Bill Text: NY A07639 | 2013-2014 | General Assembly | Amended
Bill Title: Provides for public comment during the initial development, preparation and promulgation of rules; establishes an affirmative duty upon agencies to reach out to regulated persons who may be adversely affected by a proposed rule, and to obtain such persons' comments and cost estimates.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2014-01-23 - print number 7639a [A07639 Detail]
Download: New_York-2013-A07639-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7639--A 2013-2014 Regular Sessions I N A S S E M B L Y May 29, 2013 ___________ Introduced by M. of A. BRINDISI -- read once and referred to the Commit- tee on Governmental Operations -- recommitted to the Committee on Governmental Operations in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the state administrative procedure act, in relation to providing for public comment during the initial development, prepara- tion and promulgation of rules THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph (b) of subdivision 4-a of section 202 of the 2 state administrative procedure act, as added by chapter 335 of the laws 3 of 1992, is amended to read as follows: 4 (b) Each agency shall publish and make available to the public an 5 assessment of public comment for a rule revised pursuant to this subdi- 6 vision. Such assessment shall be based upon any written comments submit- 7 ted to the agency DURING THE INITIAL DEVELOPMENT, PREPARATION AND 8 PROMULGATION OF SUCH PROPOSED RULE and any comments presented at any 9 public hearing held on the proposed rule by the agency. The assessment 10 shall contain: (i) a summary and an analysis of the issues raised and 11 significant alternatives suggested by any such comments; (ii) a state- 12 ment of the reasons why any significant alternatives were not incorpo- 13 rated into the rule; and (iii) a description of any changes made in the 14 rule as a result of such comments. If no comments have been received, 15 the notice of revised rule making shall state that no comments were 16 received by the agency. Any subsequent assessment published pursuant to 17 this paragraph or paragraph (b) of subdivision five of this section need 18 only include comments not addressed in any previously published assess- 19 ment of public comment for the rule; provided, however, that the notice 20 of revised rule making or adoption shall contain the date any previous EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04827-04-4 A. 7639--A 2 1 notice of revised rule making containing an assessment of public comment 2 was published in the state register. 3 S 2. Paragraph (b) of subdivision 5 of section 202 of the state admin- 4 istrative procedure act, as amended by chapter 171 of the laws of 1994, 5 is amended to read as follows: 6 (b) Except with respect to any rule defined in subparagraph (ii) of 7 paragraph (a) of subdivision two of section one hundred two of this 8 chapter, each agency shall publish and make available to the public an 9 assessment of public comment for a rule adopted pursuant to this subdi- 10 vision or paragraph (e) of subdivision six of this section. Such assess- 11 ment shall be based upon any written comments submitted to the agency 12 DURING THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION OF SUCH 13 PROPOSED RULE and any comments presented at any public hearing held on 14 the proposed rule by the agency. The assessment shall contain: (i) a 15 summary and an analysis of the issues raised and significant alterna- 16 tives suggested by any such comments, (ii) a statement of the reasons 17 why any significant alternatives were not incorporated into the rule and 18 (iii) a description of any changes made in the rule as a result of such 19 comments. If any comments included estimates of projected costs of the 20 proposed rule to the state, local governments or regulated persons, 21 which differed significantly from those presented by the agency in its 22 regulatory impact statement, regulatory flexibility analysis, or rural 23 area flexibility analysis, the assessment shall also summarize the agen- 24 cy's assessment of such estimates. If no comments have been received, 25 the notice of adoption shall state that no comments were received by the 26 agency. Comments submitted or presented to the agency by a legislative 27 committee or commission or by a member or members of the senate or 28 assembly shall be considered public comment and shall be summarized and 29 analyzed in the assessment. 30 S 3. Subdivision 1 of section 202-a of the state administrative proce- 31 dure act, as amended by chapter 171 of the laws of 1994, is amended to 32 read as follows: 33 1. In [developing] THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGA- 34 TION OF a rule, an agency shall, to the extent consistent with the 35 objectives of applicable statutes, consider utilizing approaches which 36 are designed to avoid undue deleterious economic effects or overly 37 burdensome impacts of the rule upon persons, including persons residing 38 in New York state's rural areas, directly or indirectly affected by it 39 or upon the economy or administration of state or local governmental 40 agencies. Such approaches shall include, but not be limited to, the 41 specification of performance standards rather than design standards. 42 PRIOR TO PROMULGATING SUCH RULE, THE AGENCY SHALL, BY SUCH PROMULGATION, 43 HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO REGULATED PERSONS WHO MAY BE 44 ADVERSELY AFFECTED AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS AND COST 45 ESTIMATES THAT MAY BE IMPOSED UPON SUCH PERSONS. 46 S 4. Paragraphs (c), (d) and (g) of subdivision 3 of section 202-a of 47 the state administrative procedure act, as amended by chapter 520 of the 48 laws of 1992, are amended to read as follows: 49 (c) Costs. A statement detailing the projected costs of the rule, 50 which shall indicate: 51 (i) (A) the costs for the implementation of, and continuing compliance 52 with, the rule to regulated persons; 53 [(ii)] (B) the costs for the implementation of, and continued adminis- 54 tration of, the rule to the agency and to the state and its local 55 governments; and A. 7639--A 3 1 [(iii)] (C) the information, including the source or sources of such 2 information, and methodology upon which the cost analysis is based; or 3 [(iv)] (II) where an agency finds that, AFTER A REASONABLE GOOD FAITH 4 EFFORT HAS BEEN MADE, it cannot fully provide a statement of such costs, 5 a statement setting forth its best GOOD FAITH estimate, which shall 6 indicate the information and methodology upon which such best estimate 7 is based and the reason or reasons why a complete cost statement cannot 8 be provided; AND 9 (III) (A) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED 10 PERSONS WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF 11 PROPOSED RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH 12 EFFORTS SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE 13 EFFECTS THAT MAY BE CAUSED BY ADOPTING SUCH RULE; AND 14 (B) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY FROM REGULATED 15 PERSONS, WHO MAY BE ADVERSELY AFFECTED BY SUCH PROPOSED RULE MAKING, 16 PURSUANT TO CLAUSE (A) OF THIS SUBPARAGRAPH. 17 (d) Paperwork. A statement describing the need for any reporting 18 requirements, including forms and other paperwork OR OTHER ADMINISTRA- 19 TIVE BURDENS, which would be required as a result of the rule; 20 (g) Alternative approaches. A statement indicating whether any signif- 21 icant alternatives to the PROPOSED rule OR PROVISIONS OF THE PROPOSED 22 RULE were considered by the agency, including a discussion of such 23 alternatives and the reasons why they were not incorporated into the 24 rule. IN ADDITION, SUCH STATEMENT SHALL DISCLOSE SIGNIFICANT ALTERNATIVE 25 APPROACHES SUGGESTED BY REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED 26 BY SUCH PROPOSED RULE MAKING PRIOR TO FILING A PROPOSED RULE MAKING WITH 27 THE SECRETARY OF STATE OBTAINED FROM OUTREACH EFFORTS CONDUCTED PURSUANT 28 TO SUBPARAGRAPH (III) OF PARAGRAPH (C) OF THIS SUBDIVISION; 29 S 5. Paragraph (i) of subdivision 6 of section 202-a of the state 30 administrative procedure act, as amended by chapter 850 of the laws of 31 1990, is amended to read as follows: 32 (i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES 33 presented in the statement is inadequate, MISLEADING or incomplete, AS 34 DETERMINED BY SUCH AGENCY OR BROUGHT TO THE ATTENTION OF SUCH AGENCY BY 35 REGULATED PERSONS BEFORE, DURING AND AFTER SUCH PROPOSED RULE WAS FILED 36 WITH THE SECRETARY OF STATE, provided, however, such revised statement 37 shall be submitted as soon as practicable to the secretary of state for 38 publication in the state register, provided, further, if such statement 39 exceeds two thousand words, the notice shall include only a summary of 40 such statement in less than two thousand words; 41 S 6. Subdivision 1 of section 202-b of the state administrative proce- 42 dure act, as amended by chapter 611 of the laws of 1996, is amended to 43 read as follows: 44 1. In [developing] INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION 45 OF a rule, the agency shall consider utilizing approaches that will 46 accomplish the objectives of applicable statutes while minimizing any 47 adverse economic impact of the rule on small businesses and local 48 governments. THE AGENCY SHALL HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO 49 REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY THE PROMULGATION OF A 50 PROPOSED RULE MAKING AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS AND 51 COST ESTIMATES OF ALL COSTS THAT MAY BE IMPOSED UPON SUCH PERSONS. 52 Consistent with the objectives of applicable statutes, the agency shall 53 consider such approaches as: 54 (a) the establishment of differing compliance or reporting require- 55 ments or timetables that take into account the resources available to 56 small businesses and local governments; A. 7639--A 4 1 (b) the use of performance rather than design standards; [and] 2 (c) an exemption from coverage by the rule, or by any part thereof, 3 for small businesses and local governments so long as the public health, 4 safety or general welfare is not endangered[.]; AND 5 (D) WERE OBTAINED FROM COMMENTS AND ALTERNATIVE APPROACHES THAT COME 6 FROM REGULATED PERSONS PRIOR TO FILING A PROPOSED RULE MAKING DERIVED 7 FROM AGENCY OUTREACH EFFORTS CONDUCTED PURSUANT TO SUBPARAGRAPH (III) OF 8 PARAGRAPH (C) OF SUBDIVISION THREE OF SECTION TWO HUNDRED TWO-A OF THIS 9 ARTICLE. 10 S 7. Paragraph (e) of subdivision 2 of section 202-b of the state 11 administrative procedure act, as amended by chapter 611 of the laws of 12 1996, is amended and two new paragraphs (e-1) and (e-2) are added to 13 read as follows: 14 (e) an indication of how the rule is designed to minimize any adverse 15 economic impact of such rule on small businesses and local governments, 16 including information regarding whether the approaches suggested in 17 subdivision one of this section or other similar approaches were consid- 18 ered; [and] 19 (E-1) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED PERSONS 20 WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF PROPOSED 21 RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH EFFORTS 22 SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE EFFECTS 23 THAT MAY BE CAUSED BY ADOPTING SUCH RULE; 24 (E-2) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY, PURSUANT TO PARA- 25 GRAPH (E-ONE) OF THIS SUBDIVISION, FROM REGULATED PERSONS WHO MAY BE 26 ADVERSELY AFFECTED BY SUCH PROPOSED RULEMAKING; AND 27 S 8. Subdivision 6 of section 202-b of the state administrative proce- 28 dure act, as amended by chapter 611 of the laws of 1996, is amended to 29 read as follows: 30 6. When any rule is proposed for which a regulatory flexibility analy- 31 sis is required, the agency shall assure that small businesses and local 32 governments have been given an ADVANCED opportunity to participate in 33 [the] DEVELOPMENT, PREPARATION AND DRAFTING OF A PROPOSED rule making 34 through such activities as: 35 (a) the publication of a general notice for the proposed rule making 36 PRIOR TO BEING FILED WITH THE SECRETARY OF STATE in publications likely 37 to be obtained by small businesses and local governments of the types 38 affected by the proposed rule; 39 (b) the PRIOR direct notification of interested small businesses and 40 local governments THAT MAY BE affected by the proposed rule; 41 (c) the conduct of special open conferences concerning the proposed 42 rule PRIOR TO FILING WITH THE SECRETARY OF STATE for small businesses 43 and local governments THAT MAY BE ADVERSELY affected by the rule; and 44 (d) the adoption or modification of agency procedural rules to reduce 45 the cost or complexity of participation in the rule making PROCESS by 46 small businesses and local governments. 47 S 9. Paragraph (i) of subdivision 7 of section 202-b of the state 48 administrative procedure act, as amended by chapter 850 of the laws of 49 1990, is amended to read as follows: 50 (i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES 51 presented in the analysis submitted pursuant to this section is inade- 52 quate, MISLEADING or incomplete, AS DETERMINED BY SUCH AGENCY OR BROUGHT 53 TO THE ATTENTION OF SUCH AGENCY BY REGULATED PERSONS BEFORE, DURING AND 54 AFTER SUCH PROPOSED RULE WAS FILED WITH THE SECRETARY OF STATE, 55 provided, however, such revised analysis shall be submitted as soon as 56 practicable to the secretary of state for publication in the state A. 7639--A 5 1 register, provided, further, if such statement exceeds two thousand 2 words, the notice shall include only a summary of such statement in less 3 than two thousand words; 4 S 10. This act shall take effect on the first of January next succeed- 5 ing the date on which it shall have become a law.