NY State Senate Bill 2017-S194A

Senate Bill S194A

2017-2018 Legislative Session

Requires that documentation of statutory authority accompany proposed rules prior to the public comment period

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
Jan 29, 2018	amended on third reading 194a
Jan 17, 2018	advanced to third reading
Jan 16, 2018	2nd report cal.
Jan 09, 2018	1st report cal.149
Jan 03, 2018	referred to investigations and government operations
Jan 04, 2017	referred to investigations and government operations

Votes

- Jan 9, 2018 - Investigations And Government Operations Committee Vote
  S194A
  
  7
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Investigations And Government Operations Committee Vote: Jan 9, 2018
      
      aye (7)
      
      Benjamin
      
      Carlucci
      
      Golden
      
      Lanza
      
      Murphy
      
      O'Mara
      
      Phillips
      
      aye wr (2)
      
      Hoylman-Sigal
      
      Kavanagh

Bill Amendments

Original

A (Active)

co-Sponsors

2017-S194 - Details

Current Committee:: Senate Rules
Law Section:: Legislative Law
Laws Affected:: Amd §§87 & 88, Leg L; amd §202, St Ad Proc Act
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5161
2015-2016: S1192

2017-S194 - Summary

Requires that documentation of statutory authority be accompanied to proposed rules prior to the public comment period.

2017-S194 - Sponsor Memo

                                 BILL NUMBER:  S194

 TITLE OF BILL :

An act to amend the legislative law and the state administrative
procedure act, in relation to requiring documentation establishing
statutory authority prior to the adoption of a rule

 PURPOSE :

This bill seeks to amend sections 87 and 88 of the Legislative Law and
section 202 of the State Administrative Procedure Act to ensure that
the Administrative Regulations Review Commission (ARRC) has had an
opportunity to review proposed state agency rules and regulations,
prior to the public comment period, to ensure that such proposed rules
and regulations are consistent with constitutional and statutory
authority

 SUMMARY OF PROVISIONS :

Section 1 of the bill seeks to amend section 87 of the Legislative Law
to add a new sub-section 3 which would require that proposed rules,
along with documentation establishing the statutory authority, be
provided to ARRC at the beginning of the public comments period so
that ARRC may review same to ascertain that such rules are consistent
with constitutional and statutory authority. This section would also

add anew sub-section 5 which would give ARRC standing to challenge any
agency rule that ARRC determines exceeds the agency's authority
through a proceeding brought under Article 78 of the Civil Practice
Law & Rules.

Section 2 amends section 88 of Legislative Law to add a new subsection
2to permit ARRC to publish its findings and recommendations with
respect to proposed rules or regulations on its website or otherwise.

Section 3 of the bill amends section 202 of the State Administrative
Procedure Act to provide that proposed regulations and accompanying
documentation establishing statutory authority for promulgation shall
be provided to ARRC prior to the adoption of such rule or regulation.

 EXISTING LAW :

Section 87 of the Legislative Law was enacted in 1978, with only minor
revisions since. There is currently no provision requiring agencies to
provide their proposed rules and documentation of statutory authority
to ARRC at the beginning of the public comment period.  Section 88 was
enacted in 1990 and currently contains no provision permitting ARRC to
publish its findings and recommendations on proposed rules and
regulations. Section 202 of the State Administrative Procedure Act
currently has no requirement that proposed rules and documentation of
statutory authority be provided ARRC prior to the adoption of such
rules.

 JUSTIFICATION :

Since the enactment of sections 87 and 88 of the Legislative Law and
section 202 of the State Administrative Procedure Act, agency
rulemaking has added to the complexity of state government Agency
rulemaking should be based on legislative grants of authority and
should accurately reflect the will of the legislature.  This
legislation seeks to ensure that agency rules are in fact based on
valid grants of legislative authority whether that be in the state
constitution or other state law.

 LEGISLATIVE HISTORY :

2013-14: Passed Senate
2015-16: Referred to Investigations and Government Operations

 EFFECTIVE DATE :
Immediately

2017-S194 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    194
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced by Sens. MARCHIONE, DeFRANCISCO, MURPHY, SEWARD -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Investigations and Government Operations
 
 AN  ACT to amend the legislative law and the state administrative proce-
   dure act, in relation to requiring documentation establishing statuto-
   ry authority prior to the adoption of a rule
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 87 of the legislative law, as added by chapter 689
 of the laws of 1978, is amended to read as follows:
   § 87. Powers and duties. 1. The commission shall  exercise  continuous
 oversight of the process of rule making and examine rules, as defined in
 subdivision  two  of section one hundred two of the state administrative
 procedure act, adopted or proposed by each agency with  respect  to  (i)
 statutory  authority,  (ii)  compliance  with  legislative intent, (iii)
 impact on the economy and on the government operations of the state  and
 its  local  governments,  and  (iv)  impact on affected parties; and, in
 furtherance of such duties, may examine other issues it deems  appropri-
 ate. For purpose of this article, the term agency shall mean any depart-
 ment, board, bureau, commission, division, office, council, committee or
 officer of the state or a public benefit corporation or public authority
 at least one of whose members is appointed by the governor.
   2.  The  commission  may employ such staff and retain such consultants
 and expert services as may be necessary and fix their  compensation  and
 expenses  within  the  amounts  appropriated therefor. Employment by the
 commission shall be deemed to be employment by the legislature  for  all
 purposes.
   3.  PROPOSED  RULES  AND  ACCOMPANYING  DOCUMENTATION ESTABLISHING THE
 STATUTORY AUTHORITY FOR AGENCY PROMULGATION, SHALL BE  PROVIDED  TO  THE
 COMMISSION  AT  THE  BEGINNING  OF THE PUBLIC COMMENT PERIOD REQUIRED BY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD04400-01-7

 S. 194                              2
 
 SUBDIVISION ONE OF SECTION TWO HUNDRED TWO OF THE  STATE  ADMINISTRATIVE
 PROCEDURE  ACT.  THE  COMMISSION OR MEMBERS OF THE COMMISSION MAY REVIEW
 SUCH INFORMATION AND DETERMINE WHETHER SUCH RULES  ARE  CONSISTENT  WITH
 CONSTITUTIONAL  AND  STATUTORY AUTHORITY. ANY DETERMINATIONS MADE BY THE
 COMMISSION OR A CHAIRPERSON OF THE COMMISSION SHALL BE MADE AVAILABLE ON
 THE COMMISSION'S WEBSITE AND PROVIDED TO THE RESPECTIVE STATE AGENCY.
   4. The commission shall have the power, subject to the  provisions  of
 section seventy-three of the civil rights law, to hold hearings, subpoe-
 na witnesses, administer oaths, take testimony and compel the production
 of  books,  papers,  documents  and other evidence in furtherance of its
 duties; provided, however, that no subpoena shall issue except upon  the
 affirmative  vote  of  a majority of the whole membership of the commis-
 sion. The commission may request and shall  receive  from  all  agencies
 such  assistance  and  data as will enable it properly to consummate any
 such examination, and review.
   5. THE COMMISSION SHALL HAVE STANDING TO PURSUE AN ACTION PURSUANT  TO
 ARTICLE  SEVENTY-EIGHT  OF  THE  CIVIL PRACTICE LAW AND RULES AGAINST AN
 EXECUTIVE AGENCY IF  THE  COMMISSION  DETERMINES  THAT  A  RULE  EXCEEDS
 AUTHORITY  PROVIDED  UNDER STATE LAW OR THE STATE CONSTITUTION.  ACTIONS
 SHALL BE COMMENCED IN THIS WAY UPON AFFIRMATIVE VOTE OF  A  MAJORITY  OF
 THE WHOLE MEMBERSHIP OF THE COMMISSION. IN THE EVENT THAT THE SPEAKER OF
 THE  ASSEMBLY  AND  THE TEMPORARY PRESIDENT OF THE SENATE ARE MEMBERS OF
 THE SAME POLITICAL PARTY, THE COMMENCEMENT OF AN ACTION WOULD REQUIRE AN
 AFFIRMATIVE VOTE OF MORE THAN TWO-THIRDS OF THE WHOLE MEMBERSHIP OF  THE
 COMMISSION.
   §  2.  Section 88 of the legislative law, as amended by chapter 850 of
 the laws of 1990, is amended to read as follows:
   § 88. Reports. 1. The commission shall, from time to time, report  its
 findings and recommendations to the governor, the temporary president of
 the  senate  and  the speaker of the assembly, and to the members of the
 legislature, and may at any time make recommendations to an agency based
 upon its review of that agency's rule making  process,  or  any  of  the
 agency's proposed, revised or adopted rules.
   2.  THE  COMMISSION  MAY PUBLISH ITS FINDINGS AND RECOMMENDATIONS WITH
 REGARD TO A REGULATION OR RULE ON ITS WEBSITE,  OR  ANY  OTHER  FORM  IT
 DEEMS APPROPRIATE.
   §  3.  The  opening  paragraph  of  paragraph  (a) of subdivision 1 of
 section 202 of the state administrative procedure  act,  as  amended  by
 chapter 304 of the laws of 2016, is amended to read as follows:
   Prior  to  the  adoption of a rule, an agency shall submit a notice of
 proposed rule making to the secretary of state for  publication  in  the
 state  register,  SHALL  PROVIDE  THE  PROPOSED  RULES  AND ACCOMPANYING
 DOCUMENTATION ESTABLISHING THE STATUTORY AUTHORITY FOR  PROMULGATION  TO
 THE  ADMINISTRATIVE  REGULATIONS REVIEW COMMISSION, and shall afford the
 public an opportunity to submit comments on the proposed rule. Unless  a
 different  time  is  specified  by  statute, the notice of proposed rule
 making must appear in the state register at least forty-five days  prior
 to either:
   § 4. This act shall take effect immediately.

co-Sponsors

2017-S194A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Legislative Law
Laws Affected:: Amd §§87 & 88, Leg L; amd §202, St Ad Proc Act
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5161
2015-2016: S1192

2017-S194A (ACTIVE) - Summary

Requires that documentation of statutory authority be accompanied to proposed rules prior to the public comment period.

2017-S194A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S194A

SPONSOR: MARCHIONE
 
TITLE OF BILL:  An act to amend the legislative law and the state
administrative procedure act, in relation to requiring documentation
establishing statutory authority prior to the adoption of a rule

 
PURPOSE:

This bill seeks to amend sections 87 and 88 of the Legislative Law and
section 202 of the State Administrative Procedure Act to ensure that the
Administrative Regulations Review Commission (ARRC) has had an opportu-
nity to review proposed state agency rules and regulations, prior to the
public comment period, to ensure that such proposed rules and regu-
lations are consistent with constitutional and statutory authority

 
SUMMARY OF PROVISIONS:

Section 1 of the bill seeks to amend section 87 of the Legislative Law
to add a new sub-section 3 which would require that proposed rules,
along with documentation establishing the statutory authority, be

provided to ARRC at the beginning of the public comments period so that
ARRC may review same to ascertain that such rules are consistent with
constitutional and statutory authority. This section would also add anew
sub-section 5 which would give ARRC standing to challenge any agency
rule that ARRC determines exceeds the agency's authority through a
proceeding brought under Article 78 of the Civil Practice Law & Rules.

Section 2 amends section 88 of Legislative Law to add a new subsection
2to permit ARRC to publish its findings and recommendations with respect
to proposed rules or regulations on its website or otherwise.

Section 3 of the bill amends section 202 of the State Administrative
Procedure Act to provide that proposed regulations and accompanying
documentation establishing statutory authority for promulgation shall be
provided to ARRC prior to the adoption of such rule or regulation.

 
EXISTING LAW:

Section 87 of the Legislative Law was enacted in 1978, with only minor
revisions since. There is currently no provision requiring agencies to
provide their proposed rules and documentation of statutory authority to
ARRC at the beginning of the public comment period.

Section 88 was enacted in 1990 and currently contains no provision
permitting ARRC to publish its findings and recommendations on proposed
rules and regulations. Section 202 of the State Administrative Procedure
Act currently has no requirement that proposed rules and documentation
of statutory authority be provided ARRC prior to the adoption of such
rules.

 
JUSTIFICATION:

Since the enactment of sections 87 and 88 of the Legislative Law and
section 202 of the State Administrative Procedure Act, agency rulemaking
has added to the complexity of state government Agency rulemaking should
be based on legislative grants of authority and should accurately
reflect the will of the legislature. This legislation seeks to ensure

that agency rules are in fact based on valid grants of legislative
authority whether that be in the state constitution or other state law.

 
LEGISLATIVE HISTORY:

2013-14: Passed Senate
2015-16: Referred to Investigations and Government Operations

 
EFFECTIVE DATE:
Immediately

2017-S194A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  194--A
     Cal. No. 149
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced by Sens. MARCHIONE, DeFRANCISCO, MURPHY, SEWARD -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on  Investigations  and  Government  Operations  -- recommitted to the
   Committee on Investigations and Government  Operations  in  accordance
   with  Senate Rule 6, sec. 8 -- reported favorably from said committee,
   ordered to first and  second  report,  ordered  to  a  third  reading,
   amended  and  ordered  reprinted,  retaining its place in the order of
   third reading
 
 AN ACT to amend the legislative law and the state administrative  proce-
   dure act, in relation to requiring documentation establishing statuto-
   ry authority prior to the adoption of a rule
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 87 of the legislative law, as added by chapter  689
 of the laws of 1978, is amended to read as follows:
   §  87.  Powers and duties. 1. The commission shall exercise continuous
 oversight of the process of rule making and examine rules, as defined in
 subdivision two of section one hundred two of the  state  administrative
 procedure  act,  adopted  or proposed by each agency with respect to (i)
 statutory authority, (ii)  compliance  with  legislative  intent,  (iii)
 impact  on the economy and on the government operations of the state and
 its local governments, and (iv) impact  on  affected  parties;  and,  in
 furtherance  of such duties, may examine other issues it deems appropri-
 ate. For purpose of this article, the term agency shall mean any depart-
 ment, board, bureau, commission, division, office, council, committee or
 officer of the state or a public benefit corporation or public authority
 at least one of whose members is appointed by the governor.
   2. The commission may employ such staff and  retain  such  consultants
 and  expert  services as may be necessary and fix their compensation and
 expenses within the amounts appropriated  therefor.  Employment  by  the

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04400-02-8

 S. 194--A                           2
 
 commission  shall  be deemed to be employment by the legislature for all
 purposes.
   3.  PROPOSED  RULES  AND  ACCOMPANYING  DOCUMENTATION ESTABLISHING THE
 STATUTORY AUTHORITY FOR AGENCY PROMULGATION, SHALL BE  PROVIDED  TO  THE
 COMMISSION  AT  THE  BEGINNING  OF THE PUBLIC COMMENT PERIOD REQUIRED BY
 SUBDIVISION ONE OF SECTION TWO HUNDRED TWO OF THE  STATE  ADMINISTRATIVE
 PROCEDURE  ACT.  THE  COMMISSION OR MEMBERS OF THE COMMISSION MAY REVIEW
 SUCH INFORMATION AND DETERMINE WHETHER SUCH RULES  ARE  CONSISTENT  WITH
 CONSTITUTIONAL  AND  STATUTORY AUTHORITY. ANY DETERMINATIONS MADE BY THE
 COMMISSION OR A CHAIRPERSON OF THE COMMISSION SHALL BE MADE AVAILABLE ON
 THE COMMISSION'S WEBSITE AND PROVIDED TO THE RESPECTIVE STATE AGENCY.
   4. The commission shall have the power, subject to the  provisions  of
 section seventy-three of the civil rights law, to hold hearings, subpoe-
 na witnesses, administer oaths, take testimony and compel the production
 of  books,  papers,  documents  and other evidence in furtherance of its
 duties; provided, however, that no subpoena shall issue except upon  the
 affirmative  vote  of  a majority of the whole membership of the commis-
 sion. The commission may request and shall  receive  from  all  agencies
 such  assistance  and  data as will enable it properly to consummate any
 such examination, and review.
   5. THE COMMISSION SHALL HAVE STANDING TO PURSUE AN ACTION PURSUANT  TO
 ARTICLE  SEVENTY-EIGHT  OF  THE  CIVIL PRACTICE LAW AND RULES AGAINST AN
 EXECUTIVE AGENCY IF  THE  COMMISSION  DETERMINES  THAT  A  RULE  EXCEEDS
 AUTHORITY  PROVIDED  UNDER STATE LAW OR THE STATE CONSTITUTION.  ACTIONS
 SHALL BE COMMENCED IN THIS WAY UPON AFFIRMATIVE VOTE OF  A  MAJORITY  OF
 THE WHOLE MEMBERSHIP OF THE COMMISSION. IN THE EVENT THAT THE SPEAKER OF
 THE  ASSEMBLY  AND  THE TEMPORARY PRESIDENT OF THE SENATE ARE MEMBERS OF
 THE SAME POLITICAL PARTY, THE COMMENCEMENT OF AN ACTION WOULD REQUIRE AN
 AFFIRMATIVE VOTE OF MORE THAN TWO-THIRDS OF THE WHOLE MEMBERSHIP OF  THE
 COMMISSION.
   §  2.  Section 88 of the legislative law, as amended by chapter 850 of
 the laws of 1990, is amended to read as follows:
   § 88. Reports. 1. The commission shall, from time to time, report  its
 findings and recommendations to the governor, the temporary president of
 the  senate  and  the speaker of the assembly, and to the members of the
 legislature, and may at any time make recommendations to an agency based
 upon its review of that agency's rule making  process,  or  any  of  the
 agency's proposed, revised or adopted rules.
   2.  THE  COMMISSION  MAY PUBLISH ITS FINDINGS AND RECOMMENDATIONS WITH
 REGARD TO A REGULATION OR RULE ON ITS WEBSITE,  OR  ANY  OTHER  FORM  IT
 DEEMS APPROPRIATE.
   §  3.  The  opening  paragraph  of  paragraph  (a) of subdivision 1 of
 section 202 of the state administrative procedure  act,  as  amended  by
 chapter 455 of the laws of 2017, is amended to read as follows:
   Prior  to  the  adoption of a rule, an agency shall submit a notice of
 proposed rule making to the secretary of state for  publication  in  the
 state  register,  SHALL  PROVIDE  THE  PROPOSED  RULES  AND ACCOMPANYING
 DOCUMENTATION ESTABLISHING THE STATUTORY AUTHORITY FOR  PROMULGATION  TO
 THE  ADMINISTRATIVE  REGULATIONS REVIEW COMMISSION, and shall afford the
 public an opportunity to submit comments on the proposed rule. Unless  a
 different  time  is  specified  by  statute, the notice of proposed rule
 making must appear in the state register at least sixty  days  prior  to
 either:
   § 4. This act shall take effect immediately.

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Senate Bill S194A

Share this bill

Sponsored By

Kathleen A. Marchione

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

co-Sponsors

John A. DeFrancisco

Terrence Murphy

James L. Seward

2017-S194 - Details

2017-S194 - Summary

2017-S194 - Sponsor Memo

2017-S194 - Bill Text download pdf

co-Sponsors

John A. DeFrancisco

Terrence Murphy

James L. Seward

2017-S194A (ACTIVE) - Details

2017-S194A (ACTIVE) - Summary

2017-S194A (ACTIVE) - Sponsor Memo

2017-S194A (ACTIVE) - Bill Text download pdf

Comments