Directs state agencies reviewing existing rules to conduct outreach to small businesses, localities, and rural interests under certain circumstances; requires the governor's office of regulatory reform to monitor state agencies relating to their review of existing rules and their outreach to small businesses, local governments, and public and private interests in rural areas.
BILL NUMBER: S4101
TITLE OF BILL :
An act to amend the state administrative procedure act, in relation to improving the review of existing rules and agency outreach efforts
PURPOSE OR GENERAL IDEA OF BILL :
This bill would improve the effectiveness of the "5-year review" process in SAPA by increasing the visibility of the process, and would improve the overall process of issuing regulatory agendas by inviting feedback from affected parties and improving oversight and accountability.
SUMMARY OF SPECIFIC PROVISIONS :
Bill § 1 amends subdivision 2 of §207 of the State Administrative Procedure Act (SAPA), and adds a new subdivision 6 to such section. The amendments to subdivision 2 provide that:
* An agency that publishes its regulatory agenda on its website shall also include the list of rules that must be reviewed on a five-year cycle pursuant to §207. (Any other agency may publish such list on its website.)
* Any listed rule that originally required the preparation of a regulatory flexibility analysis and/or a rural area flexibility analysis shall be identified and the agency shall provide outreach as appropriate to potentially affected small businesses, local governments and public and private interests in rural areas that the rule is being reviewed. Such outreach may include solicitation of input through online or other electronic means or through the activities listed in SAPA §202-b(6) or §202-bb(7).
New subdivision 6 requires the Governor's Office of Regulatory Reform (GORR) to monitor agency compliance with §207 and make recommendations to agencies for improved compliance.
Bill §2 amends subdivision 1 of SAPA §202-d to require similar outreach efforts and GORR oversight for regulatory agendas announcing new rules under development by agencies.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :
There are currently no requirements in the regulatory agenda process for online posting of 5-year review lists, or for outreach to affected small businesses, local governments, or rural interests, and no agency has been charged with oversight of the process. Adding these improvements will make SAPA §§202-d and 207 more effective tools in developing new regulations and weeding out unnecessary or outdated regulations.
One common complaint about rulemaking is that regulations can remain on the books long after their usefulness has vanished, or that the failure to review and update them can unthinkingly limit the introduction of new technologies or impede more effective operations. In order to prevent the rules on its books from becoming stale and outdated, New York State enacted legislation in 1996 to establish a "5-year review" cycle for substantive rules. Agencies are required to list the rules they adopted five years ago, and thereafter to re-review these rules every five years, stating their intentions to
modify them or their justification for retaining them unchanged. The public is invited to comment on the continued need for the rules.
In recent years there have been indications that agencies are not always paying as careful attention to the 5-year review process as they should. For example, in 2008 the Assembly and Senate co-Chairs of the Administrative Regulations Review Commission wrote to three agencies concerning deficiencies in their efforts. One agency announced that it was retaining its rules from 2003 -- without first soliciting any public comment. A second agency reviewed its rules from 2007, instead of 2003. A third reviewed its 2003 adoptions but failed to re-review the rules it had originally adopted in 1998, including several highly significant rules.
This bill is needed to make the 5-year review process more visible, particularly to parties that could be affected by the continuation of outmoded rules, and to establish an overseer to ensure that agencies continue to focus on the need for careful compliance. The result should be improved attention to ensuring that New York State's businesses and local governments are not held back by yesterday's regulations.
Similar improvements regarding oversight and outreach are needed for the other aspect of regulatory agendas - informing the public of rules that an agency is developing or considering, but which have not yet been formally proposed. Oversight and sharing of best practices will help to ensure that small businesses and other affected parties are able to provide information that will assist in developing targeted, effective regulations.
PRIOR LEGISLATIVE HISTORY :
New bill (a similar measure, A.11191/S.8287, passed the Senate in 2008)
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
Savings will ultimately result from more effective efforts to eliminate unneeded regulatory mandates on businesses and local governments in the state.
EFFECTIVE DATE : 1st day of December after becoming law.
STATE OF NEW YORK ________________________________________________________________________ S. 4101 A. 7453 2009-2010 Regular Sessions S E N A T E - A S S E M B L Y April 9, 2009 ___________IN SENATE -- Introduced by Sen. SAMPSON -- read twice and ordered print- ed, and when printed to be committed to the Committee on Commerce, Economic Development and Small Business IN ASSEMBLY -- Introduced by M. of A. GIANARIS -- read once and referred to the Committee on Governmental Operations AN ACT to amend the state administrative procedure act, in relation to improving the review of existing rules and agency outreach efforts THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 207 of the state administrative procedure act, as amended by chapter 327 of the laws of 2003, is amended and a new subdivision 6 is added to read as follows: 2. An agency shall submit for publication in the regulatory agenda published in January pursuant to section two hundred two-d of this arti- cle a list of the rules which must be reviewed pursuant to subdivision one of this section in the ensuing calendar year. In addition to the information required by such section two hundred two-d, for each rule so listed the agency shall provide an analysis of the need for and legal basis of such rule, shall invite public comment on the continuation or modification of the rule and shall indicate the last date for submission of comments which shall be not less than forty-five days from the date of publication. AN AGENCY THAT PUBLISHES ITS REGULATORY AGENDA ON ITS WEBSITE SHALL ALSO PUBLISH THE LIST OF RULES THAT MUST BE REVIEWED PURSUANT TO THIS SECTION ON ITS WEBSITE. ANY OTHER AGENCY MAY PUBLISH SUCH LIST ON ITS WEBSITE. IF THE ORIGINAL NOTICE OF PROPOSED RULE MAKING FOR A LISTED RULE REQUIRED THE PREPARATION OF A REGULATORY FLEXIBILITY ANALYSIS AND/OR A RURAL AREA FLEXIBILITY ANALYSIS, THE AGENCY SHALL SO INDICATE AND SHALL PROVIDE OUTREACH AS APPROPRIATE TO POTENTIALLY AFFECTED SMALL BUSINESSES, LOCAL GOVERNMENTS AND PUBLIC AND PRIVATE INTERESTS IN RURAL AREAS THAT THE RULE IS BEING REVIEWED. SUCH OUTREACHEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03849-02-9 S. 4101 2 A. 7453
MAY INCLUDE SOLICITATION OF INPUT THROUGH ELECTRONIC MEANS OR THROUGH ANY OF THE ACTIVITIES LISTED IN SUBDIVISION SIX OF SECTION TWO HUNDRED TWO-B AND SUBDIVISION SEVEN OF SECTION TWO HUNDRED TWO-BB OF THIS ARTI- CLE. 6. THE GOVERNOR'S OFFICE OF REGULATORY REFORM SHALL MONITOR AGENCY COMPLIANCE WITH THE PROVISIONS OF THIS SECTION AND SHALL MAKE RECOMMEN- DATIONS TO AGENCIES FOR IMPROVED COMPLIANCE AND FOR PROVIDING MORE EFFECTIVE OUTREACH TO SMALL BUSINESSES, LOCAL GOVERNMENTS, AND PUBLIC AND PRIVATE INTERESTS IN RURAL AREAS. S 2. Subdivision 1 of section 202-d of the state administrative proce- dure act is amended by adding a new paragraph (e) to read as follows: (E) THE GOVERNOR'S OFFICE OF REGULATORY REFORM SHALL MONITOR AGENCY COMPLIANCE WITH THIS SECTION AND SHALL MAKE RECOMMENDATIONS TO AGENCIES FOR IMPROVED COMPLIANCE AND FOR PROVIDING MORE EFFECTIVE OUTREACH TO SMALL BUSINESSES, LOCAL GOVERNMENTS AND PUBLIC AND PRIVATE INTERESTS IN RURAL AREAS. S 3. This act shall take effect on the first of December next succeed- ing the date on which it shall have become a law; provided that the amendments to subdivision 1 of section 202-d of the state administrative procedure act, made by section two of this act, shall not affect the expiration of such subdivision pursuant to chapter 402 of the laws of 1994, as amended, and shall expire therewith.