senate Bill S2160

Amended

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

download pdf

Sponsor

Co-Sponsors

Bill Status


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

actions

  • 14 / Jan / 2013
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 07 / May / 2013
    • 1ST REPORT CAL.582
  • 08 / May / 2013
    • 2ND REPORT CAL.
  • 20 / May / 2013
    • ADVANCED TO THIRD READING
  • 10 / Jun / 2013
    • PASSED SENATE
  • 10 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 10 / Jun / 2013
    • REFERRED TO GOVERNMENTAL OPERATIONS
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 17 / Jan / 2014
    • AMEND AND RECOMMIT TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 17 / Jan / 2014
    • PRINT NUMBER 2160A
  • 04 / Feb / 2014
    • 1ST REPORT CAL.112
  • 10 / Feb / 2014
    • 2ND REPORT CAL.
  • 11 / Feb / 2014
    • ADVANCED TO THIRD READING
  • 20 / Jun / 2014
    • COMMITTED TO RULES

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.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A7639
Versions:
S2160
S2160A
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd ยงยง202, 202-a & 202-b, St Ad Proc Act
Versions Introduced in 2011-2012 Legislative Cycle:
S6439, S6439

Sponsor Memo

BILL NUMBER:S2160

TITLE OF BILL: An act to amend the state administrative procedure act,
in relation to providing for public comment during the initial develop-
ment, 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(l)to provide for an affirmative
duty upon a state agency that is proposing a rule or preparing a Regula-
tory 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 alterna-
tive 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 Analy-
sis (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: S6439 of 2011-2012

FISCAL IMPLICATIONS: None.

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

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

                                  2160

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 14, 2013
                               ___________

Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Commerce, Economic  Devel-
  opment 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04827-01-3

S. 2160                             2

  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:
  (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

S. 2160                             3

  [(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
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]

S. 2160                             4

  (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
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

S. 2160                             5

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.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.