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.