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.