Provides for more effective review of existing rules; requires more frequent review of certain rules and publication of agencies which fail to review rules; extends certain provisions relating to the state register.
TITLE OF BILL: An act to amend the state administrative procedure act, in relation to continuing improvements to agency regulatory agendas and providing more effective review of existing rules; and to amend chapter 402 of the laws of 1994, amending the state administrative procedure act relating to requiring certain agencies to submit regulatory agendas for publication in the state register, in relation to extending the expiration of certain provisions of such chapter
PURPOSE: This bill would continue for four more years the improvements made to agency regulatory agendas, improve the effectiveness of the current "5-year review" process by providing for more better outreach and more timely initial review of rules that impact small businesses and local governments, and improve agency performance by highlighting cases of non-compliance.
SUMMARY OF PROVISIONS: Bill § 1 amends section 202-d of the State Administrative Procedure Act (SAPA) to update the reference to the Department of Financial Services, which has replaced the former Departments of Banking and Insurance.
Bill §2 amends SAPA section 207(1) to provide that the initial review period for a rule, currently fixed at 5 years for every rule, could be accelerated by the agency so that the impact of new regulatory provisions could be evaluated on a more timely and appropriate schedule. The maximum period for initial review would be after 5 years, A rule that imposes and adverse impact or paperwork or compliance requirements on small businesses, local governments or rural areas, the default period for initial review would be 2 years, but the agency could propose a different initial period for such review and invite comment on its justification.
Bill §3 amends SAPA §207(2) to provide that an agency that publishes its regulatory agenda on its website shall also include the list of rules that must be reviewed in the current year. 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 SAP A §202-b(6) or §202-bb(7).
Bill §4 adds a new SAPP §207(6) providing that, beginning with the first issue in September, the Secretary of State will publish in the State Register on a weekly basis a delinquent list of agencies that have not commenced a required review of rules for that year.
Bill §5 continues previously-enacted statutory provisions to authorize electronic publication of regulatory agendas for another four years.
SUMMARY OF AMENDMENTS: The bill is amended to (1) require a regulatory agenda to include an email address for contacting the designated agency representative (this provision is currently optional); (2) clarify that if an agency selects an initial review period for a rule impacting small businesses or local governments different that the default period (two years after rule adoption), such period cannot exceed the otherwise-applicable five-year limit; (3) clarify that an agency will be included on the delinquent list if it fails to submit a list of rules that must be reviewed pursuant to §207; and (4) make other technical and clarifying changes.
EXISTING LAW: The current timeframe for initial review of newly-adopted regulatory provisions is after 5 years. 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 to promote their awareness of participation in this process, and agencies that do not comply with SAPA §207 are not publicly identified. In addition, the bill continues present law relating to electronic publication of regulatory agendas for another four years.
JUSTIFICATION: One common complaint about rulemaking is that, once adopted, regulations tend to remain on the books forever without any further review. 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.
Over time, some shortcomings in the SAPA .207 process have become apparent. For example, the mandatory timeframe for an initial review of rules that adversely impact small businesses is, in many cases, too untimely. If the costs and burdens of a new rule exceed the agency's estimates, many small businesses may not survive until the rule is initially reviewed five years down the road. This bill recognizes that accelerated review may be appropriate for specific rules and makes provisions for scheduling initial reviews for periods of less than 5 years.
For rules impacting small businesses, local governments or rural entities, the default period for initial review would be after 2 years (which could be varied by the agency with justification), and agencies would be required to engage in outreach efforts to encourage participation on the review by such affected parties. (similar outreach provisions were added to SAPA §202-d, providing for publication of prospective regulatory agendas, in 2008). The default period would remain 5 years for other rules, but could also be adjusted by the agency
based on the specifics for the rule. This approach will allow New York agencies to commence an initial review in less than 5 years, as is the practice in other states like Florida and Hawaii (2 years) and Massachusetts (4 years), while ending the requirement for a "one-size-fits-all" schedule.
In recent years there have been indications that agencies don't always pay careful attention to the rule review process. 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 it 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 review the rules it had originally adopted in 1998, including several highly significant rules. More recently, one agency in 2011 has finally commenced reviews of existing rules that it should have conducted in 2008, 2009 and 2010. The publication of a list of agencies that - after 2/3 of the year has passed - still have not complied with §207 should provide an incentive for such agencies to commence their required reviews.
This bill is needed to make SAPA review process more visible and effective, particularly to those parties that can he significantly banned by the continuation of burdensome rules. 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.
The bill also extends the provisions of SAPA authorizing the publication of a continuously updated online regulatory agenda for another four years. This will enable the State to provide more timely information and effective outreach on rules under development as well as those under review.
LEGISLATIVE HISTORY: New bill.
LOCAL FISCAL IMPLICATIONS: Savings will ultimately result from more effective efforts to eliminate unneeded regulatory mandates on businesses and local governments in the state.
EFFECTIVE DATE: First day of January after becoming law, provided that the provisions of SAPA §202-d are continued only until December 31, 2016.
STATE OF NEW YORK ________________________________________________________________________ 6440--A IN SENATE February 9, 2012 ___________Introduced by Sens. CARLUCCI, KLEIN, SAVINO, VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Commerce, Economic Development and Small Business -- 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 continuing improvements to agency regulatory agendas and providing more effective review of existing rules; and to amend chapter 402 of the laws of 1994, amending the state administrative procedure act relating to requiring certain agencies to submit regulatory agendas for publication in the state register, in relation to extending the expiration of certain provisions of such chapter THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraphs (a) and (b) of subdivision 1 of section 202-d of the state administrative procedure act, as amended by chapter 193 of the laws of 2008, are amended to read as follows: (a) The departments of health, education,
[insurance,]environmental conservation, FINANCIAL SERVICES, labor, [banking,]agriculture and markets, motor vehicles and state, the offices of children and family services and temporary and disability assistance, and the division of housing and community renewal and the workers' compensation board and any other department specified by the governor or his OR HER designee shall, and any other agency may, in its discretion, submit to the secre- tary of state, for publication in the first regular issue of the state register published during the month of January and the last regular issue of the state register published in June, a regulatory agenda to afford the agency an opportunity to solicit comments concerning any rule which the agency is considering proposing, but for which no notice of proposed rule making has been submitted pursuant to subdivision one of section two hundred two of this article. (b) A regulatory agenda shall be comprised of a list and brief description of subject matter being considered for rule making and the name, public office, address, E-MAIL ADDRESS and telephone number of theEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14123-04-2 S. 6440--A 2
agency representative, knowledgeable on such regulatory agenda, from whom any information may be obtained and to whom written comments may be submitted concerning such regulatory agenda.
[An e-mail address for requests for information and submission of comments may also be included.]S 2. Subdivision 1 of section 207 of the state administrative proce- dure act, as added by chapter 262 of the laws of 1996, is amended to read as follows: 1. Unless the contrary is specifically provided by another law, any rule which is adopted on or after the effective date of this section shall be reviewed IN THE CALENDAR YEAR SPECIFIED IN THE NOTICE OF ADOPTION FOR THE RULE, PROVIDED THAT AT A MINIMUM EVERY RULE SHALL BE INITIALLY REVIEWED after five years, and, thereafter, EVERY RULE SHALL BE RE-REVIEWED at five-year intervals. FOR ANY RULE FOR WHICH A REGULA- TORY FLEXIBILITY ANALYSIS, RURAL AREA FLEXIBILITY ANALYSIS OR JOB IMPACT STATEMENT IS PREPARED, THE INITIAL REVIEW SHALL OCCUR AFTER TWO YEARS; PROVIDED, HOWEVER, THAT THE AGENCY MAY PROPOSE A DIFFERENT REVIEW PERIOD OF NOT MORE THAN FIVE YEARS IN SUCH ANALYSIS OR STATEMENT, ALONG WITH ITS JUSTIFICATION FOR DOING SO, AND SHALL INVITE PUBLIC COMMENT THEREON. THE REVIEW PERIOD SPECIFIED FOR THE RULE AND AN ASSESSMENT OF ANY COMMENTS ON THIS ISSUE SHALL ACCOMPANY THE NOTICE OF ADOPTION. S 3. Subdivision 2 of section 207 of the state administrative proce- dure act, as amended by chapter 327 of the laws of 2003, is amended 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 PURSUANT TO PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION TWO HUNDRED TWO-D OF THIS ARTICLE SHALL ALSO PUBLISH THE LIST OF RULES THAT MUST BE REVIEWED PURSUANT TO THIS SECTION 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 OUTREACH 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 ARTICLE. S 4. Section 207 of the state administrative procedure act is amended by adding a new subdivision 6 to read as follows: 6. BEGINNING WITH THE FIRST ISSUE IN SEPTEMBER OF EACH YEAR, THE SECRETARY OF STATE SHALL PUBLISH IN THE STATE REGISTER ON A WEEKLY BASIS A DELINQUENT LIST COMPRISED OF AGENCIES THAT HAVE NOT SUBMITTED A LIST OF RULES WHICH MUST BE REVIEWED AS REQUIRED BY THIS SECTION. AN AGENCY SHALL CONTINUE TO BE LISTED ON THE DELINQUENT LIST UNTIL IT HAS PUBLISHED THE NOTICE REQUIRED BY SUBDIVISION TWO OF THIS SECTION. S 5. Section 2 of chapter 402 of the laws of 1994, amending the state administrative procedure act relating to requiring certain agencies toS. 6440--A 3
submit regulatory agendas for publication in the state register, as amended by chapter 193 of the laws of 2008, is amended to read as follows: S 2. This act shall take effect on the first day of November next succeeding the date on which it shall have become a law and shall expire and be deemed repealed on December 31,
2016, and upon such date the provisions of subdivisions 1 and 2 of section 202-d of the state administrative procedure act as amended by section one of this act shall revert to and be read as set out in law on the date immediately preced- ing such effective date. S 6. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law, provided, however, that the amendments to subdivision 1 of section 202-d of the state administrative procedure act made by section one of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith.