Legal Memorandum RU03

INCORPORATION BY REFERENCE

Article IV, Section 8, of the State Constitution and Section 102 of the Executive Law provide that no state agency code, rule, or regulation shall become effective until it is filed with the Secretary of State. Failure to file is fatal to the effectiveness of the regulation. (case citations omitted) Another pitfall that can result in the invalidation of a regulation is the failure to also file with the Secretary material that the regulation incorporates by reference. (New York State Coalition of Public Employers v. New York State Department of Labor, 60 N.Y.2d 789, 469 N.Y.S.2d 679)

Section 102 of the Executive Law further provides the following:

c. Any code, rule or regulation which includes in the text thereof any United States statute, or code, rule or regulation previously published in the code of federal regulations or in the federal register, or any previously published data, criteria, standards, specifications, techniques, illustrations or other information reasonably available to regulated parties, shall have set forth in its text a precise identification of such material, including but not limited to: applicable titles, dates, editions, page numbers, section numbers, and authors, the names and addresses of the publisher from whom a copy may be obtained, and the designated office or offices of the adopting agency at which such material is available for public inspection and copying.

d. No amendment to any material identified pursuant to paragraph c of this subdivision shall be effective unless adopted in compliance with the applicable provisions of law and filed with the secretary of state pursuant to this section.

The rationale behind these provisions is twofold: (1) providing regulated parties with complete information concerning agency regulations and (2) the compilation of the exact content of regulations in a definitive place. With these factors in mind, three points of agency rule making practice should be considered.

First, in order to assure public access to the full rule making proposal, the agency must have available copies of all incorporated documents for public review. In order to make these documents available without violating copyrights, the agency must have either sufficient copies, which it has purchased from the publisher, or a copyright release from the publisher authorizing its reproduction. Filing of incorporated material with the Secretary of State upon rule adoption must be accompanied by an Incorporation by Reference Certification.

Second, on occasion, material that is incorporated by reference itself incorporates documents by reference. Although the issue is not addressed by statute or published judicial opinion, availability and filing of all such documents are prudent to avoiding the potential for challenge to the rule's effectiveness.

Last, the Secretary of State's regulations governing filing of material were amended in 1998 to make compliance with incorporation by reference requirements easier. Photocopies or similar reproductions on paper of referenced material (including material downloaded from the Internet) will be accepted by the Secretary of State for filing, provided they are accompanied by an Incorporation by Reference Certification certifying that the material is a true copy and reproduction will not violate any copyright.