Bill S1784-2013

Authorizes a group of businesses that are regulated by a state agency or a representative of such businesses to petition such agency for alternate rules

Authorizes a group of businesses that are regulated by a state agency or a representative of such businesses to petition the state agency for alternate methods for implementing a regulatory mandate that restricts the conducting or management of business in this state.

Details

Actions

  • Feb 11, 2014: ADVANCED TO THIRD READING
  • Feb 10, 2014: 2ND REPORT CAL.
  • Feb 4, 2014: 1ST REPORT CAL.110
  • Jan 8, 2014: REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Jun 10, 2013: referred to governmental operations
  • Jun 10, 2013: DELIVERED TO ASSEMBLY
  • Jun 10, 2013: PASSED SENATE
  • May 6, 2013: ADVANCED TO THIRD READING
  • May 1, 2013: 2ND REPORT CAL.
  • Apr 30, 2013: 1ST REPORT CAL.473
  • Jan 9, 2013: REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS

Votes

VOTE: COMMITTEE VOTE: - Commerce, Economic Development and Small Business - Apr 30, 2013
Ayes (10): Valesky, Boyle, Gallivan, Felder, Fuschillo, Robach, Kennedy, Hassell-Thompson, Sanders, O'Brien
Ayes W/R (1): Griffo
VOTE: COMMITTEE VOTE: - Commerce, Economic Development and Small Business - Feb 4, 2014
Ayes (7): Valesky, Boyle, Gallivan, Felder, Griffo, Robach, O'Brien
Ayes W/R (1): Kennedy
Nays (2): Hassell-Thompson, Sanders

Memo

BILL NUMBER:S1784

TITLE OF BILL: An act to amend the state administrative procedure act, in relation to authorizing regulated businesses to petition a state agency for an alternate method of implementing a regulatory mandate

PURPOSE: To reform the provisions of the state Administrative Procedure Act (SAPA) as it relates to petitions to secure alternate methods for implementing regulatory mandates. This bill, which expands this concept that is in law, includes any group of businesses in addition to municipal petitioners. Under current law, only groups of local governments can petition a state agency to use an alternative method to implement a rule. This bill will expand this concept of petitioning an alternative method to implement a rule to include business petitioners.

SUMMARY OF PROVISIONS:

Section 1: Amends SAPA section 204-a to allow "regulated businesses" to also petition a state agency for approval to use an alternative method to comply with a rule instead of the standards prescribed in such rule. This section defines "regulated business" as any group of businesses that have a common interest such as a similar type of industry or trade or a geographical unity such as a statewide organization, or professional association or chamber of commerce which is based in a certain region or county. In addition, this section makes conforming changes so that regulated businesses can petition an agency for a alternative method. This bill also revises the type of rules that are eligible to be the subject of such a petition. Under current law, rules that have environmental, health, and safety standards are completely exempt from this procedure. This bill allows petitions for an alternative method to include environmental, health and safety rules, as long as the approved petition result will not diminish any environmental, health, or safety standard.

Section 2: Amends the expiring provisions of SAPA section 204-a so that the new provisions related to petitions filed by regulated businesses will still be incorporated in the law.

Section 3: Effective date

JUSTIFICATION: Under current law, associations of municipalities can petition to alter the enforcement mechanism or standards used in certain rules. This bill expands this concept to allow associations of businesses with the same ability as associations of municipalities to have the ability to petition a state agency, It is important to give the business community the same types of opportunities to ask for alternative methods to comply with a rule as is now afforded to groups of municipalities.

LEGISLATIVE HISTORY: 2012- S-6446 - Referred to Commerce, Economic Development and Small Business

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: January 1st next succeeding the day on which it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 1784 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. CARLUCCI -- read twice and ordered printed, and when printed to be committed to the Committee on Commerce, Economic Devel- opment and Small Business AN ACT to amend the state administrative procedure act, in relation to authorizing regulated businesses to petition a state agency for an alternate method of implementing a regulatory mandate THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 204-a of the state administrative procedure act, as amended by section 1 of subpart H of part C of chapter 97 of the laws of 2011, is amended to read as follows: S 204-a. Alternate methods for implementing regulatory mandates. 1. As used in this section: (a) "local government" means any county, city, town, village, school district, fire district or other special district; (b) "REGULATED BUSINESS" MEANS ANY GROUP OF BUSINESSES OF A SIMILAR TYPE OR TRADE, OR FROM THE SAME REGION OR AREA OF THE STATE, OR ANY GROUP OF BUSINESSES WITHIN THE STATE, THAT ARE SUBJECT TO THE REGULATION OF ANY AGENCY. SUCH TERM SHALL INCLUDE ANY ENTITY OR GROUP WHICH REPRES- ENTS SUCH BUSINESSES; (C) "regulatory mandate" means any rule which (I) requires one or more local governments to create a new program, increase the level of service for an existing program or otherwise comply with mandatory requirements; OR (II) REGULATES THE CONDUCTING AND MANAGEMENT OF ANY BUSINESS IN THIS STATE; and [(c)] (D) "petition" means a document submitted by a local government OR REGULATED BUSINESSES seeking approval of an alternate method for implementing a regulatory mandate. 2. A local government, or two or more local governments acting joint- ly, may seek approval for an alternate method of implementing a regula-
tory mandate by submitting to the appropriate state agency a petition which shall include but not be limited to: (a) for each involved local government, an indication that submission has been approved by the governing body of the local government or by an officer duly authorized by the governing body to do so; (b) an identification of the regulatory mandate which is the subject of the petition and information sufficient to establish that the proposed alternate method of implementation is consistent with and will effectively carry out the objectives of the regulatory mandate; (c) information sufficient to establish that the proposed alternate method of implementation is consistent with and will effectively carry out the objectives of the regulatory mandate; (d) documentation that the petition has been submitted to the author- ized agents of any certified or recognized employee organizations representing employees who would be effected by implementation of the alternate method; (e) whether the state has provided financial assistance for complying with the regulatory mandate; and (f) the name, public office address and telephone number of the repre- sentative of the local government who will coordinate requests for addi- tional information on the petition; and (g) where two or more local governments have petitioned jointly, information which addresses the manner in which responsibility for implementation will be allocated between or among the participating local governments. 2-A. REGULATED BUSINESSES MAY SEEK APPROVAL FOR AN ALTERNATE METHOD OF IMPLEMENTING A REGULATORY MANDATE BY SUBMITTING TO THE APPROPRIATE STATE AGENCY A PETITION WHICH SHALL INCLUDE BUT NOT BE LIMITED TO: (A) FOR EACH INVOLVED REGULATED BUSINESS, AN INDICATION THAT SUBMISSION HAS BEEN APPROVED BY THE OWNER OR GOVERNING BODY OF THE REGU- LATED BUSINESS TO DO SO; (B) AN IDENTIFICATION OF THE REGULATORY MANDATE WHICH IS THE SUBJECT OF THE PETITION; (C) INFORMATION SUFFICIENT TO ESTABLISH THAT THE PROPOSED ALTERNATE METHOD OF IMPLEMENTATION IS CONSISTENT WITH AND WILL EFFECTIVELY CARRY OUT THE OBJECTIVES OF THE REGULATORY MANDATE; AND (D) THE NAME, BUSINESS ADDRESS AND TELEPHONE NUMBER OF THE REPRESEN- TATIVE OF THE REGULATED BUSINESSES WHO WILL COORDINATE REQUESTS FOR ADDITIONAL INFORMATION ON THE PETITION. 3. The agency shall cause a notice of the petition to be published in the state register and a newspaper of general circulation in the impacted community OR COMMUNITIES and shall receive comments on the petition for a period of thirty days. Such notice shall either include the full text of the information set forth in the petition or shall set forth the address of a website on which the full text has been posted. The notice shall include the name, public office OR BUSINESS address and telephone number, and may include a fax number and electronic mail address, of an agency representative from whom additional information on the petition can be obtained and to whom comments on the petition may be submitted. 4. (A) Not later than thirty days after the last day of the comment period, the agency shall approve or disapprove the petition. The agency may approve the petition without change or with such conditions or modifications as the agency deems appropriate. Notice of the agency determination shall be provided in writing to the local government OR REGULATED BUSINESSES and shall be published in the state register. The
agency shall not grant a petition unless it determines that the petition has met the requirements of subdivision two OR TWO-A of this section and that the local government [has] OR REGULATED BUSINESSES HAVE established that the alternate method is consistent with and will effectively carry out the objectives of the regulatory mandate; provided, however, that no petition shall be approved which would result in the [contravention] DIMINUTION OR ABATEMENT of any environmental, health or safety standard or would reduce any benefits or rights accorded by law or rule to third parties. In approving a petition, an agency may waive a statutory provision only if it is specifically authorized by law to waive such provision. An approval shall include a timetable for agency evaluation of the effectiveness of the alternate method. (b) Notwithstanding the provisions of paragraph (a) of this subdivi- sion, upon receipt of an objection to a petition from the authorized agent of any certified or recognized employee organization representing employees who would be affected by implementation of the alternate meth- od, the agency shall provide any such organizations with an opportunity for a hearing. If an adjudicatory proceeding is requested, the petition shall not be approved unless the agency determines by a preponderance of the evidence that implementing the alternate method would not affect such employees by contravening any environmental, health or safety stan- dard, reducing any rights or benefits or violating the terms of any negotiated agreement, and that all other requirements of this section have been met. The provisions of this subdivision are in addition to and shall not be construed to impair or modify any rights of such employees under any other law, regulation or contract. 5. A local government OR REGULATED BUSINESSES that [objects] OBJECT to a state agency determination to modify or disapprove its petition may appeal in writing to the mandate relief council, who, upon review of the agency's findings and determination, may approve, modify or disapprove the petition. 6. Nothing in this section shall require a local government OR REGU- LATED BUSINESSES to commence or continue an alternate method of imple- mentation if it determines in its sole discretion not to do so, except to the extent that a local government [has] OR REGULATED BUSINESSES HAVE committed to commencing or continuing an alternate method in a joint petition submitted pursuant to subdivision two OR TWO-A of this section. 7. A state agency may rescind its approval of a petition only after a hearing, provided, however, that the agency may suspend its approval of a petition prior to a hearing if it finds that immediate suspension is necessary to address an imminent threat to health or safety. Notice of a hearing must be provided to the petitioner at least thirty days prior to the hearing and must be posted on the agency's website. Such notice must state the basis for the agency's decision to seek rescission and inform the local government OR REGULATED BUSINESSES that it may request infor- mation relied upon by the agency in making its determination, which information must be provided to the local government OR REGULATED BUSI- NESSES at least seven days in advance of the hearing. After such hear- ing, the agency may rescind its approval upon a finding that the alter- native method of implementation is not consistent with or does not effectively carry out the objectives of the regulatory mandate. 8. Notwithstanding any other provision of law, implementation of an alternate method approved by an agency pursuant to this section shall be deemed to lawfully meet all requirements of the regulatory mandate. An agency shall retain the authority to enforce compliance with the alter- nate method in the same manner as it may enforce compliance with the
underlying rule. Any action on a petition by a state agency shall be subject to review pursuant to article seventy-eight of the civil prac- tice law and rules. 9. In accordance with the timetable established pursuant to subdivi- sion three of this section, the agency shall evaluate the effectiveness of the alternate method in carrying out the objectives of the regulatory mandate. The evaluation shall identify any savings or other benefits, and any costs or other disadvantages, of implementing the alternate method, and shall address the desirability of incorporating the alter- nate method into the rules of the agency. Notice of availability of the evaluation shall be published in the state register. S 2. Section 204-a of the state administrative procedure act, as added by chapter 479 of the laws of 2001, is amended to read as follows: S 204-a. Alternate methods for implementing regulatory mandates. 1. As used in this section: (a) "local government" means any county, city, town, village, school district, fire district or other special district; (b) "REGULATED BUSINESSES" MEANS ANY GROUP OF BUSINESSES OF A SIMILAR TYPE OR TRADE, OR FROM THE SAME REGION OR AREA OF THE STATE, OR ANY GROUP OF BUSINESSES WITHIN THE STATE, THAT ARE SUBJECT TO THE REGULATION OF ANY AGENCY. SUCH TERM SHALL INCLUDE ANY ENTITY OR GROUP WHICH REPRES- ENTS SUCH BUSINESSES; (C) "regulatory mandate" means any rule which (I) requires one or more local governments to create a new program, increase the level of service for an existing program or otherwise comply with mandatory requirements; OR (II) REGULATES THE CONDUCTING AND MANAGEMENT OF ANY BUSINESS IN THIS STATE; and [(c)] (D) "petition" means a document submitted by a local government seeking approval of an alternate method for implementing a regulatory mandate. 2. A petition shall include: (a) an indication that submission has been approved by the governing body of the local government or by an officer duly authorized by the governing body to do so; (b) an identification of the regulatory mandate which is the subject of the petition and information sufficient to establish that the proposed alternate method of implementation is consistent with and will effectively carry out the objectives of the regulatory mandate; (c) information on the process used by the local government to ensure that all stakeholders have been appropriately involved in the process of developing the alternate method, including where relevant the date of any hearing, forum or other meeting to seek input on the alternate meth- od; (d) documentation that the petition has been submitted to the author- ized agents of any certified or recognized employee organizations representing employees who would be effected by implementation of the alternate method; (e) a proposed plan and timetable for compiling and reporting informa- tion to facilitate evaluation of the effectiveness of the alternate method; (f) if the state provides financial assistance for complying with the regulatory mandate, any proposed amount or percentage of such assistance which would be returned to the state due to savings from implementing the alternate method; and
(g) the name, public office address and telephone number of the repre- sentative of the local government who will coordinate requests for addi- tional information on the petition. 2-A. REGULATED BUSINESSES MAY SEEK APPROVAL FOR AN ALTERNATE METHOD OF IMPLEMENTING A REGULATORY MANDATE BY SUBMITTING TO THE APPROPRIATE STATE AGENCY A PETITION WHICH SHALL INCLUDE BUT NOT BE LIMITED TO: (A) FOR EACH INVOLVED REGULATED BUSINESS, AN INDICATION THAT SUBMISSION HAS BEEN APPROVED BY THE OWNER OR GOVERNING BODY OF THE REGU- LATED BUSINESS TO DO SO; (B) AN IDENTIFICATION OF THE REGULATORY MANDATE WHICH IS THE SUBJECT OF THE PETITION; (C) INFORMATION SUFFICIENT TO ESTABLISH THAT THE PROPOSED ALTERNATE METHOD OF IMPLEMENTATION IS CONSISTENT WITH AND WILL EFFECTIVELY CARRY OUT THE OBJECTIVES OF THE REGULATORY MANDATE; AND (D) THE NAME, BUSINESS ADDRESS AND TELEPHONE NUMBER OF THE REPRESEN- TATIVE OF THE REGULATED BUSINESSES WHO WILL COORDINATE REQUESTS FOR ADDITIONAL INFORMATION ON THE PETITION. 3. Two or more local governments may submit a petition jointly, provided that each local government meets the requirements of paragraphs (a), (c), (d) and (g) of subdivision two of this section, and provided that the petition addresses the manner in which responsibility for implementation will be allocated between or among the participating local governments. 4. The agency shall cause a notice of the petition to be published in the state register and shall receive comments on the petition for a period of thirty days. Such notice shall either include the full text of the information set forth in the petition or shall set forth the address of a website on which the full text has been posted. The notice shall include the name, public office OR BUSINESS address and telephone number, and may include a fax number and electronic mail address, of an agency representative from whom additional information on the petition can be obtained and to whom comments on the petition may be submitted. 5. (a) Not later than thirty days after the last day of the comment period, the agency shall approve or disapprove the petition. The agency may approve the petition without change or with such conditions or modifications as the agency deems appropriate. Notice of the agency determination shall be provided in writing to the local government OR REGULATED BUSINESSES and shall be published in the state register. The agency shall not grant a petition unless it determines that the petition has met the requirements of subdivision two OR TWO-A of this section and that the local government [has] OR REGULATED BUSINESSES HAVE established that the alternate method is consistent with and will effectively carry out the objectives of the regulatory mandate; provided, however, that no petition shall be approved which would result in the [contravention] DIMINUTION OR ABATEMENT of any environmental, health or safety standard or would reduce any benefits or rights accorded by law or rule to third parties. In approving a petition, an agency may waive a statutory provision only if it is specifically authorized by law to waive such provision. An approval shall include a timetable for agency evaluation of the effectiveness of the alternate method. (b) Notwithstanding the provisions of paragraph (a) of this subdivi- sion, upon receipt of an objection to a petition from the authorized agent of any certified or recognized employee organization representing employees who would be affected by implementation of the alternate meth- od, the agency shall provide any such organizations with an opportunity for a hearing. If an adjudicatory proceeding is requested, the petition
shall not be approved unless the agency determines by a preponderance of the evidence that implementing the alternate method would not affect such employees by contravening any environmental, health or safety stan- dard, reducing any rights or benefits or violating the terms of any negotiated agreement, and that all other requirements of this section have been met. The provisions of this subdivision are in addition to and shall not be construed to impair or modify any rights of such employees under any other law, regulation or contract. 6. Nothing in this section shall require a local government OR REGU- LATED BUSINESSES to commence or continue an alternate method of imple- mentation if it determines in its sole discretion not to do so, except to the extent that a local government [has] OR REGULATED BUSINESSES HAVE committed to commencing or continuing an alternate method in a joint petition submitted pursuant to subdivision three of this section. A state agency may rescind its approval of a petition at any time if it determines, based on the information reported pursuant to paragraph (e) of subdivision two of this section or other information available to it, that the alternate method is not effectively carrying out the objectives of the regulatory mandate or is being implemented in a manner detri- mental to the public interest. 7. Notwithstanding any other provision of law, implementation of an alternate method approved by an agency pursuant to this section shall be deemed to lawfully meet all requirements of the regulatory mandate. An agency shall retain the authority to enforce compliance with the alter- nate method in the same manner as it may enforce compliance with the underlying rule. Any action on a petition by a state agency shall be subject to review pursuant to article seventy-eight of the civil prac- tice law and rules. 8. In accordance with the timetable established pursuant to subdivi- sion four of this section, the agency shall evaluate the effectiveness of the alternate method in carrying out the objectives of the regulatory mandate. The evaluation shall identify any savings or other benefits, and any costs or other disadvantages, of implementing the alternate method, and shall address the desirability of incorporating the alter- nate method into the rules of the agency. Notice of availability of the evaluation shall be published in the state register. S 3. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law; provided that the amendments to section 204-a of the state administrative procedure act, made by section one of this act, shall be subject to the expiration and reversion of such section, pursuant to section 3 of subpart H of part C of chapter 97 of the laws of 2011, and shall be deemed expired there- with, when upon such date the provisions of section two of this act shall take effect.

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