S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2842
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 29, 2019
                                ___________
 
 Introduced  by  Sen.  KAPLAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Commerce, Economic  Devel-
   opment and Small Business
 
 AN  ACT  to  amend the state administrative procedure act, the executive
   law and the legislative law, in relation to the transmittal of certain
   records by electronic means

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Paragraph (c) of subdivision 1 of section 202 of the state
 administrative procedure act, as added by chapter  17  of  the  laws  of
 1984, is amended to read as follows:
   (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, AND MAY BE POSTED
 ON THE AGENCY'S INTERNET WEBSITE, AND MAY BE TRANSMITTED  TO  NEWSPAPERS
 AND  TRADE, INDUSTRY OR PROFESSIONAL PUBLICATIONS BY ELECTRONIC MEANS IN
 ACCORDANCE WITH ARTICLE THREE OF THE STATE TECHNOLOGY LAW.
   § 2. Subdivision 6-a of section 202 of the state administrative proce-
 dure act, as added by chapter 850 of the laws of 1990,  paragraphs  (a),
 (b) and (c) as amended by chapter 295 of the laws of 2017, is amended to
 read as follows:
   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  and  the  administrative  regulations  review
 commission  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. FURTHERMORE, SUCH TRANSMITTAL MAY BE COMPLETED
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08953-01-9

 S. 2842                             2
 
 BY ELECTRONIC MEANS IN ACCORDANCE WITH ARTICLE THREE OF THE STATE  TECH-
 NOLOGY LAW.
   (b)  An agency shall make a copy of the complete text of any proposed,
 adopted or emergency rule, regulatory impact statement, regulatory flex-
 ibility analysis, rural area flexibility analysis, or revisions  thereof
 available,  IN  WRITTEN  OR  ELECTRONIC FORMS, 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 or electronic request.
   (c) An agency shall notify every person who has submitted a written or
 electronic request to be notified of all  proposed,  revised,  emergency
 and/or  adopted rules which may affect such person. The agency may allow
 requests for only the rules of particular divisions or  programs  within
 the  agency  that are of interest to such person. Written 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.  Elec-
 tronic requests shall not expire, but shall continue  until  the  person
 submits  a  request  to  discontinue  such  notification. Notices issued
 pursuant to such requests shall be sent to the last address OR ELECTRON-
 IC MAIL 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;  provided, however, that no fee shall be charged
 for electronic notices. As an alternative to sending  a  document  elec-
 tronically,  an  agency  may identify the document and provide a link to
 the section of its website containing the full text of such document.
   § 3. The opening paragraph of subdivision 3 of section 202-bb  of  the
 state  administrative procedure act, as added by chapter 171 of the laws
 of 1994, is amended to read as follows:
   In proposing a rule for adoption or in adopting a rule on an emergency
 basis, the agency shall issue a rural area flexibility analysis  regard-
 ing  the  rule  being  proposed for adoption or the emergency rule being
 adopted. A copy of such analysis and any finding, and reasons  for  such
 finding,  pursuant  to  this section, shall be submitted IN WRITING, AND
 MAY BE TRANSMITTED ELECTRONICALLY IN ACCORDANCE WITH  ARTICLE  THREE  OF
 THE  STATE  TECHNOLOGY  LAW, to the governor, the temporary president of
 the senate, the speaker of the assembly, the office for  regulatory  and
 management  assistance and the administrative regulations review commis-
 sion at the time such analysis is submitted OR ELECTRONICALLY  TRANSMIT-
 TED to the secretary of state for publication and, upon written OR ELEC-
 TRONIC  request,  a  copy shall be sent OR ELECTRONICALLY TRANSMITTED to
 any other person. Each rural area flexibility analysis shall contain:
   § 4. Paragraph (a) of subdivision 1 of  section  202-d  of  the  state
 administrative  procedure  act, as amended by chapter 418 of the laws of
 2016, is amended to read as follows:
   (a) The departments of health, education, environmental  conservation,
 financial  services,  labor, agriculture and markets, motor vehicles and
 state, the offices of children and family  services  and  temporary  and
 disability  assistance,  the  division of housing and community renewal,
 the state gaming commission, the office of mental health, the office for
 people with developmental disabilities  and  the  workers'  compensation
 board,  and  any other department or agency specified by the governor or
 his or her designee shall, and any other agency may, in its  discretion,
 submit  IN WRITING OR ELECTRONICALLY IN ACCORDANCE WITH ARTICLE THREE OF
 THE STATE TECHNOLOGY LAW to the secretary of state, for  publication  in
 any  regular  issue  of the state register published during the month of
 January, a regulatory agenda to solicit  comments  concerning  any  rule

 S. 2842                             3
 
 which  the  agency is considering to propose, but for which no notice of
 proposed rule making has been submitted pursuant to subdivision  one  of
 section two hundred two of this article.
   §  5.  The  opening paragraph of subdivision 1 of section 202-d of the
 state administrative procedure act, as added by chapter 698 of the  laws
 of 1984, is amended to read as follows:
   An  agency may, in its discretion, submit IN WRITING OR ELECTRONICALLY
 IN ACCORDANCE WITH ARTICLE THREE OF THE  STATE  TECHNOLOGY  LAW  to  the
 secretary  of  state,  for publication in the first regular issue of the
 state register published during the months of January, May  and  Septem-
 ber,  a regulatory agenda to afford the agency an opportunity to solicit
 comments concerning any rule which the agency is considering  proposing,
 but  for  which  no  notice  of  proposed rule making has been submitted
 pursuant to subdivision one of section two hundred two of this [chapter]
 ARTICLE. A regulatory agenda shall be comprised  of  summaries  of  such
 rules.  Each summary shall, in less than two thousand words, contain, in
 so far as practicable:
   § 6. Subdivisions 2 and 3 of  section  101-a  of  the  executive  law,
 subdivision 2 as amended by chapter 455 of the laws of 2017 and subdivi-
 sion  3  as  amended  by chapter 483 of the laws of 1988, are amended to
 read as follows:
   2. Except as provided in subdivision three of this section,  at  least
 sixty  days  prior  to  either the adoption of any rule, or, if a public
 hearing is required by statute, at least sixty days prior to  the  first
 public  hearing  on  a  proposed rule, the agency proposing to take such
 action shall send IN WRITING OR MAY TRANSMIT ELECTRONICALLY  IN  ACCORD-
 ANCE  WITH  ARTICLE THREE OF THE STATE TECHNOLOGY LAW, a notification of
 such proposed action to the temporary president of the  senate  and  the
 speaker of the assembly. This notification shall: (a) refer to the stat-
 utory  authority  under  which the action is proposed, (b) give the time
 and place of any public hearing that may  be  scheduled  concerning  the
 proposed  action,  or state the manner in which data, views or arguments
 may be submitted to the  agency  concerning  the  proposed  action,  (c)
 contain  a  copy  of  the  complete  text  of the proposed rule, and (d)
 contain a fiscal statement setting forth the fiscal consequences of  the
 proposed action on the state and its local governments.
   3.  If  the  agency finds that it is necessary for the preservation of
 the public health, safety  or  general  welfare  to  dispense  with  the
 requirements of subdivision two OF THIS SECTION, the agency may dispense
 with  such  requirements  and  adopt  the rule, as an emergency measure.
 Within five days of the filing of such emergency measure in  the  office
 of  the department of state, the agency taking such action shall send OR
 TRANSMIT, AS THE CASE MAY BE, the temporary president of the senate  and
 the  speaker  of  the assembly a notification containing the information
 required by subdivision two of this  section;  provided,  however,  such
 notification shall also: (a) include a brief statement setting forth the
 reasons  why  the agency finds that it is necessary for the preservation
 of the public health, safety or general welfare  to  dispense  with  the
 requirements of subdivision two of this section and adopt the rule as an
 emergency  measure,  and (b) provide the date the emergency measure will
 terminate if the agency does not intend  to  adopt  such  measure  as  a
 permanent  rule, or indicate that the agency intends to adopt such meas-
 ure as a permanent rule, in which case compliance with the  notification
 requirements  of  this section shall be deemed satisfied. The effective-
 ness of any such emergency measure, unless adopted as a  permanent  rule
 in  the manner prescribed by law, shall not exceed ninety days after the

 S. 2842                             4

 filing of such measure  in  the  office  of  the  department  of  state,
 provided,  however,  if such emergency measure 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.
   § 7. Section 146 of the executive law, as amended by chapter 17 of the
 laws  of  1984, paragraph (d) of subdivision 1 as amended by chapter 189
 of the laws of 1996, subdivision 4-a as amended by  chapter  41  of  the
 laws of 1994, is amended to read as follows:
   § 146. Publication  of  certain  public  notices. 1. The department of
 state shall publish, pursuant to the schedule  in  section  one  hundred
 forty-seven of this article, AND POST ON ITS INTERNET WEBSITE a publica-
 tion  to be known as the state register, in which shall be published AND
 POSTED from time to time as received by such department:
   (a) rules, orders, designations, and notices submitted  by  the  chief
 administrator of the courts;
   (b)  notices  and  advertisements required by state statute or federal
 law, rule or regulation to be published by an agency in a newspaper;
   (c) notices required by statute  to  be  published  in  newspapers  in
 actions against foreign corporations;
   (d)  notices  and job impact statements required by the state adminis-
 trative procedure act to be published in the state register; and
   (e) any other matter required by statute to be published in the  state
 register.
   2.  The  secretary of state may, at his OR HER discretion, publish AND
 POST in the state register any notice or information which is not other-
 wise required by statute to be submitted to him OR HER by an  agency  or
 public  corporation  for publication in the state register, in instances
 where such publication AND POSTING will serve the public interest.
   3. With regard to rule making notices required  to  be  published  AND
 POSTED in the state register pursuant to article two of the state admin-
 istrative  procedure  act,  the  secretary  of  state may, at his OR HER
 discretion, publish AND POST the complete text of a proposed or  adopted
 rule,  which is not otherwise required to be published AND POSTED in the
 state register, in instances where such  publication  AND  POSTING  will
 serve  the  public  interest. THE SECRETARY OF STATE SHALL ACCEPT FROM A
 STATE AGENCY ALL RULEMAKING NOTICES, STATEMENTS AND ANALYSES AS REQUIRED
 BY THE STATE ADMINISTRATIVE PROCEDURE ACT, DATA, RULES, AND  REGULATIONS
 AS PROVIDED FOR BY ARTICLE THREE OF THE STATE TECHNOLOGY LAW.
   4. With regard to a notice of adoption published in the state register
 pursuant  to  article two of the state administrative procedure act, for
 which the corresponding notice of proposed  rule  making  published  AND
 POSTED in the state register included the complete text of the rule, the
 secretary  of  state  may,  at  his  OR HER discretion, include only the
 changes in such text in the notice of adoption.
   4-a. Notice of the availability of any state or federal funding  which
 is to be distributed by any agency upon application by any municipality,
 school  board, school district, not-for-profit organization or any other
 individual or organization entitled to apply for such  funding  pursuant
 to  any law, rule or regulation governing the distribution of such funds
 shall be published AND POSTED in the state register. Such  notice  shall
 appear  in  the register no later than forty-five days prior to the last
 day for receipt of applications for such funding.  Such notice shall not
 be required: (i) whenever a notice has been published in the procurement
 opportunities newsletter pursuant to  article  four-C  of  the  economic
 development  law;  (ii) for state or federal transportation funding; and
 (iii) in those instances where an entity has  been  specifically  desig-

 S. 2842                             5
 
 nated  by  law  or legislative resolution to receive funding. Failure to
 publish the notice in a timely manner shall not be a basis  for  setting
 aside an award or challenging a contract or other legal claim.
   5.  The  publication  AND POSTING of notices and advertisements in the
 state register shall be additional to their publication  in  newspapers,
 whenever publication in newspapers is required by statute.
   6.  The  secretary of state shall promulgate rules establishing proce-
 dure, forms, font and style for submission of material  by  any  person,
 agency  or  public  corporation for publication AND POSTING in the state
 register.
   § 8. Subdivision 3 of section 148 of the executive law, as amended  by
 chapter 636 of the laws of 1981, is amended to read as follows:
   3.  Subscriptions to the state register shall be made available to the
 public by either first or second class mail, OR IN  ELECTRONIC  FORM  at
 the  election of the subscriber. A reasonable rate for a subscription to
 PRINTED COPIES OF the regular issue  and  quarterly  index  required  by
 subdivision three of section one hundred forty-seven of this article, to
 be  not  more than eighty dollars per year for first class mail delivery
 and not more than forty dollars per year for second class mail delivery,
 shall be set by the secretary of  state.  The  secretary  of  state  may
 charge  no  more  than  one  dollar and fifty cents per single copy of a
 PRINTED regular issue or quarterly index of the  state  register.  Rates
 shall not be set at such a level that the anticipated total subscription
 revenues  exceed  the total cost of producing, printing and distributing
 the state register.
   § 9. Subdivision 1 of section 149 of the executive law, as amended  by
 chapter  17  of  the laws of 1984, is amended and a new subdivision 4 is
 added to read as follows:
   1. The PRINTED VERSION OF THE state register shall  be  an  eight  and
 one-half  by  eleven  inch  booklet with three holes punched in the left
 hand margin to make such register suitable for storage in an  eight  and
 one-half by eleven inch loose-leaf binder.
   4.  TO  THE  EXTENT  PRACTICABLE,  EVERY VERSION OF THE STATE REGISTER
 TRANSMITTED BY ELECTRONIC MEANS  SHALL  SUBSTANTIALLY  COMPLY  WITH  THE
 PROVISIONS OF THIS SECTION.
   §  10.  Section  87  of the legislative law is amended by adding a new
 subdivision 4 to read as follows:
   4. THE COMMISSION SHALL BE AUTHORIZED TO REQUEST AND RECEIVE,  FROM  A
 STATE  AGENCY,  ALL  RULEMAKING  NOTICES,  STATEMENTS  AND  ANALYSES  AS
 PROVIDED FOR PURSUANT TO THE STATE ADMINISTRATIVE PROCEDURE  ACT,  DATA,
 RULES, REGULATIONS AND OTHER INFORMATION BY ELECTRONIC MEANS AS PROVIDED
 FOR BY ARTICLE THREE OF THE STATE TECHNOLOGY LAW.
   §  11.  This  act  shall  take effect on the one hundred twentieth day
 after it shall have become a law, provided that the amendments to  para-
 graph  (a) of subdivision 1 of section 202-d of the state administrative
 procedure act, made by section four of this act, shall be subject to the
 expiration and reversion of such subdivision pursuant to  section  2  of
 chapter  402  of  the  laws of 1994, as amended, when upon such date the
 provisions of section five of this act shall take effect; and  provided,
 further,  that  effective  immediately,  the  addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on  its effective date are authorized and directed to be made
 and completed on or before such effective date.