Legal Memorandum RU02


RULE MAKING PROVISIONS
RELATING TO STUDIES, REPORTS, AND ANALYSES

On December 21, 1999, the Governor signed Chapter 647 of the Laws of 1999, which added a new Section 104 to the State Administrative Procedure Act. The law prescribed procedures intended to ensure public access to studies, reports, or analyses that served as the basis for rule making actions by state agencies.

However, the provisions of Chapter 647 were substantially revised when the Governor signed Chapter 229 of the Laws of 2000 on August 16, 2000.

In brief, Chapter 647 of the Laws of 1999 added a new Section 104 to the State Administrative Procedure Act (SAPA). The section was titled "Access to Studies and Data" and it imposed several new duties on state agencies. Those duties included publication in the New York State Register of an abstract or summary of each study, report, or analysis that served as the basis for a proposed rule making; the designation of a "data access officer;" and the issuance of guidelines regarding public access to those studies, reports, and analyses.

However, Chapter 229 of the Laws of 2000 repealed most of the provisions of Chapter 647. Now, Section 104 requires a state agency to make studies, reports, or analyses available to the public for inspection and copying if the studies, reports, or analyses served as the basis for a rule proposed by the state agency. In the event that any such underlying studies, reports or analyses are subject to copyright restrictions, the agency must provide for inspection only.  

In addition, Chapter 229 amended Article 2 (Rule Making) of SAPA to ensure that certain information related to such studies, reports or analyses is included in two separate rule making documents.

First, the section in Article 2 regarding the Notice of Proposed Rule Making was amended to require that an agency provide the name, address, and telephone number of an agency representative from whom the public may obtain a copy of any study, report, or analysis, which includes supporting data that served as the basis for the proposed rule. SAPA Section 202(1)(f).

Second, the "Needs and Benefits" portion of the Regulatory Impact Statement section in Article 2 of SAPA was amended to require inclusion of: a summary of each study, report, or analysis that served as the basis for the proposed rule; and an explanation of how the study, report, or analysis was used to determine the necessity for and benefits to be derived from the proposed rule. SAPA Section 202-a(3)(b).

Notices of Proposed Rule Making and Regulatory Impact Statements submitted for publication in the New York State Register since August 16, 2000, have been required to comply with the provisions of Chapter 229.