST  AN  AGENCY PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL
 PRACTICE LAW AND RULES.
   § 4. Section 102 of the executive law  is  amended  by  adding  a  new
 subdivision 6 to read as follows:
   6. ALL LETTERS OF OBJECTION THAT STATE AT LEAST A BRIEF EXPLANATION OF
 AN  OBJECTIONABLE  ISSUE PERTAINING TO AN ADOPTED OR A PROPOSED ADMINIS-
 TRATIVE RULE IN ITS ENTIRETY, OR IN PART, THAT ARE WRITTEN AND SIGNED BY
 A MAJORITY OF THE  MEMBERS  OF  THE  ADMINISTRATIVE  REGULATIONS  REVIEW
 COMMISSION;  AS  WELL  AS  ANY WRITTEN RESPONSE TO A LETTER OF OBJECTION
 THAT INCLUDES AT LEAST A BRIEF RESPONSE TO THE OBJECTION AND THE  SIGNA-
 TURE  OF THE COMMISSIONER, DIRECTOR OR COUNSEL OF A STATE AGENCY MUST BE
 INCLUDED IN THE OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS  OF
 THE  STATE  OF  NEW  YORK.  ALL  SUCH  LETTERS  OF OBJECTION AND WRITTEN
 RESPONSES TO OBJECTIONS SHALL BE MADE AVAILABLE TO MEMBERS OF THE PUBLIC
 AND SHALL BE INCLUDED WITHIN ANY PUBLISHED  UNOFFICIAL  COMPILATIONS  OF
 THE CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK, INCLUDING THE
 UNOFFICIAL VERSION THAT IS LINKED TO ON THE DEPARTMENT OF STATE WEBSITE.
 LETTERS OF OBJECTION AND WRITTEN AGENCY RESPONSES TO OBJECTIONS SHALL BE
 RECEIVED,  RECORDED  AND COMPILED CONSISTENT WITH ALL OTHER REQUIREMENTS
 OF THIS SECTION AND SECTIONS ONE HUNDRED ONE-A, ONE HUNDRED  ONE-B,  ONE
 HUNDRED  THREE,  ONE HUNDRED FOUR, ONE HUNDRED FIVE, ONE HUNDRED SIX AND
 ONE HUNDRED SIX-A OF THIS ARTICLE.
   § 5. This act shall take effect immediately.

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