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A07492 Summary:

Amd S204-a, St Ad Proc Act
Relates to petitions for alternate methods of implementing regulatory mandates.
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A07492 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                      May 13, 2015
        Introduced  by  M.  of  A.  ZEBROWSKI  --  read once and referred to the
          Committee on Governmental Operations
        AN ACT to amend the state administrative procedure act, in  relation  to
          petitions for alternate methods of implementing regulatory mandates
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 204-a of the state administrative procedure act, as
     2  added by chapter 479 of the laws of 2001, is amended to read as follows:
     3    § 204-a. Alternate methods for implementing regulatory mandates. 1. As
     4  used in this section:
     5    (a) "local government" means any county, city, town,  village,  school
     6  district, fire district or other special district;
     7    (b)  "regulatory  mandate"  means  any rule which requires one or more
     8  local governments to create a new program, increase the level of service
     9  for an existing program or otherwise comply with mandatory requirements;
    10  and
    11    (c) "petition" means a document submitted by  a  local  government  or
    12  governments  seeking  approval of an alternate method for implementing a
    13  regulatory mandate.
    14    2. A local government, or two or more local governments acting  joint-
    15  ly,  may seek approval for an alternate method of implementing a regula-
    16  tory mandate by submitting to the appropriate state  agency  a  petition
    17  which shall include but not be limited to:
    18    (a)  for each involved local government, an indication that submission
    19  has been approved by the governing body of the local government or by an
    20  officer duly authorized by the governing body to do so;
    21    (b) an identification of the regulatory mandate which is  the  subject
    22  of  the  petition  and  information  sufficient  to  establish  that the
    23  proposed alternate method of implementation is consistent with and  will
    24  effectively carry out the objectives of the regulatory mandate;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 7492                             2
     1    (c)  information  on [the] any process used by the local government or
     2  governments to ensure, where appropriate,  that  all  stakeholders  have
     3  been [appropriately] involved in the process of developing the alternate
     4  method, including where relevant the date of any hearing, forum or other
     5  meeting to seek input on the alternate method;
     6    (d)  documentation that the petition has been submitted to the author-
     7  ized agents  of  any  certified  or  recognized  employee  organizations
     8  representing  employees  who would be [effected] affected by implementa-
     9  tion of the alternate method;
    10    (e) [a proposed plan and timetable for compiling and reporting  infor-
    11  mation  to  facilitate  evaluation of the effectiveness of the alternate
    12  method;
    13    (f) if] whether the state [provides] has provided financial assistance
    14  for complying with the  regulatory  mandate[,  any  proposed  amount  or
    15  percentage  of  such assistance which would be returned to the state due
    16  to savings from implementing the alternate method]; [and
    17    (g)] (f) the name, public office address and telephone number  of  the
    18  representative of [the] each petitioning local government who will coor-
    19  dinate requests for additional information on the petition[.]; and
    20    [3.  Two]  (g) where two or more local governments [may submit a peti-
    21  tion] have petitioned jointly,  [provided  that  each  local  government
    22  meets  the  requirements of paragraphs (a), (c), (d) and (g) of subdivi-
    23  sion two of this section, and provided that  the  petition]  information
    24  which  addresses  the  manner in which responsibility for implementation
    25  will be allocated between or among the participating local governments.
    26    [4.] 3. The agency  shall  cause  a  notice  of  the  petition  to  be
    27  published  in  the state register and a newspaper of general circulation
    28  in the impacted community and shall receive comments on the petition for
    29  a period of thirty days. Such notice shall either include the full  text
    30  of  the  information  set  forth  in the petition or shall set forth the
    31  address of a website on which the full text has been posted. The  notice
    32  shall  include the name, public office address [and], telephone number[,
    33  and may include a fax number] and electronic mail address[,] of an agen-
    34  cy representative from whom additional information on the  petition  can
    35  be obtained and to whom comments on the petition may be submitted.
    36    [5.]  4.  (a)  Not  later  than  thirty days after the last day of the
    37  comment period, the agency shall approve or disapprove the petition. The
    38  agency may approve the petition without change or with  such  conditions
    39  or  modifications  as the agency deems appropriate. Notice of the agency
    40  determination including any such conditions or  modifications  shall  be
    41  provided  in  writing  to the local government and shall be published in
    42  the state register. Such notice shall either include the  full  text  of
    43  the  determination  or shall set forth the address of a website on which
    44  the full text has been posted. The agency shall  not  grant  a  petition
    45  unless  it  determines  that  the  petition  has met the requirements of
    46  subdivision two of this section and that the local government has estab-
    47  lished that the alternate method is consistent with and will effectively
    48  carry out the objectives of the regulatory mandate;  provided,  however,
    49  that  no petition shall be approved which would result in the contraven-
    50  tion of any environmental, health or safety standard or would reduce any
    51  benefits or rights accorded by law or rule to third parties. In  approv-
    52  ing  a petition, an agency may waive a statutory provision only if it is
    53  specifically authorized by law to  waive  such  provision.  An  approval
    54  shall  include a timetable for agency evaluation of the effectiveness of
    55  the alternate method.

        A. 7492                             3
     1    (b) Notwithstanding the provisions of paragraph (a) of  this  subdivi-
     2  sion,  upon  receipt  of  an objection to a petition from the authorized
     3  agent of any certified or recognized employee organization  representing
     4  employees who would be affected by implementation of the alternate meth-
     5  od,  the agency shall provide any such organizations with an opportunity
     6  for a hearing. If an adjudicatory proceeding is requested, the  petition
     7  shall not be approved unless the agency determines by a preponderance of
     8  the  evidence  that  implementing  the alternate method would not affect
     9  such employees by contravening any environmental, health or safety stan-
    10  dard, reducing any rights or benefits or  violating  the  terms  of  any
    11  negotiated  agreement,  and  that all other requirements of this section
    12  have been met. The provisions of this subdivision are in addition to and
    13  shall not be construed to impair or modify any rights of such  employees
    14  under any other law, regulation or contract.
    15    5.  Not later than the first day of February, any agency that has made
    16  one or more determinations pursuant to subdivision four of this  section
    17  in the preceding calendar year shall submit for publication in the state
    18  register  a  notice  identifying, for each such determination, the local
    19  government or governments that submitted the  petition,  the  regulatory
    20  mandate, the issue of the state register in which the notice of determi-
    21  nation  was  published,  and  the address of a website on which the full
    22  text of the determination has been posted. The full text shall be  main-
    23  tained for the entire period that a petition remains approved.
    24    6.  Nothing  in  this  section  shall  require  a  local government to
    25  commence or continue an alternate method of implementation if it  deter-
    26  mines  in  its sole discretion not to do so, except to the extent that a
    27  local government has committed to commencing or continuing an  alternate
    28  method in a joint petition submitted pursuant to subdivision [three] two
    29  of this section.
    30    7.  A state agency may rescind its approval of a petition [at any time
    31  if it determines, based on the information reported  pursuant  to  para-
    32  graph (e) of subdivision two of this section or other information avail-
    33  able  to  it,  that the alternate method is not effectively carrying out
    34  the objectives of the regulatory mandate or is being  implemented  in  a
    35  manner  detrimental  to  the  public  interest]  only  after  a hearing,
    36  provided, however, that the agency may suspend its approval of  a  peti-
    37  tion  prior to a hearing if it finds that immediate suspension is neces-
    38  sary to address an imminent threat to health  or  safety.  Notice  of  a
    39  hearing must be provided to the petitioner at least thirty days prior to
    40  the  hearing  and  must  be posted on the agency's website.  Such notice
    41  must state the basis for the agency's decision to  seek  rescission  and
    42  inform  the local government that it may request information relied upon
    43  by the agency in making its determination,  which  information  must  be
    44  provided  to  the local government at least seven days in advance of the
    45  hearing. After such hearing, the agency may rescind its approval upon  a
    46  finding  that  the  alternate method of implementation is not consistent
    47  with or does not effectively carry out the objectives of the  regulatory
    48  mandate.
    49    [7]  8.  Notwithstanding any other provision of law, implementation of
    50  an alternate method approved by an agency pursuant to this section shall
    51  be deemed to lawfully meet all requirements of the  regulatory  mandate.
    52  An  agency  shall  retain  the  authority to enforce compliance with the
    53  alternate method in the same manner as it may  enforce  compliance  with
    54  the underlying rule. Any action on a petition by a state agency shall be
    55  subject  to  review pursuant to article seventy-eight of the civil prac-
    56  tice law and rules.

        A. 7492                             4
     1    [8] 9.   In accordance with  the  timetable  established  pursuant  to
     2  subdivision  [four] three of this section, the agency shall evaluate the
     3  effectiveness of the alternate method in carrying out the objectives  of
     4  the  regulatory  mandate.  The  evaluation shall identify any savings or
     5  other  benefits,  and  any costs or other disadvantages, of implementing
     6  the alternate method, and shall address the desirability of  incorporat-
     7  ing  the alternate method into the rules of the agency. Notice of avail-
     8  ability of the evaluation shall be published in the state register.
     9    § 2. This act shall take effect on the first of January after it shall
    10  have become a law.
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