INCORPORATION BY REFERENCE
The State Constitution provides that “[n]o rule or regulation made by any state department, board, bureau, officer, authority or commission… shall be effective until it is filed in the office of the department of state.” New York State Constitution, Article IV, § 8; Jones v. Smith, 64 N.Y.2d 1003, 489 N.Y.S.2d 50.
As an alternative to inserting lengthy passages from, or the entire text of, publications into the body of a “rule or regulation” (these terms are used interchangeably), a state agency may incorporate material into a rule by referencing specifically identified material in the body of the rule. Since material incorporated by reference is considered a part of the regulation, the failure to either file such material with this Department when filing a Notice of (Rule) Adoption or to otherwise properly incorporate referenced material may result in the invalidation of the regulation. 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; People v. Harris, 123 Misc.2d 989, 476 N.YS.2d 235.
Executive Law § 102, in pertinent part, provides:
“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.” § 102(1)(c);
“[n]o amendment to any material [incorporated by reference] shall be effective unless adopted in compliance with the applicable provisions of law and filed with the secretary of state pursuant to this section.” § 102(1)(d); and
“at the same time material [incorporated by reference] is filed with the secretary of state, an agency shall transmit a copy of all such material except material that is: (i) a United States statute or a code, rule or regulation published in the Code of Federal Regulations or in the Federal Register; or (ii) readily available without charge on the internet to the legislative library and, within each judicial department of the state, one court law library designated by the chief administrator of the courts; provided that for materials readily available on the internet, the agency shall identify the address at which such materials can be accessed.” § 102(4)(c).
While the above provisions of the Executive Law are self-explanatory, generally they are intended to require that material incorporated by reference is: definitively identified in the rule text, filed with rule adoptions that incorporate any such material, and reasonably available to regulated parties and the public. To help guarantee the availability of referenced material and an agency’s ability to comply with applicable provisions of law, it is advisable that an agency – early in the rulemaking process – insure that it will be able to produce sufficient copies of the referenced material or obtain a copyright release from the publisher authorizing the agency to reproduce the material as may be necessary.
Material incorporated by reference should also conform with 19 NYCRR § 261.6, which, in part, requires the adopting agency to file two hardcopies of all such material, along with an original and one copy of an “Incorporation by Reference Certification” (for each publication) signed by the General Counsel of the rule making agency. 19 NYCRR §§ 261.6(c), (d). Photocopies of referenced material, including material downloaded from the internet, is acceptable provided: the accompanying Certification indicates that material submitted to this Department is a true copy and that reproduction by the agency will not violate any copyright restrictions. Id.
Lastly, it is noted that material being incorporated by reference may itself incorporate material by reference. In such circumstances, a question may arise regarding the potential necessity of an agency to also specifically incorporate material that is referenced within material that is being incorporated by reference. This issue is not addressed in statute or published judicial opinion. Generally, however, it has been held that incorporating material by reference is necessary when the material would apprise an individual with the required notice to fully understand and comply with the rule. See People v. Attco Metals Industries, Inc., 122 Misc.2d 689, 471 N.Y.S.2d 498.
The Secretary of State is authorized to provide assistance to local governments and general information to the public pursuant to New York State Executive Law, Article 6-B. The information in this Memorandum is provided pursuant to that authorization, but is informal only and should not be construed as providing legal advice. Local governments and other persons or entities should consult with their own legal counsel for legal advice.
Updated: March 2021