senate Bill S5161

Requires that documentation of statutory authority accompany proposed rules prior to the public comment period

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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

  • 13 / May / 2013
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 04 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 04 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1032
  • 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 INVESTIGATIONS AND GOVERNMENT OPERATIONS

Summary

Requires that documentation of statutory authority be accompanied to proposed rules prior to the public comment period.

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Bill Details

See Assembly Version of this Bill:
A7937
Versions:
S5161
Legislative Cycle:
2013-2014
Current Committee:
Senate Investigations And Government Operations
Law Section:
Legislative Law
Laws Affected:
Amd §§87 & 88, Leg L; amd §202, St Ad Proc Act

Sponsor Memo

BILL NUMBER:S5161

TITLE OF BILL: An act to amend the legislative law and the state
administrative procedure act, in relation to requiring documentation
establishing statutory authority prior to the adoption of a rule

PURPOSE: This bill seeks to amend sections 87 and 88 of the
Legislative Law and section 202 of the State Administrative Procedure
Act to ensure that the Administrative Regulations Review Commission
(ARRC) has had an opportunity to review proposed state agency rules
and regulations, prior to the public comment period, to ensure that
such proposed rules and regulations are consistent with constitutional
and statutory authority

SUMMARY OF PROVISIONS:

Section 1 of the bill seeks to amend section 87 of the Legislative Law
to add a new sub-section 3 which would require that proposed rules,
along with documentation establishing the statutory authority, be
provided to ARRC at the beginning of the public comments period so
that ARRC may review same to ascertain that such rules are consistent
with constitutional and statutory authority. This section would also
add a new sub-section 5 which would give ARRC standing to challenge
any agency rule that ARRC determines exceeds the agency's authority
through a proceeding brought under Article 78 of the Civil Practice
Law & Rules.

Section 2 amends section 88 of Legislative Law to add a new subsection
2 to permit ARRC to publish its findings and recommendations with
respect to proposed rules or regulations on its website or otherwise.

Sections 3 of the bill amends section 202 of the State Administrative
Procedure Act to provide that proposed regulations and accompanying
documentation establishing statutory authority for promulgation shall
be provided to ARRC prior to the adoption of such rule or regulation.

EXISTING LAW:

Section 87 of the Legislative Law was enacted in 1978, with only minor
revisions since, There is currently no provision requiring agencies to
provide their proposed rules and documentation of statutory authority
to ARRC at the beginning of the public comment period Section 88 was
enacted in 1990 and currently contains no provision permitting ARRC to
publish its findings and recommendations on proposed rules and
regulations. Section 202 of the State Administrative Procedure Act
currently has no requirement that proposed rules and documentation of
statutory authority be provided ARRC prior to the adoption of such
rules.

JUSTIFICATION: Since the enactment of sections 87 and 88 of the
Legislative Law and section 202 of the State Administrative Procedure
Act, agency rulemaking has added to the complexity of state
government. Agency rulemaking should be based on legislative grants of
authority and should accurately reflect the will of the legislature.
This legislation seeks to ensure that agency rules are in fact based
on valid grants of legislative authority whether that be in the state
constitution or other state law.


LEGISLATIVE HISTORY: This is a new bill.

EFFECTIVE DATE: Immediately.

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

                                  5161

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 13, 2013
                               ___________

Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations

AN  ACT to amend the legislative law and the state administrative proce-
  dure act, in relation to requiring documentation establishing statuto-
  ry authority prior to the adoption of a rule

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

  Section  1. Section 87 of the legislative law, as added by chapter 689
of the laws of 1978, is amended to read as follows:
  S 87. Powers and duties. 1. The commission shall  exercise  continuous
oversight of the process of rule making and examine rules, as defined in
subdivision  two  of section one hundred two of the state administrative
procedure act, adopted or proposed by each agency with  respect  to  (i)
statutory  authority,  (ii)  compliance  with  legislative intent, (iii)
impact on the economy and on the government operations of the state  and
its  local  governments,  and  (iv)  impact on affected parties; and, in
furtherance of such duties, may examine other issues it deems  appropri-
ate. For purpose of this article, the term agency shall mean any depart-
ment, 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.
  2.  The  commission  may employ such staff and retain such consultants
and expert services as may be necessary and fix their  compensation  and
expenses  within  the  amounts  appropriated therefor. Employment by the
commission shall be deemed to be employment by the legislature  for  all
purposes.
  3.  PROPOSED  RULES  AND  ACCOMPANYING  DOCUMENTATION ESTABLISHING THE
STATUTORY AUTHORITY FOR AGENCY PROMULGATION, SHALL BE  PROVIDED  TO  THE
COMMISSION  AT  THE  BEGINNING  OF THE PUBLIC COMMENT PERIOD REQUIRED BY
SUBDIVISION ONE OF SECTION TWO HUNDRED TWO OF THE  STATE  ADMINISTRATIVE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10781-02-3

S. 5161                             2

PROCEDURE  ACT.  THE  COMMISSION OR MEMBERS OF THE COMMISSION MAY REVIEW
SUCH INFORMATION AND DETERMINE WHETHER SUCH RULES  ARE  CONSISTENT  WITH
CONSTITUTIONAL  AND  STATUTORY AUTHORITY. ANY DETERMINATIONS MADE BY THE
COMMISSION OR A CHAIRPERSON OF THE COMMISSION SHALL BE MADE AVAILABLE ON
THE COMMISSION'S WEBSITE AND PROVIDED TO THE RESPECTIVE STATE AGENCY.
  4.  The  commission shall have the power, subject to the provisions of
section seventy-three of the civil rights law, to hold hearings, subpoe-
na witnesses, administer oaths, take testimony and compel the production
of books, papers, documents and other evidence  in  furtherance  of  its
duties;  provided, however, that no subpoena shall issue except upon the
affirmative vote of a majority of the whole membership  of  the  commis-
sion.  The  commission  may  request and shall receive from all agencies
such assistance and data as will enable it properly  to  consummate  any
such examination, and review.
  5.  THE COMMISSION SHALL HAVE STANDING TO PURSUE AN ACTION PURSUANT TO
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW  AND  RULES  AGAINST  AN
EXECUTIVE  AGENCY  IF  THE  COMMISSION  DETERMINES  THAT  A RULE EXCEEDS
AUTHORITY PROVIDED UNDER STATE LAW OR THE STATE CONSTITUTION.    ACTIONS
SHALL  BE  COMMENCED  IN THIS WAY UPON AFFIRMATIVE VOTE OF A MAJORITY OF
THE WHOLE MEMBERSHIP OF THE COMMISSION. IN THE EVENT THAT THE SPEAKER OF
THE ASSEMBLY AND THE TEMPORARY PRESIDENT OF THE SENATE  ARE  MEMBERS  OF
THE SAME POLITICAL PARTY, THE COMMENCEMENT OF AN ACTION WOULD REQUIRE AN
AFFIRMATIVE  VOTE OF MORE THAN TWO-THIRDS OF THE WHOLE MEMBERSHIP OF THE
COMMISSION.
  S 2. Section 88 of the legislative law, as amended by chapter  850  of
the laws of 1990, is amended to read as follows:
  S 88. Reports.  1. The commission shall, from time to time, report its
findings and recommendations to the governor, the temporary president of
the senate and the speaker of the assembly, and to the  members  of  the
legislature, and may at any time make recommendations to an agency based
upon  its  review  of  that  agency's rule making process, or any of the
agency's proposed, revised or adopted rules.
  2. THE COMMISSION MAY PUBLISH ITS FINDINGS  AND  RECOMMENDATIONS  WITH
REGARD  TO  A  REGULATION  OR  RULE ON ITS WEBSITE, OR ANY OTHER FORM IT
DEEMS APPROPRIATE.
  S 3. The opening paragraph  of  paragraph  (a)  of  subdivision  1  of
section  202  of  the  state administrative procedure act, as amended by
chapter 429 of the laws of 2003, is amended to read as follows:
  Prior to the adoption of a rule, an agency shall submit  a  notice  of
proposed  rule  making  to the secretary of state for publication in the
state register,  SHALL  PROVIDE  THE  PROPOSED  RULES  AND  ACCOMPANYING
DOCUMENTATION  ESTABLISHING  THE STATUTORY AUTHORITY FOR PROMULGATION TO
THE ADMINISTRATIVE REGULATIONS REVIEW COMMISSION, and shall  afford  the
public  an opportunity to submit comments on the proposed rule. Unless a
different time is specified by statute or this paragraph, the notice  of
proposed  rule  making must appear in the state register at least forty-
five days prior to either:
  S 4. This act shall take effect immediately.

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