BILL NUMBER: S1265

SPONSOR: GIANARIS
 
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 mean-
ingfully in the rule-making process by permitting agencies to use inno-
vative 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 innova-
tive 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 subdivi-
sion 4 to hold public hearings on proposed rules when they receive writ-
ten 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 subdivi-
sion 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 petitioner 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 partic-
ipation. 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 signif-
icant 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:
2018: Passed Senate, Died in Assembly
2017: Died in Commerce, Economic Development and Small Business
2016: Died in Commerce, Economic Development and Small Business
2015: Died in Commerce, Economic Development and Small Business
2014: in Senate Commerce, Economic Development and Small Business
Committee
2012: - Died in Senate Commerce, Economic Development and Small Business
Committee

 
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.