S T A T E   O F   N E W   Y O R K
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                                   5982
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 9, 2017
                                ___________
 
 Introduced  by  Sen.  JACOBS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the legislative law, the state administrative  procedure
   act  and the executive law, in relation to the filing of objections to
   agency rules by the administrative regulations review commission
 
   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 is amended by adding a
 new subdivision 4 to read as follows:
   4. THE COMMISSION SHALL HAVE THE POWER TO OBJECT TO ALL, OR A  PORTION
 OF  ANY  ADMINISTRATIVE RULE OR REGULATION THAT HAS BEEN ADOPTED OR THAT
 HAS BEEN PROPOSED BY AN AGENCY PURSUANT TO THE RULE MAKING PROCEDURES OF
 SECTION TWO HUNDRED TWO  OF  THE  STATE  ADMINISTRATIVE  PROCEDURE  ACT.
 SHOULD  IN  THE  PERFORMANCE OF ITS DUTIES, A MAJORITY OF MEMBERS OF THE
 COMMISSION FIND THAT AN ADMINISTRATIVE RULE OR A PORTION OF AN  ADMINIS-
 TRATIVE   RULE   IS  (I)  ARBITRARY,  CAPRICIOUS,  AN  ABUSE  OF  AGENCY
 DISCRETION, OR IS OTHERWISE NOT IN  ACCORDANCE  WITH  LAW;  OR  (II)  IS
 CONTRARY TO CONSTITUTIONAL, RIGHT POWER, PRIVILEGE OR IMMUNITY; OR (III)
 IS INCONSISTENT WITH, OR IN EXCESS OF STATUTORY JURISDICTION, AUTHORITY,
 OR LIMITATIONS, OR IS SHORT OF STATUTORY RIGHT; OR (IV) HAS BEEN ADOPTED
 OR  HAS  BEEN  PROPOSED WITHOUT SUBSTANTIAL OBSERVANCE OF THE PROCEDURES
 REQUIRED BY LAW; OR (V) IS OTHERWISE  IRRATIONAL  OR  UNREASONABLE  UPON
 CONSIDERATION  OF  ANY OR ALL OF THE CRITERIA SPECIFIED IN THIS SUBDIVI-
 SION, THE COMMISSION  MAY,  IN  WRITING,  NOTIFY  THE  AGENCY  OF  THEIR
 OBJECTION AND REASON OR REASONS FOR THEIR OBJECTION. A WRITTEN LETTER OF
 OBJECTION  MUST BE MAILED OR DELIVERED TO THE AGENCY RESPONSIBLE FOR THE
 ADOPTION OR PROPOSAL  OF  THE  OBJECTED  TO  RULE.  A  VALID  LETTER  OF
 OBJECTION  MUST  BE  SIGNED  BY  EACH  MEMBER OF THE COMMISSION THAT HAS
 DECIDED TO OBJECT TO THE RULE IN ITS ENTIRETY, OR IN PART.  THE  COMMIS-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11519-01-7
              

 S. 5982                             2
 
 SION MUST ALSO FILE A CERTIFIED COPY OF THE LETTER OF OBJECTION WITH THE
 DEPARTMENT OF STATE, DIVISION OF ADMINISTRATIVE RULES.
   § 2. Paragraph (a) of subdivision 9 of section 202 of the state admin-
 istrative  procedure  act  is  amended by adding three new subparagraphs
 (vi), (vii) and (viii) to read as follows:
   (VI) FOLLOWING RECEIPT OF A VALID LETTER OF OBJECTION THAT IS  WRITTEN
 AND  SIGNED  BY  A  MAJORITY  OF THE MEMBERS OF THE ADMINISTRATIVE REGU-
 LATIONS REVIEW COMMISSION, PUBLISH SUCH LETTER IN THE NEXT ISSUE OF  THE
 STATE REGISTER.
   (VII)  FOLLOWING  RECEIPT OF A VALID RESPONSE TO A LETTER OF OBJECTION
 WRITTEN AND SIGNED BY THE COMMISSIONER,  DIRECTOR  OR  COUNSEL  OF  THAT
 AGENCY,  PUBLISH  SUCH  WRITTEN  RESPONSE IN THE NEXT ISSUE OF THE STATE
 REGISTER.
   (VIII) REJECT ANY LETTER OF OBJECTION OR ANY  WRITTEN  RESPONSE  TO  A
 LETTER  OF  OBJECTION  THAT  IS DEFICIENT FOR LACKING AT LEAST A MINIMAL
 EXPLANATION OF AN OBJECTIONABLE ISSUE, OR  THE  REQUISITE  SIGNATURE  OR
 SIGNATURES,  AND  GIVE PROMPT NOTICE OF DEFICIENCY TO THE ADMINISTRATIVE
 REGULATIONS REVIEW COMMISSION OR AGENCY.
   § 3. Section 202 of the state administrative procedure act is  amended
 by adding a new subdivision 10 to read as follows:
   10. OBJECTION. (A) IF IN THE PERFORMANCE OF THEIR DUTIES, AS SPECIFIED
 IN  SUBDIVISION  ONE  OF  SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW, A
 MAJORITY OF THE MEMBERS OF THE ADMINISTRATIVE REGULATIONS REVIEW COMMIS-
 SION DECIDE TO OBJECT TO AN ADMINISTRATIVE  RULE  OR  A  PORTION  OF  AN
 ADMINISTRATIVE  RULE THAT HAS BEEN ADOPTED OR THAT HAS BEEN PROPOSED, AN
 OBJECTION MUST BE MADE IN ACCORDANCE WITH THE  PROCEDURES  SPECIFIED  IN
 SUBDIVISION FOUR OF SECTION EIGHTY-SEVEN OF THE LEGISLATIVE LAW.
   (B) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO A RULE
 THAT  HAS BEEN PROPOSED, BUT HAS NOT BEEN ADOPTED MUST READ AND CONSIDER
 THE OBJECTION AND ISSUE A WRITTEN RESPONSE  PRIOR  TO  ADOPTION  OF  THE
 OBJECTED  TO RULE. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO LETTERS OF
 OBJECTION TO THE DEPARTMENT OF STATE, DIVISION OF  ADMINISTRATIVE  RULES
 FOR PUBLICATION IN THE STATE REGISTER. A WRITTEN RESPONSE TO A LETTER OF
 OBJECTION MUST STATE THAT THE AGENCY HAS EITHER (I) AGREED TO CHANGE THE
 RULE  IN  WHOLE,  OR  IN  PART IN ACCORDANCE WITH THE OBJECTION AND WILL
 PUBLISH THE REQUISITE NOTICE OF REVISED RULE MAKING, OR (II) NEEDS ADDI-
 TIONAL TIME TO CONSIDER THE OBJECTION  AND  POSSIBLE  CHANGES  AND  WILL
 PUBLISH  A  NOTICE  OF  WITHDRAWAL, OR (III) THAT THE AGENCY HAS DECIDED
 AGAINST MAKING ANY CHANGES TO THE PROPOSED RULE.  WRITTEN  RESPONSES  TO
 LETTERS  OF OBJECTION MUST STATE THAT THE OBJECTION WAS READ AND CONSID-
 ERED AND INCLUDE AT LEAST A BRIEF EXPLANATION OF THE AGENCY'S  RATIONALE
 FOR EITHER AGREEING WITH THE OBJECTION, OR REQUIRING ADDITIONAL TIME FOR
 CONSIDERATION,  OR  FOR DISAGREEING WITH THE OBJECTION. ANY AGENCY DECI-
 SION TO STOP, EXTEND, OR PROCEED WITH PROMULGATION OF ALL OR PART OF  AN
 OBJECTED  TO  RULE,  MUST  BE  DONE  IN  ACCORDANCE WITH THE RULE MAKING
 REQUIREMENTS OF THIS SECTION.
   (C) AN AGENCY THAT RECEIVES A LETTER OF OBJECTION PERTAINING TO ALL OR
 PART OF A RULE  THAT  HAS  BEEN  ADOPTED  MUST  READ  AND  CONSIDER  THE
 OBJECTION AND ISSUE A WRITTEN RESPONSE WITHIN FORTY-FIVE DAYS OF RECEIV-
 ING  THE LETTER OF OBJECTION. AGENCIES MUST PROVIDE WRITTEN RESPONSES TO
 LETTERS OF OBJECTION TO THE ADMINISTRATIVE REGULATIONS REVIEW COMMISSION
 AS WELL AS A CERTIFIED COPY OF ANY SUCH RESPONSE TO  THE  DEPARTMENT  OF
 STATE,  DIVISION  OF  ADMINISTRATIVE  RULES FOR PUBLICATION IN THE STATE
 REGISTER. A WRITTEN RESPONSE TO A LETTER OF OBJECTION  MUST  STATE  THAT
 THE  AGENCY EITHER (I) AGREES TO CHANGE THE RULE IN WHOLE, OR IN PART IN
 ACCORDANCE WITH THE OBJECTION AND WILL PUBLISH A NOTICE OF PROPOSED RULE

 S. 5982                             3
 
 MAKING NEEDED TO PROMULGATE A NEW CORRECTED RULE, OR  (II)  NEEDS  ADDI-
 TIONAL  TIME  TO  CONSIDER  THE OBJECTION AND POSSIBLE CHANGES, OR (III)
 THAT THE AGENCY HAS DECIDED AGAINST MAKING  ANY  CHANGES  TO  THE  RULE.
 WRITTEN  RESPONSES  TO  LETTERS  OF  OBJECTION MUST ACKNOWLEDGE THAT THE
 OBJECTION WAS READ AND CONSIDERED AND INCLUDE AT LEAST A BRIEF  EXPLANA-
 TION OF THE AGENCY'S DECISION TO AGREE WITH THE OBJECTION, OR TO REQUIRE
 ADDITIONAL  TIME FOR CONSIDERATION OF THE OBJECTION, OR TO DISAGREE WITH
 THE OBJECTION. SHOULD AN AGENCY DECIDE THAT ADDITIONAL TIME IS NEEDED TO
 CONSIDER THE OBJECTION AS WELL AS POSSIBLE SOLUTIONS, AN AGENCY WILL  BE
 PROVIDED  UP  TO  AN  ADDITIONAL  FORTY-FIVE  DAYS  TO PROVIDE A WRITTEN
 RESPONSE TO THE OBJECTION.
   (D) AN AGENCY WILL NOT BE COMPELLED BY THE ADMINISTRATIVE  REGULATIONS
 REVIEW COMMISSION TO CHANGE AN ADOPTED OR PROPOSED RULE IN RESPONSE TO A
 LETTER  OF  OBJECTION; HOWEVER REFUSAL TO DO SO, CAN BE USED AS EVIDENCE
 BY A PETITIONER IN  ACTION  CHALLENGING  AN  ADMINISTRATIVE  RULE  OR  A
 PORTION OF AN ADMINISTRATIVE RULE IN AN ADJUDICATORY HEARING PURSUANT TO
 ARTICLE  THREE  OF  THIS  CHAPTER, OR AN ACTION FOR DECLARATORY JUDGMENT
 PURSUANT TO SECTION TWO HUNDRED FIVE OF THIS ARTICLE, OR IN A PROCEEDING
 MADE AGAINST AN AGENCY PURSUANT TO ARTICLE SEVENTY-EIGHT  OF  THE  CIVIL
 PRACTICE LAW AND RULES.
   (E)  SHOULD  A  PETITIONER  (I)  CHALLENGE AN ADMINISTRATIVE RULE OR A
 PORTION OF AN ADMINISTRATIVE RULE, OR SEEK RELIEF FOR DAMAGES  RESULTING
 FROM  AN  ADMINISTRATIVE  RULE, AND (II) INCLUDE AS EVIDENCE, A RELEVANT
 LETTER OF OBJECTION, AS WELL  AS  AN  AGENCY  WRITTEN  RESPONSE  STATING
 REFUSAL TO ACCOMMODATE THE OBJECTION, OR ASSERT THE ABSENCE OF ANY AGEN-
 CY  RESPONSE  TO  THE  OBJECTION,  AND (III) CHALLENGE THE SAME ISSUE OR
 ISSUES, AS IS STATED IN THE LETTER OF  OBJECTION,  THEN  THE  BURDEN  OF
 PROOF  THAT  THE  RULE  IS  NOT DEFECTIVE DUE TO THE PARTICULAR ISSUE OR
 ISSUES ALLEGED, WILL MOVE FROM THE PETITIONER TO THE AGENCY.
   (F) SHOULD A PETITIONER ESTABLISH EACH OF THE THREE REQUIREMENTS SPEC-
 IFIED IN PARAGRAPH (E) OF THIS SUBDIVISION, THE ADMINISTRATIVE JUDGE  OR
 TRIBUNAL, OR THAT STATE SUPREME COURT OR APPELLATE COURT JUDGE OR JUDGES
 SHALL CONSIDER THE ISSUE OR ISSUES, OBJECTED TO IN BOTH THE PETITIONER'S
 ACTION  AND IN A LETTER OF OBJECTION AND IMPOSE A HEIGHTENED STANDARD OF
 REVIEW UPON THE AGENCY TO PROVE THAT  THE  ADMINISTRATIVE  RULE  OR  THE
 PORTION  OF  THE  RULE IN QUESTION, IS NOT DEFECTIVE DUE TO THE SPECIFIC
 REASON OR REASONS AS CLAIMED BY THE PETITIONER  AND  THE  ADMINISTRATIVE
 REGULATIONS  REVIEW  COMMISSION  IN  THE LETTER OF OBJECTION. OTHER THAN
 MOVING THE BURDEN OF PROOF UNDER THESE CRITERIA, NO OTHER  COMPONENT  OF
 SUBDIVISION  EIGHT OF THIS SECTION, SECTION TWO HUNDRED FIVE, OR ARTICLE
 THREE OF THIS CHAPTER, OR ARTICLE SEVENTY-EIGHT OF  THE  CIVIL  PRACTICE
 LAW AND RULES SHALL BE AMENDED BY THIS SUBDIVISION.
   §  4.  Section  102  of  the  executive law is amended by adding a new
 subdivision 6 to read as follows:
   6. ALL LETTERS OF OBJECTION THAT STATE AT LEAST A BRIEF EXPLANATION OF
 AN OBJECTIONABLE ISSUE PERTAINING TO AN ADOPTED OR A  PROPOSED  ADMINIS-
 TRATIVE RULE IN ITS ENTIRETY, OR IN PART, THAT ARE WRITTEN AND SIGNED BY
 A  MAJORITY  OF  THE  MEMBERS  OF  THE ADMINISTRATIVE REGULATIONS REVIEW
 COMMISSION; AS WELL AS ANY WRITTEN RESPONSE TO  A  LETTER  OF  OBJECTION
 THAT  INCLUDES AT LEAST A BRIEF RESPONSE TO THE OBJECTION AND THE SIGNA-
 TURE OF THE COMMISSIONER, DIRECTOR OR COUNSEL OF A STATE AGENCY MUST  BE
 INCLUDED  IN THE OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF
 THE STATE OF NEW  YORK.  ALL  SUCH  LETTERS  OF  OBJECTION  AND  WRITTEN
 RESPONSES TO OBJECTIONS SHALL BE MADE AVAILABLE TO MEMBERS OF THE PUBLIC
 AND  SHALL  BE  INCLUDED WITHIN ANY PUBLISHED UNOFFICIAL COMPILATIONS OF
 THE CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK, INCLUDING THE

 S. 5982                             4
 
 UNOFFICIAL VERSION THAT IS LINKED TO ON THE DEPARTMENT OF STATE WEBSITE.
 LETTERS OF OBJECTION AND WRITTEN AGENCY RESPONSES TO OBJECTIONS SHALL BE
 RECEIVED, RECORDED AND COMPILED CONSISTENT WITH ALL  OTHER  REQUIREMENTS
 OF  THIS  SECTION AND SECTIONS ONE HUNDRED ONE-A, ONE HUNDRED ONE-B, ONE
 HUNDRED THREE, ONE HUNDRED FOUR, ONE HUNDRED FIVE, ONE HUNDRED  SIX  AND
 ONE HUNDRED SIX-A OF THIS ARTICLE.
   § 5. This act shall take effect immediately.