senate Bill S1784

2013-2014 Legislative Session

Authorizes a group of businesses that are regulated by a state agency or a representative of such businesses to petition such agency for alternate rules

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Archive: Last Bill Status - Passed Senate


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
May 14, 2014 referred to governmental operations
May 13, 2014 delivered to assembly
passed senate
Feb 11, 2014 advanced to third reading
Feb 10, 2014 2nd report cal.
Feb 04, 2014 1st report cal.110
Jan 08, 2014 referred to commerce, economic development and small business
returned to senate
died in assembly
Jun 10, 2013 referred to governmental operations
delivered to assembly
passed senate
May 06, 2013 advanced to third reading
May 01, 2013 2nd report cal.
Apr 30, 2013 1st report cal.473
Jan 09, 2013 referred to commerce, economic development and small business

Votes

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Feb 4, 2014 - Commerce, Economic Development and Small Business committee Vote

S1784
7
2
committee
7
Aye
2
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Commerce, Economic Development and Small Business Committee Vote: Feb 4, 2014

aye wr (1)

Apr 30, 2013 - Commerce, Economic Development and Small Business committee Vote

S1784
10
0
committee
10
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Commerce, Economic Development and Small Business committee vote details

Commerce, Economic Development and Small Business Committee Vote: Apr 30, 2013

aye wr (1)

Co-Sponsors

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S1784 - Bill Details

Current Committee:
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd ยง204-a, St Ad Proc Act
Versions Introduced in 2011-2012 Legislative Session:
S6446

S1784 - Bill Texts

view summary

Authorizes a group of businesses that are regulated by a state agency or a representative of such businesses to petition the state agency for alternate methods for implementing a regulatory mandate that restricts the conducting or management of business in this state.

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BILL NUMBER:S1784

TITLE OF BILL: An act to amend the state administrative procedure
act, in relation to authorizing regulated businesses to petition a
state agency for an alternate method of implementing a regulatory
mandate

PURPOSE: To reform the provisions of the state Administrative
Procedure Act (SAPA) as it relates to petitions to secure alternate
methods for implementing regulatory mandates. This bill, which expands
this concept that is in law, includes any group of businesses in
addition to municipal petitioners. Under current law, only groups of
local governments can petition a state agency to use an alternative
method to implement a rule. This bill will expand this concept of
petitioning an alternative method to implement a rule to include
business petitioners.

SUMMARY OF PROVISIONS:

Section 1: Amends SAPA section 204-a to allow "regulated businesses"
to also petition a state agency for approval to use an alternative
method to comply with a rule instead of the standards prescribed in
such rule. This section defines "regulated business" as any group of
businesses that have a common interest such as a similar type of
industry or trade or a geographical unity such as a statewide
organization, or professional association or chamber of commerce which
is based in a certain region or county. In addition, this section
makes conforming changes so that regulated businesses can petition an
agency for a alternative method. This bill also revises the type of
rules that are eligible to be the subject of such a petition. Under
current law, rules that have environmental, health, and safety
standards are completely exempt from this procedure. This bill allows
petitions for an alternative method to include environmental, health
and safety rules, as long as the approved petition result will not
diminish any environmental, health, or safety standard.

Section 2: Amends the expiring provisions of SAPA section 204-a so
that the new provisions related to petitions filed by regulated
businesses will still be incorporated in the law.

Section 3: Effective date

JUSTIFICATION: Under current law, associations of municipalities can
petition to alter the enforcement mechanism or standards used in
certain rules. This bill expands this concept to allow associations
of businesses with the same ability as associations of municipalities
to have the ability to petition a state agency, It is important to
give the business community the same types of opportunities to ask for
alternative methods to comply with a rule as is now afforded to groups
of municipalities.

LEGISLATIVE HISTORY: 2012- S-6446 - Referred to Commerce, Economic
Development and Small Business

FISCAL IMPLICATIONS: None.


EFFECTIVE DATE: January 1st next succeeding the day on which it shall
have become law.

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

                                  1784

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. CARLUCCI -- 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
  authorizing regulated businesses to petition a  state  agency  for  an
  alternate method of implementing a regulatory mandate

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

  Section 1. Section 204-a of the state administrative procedure act, as
amended by section 1 of subpart H of part C of chapter 97 of the laws of
2011, is amended to read as follows:
  S 204-a. Alternate methods for implementing regulatory mandates. 1. As
used in this section:
  (a) "local government" means any county, city, town,  village,  school
district, fire district or other special district;
  (b)  "REGULATED  BUSINESS"  MEANS ANY GROUP OF BUSINESSES OF A SIMILAR
TYPE OR TRADE, OR FROM THE SAME REGION OR AREA  OF  THE  STATE,  OR  ANY
GROUP OF BUSINESSES WITHIN THE STATE, THAT ARE SUBJECT TO THE REGULATION
OF ANY AGENCY. SUCH TERM SHALL INCLUDE ANY ENTITY OR GROUP WHICH REPRES-
ENTS SUCH BUSINESSES;
  (C) "regulatory mandate" means any rule which (I) requires one or more
local governments to create a new program, increase the level of service
for an existing program or otherwise comply with mandatory requirements;
OR  (II) REGULATES THE CONDUCTING AND MANAGEMENT OF ANY BUSINESS IN THIS
STATE; and
  [(c)] (D) "petition" means a document submitted by a local  government
OR  REGULATED  BUSINESSES  seeking  approval  of an alternate method for
implementing a regulatory mandate.
  2. A local government, or two or more local governments acting  joint-
ly,  may seek approval for an alternate method of implementing a regula-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05319-01-3

S. 1784                             2

tory mandate by submitting to the appropriate state  agency  a  petition
which shall include but not be limited to:
  (a)  for each involved local government, an indication that submission
has been approved by the governing body of the local government or by an
officer duly authorized by the governing body to do so;
  (b) an identification of the regulatory mandate which is  the  subject
of  the  petition  and  information  sufficient  to  establish  that the
proposed alternate method of implementation is consistent with and  will
effectively carry out the objectives of the regulatory mandate;
  (c)  information  sufficient  to establish that the proposed alternate
method of implementation is consistent with and will  effectively  carry
out the objectives of the regulatory mandate;
  (d)  documentation that the petition has been submitted to the author-
ized agents  of  any  certified  or  recognized  employee  organizations
representing  employees  who  would be effected by implementation of the
alternate method;
  (e) whether the state has provided financial assistance for  complying
with the regulatory mandate; and
  (f) the name, public office address and telephone number of the repre-
sentative of the local government who will coordinate requests for addi-
tional information on the petition; and
  (g)  where  two  or  more  local  governments have petitioned jointly,
information which addresses  the  manner  in  which  responsibility  for
implementation  will  be  allocated  between  or among the participating
local governments.
  2-A. REGULATED BUSINESSES MAY SEEK APPROVAL FOR AN ALTERNATE METHOD OF
IMPLEMENTING A REGULATORY MANDATE BY SUBMITTING TO THE APPROPRIATE STATE
AGENCY A PETITION WHICH SHALL INCLUDE BUT NOT BE LIMITED TO:
  (A)  FOR  EACH  INVOLVED  REGULATED  BUSINESS,  AN   INDICATION   THAT
SUBMISSION HAS BEEN APPROVED BY THE OWNER OR GOVERNING BODY OF THE REGU-
LATED BUSINESS TO DO SO;
  (B)  AN  IDENTIFICATION OF THE REGULATORY MANDATE WHICH IS THE SUBJECT
OF THE PETITION;
  (C) INFORMATION SUFFICIENT TO ESTABLISH THAT  THE  PROPOSED  ALTERNATE
METHOD  OF  IMPLEMENTATION IS CONSISTENT WITH AND WILL EFFECTIVELY CARRY
OUT THE OBJECTIVES OF THE REGULATORY MANDATE; AND
  (D) THE NAME, BUSINESS ADDRESS AND TELEPHONE NUMBER OF  THE  REPRESEN-
TATIVE  OF  THE  REGULATED  BUSINESSES  WHO WILL COORDINATE REQUESTS FOR
ADDITIONAL INFORMATION ON THE PETITION.
  3. The agency shall cause a notice of the petition to be published  in
the  state  register  and  a  newspaper  of  general  circulation in the
impacted community OR COMMUNITIES and  shall  receive  comments  on  the
petition  for  a period of thirty days. Such notice shall either include
the full text of the information set forth in the petition or shall  set
forth  the  address of a website on which the full text has been posted.
The notice shall include the name, public office OR BUSINESS address and
telephone number, and may include  a  fax  number  and  electronic  mail
address, of an agency representative from whom additional information on
the petition can be obtained and to whom comments on the petition may be
submitted.
  4.  (A)  Not  later than thirty days after the last day of the comment
period, the agency shall approve or disapprove the petition. The  agency
may  approve  the  petition  without  change  or with such conditions or
modifications as the agency deems  appropriate.  Notice  of  the  agency
determination  shall  be  provided in writing to the local government OR
REGULATED BUSINESSES and shall be published in the state  register.  The

S. 1784                             3

agency shall not grant a petition unless it determines that the petition
has met the requirements of subdivision two OR TWO-A of this section and
that the local government [has] OR REGULATED BUSINESSES HAVE established
that  the alternate method is consistent with and will effectively carry
out the objectives of the regulatory mandate; provided, however, that no
petition shall be approved which would  result  in  the  [contravention]
DIMINUTION  OR ABATEMENT of any environmental, health or safety standard
or would reduce any benefits or rights accorded by law or rule to  third
parties.  In  approving  a  petition,  an  agency  may waive a statutory
provision only if it is specifically authorized by  law  to  waive  such
provision.  An  approval shall include a timetable for agency evaluation
of the effectiveness of the alternate method.
  (b) Notwithstanding the provisions of paragraph (a) of  this  subdivi-
sion,  upon  receipt  of  an objection to a petition from the authorized
agent of any certified or recognized employee organization  representing
employees who would be affected by implementation of the alternate meth-
od,  the agency shall provide any such organizations with an opportunity
for a hearing. If an adjudicatory proceeding is requested, the  petition
shall not be approved unless the agency determines by a preponderance of
the  evidence  that  implementing  the alternate method would not affect
such employees by contravening any environmental, health or safety stan-
dard, reducing any rights or benefits or  violating  the  terms  of  any
negotiated  agreement,  and  that all other requirements of this section
have been met. The provisions of this subdivision are in addition to and
shall not be construed to impair or modify any rights of such  employees
under any other law, regulation or contract.
  5. A local government OR REGULATED BUSINESSES that [objects] OBJECT to
a  state  agency  determination to modify or disapprove its petition may
appeal in writing to the mandate relief council, who, upon review of the
agency's findings and determination, may approve, modify  or  disapprove
the petition.
  6.  Nothing  in this section shall require a local government OR REGU-
LATED BUSINESSES to commence or continue an alternate method  of  imple-
mentation  if  it determines in its sole discretion not to do so, except
to the extent that a local government [has] OR REGULATED BUSINESSES HAVE
committed to commencing or continuing an alternate  method  in  a  joint
petition submitted pursuant to subdivision two OR TWO-A of this section.
  7.  A state agency may rescind its approval of a petition only after a
hearing, provided, however, that the agency may suspend its approval  of
a  petition  prior to a hearing if it finds that immediate suspension is
necessary to address an imminent threat to health or safety. Notice of a
hearing must be provided to the petitioner at least thirty days prior to
the hearing and must be posted on the agency's website. Such notice must
state the basis for the agency's decision to seek rescission and  inform
the  local government OR REGULATED BUSINESSES that it may request infor-
mation relied upon by the agency  in  making  its  determination,  which
information  must be provided to the local government OR REGULATED BUSI-
NESSES at least seven days in advance of the hearing.  After such  hear-
ing,  the agency may rescind its approval upon a finding that the alter-
native method of implementation is  not  consistent  with  or  does  not
effectively carry out the objectives of the regulatory mandate.
  8.  Notwithstanding  any  other provision of law, implementation of an
alternate method approved by an agency pursuant to this section shall be
deemed to lawfully meet all requirements of the regulatory  mandate.  An
agency  shall retain the authority to enforce compliance with the alter-
nate method in the same manner as it may  enforce  compliance  with  the

S. 1784                             4

underlying  rule.  Any  action  on a petition by a state agency shall be
subject to review pursuant to article seventy-eight of the  civil  prac-
tice law and rules.
  9.  In  accordance with the timetable established pursuant to subdivi-
sion three of this section, the agency shall evaluate the  effectiveness
of the alternate method in carrying out the objectives of the regulatory
mandate.  The  evaluation  shall identify any savings or other benefits,
and any costs or other  disadvantages,  of  implementing  the  alternate
method,  and  shall address the desirability of incorporating the alter-
nate method into the rules of the agency. Notice of availability of  the
evaluation shall be published in the state register.
  S 2. Section 204-a of the state administrative procedure act, as added
by chapter 479 of the laws of 2001, is amended to read as follows:
  S 204-a. Alternate methods for implementing regulatory mandates. 1. As
used in this section:
  (a)  "local  government" means any county, city, town, village, school
district, fire district or other special district;
  (b) "REGULATED BUSINESSES" MEANS ANY GROUP OF BUSINESSES OF A  SIMILAR
TYPE  OR  TRADE,  OR  FROM  THE SAME REGION OR AREA OF THE STATE, OR ANY
GROUP OF BUSINESSES WITHIN THE STATE, THAT ARE SUBJECT TO THE REGULATION
OF ANY AGENCY. SUCH TERM SHALL INCLUDE ANY ENTITY OR GROUP WHICH REPRES-
ENTS SUCH BUSINESSES;
  (C) "regulatory mandate" means any rule which (I) requires one or more
local governments to create a new program, increase the level of service
for an existing program or otherwise comply with mandatory requirements;
OR (II) REGULATES THE CONDUCTING AND MANAGEMENT OF ANY BUSINESS IN  THIS
STATE; and
  [(c)]  (D) "petition" means a document submitted by a local government
seeking approval of an alternate method for  implementing  a  regulatory
mandate.
  2. A petition shall include:
  (a)  an  indication that submission has been approved by the governing
body of the local government or by an officer  duly  authorized  by  the
governing body to do so;
  (b)  an  identification of the regulatory mandate which is the subject
of the  petition  and  information  sufficient  to  establish  that  the
proposed  alternate method of implementation is consistent with and will
effectively carry out the objectives of the regulatory mandate;
  (c) information on the process used by the local government to  ensure
that all stakeholders have been appropriately involved in the process of
developing  the  alternate  method, including where relevant the date of
any hearing, forum or other meeting to seek input on the alternate meth-
od;
  (d) documentation that the petition has been submitted to the  author-
ized  agents  of  any  certified  or  recognized  employee organizations
representing employees who would be effected by  implementation  of  the
alternate method;
  (e) a proposed plan and timetable for compiling and reporting informa-
tion  to  facilitate  evaluation  of  the effectiveness of the alternate
method;
  (f) if the state provides financial assistance for complying with  the
regulatory mandate, any proposed amount or percentage of such assistance
which  would  be  returned to the state due to savings from implementing
the alternate method; and

S. 1784                             5

  (g) the name, public office address and telephone number of the repre-
sentative of the local government who will coordinate requests for addi-
tional information on the petition.
  2-A. REGULATED BUSINESSES MAY SEEK APPROVAL FOR AN ALTERNATE METHOD OF
IMPLEMENTING A REGULATORY MANDATE BY SUBMITTING TO THE APPROPRIATE STATE
AGENCY A PETITION WHICH SHALL INCLUDE BUT NOT BE LIMITED TO:
  (A)   FOR   EACH  INVOLVED  REGULATED  BUSINESS,  AN  INDICATION  THAT
SUBMISSION HAS BEEN APPROVED BY THE OWNER OR GOVERNING BODY OF THE REGU-
LATED BUSINESS TO DO SO;
  (B) AN IDENTIFICATION OF THE REGULATORY MANDATE WHICH IS  THE  SUBJECT
OF THE PETITION;
  (C)  INFORMATION  SUFFICIENT  TO ESTABLISH THAT THE PROPOSED ALTERNATE
METHOD OF IMPLEMENTATION IS CONSISTENT WITH AND WILL  EFFECTIVELY  CARRY
OUT THE OBJECTIVES OF THE REGULATORY MANDATE; AND
  (D)  THE  NAME, BUSINESS ADDRESS AND TELEPHONE NUMBER OF THE REPRESEN-
TATIVE OF THE REGULATED BUSINESSES  WHO  WILL  COORDINATE  REQUESTS  FOR
ADDITIONAL INFORMATION ON THE PETITION.
  3.  Two  or  more  local  governments  may  submit a petition jointly,
provided that each local government meets the requirements of paragraphs
(a), (c), (d) and (g) of subdivision two of this section,  and  provided
that  the  petition  addresses  the  manner  in which responsibility for
implementation will be allocated  between  or  among  the  participating
local governments.
  4.  The agency shall cause a notice of the petition to be published in
the state register and shall receive comments  on  the  petition  for  a
period of thirty days. Such notice shall either include the full text of
the information set forth in the petition or shall set forth the address
of  a  website  on which the full text has been posted. The notice shall
include the name,  public  office  OR  BUSINESS  address  and  telephone
number,  and may include a fax number and electronic mail address, of an
agency representative from whom additional information on  the  petition
can be obtained and to whom comments on the petition may be submitted.
  5.  (a)  Not  later than thirty days after the last day of the comment
period, the agency shall approve or disapprove the petition. The  agency
may  approve  the  petition  without  change  or with such conditions or
modifications as the agency deems  appropriate.  Notice  of  the  agency
determination  shall  be  provided in writing to the local government OR
REGULATED BUSINESSES and shall be published in the state  register.  The
agency shall not grant a petition unless it determines that the petition
has met the requirements of subdivision two OR TWO-A of this section and
that the local government [has] OR REGULATED BUSINESSES HAVE established
that  the alternate method is consistent with and will effectively carry
out the objectives of the regulatory mandate; provided, however, that no
petition shall be approved which would  result  in  the  [contravention]
DIMINUTION  OR ABATEMENT of any environmental, health or safety standard
or would reduce any benefits or rights accorded by law or rule to  third
parties.  In  approving  a  petition,  an  agency  may waive a statutory
provision only if it is specifically authorized by  law  to  waive  such
provision.  An  approval shall include a timetable for agency evaluation
of the effectiveness of the alternate method.
  (b) Notwithstanding the provisions of paragraph (a) of  this  subdivi-
sion,  upon  receipt  of  an objection to a petition from the authorized
agent of any certified or recognized employee organization  representing
employees who would be affected by implementation of the alternate meth-
od,  the agency shall provide any such organizations with an opportunity
for a hearing. If an adjudicatory proceeding is requested, the  petition

S. 1784                             6

shall not be approved unless the agency determines by a preponderance of
the  evidence  that  implementing  the alternate method would not affect
such employees by contravening any environmental, health or safety stan-
dard,  reducing  any  rights  or  benefits or violating the terms of any
negotiated agreement, and that all other requirements  of  this  section
have been met. The provisions of this subdivision are in addition to and
shall  not be construed to impair or modify any rights of such employees
under any other law, regulation or contract.
  6. Nothing in this section shall require a local government  OR  REGU-
LATED  BUSINESSES  to commence or continue an alternate method of imple-
mentation if it determines in its sole discretion not to do  so,  except
to the extent that a local government [has] OR REGULATED BUSINESSES HAVE
committed  to  commencing  or  continuing an alternate method in a joint
petition submitted pursuant to subdivision  three  of  this  section.  A
state  agency  may  rescind its approval of a petition at any time if it
determines, based on the information reported pursuant to paragraph  (e)
of subdivision two of this section or other information available to it,
that the alternate method is not effectively carrying out the objectives
of  the  regulatory  mandate  or is being implemented in a manner detri-
mental to the public interest.
  7. Notwithstanding any other provision of law,  implementation  of  an
alternate method approved by an agency pursuant to this section shall be
deemed  to  lawfully meet all requirements of the regulatory mandate. An
agency shall retain the authority to enforce compliance with the  alter-
nate  method  in  the  same manner as it may enforce compliance with the
underlying rule. Any action on a petition by a  state  agency  shall  be
subject  to  review pursuant to article seventy-eight of the civil prac-
tice law and rules.
  8. In accordance with the timetable established pursuant  to  subdivi-
sion  four  of this section, the agency shall evaluate the effectiveness
of the alternate method in carrying out the objectives of the regulatory
mandate. The evaluation shall identify any savings  or  other  benefits,
and  any  costs  or  other  disadvantages, of implementing the alternate
method, and shall address the desirability of incorporating  the  alter-
nate  method into the rules of the agency. Notice of availability of the
evaluation shall be published in the state register.
  S 3. This act shall take effect on the first of January next  succeed-
ing  the  date  on  which  it shall have become a law; provided that the
amendments to section 204-a of the state administrative  procedure  act,
made  by section one of this act, shall be subject to the expiration and
reversion of such section, pursuant to section 3 of subpart H of part  C
of  chapter  97  of the laws of 2011, and shall be deemed expired there-
with, when upon such date the provisions of  section  two  of  this  act
shall take effect.

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