Bill S2160A-2013

Provides for public comment during the initial development, preparation and promulgation of rules

Provides for public comment during the initial development, preparation and promulgation of rules; establishes an affirmative duty upon agencies to reach out to regulated persons who may be adversely affected by a proposed rule, and to obtain such persons' comments and cost estimates.

Details

Actions

  • Feb 11, 2014: ADVANCED TO THIRD READING
  • Feb 10, 2014: 2ND REPORT CAL.
  • Feb 4, 2014: 1ST REPORT CAL.112
  • Jan 17, 2014: PRINT NUMBER 2160A
  • Jan 17, 2014: AMEND AND RECOMMIT TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 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 20, 2013: ADVANCED TO THIRD READING
  • May 8, 2013: 2ND REPORT CAL.
  • May 7, 2013: 1ST REPORT CAL.582
  • Jan 14, 2013: REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS

Votes

VOTE: COMMITTEE VOTE: - Commerce, Economic Development and Small Business - Feb 4, 2014
Ayes (8): Valesky, Boyle, Gallivan, Felder, Griffo, Robach, Hassell-Thompson, O'Brien
Ayes W/R (1): Kennedy
Nays (1): Sanders

Memo

BILL NUMBER:S2160A

TITLE OF BILL: An act to amend the state administrative procedure act, in relation to providing for public comment during the initial development, preparation and promulgation of rules

PURPOSE: The purpose of this bill is to incorporate into the state Administrative Procedure Act (SAPA) the affirmative duty upon state agencies when promulgating a proposed rule to institute outreach efforts to regulated persons who may be adversely affected by any proposed rule before it is filed with the Secretary of State to be published in the state Register. In these outreach efforts, state agencies shall solicit the opinions of regulated persons with regard to the administrative burdens such proposal may impose, cost estimates for complying with such proposed rule, and other adverse effects due to implementing the rule.

SUMMARY OF PROVISIONS:

Section 1: Amends SAPA section 202(4-a) (b)to include in the rulemaking procedure when preparing a Notice of Revised Rule Making that the assessment of public comment shall include any comments submitted to the agency during the initial development, preparation and promulgation of a proposed rule.

Section 2: Amends SAPA section 202(5) (b) to include in the rulemaking procedure when preparing a Notice of Adoption that the assessment of public comment shall include any comments submitted to the agency during the initial development, preparation and promulgation of such rule when any Notice of Adoption is filed with the Secretary of State.

Section 3: Amends SAPA section 202-a(l)to provide for an affirmative duty upon a state agency that is proposing a rule or preparing a Regulatory Impact Statement (RIS) to be filed with a proposed rule to utilize approaches that are designed to avoid undue deleterious economic effects or overly burdensome impacts of a proposed rule during the initial development, preparation and promulgation of a rule.

Section 4: Amends SAPA section 202-a (3)to expand the types of cost estimates that must be contained in the RIS. This provision mandates that state agencies, when preparing cost estimates for a RIB must make a good faith effort to identify the potential costs of a proposed rule upon regulated persons. Further, that such RIB must outline state agency outreach efforts to solicit comments from regulated persons and the comments received due to such outreach efforts. In addition, the state agency shall disclose significant alternative approaches suggested by regulated persons prior to filing a proposed rulemaking.

Section 5: Amends SAPA section 202-a(6) to require a state agency to issue a Revised RIS if the information, costs, paper work, or alternative approaches in the initial RIS is misleading as is determined either by the state agency or which was brought to the attention of the state agency by a regulated person.

Sections 6, 7 and 8: Amends SAPA section 202-b to expand the types of cost estimates that must be contained in a Regulatory Flexibility

Analysis (RFA). The same type of outreach efforts, obtaining good faith cost estimates, and disclosing outreach efforts to obtain comments on such proposed rulemaking as were incorporated into the RIS in bill sections 3, 4, 5 would be incorporated into the RFA.

JUSTIFICATION: Currently, New York is viewed as not having a friendly business environment that encourages businesses of all sorts to stay or expand in this state or which encourages out-of-state businesses to relocate or expand here. Part of the reason for the business community's lack of confidence in expanding in this State and perception that it is not a business friendly is due to the many unnecessary, over burdensome, or overly strict regulations that private businesses must comply with to operate in this State. These New York State imposed costs are due to this State's adverse regulatory environment which leads to additional costs to operate a business in this State and consequently less profit can be derived from New York operations as opposed to businesses that operate in other states.

This bill places upon state agencies that are promulgating new rules to actively solicit comments for regulated persons who may be adversely affected by a proposed rule before such rule is filed with the Secretary of State,. Further, in soliciting comments, such state agency should obtain bona fide cost estimates for the costs to be imposed by such proposed rule and other comments related to alternative approaches to regulating the subject matter in question that minimizes adverse affects on such regulated persons.

LEGISLATIVE HISTORY: S6439 of 2012 S2160 of 2013

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: January 1st of the year next succeeding the date on which is shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 2160--A 2013-2014 Regular Sessions IN SENATE January 14, 2013 ___________
Introduced by Sens. VALESKY, BALL, GALLIVAN, GRISANTI, MARCHIONE -- read twice and ordered printed, and when printed to be committed to the Committee on Commerce, Economic Development 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 providing for public comment during the initial development, prepara- tion and promulgation of rules THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (b) of subdivision 4-a of section 202 of the state administrative procedure act, as added by chapter 335 of the laws of 1992, is amended to read as follows: (b) Each agency shall publish and make available to the public an assessment of public comment for a rule revised pursuant to this subdi- vision. Such assessment shall be based upon any written comments submit- ted to the agency DURING THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION OF SUCH PROPOSED RULE and any comments presented at any public hearing held on the proposed rule by the agency. The assessment shall contain: (i) a summary and an analysis of the issues raised and significant alternatives suggested by any such comments; (ii) a state- ment of the reasons why any significant alternatives were not incorpo- rated into the rule; and (iii) a description of any changes made in the rule as a result of such comments. If no comments have been received, the notice of revised rule making shall state that no comments were received by the agency. Any subsequent assessment published pursuant to this paragraph or paragraph (b) of subdivision five of this section need only include comments not addressed in any previously published assess- ment of public comment for the rule; provided, however, that the notice
of revised rule making or adoption shall contain the date any previous notice of revised rule making containing an assessment of public comment was published in the state register. S 2. Paragraph (b) of subdivision 5 of section 202 of the state admin- istrative procedure act, as amended by chapter 171 of the laws of 1994, is amended to read as follows: (b) Except with respect to any rule defined in subparagraph (ii) of paragraph (a) of subdivision two of section one hundred two of this chapter, each agency shall publish and make available to the public an assessment of public comment for a rule adopted pursuant to this subdi- vision or paragraph (e) of subdivision six of this section. Such assess- ment shall be based upon any written comments submitted to the agency DURING THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION OF SUCH PROPOSED RULE and any comments presented at any public hearing held on the proposed rule by the agency. The assessment shall contain: (i) a summary and an analysis of the issues raised and significant alterna- tives suggested by any such comments, (ii) a statement of the reasons why any significant alternatives were not incorporated into the rule and (iii) a description of any changes made in the rule as a result of such comments. If any comments included estimates of projected costs of the proposed rule to the state, local governments or regulated persons, which differed significantly from those presented by the agency in its regulatory impact statement, regulatory flexibility analysis, or rural area flexibility analysis, the assessment shall also summarize the agen- cy's assessment of such estimates. If no comments have been received, the notice of adoption shall state that no comments were received by the agency. Comments submitted or presented to the agency by a legislative committee or commission or by a member or members of the senate or assembly shall be considered public comment and shall be summarized and analyzed in the assessment. S 3. Subdivision 1 of section 202-a of the state administrative proce- dure act, as amended by chapter 171 of the laws of 1994, is amended to read as follows: 1. In [developing] THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGA- TION OF a rule, an agency shall, to the extent consistent with the objectives of applicable statutes, consider utilizing approaches which are designed to avoid undue deleterious economic effects or overly burdensome impacts of the rule upon persons, including persons residing in New York state's rural areas, directly or indirectly affected by it or upon the economy or administration of state or local governmental agencies. Such approaches shall include, but not be limited to, the specification of performance standards rather than design standards. PRIOR TO PROMULGATING SUCH RULE, THE AGENCY SHALL, BY SUCH PROMULGATION, HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS AND COST ESTIMATES THAT MAY BE IMPOSED UPON SUCH PERSONS. S 4. Paragraphs (c), (d) and (g) of subdivision 3 of section 202-a of the state administrative procedure act, as amended by chapter 520 of the laws of 1992, are amended to read as follows: (c) Costs. A statement detailing the projected costs of the rule, which shall indicate: (i) (A) the costs for the implementation of, and continuing compliance with, the rule to regulated persons; [(ii)] (B) the costs for the implementation of, and continued adminis- tration of, the rule to the agency and to the state and its local governments; and
[(iii)] (C) the information, including the source or sources of such information, and methodology upon which the cost analysis is based; or [(iv)] (II) where an agency finds that, AFTER A REASONABLE GOOD FAITH EFFORT HAS BEEN MADE, it cannot fully provide a statement of such costs, a statement setting forth its best GOOD FAITH estimate, which shall indicate the information and methodology upon which such best estimate is based and the reason or reasons why a complete cost statement cannot be provided; AND (III) (A) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF PROPOSED RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH EFFORTS SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE EFFECTS THAT MAY BE CAUSED BY ADOPTING SUCH RULE; AND (B) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY FROM REGULATED PERSONS, WHO MAY BE ADVERSELY AFFECTED BY SUCH PROPOSED RULE MAKING, PURSUANT TO CLAUSE (A) OF THIS SUBPARAGRAPH. (d) Paperwork. A statement describing the need for any reporting requirements, including forms and other paperwork OR OTHER ADMINISTRA- TIVE BURDENS, which would be required as a result of the rule; (g) Alternative approaches. A statement indicating whether any signif- icant alternatives to the PROPOSED rule OR PROVISIONS OF THE PROPOSED RULE were considered by the agency, including a discussion of such alternatives and the reasons why they were not incorporated into the rule. IN ADDITION, SUCH STATEMENT SHALL DISCLOSE SIGNIFICANT ALTERNATIVE APPROACHES SUGGESTED BY REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY SUCH PROPOSED RULE MAKING PRIOR TO FILING A PROPOSED RULE MAKING WITH THE SECRETARY OF STATE OBTAINED FROM OUTREACH EFFORTS CONDUCTED PURSUANT TO SUBPARAGRAPH (III) OF PARAGRAPH (C) OF THIS SUBDIVISION; S 5. Paragraph (i) of subdivision 6 of section 202-a of the state administrative procedure act, as amended by chapter 850 of the laws of 1990, is amended to read as follows: (i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES presented in the statement is inadequate, MISLEADING or incomplete, AS DETERMINED BY SUCH AGENCY OR BROUGHT TO THE ATTENTION OF SUCH AGENCY BY REGULATED PERSONS BEFORE, DURING AND AFTER SUCH PROPOSED RULE WAS FILED WITH THE SECRETARY OF STATE, provided, however, such revised statement shall be submitted as soon as practicable to the secretary of state for publication in the state register, provided, further, if such statement exceeds two thousand words, the notice shall include only a summary of such statement in less than two thousand words; S 6. Subdivision 1 of section 202-b of the state administrative proce- dure act, as amended by chapter 611 of the laws of 1996, is amended to read as follows: 1. In [developing] INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION OF a rule, the agency shall consider utilizing approaches that will accomplish the objectives of applicable statutes while minimizing any adverse economic impact of the rule on small businesses and local governments. THE AGENCY SHALL HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY THE PROMULGATION OF A PROPOSED RULE MAKING AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS AND COST ESTIMATES OF ALL COSTS THAT MAY BE IMPOSED UPON SUCH PERSONS. Consistent with the objectives of applicable statutes, the agency shall consider such approaches as: (a) the establishment of differing compliance or reporting require- ments or timetables that take into account the resources available to small businesses and local governments;
(b) the use of performance rather than design standards; [and] (c) an exemption from coverage by the rule, or by any part thereof, for small businesses and local governments so long as the public health, safety or general welfare is not endangered[.]; AND (D) WERE OBTAINED FROM COMMENTS AND ALTERNATIVE APPROACHES THAT COME FROM REGULATED PERSONS PRIOR TO FILING A PROPOSED RULE MAKING DERIVED FROM AGENCY OUTREACH EFFORTS CONDUCTED PURSUANT TO SUBPARAGRAPH (III) OF PARAGRAPH (C) OF SUBDIVISION THREE OF SECTION TWO HUNDRED TWO-A OF THIS ARTICLE. S 7. Paragraph (e) of subdivision 2 of section 202-b of the state administrative procedure act, as amended by chapter 611 of the laws of 1996, is amended and two new paragraphs (e-1) and (e-2) are added to read as follows: (e) an indication of how the rule is designed to minimize any adverse economic impact of such rule on small businesses and local governments, including information regarding whether the approaches suggested in subdivision one of this section or other similar approaches were consid- ered; [and] (E-1) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF PROPOSED RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH EFFORTS SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE EFFECTS THAT MAY BE CAUSED BY ADOPTING SUCH RULE; (E-2) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY, PURSUANT TO PARA- GRAPH (E-ONE) OF THIS SUBDIVISION, FROM REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY SUCH PROPOSED RULEMAKING; AND S 8. Subdivision 6 of section 202-b of the state administrative proce- dure act, as amended by chapter 611 of the laws of 1996, is amended to read as follows: 6. When any rule is proposed for which a regulatory flexibility analy- sis is required, the agency shall assure that small businesses and local governments have been given an ADVANCED opportunity to participate in [the] DEVELOPMENT, PREPARATION AND DRAFTING OF A PROPOSED rule making through such activities as: (a) the publication of a general notice for the proposed rule making PRIOR TO BEING FILED WITH THE SECRETARY OF STATE in publications likely to be obtained by small businesses and local governments of the types affected by the proposed rule; (b) the PRIOR direct notification of interested small businesses and local governments THAT MAY BE affected by the proposed rule; (c) the conduct of special open conferences concerning the proposed rule PRIOR TO FILING WITH THE SECRETARY OF STATE for small businesses and local governments THAT MAY BE ADVERSELY affected by the rule; and (d) the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rule making PROCESS by small businesses and local governments. S 9. Paragraph (i) of subdivision 7 of section 202-b of the state administrative procedure act, as amended by chapter 850 of the laws of 1990, is amended to read as follows: (i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES presented in the analysis submitted pursuant to this section is inade- quate, MISLEADING or incomplete, AS DETERMINED BY SUCH AGENCY OR BROUGHT TO THE ATTENTION OF SUCH AGENCY BY REGULATED PERSONS BEFORE, DURING AND AFTER SUCH PROPOSED RULE WAS FILED WITH THE SECRETARY OF STATE, provided, however, such revised analysis shall be submitted as soon as practicable to the secretary of state for publication in the state
register, provided, further, if such statement exceeds two thousand words, the notice shall include only a summary of such statement in less than two thousand words; S 10. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.

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