BILL NUMBER:  S2397

 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 Section 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 but has already been scheduled or held,
or for consensus rules or rules related to rate-makings. Subdivision 4
of Section 202-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, Financial Services, 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 every 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 for 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 :

2016: Died in Commerce, Economic Development and Small Business

2015: Died in Commerce, Economic Development and Small Business

2014: Senate Bill589 (Gianaris) - Died in Senate Commerce, Economic
Development and Small Business Committee

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 6350 (McLaughlin) - Passed Assembly 134-0
(1/24/06); Passed Assembly 137-0 (5/2/05)

2004: Senate Bill 6991 (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 3652 (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee

2002: Assembly Bill 5218 (McLaughlin) - Passed Assembly 142-0
(3/25/02); Passed Assembly 146-0 (3/26/01)

2000: Senate Bill 2946A (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee

2000: Assembly Bill 1918 (Ramirez) - Passed Assembly 143-0 (3/29/00);
Passed Assembly 138-0 (4/21/99)

1998: Senate Bill 4852-B (Rath) - Died in Senate Rules Committee

1998: Assembly Bill 5898-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 7759-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 day of December of
the second calendar year following such effective date.