A Preliminary Assessment of the Rule Making Process in New York State

Frank J. Mauro
Executive Director
Fiscal Policy Institute

The Role of the Department of State in Receiving and Compiling Agency Rules

While Article IV, Section 8 of the Constitution took effect on January 1, 1939, the Legislature and the Governor took five more years to agree on "appropriate laws" to "provide for the speedy publication of such rules and regulations." Governor Lehman in 1939 and Governor Dewey in 1943 vetoed attempts by the Legislature to deliver on this assignment. Finally in 1944, a statute was enacted assigning this responsibility to the Secretary of State. The provisions of that statute remain virtually unchanged to this date and constitute the current sections 102 through 106 of the executive Law.

Section 102 begins by restating the relevant language of the Constitution with only minor changes: "No code, rule or regulation shall become effective until it is filed with the secretary of state, unless a later date is required by statute or is specified by such code, rule or regulation." It then goes on to affirmatively require that every state agency that is "authorized by statute to adopt codes, rules or regulations shall transmit to the secretary of state a certified copy of every such code, rule and regulation" and to prescribe the supporting materials that agencies must submit to the Secretary of State along with the rules that they are proposing for promulgation. This section also authorizes the Secretary of State to establish the form and style that agencies must follow in submitting rules, charges the Secretary of State with preparing a master compilation of all the codes, rules and regulations submitted, prescribes the steps that the Secretary of State and the individual agencies must take to make the submitted rules readily available to the public, and, perhaps most importantly from the public's perspective, requires the Secretary of State to cause the master compilation of rules to be published.

Section 102 also gives this master compilation its name, the "Official Compilation of Codes, Rules and Regulations of the State of New York" and provides that it "shall presumptively establish the codes, rules and regulations of the state of New York." This last phrase is particularly important in a country that abides by the "rule of law" in that it is designed to ensure that affected parties and their attorneys can easily "find the law" on a given topic and not be subject at a later time to requirements that were not readily available to them. Sections 103 through 106 deal with a variety of administrative details regarding the publication of the compilation and its status.

The "Official Compilation of Codes, Rules and Regulations of the State of New York" is cited in court decisions and other legal materials as the NYCRR (for New York Compilation of Codes, Rules and Regulations). The compilation is commonly referred to by these letters in discussions of issues related to state rules and regulations.

The compilation is organized by the Secretary of State into 22 "Titles" - one for each of the state government’s 20 official "departments," one for miscellaneous agencies and one for the Judiciary. Seven of the 22 titles consist of only one volume each. The other 15 titles consist of between two and 13 volumes each. There are 85 volumes in all, including a 2-volume Master Index. Under a contractual arrangement with the Department of State, the official publisher of the compilation is currently Lawyers Cooperative Publishing (LCP) which is a member of the West (legal publishing) Group which, in turn, is a division of The Thomson Corporation. LCP charges $34.70 per volume or $2,332.70 for the entire 87 volume set. The individual volumes are each published in a loose-leaf format and updates (new and revised pages) are provided semimonthly. According to one librarian who uses these materials on a regular basis, there is a lag of about 2 to 3 months between the final adoption of a rule and the receipt of the new pages reflecting the adoption of that rule. This is a significant improvement over the situation in the 1980s when the lag between adoption and the distribution of revised pages was frequently more than a year.

Because of the lag that existed in the 1980s, the Legislative Bill Drafting Commission (LBDC) developed its own data base of all state agencies' rules and regulations and began regularly updating that data base to reflect the adoption of new rules. LBDC makes access to this data base available to subscribers to its electronic Legislative Retrieval Service (LRS). Access to a complete codification of agency rules and regulations is also available through two commercial data base services, WestLaw (which is part of the same West Group as the Lawyers Cooperative Publishing) and Lexis/Nexis. WestLaw initially purchased an electronic version of the state's rules and regulations from LRS but updates that data base itself to reflect the adoption of new rules. Lexis/Nexis not only purchased an electronic version of the state's rules from LRS to begin offering access to New York state's rules and regulations as part of its data base service but it also purchases regular updates of this data base from LRS so that it does not have to do the updating itself. Only some state agencies make their rules available on their websites. The result is that the full compilation of New York State government agencies' rules and regulations are not available to the public electronically without charge. This is in clear contrast to the practice at the federal level where the National Archives and Records Administration makes the full Code of Federal Regulations (CFR), the official compilation of all federal agency rules in force, available via the Internet without charge.