senate Bill S1967A

Authorizes the use of innovative techniques to enhance public participation in the rule making process

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 14 / Jan / 2011
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 04 / Jan / 2012
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 05 / Jan / 2012
    • AMEND AND RECOMMIT TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 05 / Jan / 2012
    • PRINT NUMBER 1967A

Summary

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.

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Bill Details

See Assembly Version of this Bill:
A1648A
Versions:
S1967
S1967A
Legislative Cycle:
2011-2012
Current Committee:
Senate Commerce, Economic Development And Small Business
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd §102, add §202-f, St Ad Proc Act
Versions Introduced in Previous Legislative Cycles:
2009-2010: A8431, A8431
2007-2008: A8075, A8075

Sponsor Memo

BILL NUMBER:S1967A

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1967--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            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.

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