SBE-32-15-00024-P Administration of Oaths, Examination of Witnesses and Issuance of Subpoenas for the Purpose of Conducting Investigations

8/12/15 N.Y. St. Reg. SBE-32-15-00024-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 32

August 12, 2015

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. SBE-32-15-00024-P

Administration of Oaths, Examination of Witnesses and Issuance of Subpoenas for the Purpose of Conducting Investigations

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of section 6203.1; and addition of new section 6203.1 to Title 9 NYCRR.

Statutory authority:

Election Law, sections 3-104(8), 3-102(1) and (17)

Subject:

Administration of oaths, examination of witnesses and issuance of subpoenas for the purpose of conducting investigations.

Purpose:

To update Part 6203 of 9 NYCRR as a result of Laws of 2014, chapter 55, part H, subpart B.

Text of proposed rule:

Section 6203.1 of the Subtitle V of Title 9 of the NYCRR is repealed. A new Section 6203.1 of the Subtitle V of Title 9 of the NYCRR shall read as follows:

6203.1 Administration of oaths, examination of witnesses and issuance of subpoenas for the purpose of conducting investigations pursuant to chapter 233 of the Laws of 1976 and chapter 55, part H, subpart B of the Laws of 2014.

In addition to all duties and powers relating to the administration of the election process, election campaign processes and campaign finance practices:

(a) Any commissioner of the State Board of Elections may designate in writing any employee to administer oaths or affirmations, examine witnesses in public or private hearings, receive evidence and preside at or conduct any hearing or study.

(b) Pursuant to a delegation of its subpoena power by the State Board of Elections, each co-executive director, co-counsel and co-deputy counsel are authorized to issue subpoenas in the name of the State Board of Elections to compel the attendance of any person before the board or any employee designated pursuant to subdivision (a) of this section or to require the production of any books, records, documents or other evidence that the board or any such employee may deem relevant to any hearing or study.

(c) The chief enforcement counsel may at any time ask that the board authorize him or her to exercise the powers which the board is otherwise authorized to exercise pursuant to subdivision five and six of section 3-102 of this the Election Law. The board shall vote on whether to grant or refuse to grant such authority no later than twenty days after the chief enforcement counsel makes such request. For purposes of considering and voting on such request, the chief enforcement counsel shall be entitled to participate in all matters related thereto and shall vote on the board's granting or refusal to grant such request only when there is a tie. Should the board not vote on such request within twenty days of its submission, or grant the chief enforcement counsel's request, the chief enforcement counsel shall be so empowered to act pursuant to subdivisions five and six of section 3-102 of the Election Law.

Text of proposed rule and any required statements and analyses may be obtained from:

Brian L. Quail, Esq., Deputy Counsel, New York State Board of Elections, 40 North Pearl Street, Suite 5, Albany, New York 12207, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Election Law 3-104 (8) authorizes the New York State Board of Elections to promulgate rules and regulations related to investigations.

2. Legislative objectives: The proposed rule ensures that the rules of the board of election related to oaths, subpoenas and the examination of witnesses conform to the Election Law which, among other things, requires certain subpoenas to be approved only by the commissioners of the State Board of Elections.

3. Needs and benefits: The legislature in adopting the Laws of 2014 chapter 55, part. H, subpart. B section 5 changed the enforcement and investigatory process related to violations of the election law. This rule updates the rules related to oaths, subpoenas and examination of witnesses to effectuate this change in law.

4. Costs:

a. The proposed regulation creates no additional cost for any entity, person or agency of government.

b. The proposed regulation creates no additional cost for any entity, person or agency of government.

c. This rule updates the process requirements within the New York State Board of Elections for issuing subpoenas, administration of oaths and examination of witnesses. It creates no new costs.

5. Local government mandates: There are no additional responsibilities imposed by this rule upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This rule imposes no new reporting or regulatory filing requirements.

7. Duplication: This rule creates no risk of duplication or overlap of any kind.

8. Alternatives: This rule updates an existing rule to comply with Election Law 3-104 (3). It imposes no new costs or burdens, so no alternative analysis to mitigate same would have been possible.

9. Federal standards: Not applicable.

10. Compliance schedule: The rule creates no new compliance obligations.

Regulatory Flexibility Analysis

1. Effect of rule: This rule will not impact small business operations or local government functions. This rule implements updated rules related to oaths, subpoenas and examination of witnesses. It imposes no additional compliance, regulatory or reporting requirements.

2. Compliance requirements: Small businesses and local governments have no compliance, record keeping or any other affirmative requirement imposed by this rule related to their operations.

3. Professional services: This rule imposes no requirement or need for professional services by small businesses or local governments in the performance of their operations.

4. Compliance costs: This rule carries no operational compliance cost for small business or local government operations. The rule creates no additional requirements for lawful compliance with the Election Law.

5. Economic and technological feasibility: This rule creates no economic or technical burden for small businesses or local governments.

6. Minimizing adverse impact: This rule creates no adverse impacts on small businesses or local governments.

7. Small business and local government participation: This rule related to administration of oaths, subpoenas and examination of witnesses does not impact small business or local governments. Small businesses and local governments are invited to comment on the proposed rule.

8. (IF APPLICABLE) For rules that either establish or modify a violation or penalties: Not applicable.

9. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA section 207 as amended by L.2012, ch. 462: Not applicable.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: This rule updates an existing rule related to the authority of the New York State Board of Elections to issue subpoenas, administer oaths and examine witnesses. The rule has no impact on any rural area.

2. Reporting, recordkeeping and other compliance requirements; and professional services: The proposed rule does not create any new reporting, recordkeeping or other compliance requirements.

3. Costs: The proposed rule has no cost.

4. Minimizing adverse impact: This rule has no impact on any area of the state and thus no impacts to mitigate.

5. Rural area participation: The State Board of Elections will solicit comments from persons throughout the state. As this regulation has no disparate impact on rural areas, comment is sought universally, pursuant to publication as required by law.

6. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA section 207 as amended by L.2012, ch. 462: Not applicable.

Job Impact Statement

1. Nature of impact: This rule updates the State Board of Elections’ rule regarding administration of oaths and examination of witnesses. The rule imposes no regulatory burdens on job creation or employment.

2. Categories and numbers affected: The rule has no negative effects on any category.

3. Regions of adverse impact: The proposed rule has no adverse effects on any region.

4. Minimizing adverse impact: The proposed rule has no adverse impacts.

5. (IF APPLICABLE) Self-employment opportunities: Not applicable.

6. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA section 207 as amended by L.2012, ch. 462: Not applicable.