NY State Senate Bill 2011-S6439

Senate Bill S6439

2011-2012 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Commerce, Economic Development And Small Business Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 09, 2012	referred to commerce, economic development and small business

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2011-S6439 (ACTIVE) - Details

Current Committee:: Senate Commerce, Economic Development And Small Business
Law Section:: State Administrative Procedure Act
Laws Affected:: Amd §§202, 202-a & 202-b, St Ad Proc Act
Versions Introduced in 2013-2014 Legislative Session:: S2160

2011-S6439 (ACTIVE) - Summary

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.

2011-S6439 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S6439

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(1)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:
New Bill.

FISCAL IMPLICATIONS:
None.

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

2011-S6439 (ACTIVE) - Bill Text download pdf

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

                                  6439

                            I N  S E N A T E

                            February 9, 2012
                               ___________

Introduced  by  Sens. VALESKY, CARLUCCI, KLEIN, SAVINO -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Commerce, Economic Development and Small Business

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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14074-01-2

S. 6439                             2

  (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 ALL 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

S. 6439                             3

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
ALL  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

S. 6439                             4

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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Senate Bill S6439

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Sponsored By

David J. Valesky