§ 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, the notice of proposed rule making must appear in the state
register at least sixty 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
sixty 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, the
full text of the proposed rule shall be posted on a website maintained
by the agency or another state entity and shall remain posted until such
proposed rule is adopted, revised, withdrawn or expires pursuant to this
article, except that such web posting shall not be required for any 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, 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.

(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 the
provisions 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 on
which the full text has been posted;

(vi) include a regulatory impact statement prepared pursuant to
section two hundred two-a of this article, 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 and the full
text of such statement shall be posted on a website maintained by the
agency or another state entity until such statement is revised or the
proposed rule is adopted or withdrawn or expires pursuant to this
article;

(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 article, 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 and the full text of such
analysis shall be posted on a website maintained by the agency or
another state entity until such analysis is revised or the proposed rule
is adopted or withdrawn or expires pursuant to this article;

(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
forty-five 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 forty-five 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 revised
rule 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 and shall identify the website of the
agency, or of another state entity, on which the complete revised text
has been posted;

(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 paragraph (b) of subdivision six of section two
hundred two-a of this article, 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 and shall identify the
website of the agency, or of another state entity, on which the complete
revised text has been posted;

(vi) include a revised regulatory flexibility analysis and a rural
area flexibility analysis, when required by the provisions of paragraph
(b) of subdivision seven of section two hundred two-b and paragraph (b)
of subdivision eight of section two hundred two-bb of this article,
provided, however, if such analysis exceeds two thousand words, the
notice shall include only a summary of such analysis in less than two
thousand words and shall identify the website of the agency, or of
another state entity, on which the full text of the revised analysis has
been posted;

(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.

(d) An agency may not submit a notice of revised rule making for a
rule which has been proposed as a consensus rule.

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 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 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 paragraph (b) of subdivision six of section two
hundred two-a of this article, 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 paragraph
(b) of subdivision seven of section two hundred two-b and paragraph (b)
of subdivision eight of section two hundred two-bb of this article,
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 agency
may 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 and shall identify the address of
the website, if any, on which the full text has been posted;

(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 effective
date 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.

(f) When the notice of emergency adoption contains only a description
of the subject, purpose and substance of the rule as provided in
subparagraph (vii) of paragraph (d) of this subdivision, the full text
of the rule shall be posted on a website maintained by the agency or
another state entity as soon as practicable, but not later than the date
the notice of emergency adoption is published in the state register.

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
by electronic means in accordance with article three of the state
technology law.

(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, 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.
Electronic 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
electronic 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 electronically, an agency may identify the document and provide
a link to the section of its website containing the full text of such
document.

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 the
complete 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;

(d) When a notice published pursuant to this section refers to any
rule, text or other information that has been posted on a website
maintained by a state entity in lieu of publication:

(i) the text or information shall be posted not later than the date
the notice is published in the state register, and to the extent
practicable shall be maintained on such website during the entire period
for which such notice is effective; and

(ii) the notice shall provide sufficient information to enable the
public to access such information without extensive searching, and shall
conform to any guidance prescribed by the secretary of state pursuant to
subdivision nine of this section.

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;

(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; and

(v) prescribed guidance, developed in consultation with the office of
information technology services, for online posting of text and
information pursuant to this section.

(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.

(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.