Bill Text: NY S05219 | 2015-2016 | General Assembly | Introduced
Bill Title: Establishes the office of administrative rulemaking compliance, and repeals provisions of law establishing the office of business permits.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2016-01-06 - REFERRED TO FINANCE [S05219 Detail]
Download: New_York-2015-S05219-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5219
2015-2016 Regular Sessions
I N S E N A T E
May 7, 2015
___________
Introduced by Sens. CARLUCCI, AVELLA, KLEIN, SAVINO, VALESKY -- read
twice and ordered printed, and when printed to be committed to the
Committee on Finance
AN ACT to amend the executive law and the state administrative procedure
act, in relation to establishing the office of administrative rulemak-
ing compliance, and providing for its powers and duties; and to repeal
article 39 of the executive law relating to the office of business
permits
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 146 of the executive law is amended by adding a new
2 subdivision 3-a to read as follows:
3 3-A. WITH REGARD TO RULE MAKING NOTICES REQUIRED TO BE PUBLISHED IN
4 THE STATE REGISTER PURSUANT TO ARTICLE TWO OF THE STATE ADMINISTRATIVE
5 PROCEDURE ACT, THE SECRETARY OF STATE, SHALL ACCEPT AND FOLLOW THE
6 RECOMMENDATIONS OF THE OFFICE OF ADMINISTRATIVE RULEMAKING COMPLIANCE TO
7 WITHHOLD PUBLICATION OF ANY AND ALL NOTICES OF RULE MAKINGS FILED WITH
8 THE SECRETARY AND WHICH ARE REQUIRED TO BE PUBLISHED IN THE STATE REGIS-
9 TER TO PROMULGATE A RULE PURSUANT TO ARTICLE TWO OF THE STATE ADMINIS-
10 TRATIVE PROCEDURE ACT. THE OFFICE SHALL FILE SUCH NOTICE OF NON-COMPLI-
11 ANCE WITH THE DIVISION OF ADMINISTRATIVE RULES IF SUCH OFFICE DETERMINES
12 THAT THE STATE AGENCY PROMULGATING SUCH PROPOSED RULE HAS NOT SUBSTAN-
13 TIALLY COMPLIED WITH EITHER THE PROCEDURAL OR SUBSTANTIVE PROVISIONS OF
14 THE STATE ADMINISTRATIVE PROCEDURE ACT, OR IS ACTING WITHOUT ADEQUATE
15 STATUTORY AUTHORITY TO PROMULGATE SUCH RULE. SUCH NON-COMPLIANCE NOTICE
16 MAY BE FILED BY THE OFFICE OF ADMINISTRATIVE RULEMAKING COMPLIANCE WITH
17 THE DIVISION OF ADMINISTRATIVE RULES AT ANY TIME PRIOR TO THE ACTUAL
18 PUBLICATION OF SUCH RULE MAKING NOTICE THAT HAS BEEN FILED BY ANY STATE
19 AGENCY. SUCH NON-COMPLIANCE NOTICE SHALL BE FILED WITH THE STATE AGENCY
20 PROMULGATING SUCH PROPOSED RULE SO THAT THE AGENCY IS ON NOTICE OF THE
21 ISSUANCE OF SUCH NON-COMPLIANCE NOTICE. SUCH NON-COMPLIANCE NOTICE SHALL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10254-01-5
S. 5219 2
1 BE PUBLISHED IN THE STATE REGISTER AND REMAIN IN EFFECT UNTIL SUCH TIME
2 AS THE OFFICE FILES A NEW NOTICE THAT REMOVES SUCH OBJECTION TO THE
3 PUBLICATION OF AGENCY NOTICES RELATED TO THE PROMULGATION OF A RULE.
4 S 2. Article 39 of the executive law is REPEALED and a new article 39
5 is added to read as follows:
6 ARTICLE 39
7 OFFICE OF ADMINISTRATIVE
8 RULEMAKING COMPLIANCE
9 SECTION 875. LEGISLATIVE FINDINGS.
10 876. DEFINITIONS.
11 877. OFFICE OF ADMINISTRATIVE RULEMAKING COMPLIANCE.
12 878. GENERAL FUNCTIONS, POWERS AND DUTIES.
13 879. ASSISTANCE OF OTHER AGENCIES.
14 880. ADVISORY COUNCIL.
15 S 875. LEGISLATIVE FINDINGS. THE LEGISLATURE HEREBY FINDS AND DETER-
16 MINES AS FOLLOWS:
17 1. TO FOSTER A MORE ATTRACTIVE BUSINESS CLIMATE AND TO PROMOTE ECONOM-
18 IC GROWTH AND JOB CREATION IN THIS STATE, THE OFFICE OF ADMINISTRATIVE
19 RULEMAKING COMPLIANCE IS HEREBY ESTABLISHED WITHIN THE DEPARTMENT OF
20 STATE;
21 2. IN PROMULGATING NEW RULES OR CONDUCTING THE PERIODIC REVIEW OF
22 EXISTING RULES, THE STATE SHOULD STRIVE TO SATISFY THE LEGISLATIVE
23 OBJECTIVES OF THE APPLICABLE STATUTES, BUT IT SHOULD BE DONE IN A MANNER
24 THAT MINIMIZES ANY UNNECESSARY ADVERSE ECONOMIC IMPACTS ON BUSINESSES
25 NOR SHOULD SUCH RULES IMPOSE NEEDLESS, OVERLY STRICT OR BURDENSOME
26 RULES, MANDATES OR ADMINISTRATIVE REQUIREMENTS ON EXISTING BUSINESSES
27 THAT OPERATE IN THIS STATE OR ON POTENTIAL FUTURE BUSINESSES THAT MAY
28 LOCATE IN THIS STATE; AND
29 3. RETAINING THE CURRENT BASE OF BUSINESS ENTERPRISES AND ATTRACTING
30 NEW FIRMS TO THIS STATE CAN HELP TO PROMOTE THE HEALTH, SAFETY AND
31 GENERAL WELFARE OF ITS CITIZENS BY PROVIDING BETTER EMPLOYMENT OPPORTU-
32 NITIES TO ENHANCE OUR CITIZENS' ECONOMIC AND SOCIAL WELLBEING, AND ADD
33 NEW TAX REVENUES TO SUPPORT PRIVATE AND GOVERNMENTAL PROGRAMS RELATED TO
34 PROVIDING QUALITY HEALTH CARE, SUPPORTING QUALITY EDUCATIONAL FACILITIES
35 AND OTHER VITAL PUBLIC PROGRAMS.
36 S 876. DEFINITIONS. WHEN USED IN THIS ARTICLE:
37 1. "AGENCY" MEANS AN AGENCY AS DEFINED IN SUBDIVISION ONE OF SECTION
38 ONE HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT.
39 2. "COUNCIL" MEANS THE ADVISORY COUNCIL OF THE OFFICE, ESTABLISHED
40 PURSUANT TO SECTION EIGHT HUNDRED EIGHTY OF THIS ARTICLE.
41 3. "DEPARTMENT" MEANS THE DEPARTMENT OF STATE.
42 4. "DIRECTOR" MEANS THE DIRECTOR OF THE OFFICE.
43 5. "OFFICE" MEANS THE OFFICE OF ADMINISTRATIVE RULEMAKING COMPLIANCE
44 ESTABLISHED PURSUANT TO SECTION EIGHT HUNDRED SEVENTY-SEVEN OF THIS
45 ARTICLE.
46 6. "PERSON" MEANS ANY INDIVIDUAL, PARTNERSHIP, CORPORATION, ASSOCI-
47 ATION, OR PUBLIC OR PRIVATE ORGANIZATION OF ANY CHARACTER OTHER THAN AN
48 AGENCY ENGAGED IN THE PARTICULAR RULE MAKING, DECLARATORY RULING OR
49 ADJUDICATION.
50 7. "RULE" MEANS A RULE AS DEFINED IN SUBDIVISION TWO OF SECTION ONE
51 HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT.
52 8. "SECRETARY" MEANS THE SECRETARY OF STATE.
53 S 877. OFFICE OF ADMINISTRATIVE RULEMAKING COMPLIANCE. 1. THERE IS
54 HEREBY CREATED WITHIN THE DEPARTMENT AN OFFICE OF ADMINISTRATIVE RULE-
55 MAKING COMPLIANCE. THE HEAD OF THE OFFICE SHALL BE THE DIRECTOR WHO
S. 5219 3
1 SHALL BE APPOINTED BY THE GOVERNOR, BY AND WITH THE ADVICE AND CONSENT
2 OF THE SENATE, AND WHO SHALL SERVE AT THE PLEASURE OF THE GOVERNOR.
3 2. THE DIRECTOR SHALL BE THE CHIEF EXECUTIVE OFFICER OF THE OFFICE AND
4 ADMINISTER ITS OPERATIONS. THE DIRECTOR MAY APPOINT SUCH OFFICERS AND
5 EMPLOYEES AS HE OR SHE MAY DEEM NECESSARY, PRESCRIBE THEIR DUTIES, FIX
6 THEIR COMPENSATION AND PROVIDE FOR THE REIMBURSEMENT OF THEIR EXPENSES,
7 UPON APPROVAL OF THE SECRETARY, ALL WITHIN AMOUNTS MADE AVAILABLE THERE-
8 FOR BY APPROPRIATION.
9 3. THE DIRECTOR SHALL DIRECTLY REPORT TO THE SECRETARY AND INFORM THE
10 SECRETARY OF ALL OF THE ACTIVITIES OF THE OFFICE. FURTHERMORE, THE
11 DIRECTOR SHALL COMMUNICATE WITH AND KEEP THE ADVISORY COUNCIL INFORMED
12 ON THE ACTIVITIES OF THE OFFICE AND ACCEPT RECOMMENDATIONS FROM THE
13 ADVISORY COUNCIL ON ACTIVITIES AND ACTIONS THAT SHOULD BE UNDERTAKEN BY
14 THE OFFICE.
15 S 878. GENERAL FUNCTIONS, POWERS AND DUTIES. THE OFFICE SHALL HAVE
16 THE FOLLOWING FUNCTIONS, POWERS AND DUTIES, TO:
17 1. MONITOR AGENCY ACTIONS AND ACTIVITIES AS THEY RELATE TO COMPLIANCE
18 WITH THE STATE ADMINISTRATIVE PROCEDURE ACT AND ENSURE THAT SUCH AGEN-
19 CIES COMPLY WITH THE PROVISIONS OF SUCH ACT;
20 2. ENGAGE IN A DIALOGUE WITH AGENCIES TO ENSURE THAT SUCH AGENCIES
21 COMPLY WITH ALL OF THE PROCEDURAL AND SUBSTANTIVE PROVISIONS OF THE
22 STATE ADMINISTRATIVE PROCEDURE ACT AND TO ASSIST SUCH AGENCIES WITH SUCH
23 COMPLIANCE EFFORTS;
24 3. ACCEPT COMMENTS AND INFORMATION FROM REGULATED PARTIES AS IT
25 RELATES TO THE PROPER COMPLIANCE BY AGENCIES OF THE RULE MAKING PROCESS
26 AND THE SUBSTANTIVE AND PROCEDURAL PROVISIONS OF THE STATE ADMINISTRA-
27 TIVE PROCEDURE ACT;
28 4. SERVE AS AN OMBUDSMAN FOR THE BUSINESS COMMUNITY WITH REGARD TO
29 CURTAILING THE PROMULGATION OF NEW RULES THAT ARE UNNECESSARY, OVER
30 BURDENSOME, OVERLY STRINGENT OR PROMULGATED WITHOUT ADEQUATE STATUTORY
31 AUTHORITY, OR WHICH HINDER ECONOMIC DEVELOPMENT AND JOB CREATION ACTIV-
32 ITIES IN THIS STATE;
33 5. ISSUE NON-COMPLIANCE NOTICES FOR PROPOSED RULES WHICH:
34 (A) DO NOT COMPLY WITH THE SUBSTANTIVE OR PROCEDURAL PROVISIONS OF THE
35 STATE ADMINISTRATIVE PROCEDURE ACT, OR
36 (B) DO NOT HAVE ADEQUATE STATUTORY AUTHORITY TO PROMULGATE SUCH RULES;
37 6. IDENTIFY ANTIQUATED, OBSOLETE, REDUNDANT, USELESS OR DUPLICATIVE
38 RULES THAT COULD BE ALTERED, REVISED OR ELIMINATED TO BETTER STREAMLINE
39 THE OPERATION OF THE STATE AND LOCAL GOVERNMENTS, REDUCE BUSINESS OPERA-
40 TION COSTS, OR MAKE LIFE GENERALLY EASIER FOR THE GENERAL PUBLIC; AND
41 7. ADOPT SUCH RULES, REGULATIONS, PROCEDURES, INSTRUCTIONS AND FORMS
42 AS ARE REQUIRED TO CARRY OUT THE FUNCTIONS, POWERS AND DUTIES OF THE
43 OFFICE.
44 S 879. ASSISTANCE OF OTHER AGENCIES. TO EFFECTUATE THE PURPOSES OF
45 THIS ARTICLE, THE OFFICE MAY REQUEST AND SHALL BE ENTITLED TO RECEIVE
46 FROM ANY AGENCY, AND EACH AGENCY IS AUTHORIZED TO PROVIDE SUCH ASSIST-
47 ANCE, SERVICES AND INFORMATION AS SHALL BE NECESSARY TO ENABLE THE
48 OFFICE TO CARRY OUT ITS FUNCTIONS, POWERS AND DUTIES.
49 S 880. ADVISORY COUNCIL. 1. THERE SHALL BE ESTABLISHED, WITHIN THE
50 OFFICE, AN ADVISORY COUNCIL COMPOSED OF SEVEN MEMBERS. THE MEMBERS OF
51 THE COUNCIL ARE:
52 (A) THE SECRETARY, WHO SHALL BE THE CHAIR OF THE COUNCIL;
53 (B) A REPRESENTATIVE OF THE DIVISION OF BUDGET, APPOINTED BY THE
54 DIRECTOR OF SUCH DIVISION;
55 (C) THE SECRETARY TO THE GOVERNOR;
S. 5219 4
1 (D) TWO REPRESENTATIVES OF THE STATE'S BUSINESS COMMUNITY, APPOINTED
2 BY THE GOVERNOR;
3 (E) A MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE; AND
4 (F) A MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY.
5 2. THE MEMBERS APPOINTED BY THE GOVERNOR AND THE LEGISLATIVE LEADERS
6 SHALL BE APPOINTED TO TERMS OF FOUR YEARS; PROVIDED, HOWEVER, THAT OF
7 THE INITIAL APPOINTMENTS: ONE MEMBER APPOINTED BY THE GOVERNOR SHALL
8 SERVE A TERM OF ONE YEAR; THE MEMBER APPOINTED BY THE TEMPORARY PRESI-
9 DENT OF THE SENATE SHALL SERVE A TERM OF THREE YEARS; THE MEMBER
10 APPOINTED BY THE SPEAKER OF THE ASSEMBLY SHALL SERVE A TERM OF TWO
11 YEARS; AND THE OTHER MEMBER APPOINTED BY THE GOVERNOR SHALL SERVE A TERM
12 OF FOUR YEARS. VACANCIES SHALL BE FILLED IN THE SAME MANNER AS THE
13 ORIGINAL APPOINTMENT FOR THE UNEXPIRED TERM OF THE VACANT OFFICE. THE
14 MEMBERS OF THE COUNCIL SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES,
15 BUT SHALL BE REIMBURSED FOR THEIR REASONABLE EXPENSES ACTUALLY AND
16 NECESSARILY INCURRED BY THEM IN THE PERFORMANCE OF THEIR DUTIES. THE
17 COUNCIL SHALL MEET NOT LESS THAN THREE TIMES EACH CALENDAR YEAR. SPECIAL
18 MEETINGS OF THE COUNCIL SHALL BE HELD AT THE CALL OF THE CHAIR.
19 3. THE COUNCIL SHALL HAVE THE POWER TO CONSIDER ANY MATTER RELATING TO
20 THE FUNCTIONS, POWERS AND DUTIES OF THE OFFICE. FURTHERMORE, THE COUNCIL
21 MAY ADVISE THE OFFICE ON POLICIES, GOALS AND OPERATIONS RELATED TO THE
22 ADVANCEMENT OF THE GOALS OF THE COUNCIL AND LEGISLATIVE FINDINGS
23 CONTAINED IN SECTION EIGHT HUNDRED SEVENTY-FIVE OF THIS ARTICLE.
24 4. THE COUNCIL MAY REVIEW PROPOSED RULES PROMULGATED BY AGENCIES AND
25 PROVIDE COMMENTS TO THE OFFICE THEREON.
26 5. THE COUNCIL MAY SUBMIT RECOMMENDATIONS TO THE OFFICE FOR THE
27 IMPROVEMENT, MODIFICATION OR EXTENSION OF THE SERVICES OF THE OFFICE,
28 AND FOR ACTIONS DESIGNED TO ELIMINATE, CONSOLIDATE OR SIMPLIFY RULES
29 PROMULGATED BY AGENCIES OR WHICH ALREADY EXIST.
30 S 3. Section 102 of the state administrative procedure act is amended
31 by adding a new subdivision 12 to read as follows:
32 12. "OFFICE" MEANS THE OFFICE OF ADMINISTRATIVE RULE MAKING COMPLIANCE
33 ESTABLISHED PURSUANT TO ARTICLE THIRTY-NINE OF THE EXECUTIVE LAW.
34 S 4. Subdivision 1 of section 202 of the state administrative proce-
35 dure act is amended by adding a new paragraph (g) to read as follows:
36 (G) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, UPON THE
37 FILING WITH THE SECRETARY OF STATE BY THE OFFICE OF A NON-COMPLIANCE
38 NOTICE, PURSUANT TO SUBDIVISION FIVE OF SECTION EIGHT HUNDRED
39 SEVENTY-EIGHT OF THE EXECUTIVE LAW, RELATED TO ANY NOTICE OF PROPOSED
40 RULEMAKING, REVISED RULEMAKING OR ADOPTION FOR SUCH RULEMAKING, NO SUCH
41 RULEMAKING NOTICE RELATED TO SUCH NON-COMPLIANCE NOTICE SHALL BE
42 PUBLISHED UNTIL SUCH NON-COMPLIANCE NOTICE IS RESCINDED. SUCH RESCIS-
43 SION SHALL BE PUBLISHED IN THE STATE REGISTER.
44 S 5. Subparagraph (iii) of paragraph (a) of subdivision 9 of section
45 202 of the state administrative procedure act, as amended by chapter 230
46 of the laws of 2006, is amended to read as follows:
47 (iii) reject those notices which are not in substantial compliance
48 with the provisions of this [section] ARTICLE OR WHICH RELATE TO RULE-
49 MAKING NOTICES THAT THE OFFICE HAS ISSUED A NON-COMPLIANCE NOTICE, give
50 prompt notice of such rejection to the agency, and advise such agency on
51 the corrective action required; and
52 S 6. Section 102-a of the state administrative procedure act, as
53 amended by section 3 of part O of chapter 60 of the laws of 2011, is
54 amended to read as follows:
55 S 102-a. Small business regulation guides. For each rule or group of
56 related rules which significantly impact a substantial number of small
S. 5219 5
1 businesses, the agency which adopted the rule shall post on its website
2 AND PROVIDE TO THE OFFICE one or more guides explaining the actions a
3 small business may take to comply with such rule or group of rules if
4 the agency determines that such guide or guides will assist small busi-
5 nesses in complying with the rule, and shall designate each such posting
6 as a "small business regulation guide". The guide shall explain the
7 actions a small business may take to comply with a rule or group of
8 rules. The agency shall, in its sole discretion, taking into account the
9 subject matter of the rule and the language of relevant statutes, ensure
10 that the guide is written using sufficiently plain language that it is
11 likely to be understood by affected small businesses. Agencies shall
12 cooperate with other state agencies in developing such guides.
13 S 7. Paragraph (b) of subdivision 5 of section 202 of the state admin-
14 istrative procedure act, as amended by chapter 171 of the laws of 1994,
15 is amended to read as follows:
16 (b) Except with respect to any rule defined in subparagraph (ii) of
17 paragraph (a) of subdivision two of section one hundred two of this
18 chapter, each agency shall publish and make available to the public an
19 assessment of public comment for a rule adopted pursuant to this subdi-
20 vision or paragraph (e) of subdivision six of this section. Such assess-
21 ment shall be based upon any written comments submitted to the agency
22 and any comments presented at any public hearing held on the proposed
23 rule by the agency. The assessment shall contain: (i) a summary and an
24 analysis of the issues raised and significant alternatives suggested by
25 any such comments, (ii) a statement of the reasons why any significant
26 alternatives were not incorporated into the rule and (iii) a description
27 of any changes made in the rule as a result of such comments. If any
28 comments included estimates of projected costs of the proposed rule to
29 the state, local governments or regulated persons, which differed
30 significantly from those presented by the agency in its regulatory
31 impact statement, regulatory flexibility analysis, or rural area flexi-
32 bility analysis, the assessment shall also summarize the agency's
33 assessment of such estimates. If no comments have been received, the
34 notice of adoption shall state that no comments were received by the
35 agency. Comments submitted or presented to the agency by THE OFFICE, a
36 legislative committee or commission or by a member or members of the
37 senate or assembly shall be considered public comment and shall be
38 summarized and analyzed in the assessment.
39 S 8. Paragraph (a) of subdivision 6-a of section 202 of the state
40 administrative procedure act, as amended by chapter 171 of the laws of
41 1994, is amended to read as follows:
42 (a) An agency shall transmit a copy of any rule making notice prepared
43 pursuant to this article to the governor, the temporary president of the
44 senate, the speaker of the assembly, the administrative regulations
45 review commission and the office [of regulatory and management assist-
46 ance] at the time such notice is submitted to the secretary of state for
47 publication in the state register. Such transmittal shall include the
48 complete rule text, regulatory impact statement, regulatory flexibility
49 analysis, rural area flexibility analysis, or revisions thereof, and any
50 other information submitted to the secretary of state pursuant to this
51 article.
52 S 9. Subparagraph (i) of paragraph (b) of subdivision 9 of section 202
53 of the state administrative procedure act, as added by chapter 230 of
54 the laws of 2006, is amended to read as follows:
S. 5219 6
1 (i) The secretary of state [may] SHALL, in addition to publication of
2 the state register, publish an electronic copy of the state register
3 which shall be freely available on the internet.
4 S 10. The opening paragraph of subdivision 2 of section 202-b of the
5 state administrative procedure act, as amended by chapter 611 of the
6 laws of 1996, is amended to read as follows:
7 In proposing a rule for adoption or in adopting a rule on an emergency
8 basis, the agency shall issue a regulatory flexibility analysis regard-
9 ing the rule being proposed for adoption or the emergency rule being
10 adopted. A copy of such analysis and any finding, and reasons for such
11 finding, pursuant to subdivision three of this section, shall be submit-
12 ted to the governor, the temporary president of the senate, the speaker
13 of the assembly, the office [of business permits and regulatory assist-
14 ance] and the administrative regulations review commission at the time
15 such analysis is submitted to the secretary of state for publication
16 and, upon written request, a copy shall be sent to any other person.
17 Each regulatory flexibility analysis shall contain:
18 S 11. This act shall take effect immediately; provided, however, that
19 sections one and three through ten of this act shall take effect on the
20 first of January next succeeding the date on which it shall have become
21 a law.
