Rule Making News--October 2011

Effective October 1, 2011 – L. 2011, ch. 524 was signed into law and applies to any new rule that would establish or modify a violation or a penalty associated with a violation.  In amending SAPA § 202-b, the law is intended to ensure that each agency, when considering the promulgation of such a regulation, gives ample consideration to including a provision in the rule’s text affording small businesses or local governments a period of time or other opportunity, prior to the rule’s enforcement, to come into compliance with the rule before it is enforced. More specifically, the law now requires an agency, when developing a rule for which a Regulatory Flexibility Analysis for Small Businesses and Local Governments (RFA) is required and which involves the establishment or modification of a penalty associated with a violation, to either: include a period of time or other opportunity in the Rule Text for regulated parties to cure matters that will become subject to the penalty; or include in the RFA filed with such proposed rule or emergency rule, an explanation as to why no such cure period was included in the rule. The RFA format has been amended to reflect this change and can be viewed here.

Incorporation by Reference --  L. 2011, ch. 571 signed into law September 23, 2011 (effective immediately) amends Executive Law, §102(4)(c) pertaining to an agency’s options and responsibilities to transmit materials to certain libraries when the agency is adopting a rule that “incorporates materials by reference.”   The act amends Executive Law §102(4)(c)  as follows:

1)  When adopting rules, agencies no longer need to send materials incorporated by reference to the libraries indicated in Executive Law §102(4)(c) when  a) such  materials are “readily available without charge on the internet” and  b) “the [internet] address at which such materials can be accessed” is identified. (This new exception supplements the preexisting exception regarding a U.S. statute, code, rule or regulation.)

2) The total number of libraries that must receive materials incorporated by reference has been reduced from 13 to 4.  Such materials now need only be sent by the adopting agency to the legislative library and a court law library within each of the four judicial departments, instead of the previous requirement to send materials incorporated by reference to the legislative library and a library within each of the thirteen judicial districts.

**It should be noted that while Executive Law §102(4)(c), as amended, reduces an agency’s cost to incorporate materials by reference, the law still requires such materials to be: precisely identified in the NYCRR; filed with the Department of State; and available for public use and inspection at a designated office or offices of the agency adopting the regulation.