Senate Bill S6449

2011-2012 Legislative Session

Establishes the office of regulatory reform and administrative procedure compliance, and repeals provisions of law establishing the office of business permits

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Archive: Last Bill Status - In Senate Committee Finance 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 09, 2012	referred to finance

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2011-S6449 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §146, rpld & add Art 39 §§875 - 880, Exec L; amd §§202, 102-a, 202-b, 206 & 207, St Ad Proc Act

2011-S6449 (ACTIVE) - Summary

Establishes the office of regulatory reform and administrative procedure compliance, and repeals provisions of law establishing the office of business permits; directs such office to review all proposed rules for being overburdening or engaging in overbreadth.

2011-S6449 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S6449

TITLE OF BILL:
An act to amend the executive law and the state administrative
procedure act, in relation to establishing the office of regulatory
reform and administrative procedure compliance, and providing for its
powers and duties; and to repeal article 39 of the executive law
relating to the office of business permits

PURPOSE:
To establish within the Department of State, the Office of Regulatory
Reform and Administrative Procedure Compliance (ORRAPC).  This office
is needed to designate, in law, one executive agency which is charged
with the responsibility of ensuring that state agencies comply with
the State Administrative Procedure Act, both its substantive and
procedural provisions.  Further, to help promote New York's business
climate, it is optimum to have one state agency ombudsman that
individuals, businesses, and regulated persons can contact if they
have questions, comments, or concerns on either how a state agency is
promulgating a rule or the substantive provisions of a such a rule.

SUMMARY OF PROVISIONS:
Section 1: Amends the Executive Law section 146, which lays out the
notice and publication provisions that govern the printing of the
State Register.  Under the Executive Law, the Department of State is
responsible for publishing the State Register. Hence, it is best to

place the Office of Regulatory Reform and Administrative Procedure
Compliance (ORRAPC) within the Department of State since all
rulemakings are filed with this agency already.  Under this provision,
it clarifies the Department's ability to refuse to publish a rule
making notice, if the Department does not believe that such agency has
complied with substantive or procedural requirements of SAPA.  Under
this provision, the ORRAPC may review all notices of rulemakings that
are filed with the Department of State (DOS) and render an opinion
that such filing does not comply with SAPA and that such notice should
not be published in the State Register.

Section 2: Adds a new Executive Law Article 39 to establish the Office
of Regulatory Reform and Administrative Procedure. This provision lays
out the legislative findings that necessitate that such an Office
should be established. It is made very clear in Article 39 that the
functions of the Office are to be contained in DOS and that it shall
be the focal point for functions that DOS is now currently providing
with regard to the enforcement of SAPA.

Among the Office's functions are to: 1) monitor agency actions that
relate to compliance with SAPA, 2) engage in a dialog with state
agencies to ensure that such agencies comply with all of the
procedural and substantive provisions of SAPA, 3) accept comments from
regulated parties as it relates to the proper compliance with SAPA 4)
serve as an ombudsman for the business community with regard to
curtailing the promulgation of new rules that are unnecessary, over
burdensome, overly stringent, were promulgated without adequate
statutory authority, or 5) may hinder economic development and job
creation activities in this State.


The Office may issue a Non-compliance Notice for proposed rules that:
1) do not comply with the substantive or procedural requirements of
SAPA, 2) do not have adequate statutory authority to promulgate such
rules.

To better integrate the operations of the Office with other executive
branches, an Advisory Council is established to provide guidance to
the Office. The Chair of this Advisory council is the Secretary of
State, and representatives from the Division of the Budget and
Secretary to the Governor. The Governor shall also appoint two members
from the State's business community to the council. In addition, the
Temporary President of the Senate and Assembly speaker shall appoint
one member to this Council.

Sections 3: Amends SAPA section 202 (1) to clearly institute in SAPA
that the DOS, through the Office, may refuse to publish a notice of
proposed rule making if such notice does not comply with substantive
or procedural requirements of SAPA.

Section 4, 5, 6, 7, and 8: These provisions amend SAPA section 202
that relates to the publication of various rule making notices in the
State Register.

Section 9: Amends SAPA section 202-b to eliminate an old reference to
the Office of Business permits and Regulatory Assistance (OBPRA) and
to add in the new Office of Regulatory Reform and Administrative
Procedure compliance.

Section 10: Amends SAPA section 206 which involves compliance
determinations related to overlapping regulations. This provision
deletes references to OBPRA and add references to the ORRAPC.

Section 11: Amends SAPA section 207(5) to delete references to
obsolete or invalid rules.

JUSTIFICATION:
Under current law, while the DOS, with the assistance of the Division
of Budget, has the ability to review rule making notices before such
notices are published in the State Register, there is nothing codified
in statute that establishes a procedure for such review. More
importantly, there is nothing in statue to ensure that state agencies
comply with SAPA. While state agencies are supposed to comply with the
substantive and procedural requirements of SAPA when promulgating a
rule, there is no established procedure embodied in the law which can
compel compliance, unless a regulated party litigates the subject and
a court throws out such promulgated rule on procedural grounds.

The current state of the law actually encourages regulated parties to
sue in court to stop a rule that was promulgated in violation of SAPA
or which does not have adequate statutory authority. Under this bill,
an office (within DOS, the same agency that publishes the State
Register) would be established in which regulated parties could
contact to object to a proposed rule making if it was illegally
promulgated or for which there is inadequate statutory authority to
promulgate such a rule.


This bill strengthens the enforcement of SAPA and makes state agency
actions more accountable to the general public. Further, it will give
regulated parties a better opportunity to review and comment on
proposed rules before they are adopted. Further, by offering a more
meaningful ability to comment on proposed rules, hopefully, such rules
will become more well thought out and reduce unnecessary burdens or
costs imposed on regulated parties including job creating businesses.

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediate.

2011-S6449 (ACTIVE) - Bill Text download pdf

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

                                  6449

                            I N  S E N A T E

                            February 9, 2012
                               ___________

Introduced  by  Sens. CARLUCCI, KLEIN, SAVINO, VALESKY -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Finance

AN ACT to amend the executive law and the state administrative procedure
  act,  in  relation to establishing the office of regulatory reform and
  administrative procedure compliance, and providing for its powers  and
  duties;  and to repeal article 39 of the executive law relating to the
  office of business permits

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

  Section 1. Section 146 of the executive law is amended by adding a new
subdivision 3-a to read as follows:
  3-A.  WITH  REGARD  TO RULE MAKING NOTICES REQUIRED TO BE PUBLISHED IN
THE STATE REGISTER PURSUANT TO ARTICLE TWO OF THE  STATE  ADMINISTRATIVE
PROCEDURE  ACT,  THE  SECRETARY  OF  STATE,  SHALL ACCEPT AND FOLLOW THE
RECOMMENDATIONS OF THE OFFICE OF REGULATORY  REFORM  AND  ADMINISTRATIVE
PROCEDURE  COMPLIANCE  TO WITHHOLD PUBLICATION OF ANY AND ALL NOTICES OF
RULE MAKINGS FILED WITH THE SECRETARY  AND  WHICH  ARE  REQUIRED  TO  BE
PUBLISHED IN THE STATE REGISTER TO PROMULGATE A RULE PURSUANT TO ARTICLE
TWO  OF  THE  STATE  ADMINISTRATIVE PROCEDURE ACT. THE OFFICE SHALL FILE
SUCH NOTICE OF NON-COMPLIANCE WITH THE DIVISION OF ADMINISTRATIVE  RULES
IF  SUCH  OFFICE  DETERMINES  THAT  THE  STATE  AGENCY PROMULGATING SUCH
PROPOSED RULE HAS NOT SUBSTANTIALLY COMPLIED WITH EITHER THE  PROCEDURAL
OR  SUBSTANTIVE PROVISIONS OF THE STATE ADMINISTRATIVE PROCEDURE ACT, OR
IS ACTING WITHOUT ADEQUATE STATUTORY AUTHORITY TO PROMULGATE SUCH  RULE.
SUCH  NON-COMPLIANCE  NOTICE  MAY  BE  FILED BY THE OFFICE OF REGULATORY
REFORM AND ADMINISTRATIVE PROCEDURE  COMPLIANCE  WITH  THE  DIVISION  OF
ADMINISTRATIVE RULES AT ANY TIME PRIOR TO THE ACTUAL PUBLICATION OF SUCH
RULE  MAKING  NOTICE  THAT  HAS  BEEN  FILED  BY  ANY STATE AGENCY. SUCH
NON-COMPLIANCE NOTICE SHALL BE FILED WITH THE STATE AGENCY  PROMULGATING
SUCH  PROPOSED  RULE  SO THAT THE AGENCY IS ON NOTICE OF THE ISSUANCE OF
SUCH  NON-COMPLIANCE  NOTICE.  SUCH  NON-COMPLIANCE  NOTICE   SHALL   BE
PUBLISHED  IN THE STATE REGISTER AND REMAIN IN EFFECT UNTIL SUCH TIME AS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14082-02-2

S. 6449                             2

THE OFFICE FILES A NEW NOTICE THAT REMOVES SUCH OBJECTION TO THE  PUBLI-
CATION OF AGENCY NOTICES RELATED TO THE PROMULGATION OF A RULE.
  S  2. Article 39 of the executive law is REPEALED and a new article 39
is added to read as follows:
                               ARTICLE 39
                     OFFICE OF REGULATORY REFORM AND
                        ADMINISTRATIVE PROCEDURE
                               COMPLIANCE
SECTION 875. LEGISLATIVE FINDINGS.
        876. DEFINITIONS.
        877. OFFICE OF REGULATORY REFORM  AND  ADMINISTRATIVE  PROCEDURE
               COMPLIANCE.
        878. GENERAL FUNCTIONS, POWERS AND DUTIES.
        879. ASSISTANCE OF OTHER AGENCIES.
        880. ADVISORY COUNCIL.
  S  875. LEGISLATIVE  FINDINGS. THE LEGISLATURE HEREBY FINDS AND DETER-
MINES AS FOLLOWS:
  1. TO FOSTER A MORE ATTRACTIVE BUSINESS CLIMATE AND TO PROMOTE ECONOM-
IC GROWTH AND JOB CREATION IN  THIS  STATE,  THE  OFFICE  OF  REGULATORY
REFORM  AND  ADMINISTRATIVE  PROCEDURE  COMPLIANCE IS HEREBY ESTABLISHED
WITHIN THE DEPARTMENT OF STATE;
  2. IN PROMULGATING NEW RULES OR  CONDUCTING  THE  PERIODIC  REVIEW  OF
EXISTING  RULES,  THE  STATE  SHOULD  STRIVE  TO SATISFY THE LEGISLATIVE
OBJECTIVES OF THE APPLICABLE STATUTES, BUT IT SHOULD BE DONE IN A MANNER
THAT MINIMIZES ANY UNNECESSARY ADVERSE ECONOMIC  IMPACTS  ON  BUSINESSES
NOR  SHOULD  SUCH  RULES  IMPOSE  NEEDLESS,  OVERLY STRICT OR BURDENSOME
RULES, MANDATES OR ADMINISTRATIVE REQUIREMENTS  ON  EXISTING  BUSINESSES
THAT  OPERATE  IN  THIS STATE OR ON POTENTIAL FUTURE BUSINESSES THAT MAY
LOCATE IN THIS STATE; AND
  3. RETAINING THE CURRENT BASE OF BUSINESS ENTERPRISES  AND  ATTRACTING
NEW  FIRMS  TO  THIS  STATE  CAN  HELP TO PROMOTE THE HEALTH, SAFETY AND
GENERAL WELFARE OF ITS CITIZENS BY PROVIDING BETTER EMPLOYMENT  OPPORTU-
NITIES  TO  ENHANCE  OUR CITIZENS ECONOMIC AND SOCIAL WELLBEING, AND ADD
NEW TAX REVENUES TO SUPPORT PRIVATE AND GOVERNMENTAL PROGRAMS RELATED TO
PROVIDING QUALITY HEALTH CARE, SUPPORTING QUALITY EDUCATIONAL FACILITIES
AND OTHER VITAL PUBLIC PROGRAMS.
  S 876. DEFINITIONS. WHEN USED IN THIS ARTICLE:
  1. "AGENCY" MEANS AN AGENCY AS DEFINED IN SUBDIVISION ONE  OF  SECTION
ONE HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT.
  2.  "COUNCIL"  MEANS  THE  ADVISORY COUNCIL OF THE OFFICE, ESTABLISHED
PURSUANT TO SECTION EIGHT HUNDRED EIGHTY OF THIS ARTICLE.
  3. "DEPARTMENT" MEANS THE DEPARTMENT OF STATE.
  4. "DIRECTOR" MEANS THE DIRECTOR OF THE OFFICE.
  5. "OFFICE" MEANS THE OFFICE OF REGULATORY REFORM  AND  ADMINISTRATIVE
PROCEDURE  COMPLIANCE  ESTABLISHED  PURSUANT  TO  SECTION  EIGHT HUNDRED
SEVENTY-SEVEN OF THIS ARTICLE.
  6. "PERSON" MEANS ANY INDIVIDUAL,  PARTNERSHIP,  CORPORATION,  ASSOCI-
ATION,  OR PUBLIC OR PRIVATE ORGANIZATION OF ANY CHARACTER OTHER THAN AN
AGENCY ENGAGED IN THE PARTICULAR  RULE  MAKING,  DECLARATORY  RULING  OR
ADJUDICATION.
  7.  "RULE"  MEANS  A RULE AS DEFINED IN SUBDIVISION TWO OF SECTION ONE
HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT.
  8. "SECRETARY" MEANS THE SECRETARY OF STATE.
  S 877.  OFFICE  OF  REGULATORY  REFORM  AND  ADMINISTRATIVE  PROCEDURE
COMPLIANCE.  1.  THERE IS HEREBY CREATED WITHIN THE DEPARTMENT AN OFFICE
OF REGULATORY REFORM AND ADMINISTRATIVE PROCEDURE COMPLIANCE.  THE  HEAD

S. 6449                             3

OF THE OFFICE SHALL BE THE DIRECTOR WHO SHALL BE APPOINTED BY THE GOVER-
NOR,  BY  AND  WITH  THE ADVICE AND CONSENT OF THE SENATE, AND WHO SHALL
SERVE AT THE PLEASURE OF THE GOVERNOR.
  2. THE DIRECTOR SHALL BE THE CHIEF EXECUTIVE OFFICER OF THE OFFICE AND
ADMINISTER  ITS  OPERATIONS.  THE DIRECTOR MAY APPOINT SUCH OFFICERS AND
EMPLOYEES AS HE OR SHE MAY DEEM NECESSARY, PRESCRIBE THEIR  DUTIES,  FIX
THEIR  COMPENSATION AND PROVIDE FOR THE REIMBURSEMENT OF THEIR EXPENSES,
UPON APPROVAL OF THE SECRETARY, ALL WITHIN AMOUNTS MADE AVAILABLE THERE-
FOR BY APPROPRIATION.
  3. THE DIRECTOR SHALL DIRECTLY REPORT TO THE SECRETARY AND INFORM  THE
SECRETARY  OF  ALL  OF  THE  ACTIVITIES  OF THE OFFICE. FURTHERMORE, THE
DIRECTOR SHALL COMMUNICATE WITH AND KEEP THE ADVISORY  COUNCIL  INFORMED
ON  THE  ACTIVITIES  OF  THE  OFFICE AND ACCEPT RECOMMENDATIONS FROM THE
ADVISORY COUNCIL ON ACTIVITIES AND ACTIONS THAT SHOULD BE UNDERTAKEN  BY
THE OFFICE.
  4. THE SECRETARY, IN WORKING WITH AGENCY HEADS CONCERNED WITH ECONOMIC
DEVELOPMENT  AND  PROMOTION  ACTIVITIES, AND THE ADVISORY COUNCIL, SHALL
ENSURE THAT THE ACTIVITIES OF THE  OFFICE  ARE  FULLY  COORDINATED  WITH
RELATED ACTIVITIES OF AGENCIES PROVIDING RELATED SERVICES.
  S  878.    GENERAL FUNCTIONS, POWERS AND DUTIES. THE OFFICE SHALL HAVE
THE FOLLOWING FUNCTIONS, POWERS AND DUTIES, TO:
  1. MONITOR AGENCY ACTIONS AND ACTIVITIES AS THEY RELATE TO  COMPLIANCE
WITH  THE  STATE ADMINISTRATIVE PROCEDURE ACT AND ENSURE THAT SUCH AGEN-
CIES COMPLY WITH THE PROVISIONS OF SUCH ACT;
  2. ENGAGE IN A DIALOG WITH  AGENCIES  TO  ENSURE  THAT  SUCH  AGENCIES
COMPLY  WITH  ALL  OF  THE  PROCEDURAL AND SUBSTANTIVE PROVISIONS OF THE
STATE ADMINISTRATIVE PROCEDURE ACT AND TO ASSIST SUCH AGENCIES WITH SUCH
COMPLIANCE EFFORTS;
  3. ACCEPT COMMENTS  AND  INFORMATION  FROM  REGULATED  PARTIES  AS  IT
RELATES  TO THE PROPER COMPLIANCE BY AGENCIES OF THE RULE MAKING PROCESS
AND THE SUBSTANTIVE AND PROCEDURAL PROVISIONS OF THE  STATE  ADMINISTRA-
TIVE PROCEDURE ACT;
  4.  SERVE  AS  AN  OMBUDSMAN FOR THE BUSINESS COMMUNITY WITH REGARD TO
CURTAILING THE PROMULGATION OF NEW  RULES  THAT  ARE  UNNECESSARY,  OVER
BURDENSOME,  OVERLY  STRINGENT OR PROMULGATED WITHOUT ADEQUATE STATUTORY
AUTHORITY, OR WHICH HINDER ECONOMIC DEVELOPMENT AND JOB CREATION  ACTIV-
ISTS IN THIS STATE;
  5. ISSUE NON-COMPLIANCE NOTICES FOR PROPOSED RULES WHICH:
  (A) DO NOT COMPLY WITH THE SUBSTANTIVE OR PROCEDURAL PROVISIONS OF THE
STATE ADMINISTRATIVE PROCEDURE ACT, OR
  (B) DO NOT HAVE ADEQUATE STATUTORY AUTHORITY TO PROMULGATE SUCH RULES;
  6.  IDENTIFY  ANTIQUATED,  OBSOLETE,  REDUNDANT, UNLESS OR DUPLICATIVE
RULES THAT COULD BE ALTERED, REVISED OR ELIMINATED TO BETTER  STREAMLINE
THE  OPERATION  OF  THE STATE AND LOCAL GOVERNMENTS, REDUCE THE BUSINESS
OPERATION COSTS, OR MAKE LIFE GENERALLY EASIER FOR THE  GENERAL  PUBLIC;
AND
  7.  ADOPT  SUCH RULES, REGULATIONS, PROCEDURES, INSTRUCTIONS AND FORMS
AS ARE REQUIRED TO CARRY OUT THE FUNCTIONS, POWERS  AND  DUTIES  OF  THE
OFFICE.
  S  879.  ASSISTANCE  OF  OTHER AGENCIES. TO EFFECTUATE THE PURPOSES OF
THIS ARTICLE, THE OFFICE MAY REQUEST AND SHALL BEEN ENTITLED TO  RECEIVE
FROM  ANY  AGENCY, AND EACH AGENCY IS AUTHORIZED TO PROVIDE SUCH ASSIST-
ANCE, SERVICES AND INFORMATION AS  SHALL  BE  NECESSARY  TO  ENABLE  THE
OFFICE TO CARRY OUT ITS FUNCTIONS, POWERS AND DUTIES.

S. 6449                             4

  S  880.  ADVISORY  COUNCIL.  1. THERE SHALL BE ESTABLISHED, WITHIN THE
OFFICE, AN ADVISORY COUNCIL COMPOSED OF SEVEN MEMBERS.  THE  MEMBERS  OF
THE COUNCIL ARE:
  (A) THE SECRETARY, WHO SHALL BE THE CHAIR OF THE COUNCIL;
  (B)  A  REPRESENTATIVE OF THE DIVISION OF THE BUDGET, APPOINTED BY THE
DIRECTOR OF SUCH DIVISION;
  (C) THE SECRETARY TO THE GOVERNOR;
  (D) TWO REPRESENTATIVES OF THE STATE'S BUSINESS  COMMUNITY,  APPOINTED
BY THE GOVERNOR;
  (E) A MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE; AND
  (F) A MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY.
  2.  THE  MEMBERS APPOINTED BY THE GOVERNOR AND THE LEGISLATIVE LEADERS
SHALL BE APPOINTED TO TERMS OF FOUR YEARS; PROVIDED,  HOWEVER,  THAT  OF
THE  INITIAL  APPOINTMENTS:  ONE  MEMBER APPOINTED BY THE GOVERNOR SHALL
SERVE A TERM OF ONE YEAR; THE MEMBER APPOINTED BY THE  TEMPORARY  PRESI-
DENT OF THE SENATE SHALL SERVE A TERM OF TWO YEARS; THE MEMBER APPOINTED
BY  THE  SPEAKER  OF THE ASSEMBLY SHALL SERVE A TERM OF THREE YEARS; AND
THE OTHER MEMBER APPOINTED BY THE GOVERNOR SHALL SERVE A  TERM  OF  FOUR
YEARS.  VACANCIES  SHALL  BE  FILLED  IN THE SAME MANNER AS THE ORIGINAL
APPOINTMENT FOR THE UNEXPIRED TERM OF THE VACANT OFFICE. THE MEMBERS  OF
THE  COUNCIL SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES, BUT SHALL
BE REIMBURSED FOR THEIR REASONABLE  EXPENSES  ACTUALLY  AND  NECESSARILY
INCURRED  BY  THEM IN THE PERFORMANCE OF THEIR DUTIES. THE COUNCIL SHALL
MEET NOT LESS THAN THREE TIMES EACH CALENDAR YEAR. SPECIAL  MEETINGS  OF
THE COUNCIL SHALL BE HELD AT THE CALL OF THE CHAIR.
  3. THE COUNCIL SHALL HAVE THE POWER TO CONSIDER ANY MATTER RELATING TO
THE FUNCTIONS, POWERS AND DUTIES OF THE OFFICE. FURTHERMORE, THE COUNCIL
MAY  ADVISE  THE OFFICE ON POLICIES, GOALS AND OPERATIONS RELATED TO THE
ADVANCEMENT OF  THE  GOALS  OF  THE  COUNCIL  AND  LEGISLATIVE  FINDINGS
CONTAINED IN SECTION EIGHT HUNDRED SEVENTY-FIVE OF THIS ARTICLE.
  4.  THE  COUNCIL MAY REVIEW PROPOSED RULES PROMULGATED BY AGENCIES AND
PROVIDE COMMENTS TO THE OFFICE THEREON.
  5. THE COUNCIL MAY  SUBMIT  RECOMMENDATIONS  TO  THE  OFFICE  FOR  THE
IMPROVEMENT,  MODIFICATION  OR  EXTENSION OF THE SERVICES OF THE OFFICE,
AND FOR ACTIONS DESIGNED TO ELIMINATE,  CONSOLIDATE  OR  SIMPLIFY  RULES
PROMULGATED BY AGENCIES OR WHICH ALREADY EXISTS.
  S  3.  Subdivision 1 of section 202 of the state administrative proce-
dure act is amended by adding a new paragraph (g) to read as follows:
  (G) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, UPON  THE
FILING  WITH  THE  SECRETARY OF STATE BY THE OFFICE OF REGULATORY REFORM
AND ADMINISTRATIVE  PROCEDURE  COMPLIANCE  OF  A  NON-COMPLIANCE  NOTICE
RELATED TO A NOTICE OF PROPOSED RULEMAKING, NOTICE OF REVISED RULEMAKING
OR  NOTICE  OF ADOPTION FOR SUCH RULEMAKING SHALL NOT BE PUBLISHED UNTIL
SUCH NON-COMPLIANCE NOTICE IS RESCINDED.
  S 4. Subparagraph (iii) of paragraph (a) of subdivision 9  of  section
202 of the state administrative procedure act, as amended by chapter 230
of the laws of 2006, is amended to read as follows:
  (iii)  reject  those  notices  which are not in substantial compliance
with the provisions of this [section] ARTICLE OR WHICH RELATE  TO  RULE-
MAKING  NOTICES  THAT THE OFFICE OF REGULATORY REFORM AND ADMINISTRATIVE
PROCEDURE COMPLIANCE HAVE ISSUED A NON-COMPLIANCE  NOTICE,  give  prompt
notice  of  such  rejection to the agency, and advise such agency on the
corrective action required; and
  S 5. Section 102-a of  the  state  administrative  procedure  act,  as
amended  by  section  3  of part O of chapter 60 of the laws of 2011, is
amended to read as follows:

S. 6449                             5

  S 102-a. Small business regulation guides. For each rule or  group  of
related  rules  which significantly impact a substantial number of small
businesses, the agency which adopted the rule shall post on its  website
AND PROVIDE TO THE OFFICE OF REGULATORY REFORM AND ADMINISTRATIVE PROCE-
DURE  COMPLIANCE one or more guides explaining the actions a small busi-
ness may take to comply with such rule or group of rules if  the  agency
determines  that  such  guide  or guides will assist small businesses in
complying with the rule, and shall designate  each  such  posting  as  a
"small business regulation guide". The guide shall explain the actions a
small  business  may  take  to comply with a rule or group of rules. The
agency shall, in its sole discretion, taking into  account  the  subject
matter  of  the  rule and the language of relevant statutes, ensure that
the guide is written using sufficiently plain language that it is likely
to be understood by affected small businesses. Agencies shall  cooperate
with other state agencies in developing such guides.
  S 6. 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
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 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 flexi-
bility analysis,  the  assessment  shall  also  summarize  the  agency'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 THE OFFICE OF
REGULATORY REFORM AND ADMINISTRATIVE PROCEDURE COMPLIANCE, 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 7. Paragraph (a) of subdivision 6-a of  section  202  of  the  state
administrative  procedure  act, as amended by chapter 171 of the laws of
1994, is amended to read as follows:
  (a) An agency shall transmit a copy of any rule making notice prepared
pursuant to this article to the governor, the temporary president of the
senate, the speaker of  the  assembly,  the  administrative  regulations
review  commission  and  the office of regulatory REFORM and [management
assistance] ADMINISTRATIVE PROCEDURE COMPLIANCE at the time such  notice
is  submitted  to  the  secretary  of state for publication in the state
register. Such transmittal shall include the complete rule text, regula-
tory impact statement, regulatory flexibility analysis, rural area flex-
ibility analysis,  or  revisions  thereof,  and  any  other  information
submitted to the secretary of state pursuant to this article.

S. 6449                             6

  S 8. Subparagraph (i) of paragraph (b) of subdivision 9 of section 202
of  the  state  administrative procedure act, as added by chapter 230 of
the laws of 2006, is amended to read as follows:
  (i)  The secretary of state [may] SHALL, in addition to publication of
the state register, publish an electronic copy  of  the  state  register
which shall be freely available on the internet.
  S  9.  The  opening paragraph 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 to read as follows:
  In proposing a rule for adoption or in adopting a rule on an emergency
basis,  the agency shall issue a regulatory flexibility analysis regard-
ing the rule being proposed for adoption or  the  emergency  rule  being
adopted.  A  copy of such analysis and any finding, and reasons for such
finding, pursuant to subdivision three of this section, shall be submit-
ted to the governor, the temporary president of the senate, the  speaker
of  the  assembly,  the  office  of  [business  permits  and] regulatory
[assistance] REFORM AND  ADMINISTRATIVE  PROCEDURE  COMPLIANCE  and  the
administrative  regulations  review commission at the time such analysis
is submitted to the secretary of state for publication and, upon written
request, a copy shall be sent to any other person. Each regulatory flex-
ibility analysis shall contain:
  S 10.   Section 206 of the  state  administrative  procedure  act,  as
amended  by  chapter  261  of  the  laws  of 1985, is amended to read as
follows:
  S 206. Overlapping regulations; compliance determinations.  1.  It  is
the declared policy of this state to protect and encourage jobs, invest-
ment  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.
  2.  Any  person subject to a requirement imposed by a state statute or
rule and to a similar requirement imposed by the federal government, may
pursuant to section two hundred four of this chapter, petition the agen-
cy administering the state requirement for a declaratory  ruling  AND/OR
PETITION  THE  OFFICE  OF REGULATORY REFORM AND ADMINISTRATIVE PROCEDURE
COMPLIANCE as to whether compliance with the federal requirement will be
accepted as compliance with the state requirement. Upon receipt of  such
petition, the agency shall submit a copy thereof to the office of [busi-
ness  permits  and]  regulatory  [assistance]  REFORM AND ADMINISTRATIVE
PROCEDURE COMPLIANCE.
  3. If the agency OR SUCH OFFICE determines that  compliance  with  the
federal   requirement   would  not  satisfy  the  purposes  or  relevant
provisions of the state statute involved, the agency OR THE OFFICE shall
so inform the petitioner in writing stating the reasons therefor and may
issue a declaratory ruling to that effect. A copy of such written state-
ment of reasons and any such declaratory ruling shall  be  submitted  by
the  agency  to the office of [business permits and] regulatory [assist-
ance] REFORM AND ADMINISTRATIVE PROCEDURE COMPLIANCE.
  4. If the agency OR THE OFFICE OF REGULATORY REFORM AND ADMINISTRATIVE
PROCEDURE  COMPLIANCE  determines  that  compliance  with  the   federal
requirement  would  satisfy  the purposes and relevant provisions of the
state statute involved but  that  it  would  not  satisfy  the  relevant
provisions  of  the state rule involved, the agency OR SUCH OFFICE shall
so inform the petitioner and the office of [business permits and]  regu-
latory  [assistance]  REFORM AND ADMINISTRATIVE PROCEDURE COMPLIANCE and
may initiate a rulemaking proceeding in accordance with this chapter  to
consider  revising  such  rule  to  accept  compliance with such federal

S. 6449                             7

requirement in a manner that is consistent  with  the  requirements  and
purposes of the state statute.
  5. If the agency OR THE OFFICE OF REGULATORY REFORM AND ADMINISTRATIVE
PROCEDURE   COMPLIANCE  determines  that  compliance  with  the  federal
requirement would satisfy the purposes and relevant  provisions  of  the
state   statute  involved,  and  that  it  would  satisfy  the  relevant
provisions of the state rule involved, the agency shall issue a declara-
tory ruling indicating its  intention  to  accept  compliance  with  the
federal  requirement  as  compliance with the state requirement, and the
terms and conditions under which it intends to do so.  A  copy  of  such
declaratory  ruling  shall  be  submitted by the agency to the office of
[business permits and] regulatory [assistance] REFORM AND ADMINISTRATIVE
PROCEDURE COMPLIANCE.
  6. The office of [business permits and] regulatory [assistance] REFORM
AND ADMINISTRATIVE PROCEDURE COMPLIANCE may consider  agency  compliance
with this section when performing its review function [under section two
hundred  two-c  of  this chapter] PURSUANT TO ARTICLE THIRTY-NINE OF THE
EXECUTIVE LAW.
  S 11. Subdivision 5 of section 207 of the state administrative  proce-
dure  act,  as amended by chapter 327 of the laws of 2003, is amended to
read as follows:
  5. This section shall not apply to any rule which  was  adopted  as  a
consensus  rule  or as a minor[, obsolete or invalid] rule, or to a rule
defined in subparagraph (ii) of paragraph  (a)  of  subdivision  two  of
section one hundred two of this chapter.
  S  12. This act shall take effect immediately; provided, however, that
sections one and three through eleven of this act shall take  effect  on
the  first  of  January  next succeeding the date on which it shall have
become a law.

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Senate Bill S6449

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Sponsored By

David Carlucci

Archive: Last Bill Status - In Senate Committee Finance Committee

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co-Sponsors

Jeffrey D. Klein

Diane J. Savino

David J. Valesky

2011-S6449 (ACTIVE) - Details

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2011-S6449 (ACTIVE) - Sponsor Memo

2011-S6449 (ACTIVE) - Bill Text download pdf

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