Authorizes the use of innovative techniques to enhance public participation in the rule making process; provides that use of such techniques shall in no way otherwise diminish public participation in the rule making process; establishes a three year pilot project for seven major regulatory agencies to hold public hearings upon petition of 125 or more New York residents.
TITLE OF BILL: An act to amend the state administrative procedure act, in relation to public hearings on proposed rules; and providing for the repeal of such provisions upon expiration thereof
PURPOSE OR GENERAL IDEA OF BILL: This bill enhances the ability of the public to participate more meaningfully in the rule-making process by permitting agencies to use innovative techniques in organizing public hearings on proposed rules, and establishes a 3-year pilot project for seven major regulatory agencies to hold public hearings upon petition of 125 or more New York residents.
SUMMARY OF SPECIFIC PROVISIONS: Subdivision 1 of section 102 of the State Administrative Procedure Act (SAPA), as amended by section 155 of subpart B of part C of chapter 62 of the laws of 2011, is amended to include the Workers' Compensation Board as an "agency" for purposes of implementing the new hearing provisions added by the bill. A new § 202-f is added to SAPA authorizing agencies that hold hearings on proposed rules under SAPA to use innovative means to enhance public participation in rule making, such as:
- designating a segment of time for the public to address questions to agency personnel;
- organizing hearings as roundtable discussions; scheduling evening or weekend hearings; and
- using broadcast and teleconferencing technologies.
Agencies may include in their annual reports an analysis of the innovative techniques used to enhance participation. Such techniques shall not be used in a manner that will result in the diminished ability of the public to comment on the proposed rule at the public hearing.
Section 202-f also requires those agencies which are listed in subdivision 4 to hold public hearings on proposed rules when they receive written petitions from 125 or more people residing in New York State, provided a sufficient petition is received not later than the 20th day before the last date for public comment. Agencies which receive petitions after such date and agencies which are not listed in subdivision 4 of S202-f have the option of holding a public hearing pursuant to such petitions. Agencies are required to give due consideration to requests that a hearing be held in a particular region.
Agencies are not required to hold public hearings for rules for which a hearing is required by law and has already been scheduled or held, or for consensus rules or rules related to rate-makings. Subdivision 4 of §202-f specifies that the following agencies are required on a pilot basis to hold hearings upon receipt of petitions:
the Workers' Compensation Board and the Departments of Education, Environmental Conservation, Health, Insurance, Labor and Family Assistance.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Currently, SAPA does not contain any provisions concerning petitions for public hearings on proposed rules, nor does it contain any authorization or encouragement for the utilization by agencies of innovative hearing techniques.
JUSTIFICATION: If the rules adopted by state agencies are to have minimal burdens and maximum effectiveness from the public's perspective, it is crucial that very effort be made to solicit and consider the views of the public in developing rules. Public hearings are one effective means of doing so this bill would enhance their effectiveness as a tool for public participation. Both the business community and agency personnel have reported that, in many cases, there are alternatives which are preferable to the standard model of a public hearing, which involves limited interaction between agencies and the public.
A Federal National Performance Review report recommended that one way to improve regulatory systems at the Federal level was to encourage the use of innovative hearing techniques by Federal agencies. This bill would provide for the same improvements in hearings required under the State Administrative Procedure Act.
The bill also creates a pilot project whereby seven of the most active regulatory agencies would be required to hold a hearing if requested to do so by 125 or more persons. This will provide an additional way of enhancing public participation by ensuring that these agencies receive additional public input when a rule is of significant concern to the public.
The 1981 Model State Administrative Procedure Act recommends that states provide for public hearings if requested by the public. Many other states require agencies to hold public hearings on proposed rules if the public so requests, including California (request of any interested person), Arizona (request of any 5 persons), Utah (request of 10 persons) and Idaho, Illinois and New Hampshire (request of any 25 persons). States and Federal agencies which are subject to petition requirements do not report any major increase in workload or any significant difficulties with this process. However, the effectiveness of the pilot project would be subject to evaluation after some experience has been gained with the operation of such a process in New York State.
This legislation passed both houses in 2008, but was vetoed by the Governor, citing "technical flaws." Language has been included in this bill to address these concerns, by explicitly including the Workers I Compensation Board within the bill's ambit and by making the scheduling of any hearing optional if the agency does not receive a petition in a timely manner. The veto message also stated that current opportunities for comment were sufficient to the extent that the public agrees, the petition process would be used sparingly and have little cost impact. However, if the public feels that a hearing is necessary on a particular rule, the
potential cost savings from policy improvements would likely outweigh any minimal hearing costs.
PRIOR LEGISLATIVE HISTORY: None.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: : No costs would be incurred unless a timely petition for a public hearing is received. Savings could accrue to agencies that avail themselves of innovative, cost-effective techniques.
EFFECTIVE DATE: The bill will take effect on the first of January succeeding the date of enactment and shall expire on the thirty-first of the second calendar year following such effective date.
STATE OF NEW YORK ________________________________________________________________________ 1967--A 2011-2012 Regular Sessions IN SENATE January 14, 2011 ___________Introduced by Sen. GIANARIS -- read twice and ordered printed, and when printed to be committed to the Committee on Commerce, Economic Devel- opment and Small Business -- recommitted to the Committee on Commerce, Economic Development and Small Business in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the state administrative procedure act, in relation to public hearings on proposed rules; and providing for the repeal of such provisions upon expiration thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 102 of the state administrative procedure act, as amended by section 155 of subpart B of part C of chap- ter 62 of the laws of 2011, is amended to read as follows: 1. "Agency" means any department, board, bureau, commission, division, office, council, committee or officer of the state, or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings but shall not include the governor, agencies in the legislative and judicial branches, agencies created by interstate compact or international agreement, the division of military and naval affairs to the extent it exercises its responsi- bility for military and naval affairs, the division of state police, the identification and intelligence unit of the division of criminal justice services, the state insurance fund, the unemployment insurance appeal board, and except for purposes of subdivision one of section two hundred two-d AND SECTION TWO HUNDRED TWO-F of this chapter, the workers' compensation board and except for purposes of article two of this chap- ter, the department of corrections and community supervision. S 2. The state administrative procedure act is amended by adding a new section 202-f to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04122-03-1 S. 1967--A 2
S 202-F. PUBLIC HEARINGS. 1. WHENEVER A PUBLIC HEARING IS HELD ON A PROPOSED RULE PURSUANT TO THIS CHAPTER, UNLESS OTHERWISE PROVIDED IN LAW, AN AGENCY IS AUTHORIZED TO UTILIZE INNOVATIVE TECHNIQUES TO ENHANCE PUBLIC PARTICIPATION IN RULE MAKING, INCLUDING BUT NOT LIMITED TO ALLOW- ING THE PUBLIC TO ASK QUESTIONS OF AGENCY PERSONNEL FOR A PORTION OF SUCH HEARING, ORGANIZING SUCH HEARING AS A ROUNDTABLE DISCUSSION, SCHED- ULING AN EVENING OR WEEKEND HEARING, AND USING BROADCASTING AND TELECON- FERENCING TECHNOLOGIES; PROVIDED, HOWEVER, THAT NO SUCH INNOVATIVE TECH- NIQUES SHALL BE USED IN A MANNER WHICH DIMINISHES THE ABILITY WHICH MEMBERS OF THE PUBLIC WOULD OTHERWISE HAVE TO COMMENT ON THE PROPOSED RULE AT A PUBLIC HEARING. EACH AGENCY LISTED IN SUBDIVISION FOUR OF THIS SECTION SHALL, AND ANY OTHER AGENCY MAY, INCLUDE IN ITS ANNUAL REPORT A DESCRIPTION AND ANALYSIS OF ITS USE OF INNOVATIVE TECHNIQUES PURSUANT TO THIS SUBDIVISION. 2. EXCEPT AS PROVIDED IN SUBDIVISION THREE OF THIS SECTION, ANY AGENCY LISTED IN SUBDIVISION FOUR OF THIS SECTION WHICH RECEIVES A PETITION SUBSCRIBED BY NOT FEWER THAN ONE HUNDRED TWENTY-FIVE PERSONS RESIDING IN THIS STATE REQUESTING A PUBLIC HEARING ON ANY RULE OR RULES WHICH HAVE BEEN PROPOSED BY THE AGENCY, OR HAVE BEEN DESCRIBED IN THE REGULATORY AGENDA SUBMITTED BY THE AGENCY PURSUANT TO SECTION TWO HUNDRED TWO-D OF THIS ARTICLE, SHALL HOLD AT LEAST ONE PUBLIC HEARING ON THE RULE OR RULES; PROVIDED, HOWEVER, THAT ANY SUCH PETITION ON A RULE WHICH HAS BEEN PROPOSED MUST BE RECEIVED BY THE AGENCY NOT LATER THAN THE TWENTI- ETH DAY BEFORE THE LAST DATE FOR SUBMISSION OF COMMENTS. ANY AGENCY THAT RECEIVES A PETITION AFTER THE TWENTIETH DAY BEFORE THE LAST DATE FOR SUBMISSION OF COMMENTS AND ANY AGENCY NOT LISTED IN SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO HOLD A HEARING UPON RECEIPT OF A PETITION. DUE CONSIDERATION SHALL BE GIVEN TO ANY REQUEST IN A PETITION THAT A HEARING BE CONDUCTED IN A PARTICULAR REGION. 3. AN AGENCY SHALL NOT BE REQUIRED TO HOLD A PUBLIC HEARING PURSUANT TO SUBDIVISION TWO OF THIS SECTION (A) ON A RULE FOR WHICH A HEARING IS REQUIRED BY LAW AND HAS BEEN SCHEDULED OR HELD; (B) ON A CONSENSUS RULE; OR (C) ON A RULE DEFINED IN SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDI- VISION TWO OF SECTION ONE HUNDRED TWO OF THIS CHAPTER. WHEN A PUBLIC HEARING HAS BEEN REQUESTED FOR ANY RULE DESCRIBED IN A REGULATORY AGEN- DA, THE AGENCY SHALL NOT BE REQUIRED TO SCHEDULE A PUBLIC HEARING UNTIL SUCH TIME AS THE RULE IS PROPOSED. 4. THE FOLLOWING AGENCIES SHALL ENGAGE IN THE REPORTING PROVIDED FOR IN SUBDIVISION ONE OF THIS SECTION AND HOLD HEARINGS AS PROVIDED FOR IN SUBDIVISIONS TWO AND THREE OF THIS SECTION: THE WORKERS' COMPENSATION BOARD AND THE DEPARTMENTS OF EDUCATION, ENVIRONMENTAL CONSERVATION, HEALTH, INSURANCE, LABOR AND FAMILY ASSISTANCE. 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, and shall expire and be deemed repealed on the thirty-first day of December of the second calendar year following such effective date, and shall apply to all rules for which a notice of proposed rule making or a description in a regulatory agenda is published during such time period.