senate Bill S2160A

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • 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
Jun 20, 2014 committed to rules
Feb 11, 2014 advanced to third reading
Feb 10, 2014 2nd report cal.
Feb 04, 2014 1st report cal.112
Jan 17, 2014 print number 2160a
amend and recommit to commerce, economic development and small business
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 20, 2013 advanced to third reading
May 08, 2013 2nd report cal.
May 07, 2013 1st report cal.582
Jan 14, 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

S2160A
8
1
committee
8
Aye
1
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

nay (1)
aye wr (1)

May 7, 2013 - Commerce, Economic Development and Small Business committee Vote

S2160
10
0
committee
10
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Committee Vote: May 7, 2013

aye wr (1)

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S2160 - Bill Details

See Assembly Version of this Bill:
A7639A
Current Committee:
Senate Rules
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd §§202, 202-a & 202-b, St Ad Proc Act
Versions Introduced in 2011-2012 Legislative Session:
S6439

S2160 - Bill Texts

view 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.

view 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.

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                    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.

Co-Sponsors

view additional co-sponsors

S2160A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7639A
Current Committee:
Senate Rules
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd §§202, 202-a & 202-b, St Ad Proc Act
Versions Introduced in 2011-2012 Legislative Session:
S6439

S2160A (ACTIVE) - Bill Texts

view 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.

view sponsor memo
BILL NUMBER:S2160A

TITLE OF BILL: An act to amend the state administrative procedure
act, in relation to providing for public comment during the initial
development, 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
Regulatory 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
alternative 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


Analysis (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 2012 S2160 of 2013

FISCAL IMPLICATIONS: None.

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

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

                                 2160--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 14, 2013
                               ___________

Introduced by Sens. VALESKY, BALL, GALLIVAN, GRISANTI, MARCHIONE -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Commerce, Economic  Development  and  Small  Business  --
  recommitted  to  the  Committee  on Commerce, Economic Development and
  Small Business in accordance with Senate Rule 6, sec. 8  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04827-02-4

S. 2160--A                          2

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.
  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 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

S. 2160--A                          3

  [(iii)] (C) the information, including the source or sources  of  such
information, and methodology upon which the cost analysis is based; or
  [(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
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;

S. 2160--A                          4

  (b) the use of performance rather than design standards; [and]
  (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

S. 2160--A                          5

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 10. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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