PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 134 to Title 19 of NYCRR.
Statutory authority:
Executive Law, sections 91 and 108
Subject:
Address Confidentiality Program.
Purpose:
To implement the Address Confidentiality Program pursuant to Executive Law, section 108.
Substance of final rule:
The new 19 NYCRR part 134 sets forth the practices and procedures of the Secretary of State relative to Executive Law section 108, Address Confidentiality Program (“ACP”). The regulations will implement the ACP statute by defining key terms and establishing rules for applications, cancellation appeals, certification and training of application assistants, handling of confidential information and waiver requests by state and local agencies, agency release of participant information, and acceptance of service of process by the Secretary of State.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 134.7(c) and 134.9(a).
Text of rule and any required statements and analyses may be obtained from:
Gary M. Trechel, Department of State, One Commerce Plaza, Albany, NY 12231, (518) 473-2278, email: Gary.Trechel@dos.ny.gov
Revised Regulatory Impact Statement
A Revised Regulatory Impact Statement is not required with this rulemaking notice because the two minor changes made to the proposed rule are non-substantive changes that merely clarify procedures previously proposed in the text of the proposed rulemaking for this rule. As such, these changes do not necessitate revision to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
A Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not required with this rulemaking notice because changes made to the proposed rule will neither impose any adverse economic impact on small businesses nor impose new reporting, record keeping or other compliance requirements on small businesses or local governments.
Revised Rural Area Flexibility Analysis
A Revised Rural Area Flexibility Analysis is not required with this rulemaking notice because changes made to the proposed rule will neither impose any adverse economic impact on rural areas nor impose new reporting, record keeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
A Revised Job Impact Statement is not required with this rulemaking notice; it is evident from the subject matter of the rule, including changes made to the proposed rule, that it will have no impact on jobs and employment opportunities.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Since publication of the Notice of Proposed Rule Making in the February 13, 2013 issue of the State Register, the Department of State received comments. The following is a summary of these comments and this Department’s responses.
1. COMMENT
One comment requested that the Proposed Rule be revised to define “public record” in order to exempt records that are otherwise confidential. The commenter noted that without an exemption state agencies will need to apply to the Department of State for waivers in order to collect and disclose the confidential address information of participants in the Address Confidentiality Program.
RESPONSE
The Department determined that Executive Law Section 108 includes a definition of “public record” and that legislative action would be required to revise the definition in order to exempt records which are otherwise confidential.
2. COMMENT
One comment requested that the Proposed Rule be revised to permit disclosure of a program participant’s actual address without a waiver when an agency needs to respond to audit or review requests from federal oversight agencies.
RESPONSE
The Department determined the requested change would be in conflict with Executive Law Section 108 which permits the Department to issue waivers to agencies and which provides restrictions on the disclosure of actual address by agencies granted waivers.
3. COMMENT
One comment indicates that the provisions 19 NYCRRR 134.7(c), which permit the Department to verify a program participant’s participation in the Address Confidentiality Program are at variance with 19 NYCRR 134.13(c). 19 NYCRRR 134.7(c) permits agency personnel to contact the Department to verify a participant’s participation in the Program. Program participant approval is not required for agency verification. 19 NYCRR 134.13(c) permits DOS to verify a participant’s participation in the Address Confidentiality Program to anyone upon written request of the participant.
RESPONSE
The Department revised 19 NYCRRR 134.7(c) to clarify that the Department may provide verification to agencies of a program participant’s participation in the Address Confidentiality Program without the written request of the participant.
4. COMMENT
One comment noted that the provisions of 19 NYCRR 134.7(e), which provide that agencies will not question participants about their inclusion in the Address Confidentiality Program and will accept the Department’s determination that a participant qualifies program participant, would not limit an agency’s authority to conduct investigations to determine eligibility for services.
RESPONSE
The Department determined that the provisions of 19 NYCRR 134.7(e) would not limit an agency’ authority to conduct investigations to determine eligibility for services and that the provision did not need to be revised.
5. COMMENT
One comment suggested that the provisions of 19 NYCRR 134.8 should be revised to authorize waiver applications across multiple agency programs. The comment indicated that separate waiver applications for different agency programs would be “unduly burdensome.”
RESPONSE
The Department determined that requiring separate waiver applications for different agency programs will enhance agency confidentiality procedures.
6. COMMENT
One comment requested that the provisions of 19 NYCRR 134.8 be revised to permit waiver applications on behalf of “State-supervised entities.”
RESPONSE
The Department determined that Executive Law Section 108 permits the Department to grant waivers for state and local agencies only. Any agency requesting a waiver must be required to submit its own waiver application to the Department to ensure the confidentiality of address records.
7. COMMENT
One comment indicated that the provisions of 19 NYCRR 134.8(a)(1)(vii), which require waiver applications to include the names of individuals who will have access to the actual address, should be revised to require only the “offices, units or job titles in the requesting agency that would have access to the record.”
RESPONSE
The Department determined that the provisions of 19 NYCRR 134.8(a)(1)(vii), which require agency waiver applications to identify the individuals that will have access to actual address information, will enhance confidentiality procedures and should not be revised as requested.
8. COMMENT
One comment requested that the provisions of 19NYCRR 134.8(a)(3) be revised to permit designees of the agency heads to sign a certification regarding the confidentiality of address information.
COMMENT
The Department determined that Public Officers Law Section 9 currently authorizes heads of agencies to appoint a designee to sign certifications required by 19NYCRR 134.8(a)(3) and, thus, no revision is necessary.
9. COMMENT
One Comment requested that the provisions of 19NYCRR 134.8(b) be revised to add a “Grant with Modification” option to the waiver review process.
RESPONSE
The Department determined that the provisions of 19NYCRR 134.8(b) provides agencies with a procedure to request reconsideration of the waiver application and to provide additional information if the waiver application is denied. The Department determined that this requested revision to the provisions of 19NYCRR 134.8(b) was not necessary.
10. COMMENT
One comment indicated that the provisions of 19 NYCRR 134.8(c)(3), which permit waivers granted by the Department to specify the “record format in which address information may be maintained,” may be problematic and may be considered an unfunded mandate.
RESPONSE
The Department determined that the provisions of 19 NYCRR 134,.8(c)(3) are necessary to permit the Department to require that actual address information be maintained in a confidential manner. The Department determined that this provision would not result in additional costs for agencies.
11. COMMENT
One comment requested that the provisions of 19 NYCRR 134.8(4) be revised to provide an expedited waiver renewal process for agencies that have been granted waivers.
RESPONSE
The Department determined that an expedited waiver renewal procedure for agencies previously granted waivers is not necessary. Agencies will need to review and update, if necessary, their original waiver application.
12. COMMENT
One comment regarding the provisions of 19 NYCRR 134.9 (c)-(d) which requires notices of cancellation to be sent to the program participant’s last known address may not be received by the participant if the participant has moved.
RESPONSE
The Department notes that Executive Law Section 108 requires the Department to “send” notice of cancellation to the program participant. The Department determined sending the notice of cancellation to the last known address would be the best method of sending the notice. If the participant moves and wants to remain in the Address Confidentiality Program, the participant is required to provide the program with a new address.