senate Bill S1108A

Relates to regulatory flexibility and review of rules

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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

  • 09 / Jan / 2013
    • REFERRED TO FINANCE
  • 06 / Mar / 2013
    • AMEND AND RECOMMIT TO FINANCE
  • 06 / Mar / 2013
    • PRINT NUMBER 1108A
  • 08 / Jan / 2014
    • REFERRED TO FINANCE

Summary

Provides that the secretary of state shall provide oversight over the regulatory processes of state agencies, public authorities, and commissions through the review, analysis, and revision of proposed and existing rules.

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Bill Details

See Assembly Version of this Bill:
A1830A
Versions:
S1108
S1108A
Legislative Cycle:
2013-2014
Current Committee:
Senate Finance
Law Section:
Executive Law
Laws Affected:
Amd ยง104, Exec L
Versions Introduced in 2011-2012 Legislative Cycle:
S3943, S3943

Sponsor Memo

BILL NUMBER:S1108A

TITLE OF BILL: An act to amend the executive law, in relation to
regulatory flexibility and review of rules

PURPOSE: This legislation is intended to foster jobs, investment and
economic activity by ensuring that the state's regulatory requirements
avoid undue deleterious economic effects or overly burdensome impacts
upon persons and the economy.

SUMMARY OF PROVISIONS: The bill requires the Secretary of State to
provide oversight over the regulatory processes of state agencies,
public authorities, and commissions through the review, analysis, and
revision of proposed and existing rules in a manner that includes
actions such as:

o Ensuring that regulations faithfully execute the laws of the state,
without unduly burdening the state's economy and regulated parties and
without imposing deleterious costs and requirements on the businesses,
local governments, and citizens of this state;

o Conducting an assessment or requiring the assessment of the
cumulative impact of rules on the state's policies, programs, and
regulations in the areas of energy, economic development, and the
environment;

o Conducting an assessment or requiring the assessment of the
cumulative impact of the state's environmental policies, programs, and
regulations on the state's economic development and on the
implementation of state's energy policies, programs, and regulations;

o Issuing or requiring the issuance of a regulatory flexibility
analysis and assessment of the economic and technological feasibility
of compliance with rules, as well as an evaluation, to the fullest
extent possible, of the fiscal impact of rules that impose a mandate;

o Giving preference to the least costly and least burdensome
regulatory and paperwork requirements;

o Favoring market-oriented solutions and performance standards over a
command-and-control approach to implementing regulations; and

o Convening a negotiated rulemaking, wherein interested parties and
the involved agency, public authority, or commission, with the
assistance of a neutral facilitator, negotiate to reach consensus on
the terms of rules.

Additionally, the legislation would require the Secretary of State to
make recommendations for simplifying the rulemaking process, and for
the amendment or repeal of any existing rule that may be (1) obsolete,
(2) harmful to the economy or job growth in the state, (3) excessive
in view of state or federal statutes and regulations, (4) economically
and/or technologically infeasible, and/or (5) a threat to the
reliability of the energy system.


Furthermore, the bill would require state agencies, public
authorities, and commissions, which are the subject of the
recommendations of the Secretary of State, to propose regulations or
revisions to their rules and policies to incorporate those
recommendations.

EXISTING LAW:

Section 104 of the Executive Law encourages the Secretary of State to
cooperate with state entities on the content of rulemakings.

Executive Order
20 of 1995 established the Governor's Office of Regulatory Reform
(GORR), which is an office designed to improve the state's regulatory
process. Executive Order
20 was continued by Executive Order
2 of 2011; however, the 2011-2012 Executive Budget proposed the
elimination of GORR. This legislation would transfer the core elements
of GORR's power's and duties to the Secretary of State.

Executive Order
2 of 2008, also continued by Executive Order
2 of 2011, established a State Energy Planning Board and authorized
the creation and implementation of a State Energy Plan Among other
provisions, this order provided that State Energy Plan include
"assessments of state environmental policies and programs, which
impact the state's development and implementation of energy policy and
programs".

In addition, Executive Order
25 of 2009 was continued by Executive Order
2 of 2011 and established a Regulatory Review and Reform Program. This
initiative is intended to evaluate, reform, or repeal, where
necessary, rules and paperwork requirements in order to reduce
substantially unnecessary burdens, costs, and inefficiencies to
improve the state's economy while maintaining appropriate protections
for public health, safety, welfare, and the conduct of business.

JUSTIFICATION:

Section 3-101 of the New York State Energy Law describes state energy
policy as having a comprehensive balance among energy, environmental,
and economic development components. Also, publications from the fall
of 2010 identified the need for a balanced approach to energy,
environmental, and economic development issues, as well as noted the
need to reduce the high costs of doing business in the state, to have
an improved regulatory environment, and to reduce regulatory burdens.

However, the 2009 State Energy Plan contains an Issue Brief,
Environmental Impact, and Regulation of Energy Systems, which fails to
accomplish the directive for the conduct of the assessment pursuant to
Executive Order
2 of 2008. The Issue Brief does not contain an analysis of the
cumulative impact of the layering of DEC's regulations on fuel
diversity and energy system reliability but, just includes a
recitation of the provisions of existing programs.


Additionally, pursuant to Executive Order
25 of 2009, the evaluation of the New York State Department of
Environmental Conservation's (DEC) regulations identified only five
regulatory areas for additional amendments, despite numerous public
comments of the onerous nature of many DEC regulations. In particular,
the DEC identified for additional amendment two regulations that
already had expired and were replaced with another regulatory
requirement. As a result, the DEC failed to focus on its regulations
that have unclear compliance pathways.

Through the State Energy Planning Process and the public comment
processes of individual rulemakings, many significant concerns have
been expressed about the singular and cumulative impacts that arise
from the layering of environmental regulations on the state's
electricity producers and correspondingly on the diversity of fuels
used to manufacture electricity in a reliable and cost-effective
manner. Over the course of the last two years, ten regulatory
initiatives were adopted without a cumulative impact evaluation, and
seventeen more are pending this year. These regulations, plans, and
policies place additional constraints on electric generating units,
and the cumulative effect of the layering of all these actions impacts
New York's energy policy.

The state must focus its attention on the cumulative impacts that the
layering of regulatory initiatives causes the electricity industry and
other sectors in the state, most importantly the increased cost of and
potentially decreased reliable supply of energy for the state's
businesses and residents. An important lesson to be learned from the
current state economic environment is that state and local governments
depend on the tax revenues and jobs created by the private sector.
When private industry suffers, the corresponding impact to counties,
towns, and schools also is felt through reduced programs, jobs, and
services.

A "cumulative impact" evaluation of the layering of regulatory
requirements is essential, because the power sector and many other
industries in New York are driven by long-term capital planning cycles
in excess of ten year horizons. In many cases, the return on
investment is calculated over a twenty year or longer period of time.
The layering of regulations and/or legislative requirements on top of
each other, without the requirement of understanding the full
cumulative effects, creates tremendous uncertainty, prevents necessary
investment, and makes New York a less desirable investment environment
than other states. New York State's businesses and residents must be
able to rely on the state to ensure that environmental requirements do
not impede a reliable and affordable energy system that can continue
to meet their energy needs in a balanced and cost-effective manner.

The 2010 Comprehensive Reliability Plan (CRP), completed by the New
York Independent System Operator (NYISO), assessed new environmental
regulatory programs for their potential impacts on reliability. These
regulatory initiatives, which are being promulgated by both state and
federal environmental regulatory agencies, cumulatively will require
considerable investment by the owners of New York's existing thermal
power plants in order to comply with these new regulatory
requirements, if promulgated as currently proposed. The magnitude of


the combined investments required to comply with the four evaluated
initiatives alone could lead to multiple unplanned plant retirements.

Furthermore, on October 26, 2010, the North American Electric
Reliability Corporation (NERC) released the results of its examination
of the possible impacts of four potential U.S. Environmental
Protection Agency (EPA) regulations in a special assessment, Potential
Resource Adequacy Impacts of U.S. Environmental Regulations. The
results of this assessment showed a significant potential impact to
reliability, should the four EPA rules be implemented as proposed.

Both the NYISO's CRP and the NERC's assessment of EPA's regulations
indicate the need for the state's rulemaking processes to consider
comprehensively the cumulative impact of regulations. This cumulative
impact evaluation should be a central component of the regulatory
impact analyses that form the basis for state rulemakings.

LEGISLATIVE HISTORY: S.3943 (2011-2012)

FISCAL IMPLICATIONS: The provisions of this legislation are
consistent with existing requirements for rulemakings and the
provisions of Executive Orders and should be able to be accomplished
within existing appropriations.

EFFECTIVE DATE: This bill would take effect immediately.

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

                                 1108--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens. MAZIARZ, BONACIC, GRIFFO, SEWARD -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Finance  --  committee  discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

AN ACT to amend the executive law, in relation to regulatory flexibility
  and review of rules

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  104  of  the executive law is amended to read as
follows:
  S 104. Departmental cooperation ON RULEMAKING,  INCREASING  REGULATORY
FLEXIBILITY  AND  REDUCING REGULATORY BURDENS.  1.  IT IS DECLARED TO BE
THE POLICY OF THIS STATE TO PROTECT AND ENCOURAGE JOBS,  INVESTMENT  AND
ECONOMIC  ACTIVITY  AND TO PROMOTE THE PUBLIC HEALTH, SAFETY AND WELFARE
BY ADMINISTERING ALL REGULATORY REQUIREMENTS IMPOSED BY THE STATE  IN  A
FAIR  AND REASONABLE MANNER DESIGNED TO AVOID UNDUE DELETERIOUS ECONOMIC
EFFECTS OR OVERLY BURDENSOME IMPACTS OF RULES UPON PERSONS AND THE ECON-
OMY.
  2. The secretary of state may advise  with  the  several  departments,
boards,  bureaus,  officers, authorities, commissions and other agencies
of the state which are authorized by statute to issue  codes,  rules  or
regulations,  to  the  end  that  the  same  may, so far as possible, be
uniform in style and form, be properly numbered  and  captioned  and  be
free from matter which is obsolete.
  3.  THE SECRETARY OF STATE SHALL PROVIDE OVERSIGHT OVER THE REGULATORY
PROCESSES OF STATE AGENCIES, PUBLIC AUTHORITIES, AND COMMISSIONS THROUGH
THE REVIEW, ANALYSIS, AND REVISION OF PROPOSED AND EXISTING RULES  IN  A
MANNER THAT INCLUDES, BUT IS NOT LIMITED TO, THE FOLLOWING ACTIONS:
  A.  ENSURING THAT REGULATIONS FAITHFULLY EXECUTE THE LAWS OF THE STATE
WITHOUT UNDULY BURDENING THE STATE'S ECONOMY AND REGULATED  PARTIES  AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02260-03-3

S. 1108--A                          2

WITHOUT  IMPOSING  DELETERIOUS COSTS AND REQUIREMENTS ON THE BUSINESSES,
LOCAL GOVERNMENTS AND CITIZENS OF THIS STATE;
  B. CONDUCTING AN ASSESSMENT OR REQUIRING THE ASSESSMENT OF THE CUMULA-
TIVE  IMPACT  OF RULES ON THE STATE'S POLICIES, PROGRAMS AND REGULATIONS
IN THE AREAS OF ENERGY, ECONOMIC DEVELOPMENT, AND THE ENVIRONMENT;
  C. CONDUCTING AN ASSESSMENT OR REQUIRING THE ASSESSMENT OF THE CUMULA-
TIVE IMPACT OF THE STATE'S ENVIRONMENTAL POLICIES, PROGRAMS,  AND  REGU-
LATIONS ON THE STATE'S ECONOMIC DEVELOPMENT AND ON THE IMPLEMENTATION OF
THE STATE'S ENERGY POLICIES, PROGRAMS AND REGULATIONS;
  D.  REQUIRING  THE  PREPARATION  OF  A  COST-BENEFIT  ANALYSIS, A RISK
ASSESSMENT, AND AN ANALYSIS OF THE EFFECT OF RULES ON THE  CREATION  AND
RETENTION OF JOBS IN THE STATE;
  E. ISSUING OR REQUIRING THE ISSUANCE OF A REGULATORY FLEXIBILITY ANAL-
YSIS  AND  ASSESSMENT  OF  THE ECONOMIC AND TECHNOLOGICAL FEASIBILITY OF
COMPLIANCE WITH RULES, AS WELL AS AN EVALUATION TO  THE  FULLEST  EXTENT
POSSIBLE OF THE FISCAL IMPACT OF RULES THAT IMPOSE A MANDATE;
  F.  PRESCRIBING  METHODOLOGIES  OR  REQUIREMENTS  THAT ALLOW REGULATED
PARTIES FLEXIBILITY AND THAT ENCOURAGE INNOVATION IN MEETING THE  LEGIS-
LATIVE OR ADMINISTRATIVE REQUIREMENTS AND OBJECTIVES UNDERLYING RULES;
  G.  GIVING PREFERENCE TO THE LEAST COSTLY AND LEAST BURDENSOME REGULA-
TORY AND PAPERWORK REQUIREMENTS NEEDED TO ACCOMPLISH THE LEGISLATIVE AND
ADMINISTRATIVE OBJECTIVES UNDERLYING THE RULES;
  H. FAVORING MARKET-ORIENTED SOLUTIONS AND PERFORMANCE STANDARDS OVER A
COMMAND-AND-CONTROL APPROACH TO IMPLEMENTING REGULATIONS; AND
  I. CONVENING A NEGOTIATED RULEMAKING, WHEREIN INTERESTED  PARTIES  AND
THE  INVOLVED  AGENCY, PUBLIC AUTHORITY, OR COMMISSION, WITH THE ASSIST-
ANCE OF A NEUTRAL FACILITATOR, NEGOTIATE TO REACH CONSENSUS ON THE TERMS
OF RULES.
  4. THE SECRETARY OF STATE ANNUALLY SHALL PUBLISH ON  ITS  WEBSITE  AND
SUBMIT  TO  THE GOVERNOR, THE DIRECTOR OF STATE OPERATIONS, THE DIRECTOR
OF THE DIVISION OF THE BUDGET, INVOLVED STATE AGENCIES, PUBLIC  AUTHORI-
TIES,  AND/OR  COMMISSIONS,  THE  SPEAKER  OF THE ASSEMBLY, THE MINORITY
LEADER OF THE ASSEMBLY, THE  TEMPORARY  PRESIDENT  OF  THE  SENATE,  THE
MINORITY  LEADER  OF  THE  SENATE,  THE CHAIR OF THE ASSEMBLY OVERSIGHT,
ANALYSIS AND INVESTIGATIONS COMMITTEE, THE RANKING MEMBER OF THE  ASSEM-
BLY  OVERSIGHT,  ANALYSIS AND INVESTIGATIONS COMMITTEE, THE CHAIR OF THE
SENATE INVESTIGATIONS AND GOVERNMENT OPERATIONS COMMITTEE, AND THE RANK-
ING MINORITY MEMBER OF THE SENATE INVESTIGATIONS  AND  GOVERNMENT  OPER-
ATIONS COMMITTEE A REPORT WITH RECOMMENDATIONS, REGARDING:
  A. THE AMENDMENT OR REPEAL OF ANY EXISTING RULE WHICH MAY BE (I) OBSO-
LETE,  (II)  HARMFUL  TO  THE  ECONOMY OR JOB GROWTH IN THE STATE, (III)
EXCESSIVE IN VIEW OF STATE OR FEDERAL  STATUTES  AND  REGULATIONS,  (IV)
ECONOMICALLY  AND/OR  TECHNOLOGICALLY INFEASIBLE, AND/OR (V) A THREAT TO
THE RELIABILITY OF THE ENERGY SYSTEM; AND
  B. THE SIMPLIFICATION OF REGULATIONS AND THE REGULATORY PROCESSES.
  5. EACH STATE AGENCY, PUBLIC AUTHORITY, OR COMMISSION,  WHICH  IS  THE
SUBJECT  OF  THE  ANNUAL  REPORT  REQUIRED  BY  SUBDIVISION FOUR OF THIS
SECTION, SHALL PROPOSE REGULATIONS OR REVISIONS TO ITS RULES  AND  POLI-
CIES  TO  INCORPORATE  THE  FINDINGS  AND  RECOMMENDATIONS OF THE REPORT
REQUIRED BY SUCH SUBDIVISION.
  S 2. This act shall take effect immediately.

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