senate Bill S589

2013-2014 Legislative Session

Authorizes the use of innovative techniques to enhance public participation in the rule making process

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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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Senate Actions - UPPERCASE
Jan 08, 2014 referred to commerce, economic development and small business
Jan 09, 2013 referred to commerce, economic development and small business

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S589 - Bill Details

See Assembly Version of this Bill:
A142
Current Committee:
Law Section:
State Administrative Procedure Act
Laws Affected:
Amd §102, add §202-f, St Ad Proc Act
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1967A, A1648A
2009-2010: A8431

S589 - Bill Texts

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Authorizes the use of innovative techniques to enhance public participation in the rule making process; provides that use of such techniques shall in no way otherwise diminish public participation in the rule making process; establishes a three year pilot project for seven major regulatory agencies to hold public hearings upon petition of 125 or more New York residents.

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BILL NUMBER:S589

TITLE OF BILL:
An act
to amend the state administrative procedure act, in relation to public
hearings on proposed rules; and providing for the repeal of such
provisions upon expiration thereof

PURPOSE OR GENERAL IDEA OF BILL:
This bill enhances
the ability of the
public to participate more meaningfully in the rule-making process by
permitting agencies to use innovative techniques in organizing public
hearings on proposed rules, and establishes a 3-year pilot project
for seven major regulatory agencies to hold public hearings upon
petition of 125 or more New York residents.

SUMMARY OF SPECIFIC PROVISIONS:
Subdivision 1 of section 102 of the
State Administrative Procedure Act (SAPA), as amended by section 155
of subpart B of part C of chapter 62 of the laws of 2011, is amended
to include the Workers' Compensation Board as an "agency" for
purposes of implementing the new hearing provisions added by the
bill. A new S 202-f is added to SAPA authorizing agencies that hold
hearings on proposed rules under SAPA to use innovative means to
enhance public participation in rule making, such as:

- designating a segment of time for the public to address questions to
agency personnel;

- organizing hearings as roundtable discussions; scheduling evening or
weekend hearings; and

- using broadcast and teleconferencing technologies.

Agencies may include in their annual reports an analysis of the
innovative techniques used to enhance participation. Such techniques
shall not be used in a manner that will result in the diminished
ability of the public to comment on the proposed rule at the public
hearing.

Section 202-f also requires those agencies which are listed in
subdivision 4 to hold public hearings on proposed rules when they
receive written petitions from 125 or more people residing in New
York State, provided a sufficient petition is received not later than
the 20th day before the last date for public comment. Agencies which
receive petitions after such date and agencies which are not listed
in subdivision 4 of S202-f have the option of holding a public
hearing pursuant to such petitions. Agencies are required to give due
consideration to requests that a hearing be held in a particular
region.

Agencies are not required to hold public hearings for rules for which
a hearing is required by law and has already been scheduled or held,
or for consensus rules or rules related to rate-makings. Subdivision
4 of 5202-f specifies that the following agencies are required on a
pilot basis to hold hearings upon receipt of petitions: the Workers'


Compensation Board and the Departments of Education, Environmental
Conservation, Health, Insurance, Labor and Family Assistance.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
Currently, SAPA
does not contain any provisions concerning petitions for public
hearings on proposed rules, nor does it contain any authorization or
encouragement for the utilization by agencies of innovative hearing
techniques.

JUSTIFICATION:
If the rules adopted by state agencies are to have
minimal burdens and maximum effectiveness from the public's
perspective, it is crucial that very effort be made to solicit and
consider the views of the public in developing rules. Public hearings
are one effective means of doing so this bill would enhance their
effectiveness as a tool for public participation. Both the business
community and agency personnel have reported that, in many cases,
there are alternatives which are preferable to the standard model of
a public hearing, which involves limited interaction between agencies
and the public.

A Federal National Performance Review report recommended that one way
to improve regulatory systems at the Federal level was to encourage
the use of innovative hearing techniques by Federal agencies. This
bill would provide fox the same improvements in hearings required
under the State Administrative Procedure Act.

The bill also creates a pilot project whereby seven of the most active
regulatory agencies would be required to hold a hearing if requested
to do so by 125 or more persons. This will provide an additional way
of enhancing public participation by ensuring that these agencies
receive additional public input when a rule is of significant concern
to the public.

The 1981 Model State Administrative Procedure Act recommends that
states provide for public hearings if requested by the public. Many
other states require agencies to hold public hearings on proposed
rules if the public so requests, including California (request of any
interested person), Arizona (request of any 5 persons), Utah (request
of 10 persons) and Idaho, Illinois and New Hampshire (request of any
25 persons). States and Federal agencies which are subject to
petition requirements do not report any major increase in workload or
any significant difficulties with this process. However, the
effectiveness of the pilot project would be subject to evaluation
after some experience has been gained with the operation of such a
process in New York State.

This legislation passed both houses in 2008, but was vetoed by the
Governor, citing "technical flaws.' Language has been included in
this bill to address these concerns, by explicitly including the
Workers Compensation Board within the bill's ambit and by making the
scheduling of any hearing optional if the agency does not receive a
petition in a timely manner. The veto message also stated that
current opportunities for comment were sufficient to the extent that
the public agrees, the petition process would be used sparingly and
have little cost impact. However, if the public feels that a hearing


is necessary on a particular rule, the potential cost savings from
policy improvements would likely outweigh any minimal hearing costs.

PRIOR LEGISLATIVE HISTORY:
2012: Senate Bill
1967-A (Gianaris) - Died in Senate Commerce,
Economic Development and Small Business Committee
2012: Assembly Bill
1648-A (Kavanagh) - Died in Assembly
Government Operations Committee
2010: Assembly Bill
8431 (Gianaris) - Died in Assembly Government
Operations Committee
2008: Senate Bill
6781 (Young) - Passed Senate 61-0 (6/17/08)
2008: Assembly Bill
8075 (Gianaris) - Passed Assembly 139-0
(5/19/08)
2006: Senate Bill
2824 (Flanagan) - Died in Senate Rules Committee
2006: Assembly Bill 46350 (McLaughlin) - Passed Assembly 134-0
(1/24/06); Passed Assembly 137-0 (5/2/05)
2004: Senate Bill 46991 (Flanagan) - Died in Senate Commerce, Economic
Development and Small Business Committee
2004: Assembly Bill
2537 (McLaughlin) - Passed Assembly 147-0
(1/26/04); Passed Assembly 142-0 (2/24/03)
2002: Senate Bill 43652 (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee
2002: Assembly Bill 45218 (McLaughlin) - Passed Assembly 142-0 (3/25/02);
Passed Assembly 146-0 (3/26/01)
2000: Senate Bill 42946A (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee
2000: Assembly Bill 41918 (Ramirez) - Passed Assembly 143-0 (3/29/00);
Passed Assembly 138-0 (4/21/99)
1998: Senate Bill 44852-B (Rath) - Died in Senate Rules Committee
1998: Assembly Bill 45898-B (Ramirez) - Passed Assembly 144-1
(6/15/98); Passed Assembly 144-0 (6/18/97); Passed Assembly 144-0
(4/9/97)
1996: Assembly Bill 47759-A (Ramirez) - Passed Assembly 118-0
(1/9/96); Passed Assembly 142-2 (6/1/95)

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
No costs would
be incurred unless a timely petition for a public hearing is
received. Savings could accrue to agencies that avail themselves of
innovative, cost-effective techniques.

EFFECTIVE DATE:
The bill will take effect on the
first of January
succeeding the date of enactment and shall expire on the thirty-first
of the second calendar year following such effective date.

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

                                   589

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. GIANARIS -- 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
  public hearings on proposed rules; and providing  for  the  repeal  of
  such provisions upon expiration thereof

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

  Section 1. Subdivision 1 of section 102 of  the  state  administrative
procedure act, as amended by section 155 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
  1. "Agency" means any department, 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, authorized by law to make rules or to make
final decisions in adjudicatory proceedings but shall  not  include  the
governor,  agencies  in  the legislative and judicial branches, agencies
created by interstate compact or international agreement,  the  division
of  military  and naval affairs to the extent it exercises its responsi-
bility for military and naval affairs, the division of state police, the
identification and intelligence unit of the division of criminal justice
services, the state insurance fund, the  unemployment  insurance  appeal
board, and except for purposes of subdivision one of section two hundred
two-d  AND  SECTION  TWO  HUNDRED  TWO-F  of  this chapter, the workers'
compensation board and except for purposes of article two of this  chap-
ter, the department of corrections and community supervision.
  S 2. The state administrative procedure act is amended by adding a new
section 202-f to read as follows:
  S  202-F.  PUBLIC  HEARINGS. 1. WHENEVER A PUBLIC HEARING IS HELD ON A
PROPOSED RULE PURSUANT TO THIS CHAPTER,  UNLESS  OTHERWISE  PROVIDED  IN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01381-01-3

S. 589                              2

LAW, AN AGENCY IS AUTHORIZED TO UTILIZE INNOVATIVE TECHNIQUES TO ENHANCE
PUBLIC PARTICIPATION IN RULE MAKING, INCLUDING BUT NOT LIMITED TO ALLOW-
ING  THE  PUBLIC  TO  ASK QUESTIONS OF AGENCY PERSONNEL FOR A PORTION OF
SUCH HEARING, ORGANIZING SUCH HEARING AS A ROUNDTABLE DISCUSSION, SCHED-
ULING AN EVENING OR WEEKEND HEARING, AND USING BROADCASTING AND TELECON-
FERENCING TECHNOLOGIES; PROVIDED, HOWEVER, THAT NO SUCH INNOVATIVE TECH-
NIQUES  SHALL  BE  USED  IN  A MANNER WHICH DIMINISHES THE ABILITY WHICH
MEMBERS OF THE PUBLIC WOULD OTHERWISE HAVE TO COMMENT  ON  THE  PROPOSED
RULE AT A PUBLIC HEARING. EACH AGENCY LISTED IN SUBDIVISION FOUR OF THIS
SECTION  SHALL, AND ANY OTHER AGENCY MAY, INCLUDE IN ITS ANNUAL REPORT A
DESCRIPTION AND ANALYSIS OF ITS USE OF INNOVATIVE TECHNIQUES PURSUANT TO
THIS SUBDIVISION.
  2. EXCEPT AS PROVIDED IN SUBDIVISION THREE OF THIS SECTION, ANY AGENCY
LISTED IN SUBDIVISION FOUR OF THIS SECTION  WHICH  RECEIVES  A  PETITION
SUBSCRIBED BY NOT FEWER THAN ONE HUNDRED TWENTY-FIVE PERSONS RESIDING IN
THIS  STATE  REQUESTING A PUBLIC HEARING ON ANY RULE OR RULES WHICH HAVE
BEEN PROPOSED BY THE AGENCY, OR HAVE BEEN DESCRIBED  IN  THE  REGULATORY
AGENDA  SUBMITTED BY THE AGENCY PURSUANT TO SECTION TWO HUNDRED TWO-D OF
THIS ARTICLE, SHALL HOLD AT LEAST ONE PUBLIC  HEARING  ON  THE  RULE  OR
RULES;  PROVIDED,  HOWEVER,  THAT  ANY SUCH PETITION ON A RULE WHICH HAS
BEEN PROPOSED MUST BE RECEIVED BY THE AGENCY NOT LATER THAN THE  TWENTI-
ETH DAY BEFORE THE LAST DATE FOR SUBMISSION OF COMMENTS. ANY AGENCY THAT
RECEIVES  A  PETITION  AFTER  THE TWENTIETH DAY BEFORE THE LAST DATE FOR
SUBMISSION OF COMMENTS AND ANY AGENCY NOT LISTED IN SUBDIVISION FOUR  OF
THIS SECTION MAY ELECT TO HOLD A HEARING UPON RECEIPT OF A PETITION. DUE
CONSIDERATION SHALL BE GIVEN TO ANY REQUEST IN A PETITION THAT A HEARING
BE CONDUCTED IN A PARTICULAR REGION.
  3.  AN  AGENCY SHALL NOT BE REQUIRED TO HOLD A PUBLIC HEARING PURSUANT
TO SUBDIVISION TWO OF THIS SECTION (A) ON A RULE FOR WHICH A HEARING  IS
REQUIRED BY LAW AND HAS BEEN SCHEDULED OR HELD; (B) ON A CONSENSUS RULE;
OR (C) ON A RULE DEFINED IN SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDI-
VISION  TWO  OF  SECTION  ONE HUNDRED TWO OF THIS CHAPTER. WHEN A PUBLIC
HEARING HAS BEEN REQUESTED FOR ANY RULE DESCRIBED IN A REGULATORY  AGEN-
DA,  THE AGENCY SHALL NOT BE REQUIRED TO SCHEDULE A PUBLIC HEARING UNTIL
SUCH TIME AS THE RULE IS PROPOSED.
  4. THE FOLLOWING AGENCIES SHALL ENGAGE IN THE REPORTING  PROVIDED  FOR
IN  SUBDIVISION ONE OF THIS SECTION AND HOLD HEARINGS AS PROVIDED FOR IN
SUBDIVISIONS TWO AND THREE OF THIS SECTION:  THE  WORKERS'  COMPENSATION
BOARD  AND  THE  DEPARTMENTS  OF  EDUCATION, ENVIRONMENTAL CONSERVATION,
HEALTH, FINANCIAL SERVICES, LABOR AND FAMILY ASSISTANCE.
  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, and shall expire and
be deemed repealed on the thirty-first day of  December  of  the  second
calendar  year  following  such  effective  date, and shall apply to all
rules for which a notice of proposed rule making or a description  in  a
regulatory agenda is published during such time period.

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