Amd S146, rpld & add Art 39 SS875 - 880, Exec L; amd SS202, 102-a, 202-b, 206 & 207, St Ad Proc Act
Establishes the office of regulatory reform and administrative procedure compliance, and repeals provisions of law establishing the office of business permits; directs such office to review all proposed rules for being overburdening or engaging in overbreadth.
STATE OF NEW YORK
________________________________________________________________________
6449
IN SENATE
February 9, 2012
___________
Introduced by Sens. CARLUCCI, 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 regulatory reform and
administrative procedure 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 regulatory reform and administrative
7 procedure compliance to withhold publication of any and all notices of
8 rule makings filed with the secretary and which are required to be
9 published in the state register to promulgate a rule pursuant to article
10 two of the state administrative procedure act. The office shall file
11 such notice of non-compliance with the division of administrative rules
12 if such office determines that the state agency promulgating such
13 proposed rule has not substantially complied with either the procedural
14 or substantive provisions of the state administrative procedure act, or
15 is acting without adequate statutory authority to promulgate such rule.
16 Such non-compliance notice may be filed by the office of regulatory
17 reform and administrative procedure compliance with the division of
18 administrative rules at any time prior to the actual publication of such
19 rule making notice that has been filed by any state agency. Such non-
20 compliance notice shall be filed with the state agency promulgating such
21 proposed rule so that the agency is on notice of the issuance of such
22 non-compliance notice. Such non-compliance notice shall be published in
23 the state register and remain in effect until such time as the office
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14082-02-2
S. 6449 2
1 files a new notice that removes such objection to the publication of
2 agency notices related to the promulgation of a rule.
3 § 2. Article 39 of the executive law is REPEALED and a new article 39
4 is added to read as follows:
5 ARTICLE 39
6 OFFICE OF REGULATORY REFORM AND
7 ADMINISTRATIVE PROCEDURE
8 COMPLIANCE
9 Section 875. Legislative findings.
10 876. Definitions.
11 877. Office of regulatory reform and administrative procedure
12 compliance.
13 878. General functions, powers and duties.
14 879. Assistance of other agencies.
15 880. Advisory council.
16 § 875. Legislative findings. The legislature hereby finds and deter-
17 mines as follows:
18 1. To foster a more attractive business climate and to promote econom-
19 ic growth and job creation in this state, the office of regulatory
20 reform and administrative procedure compliance is hereby established
21 within the department of state;
22 2. In promulgating new rules or conducting the periodic review of
23 existing rules, the state should strive to satisfy the legislative
24 objectives of the applicable statutes, but it should be done in a manner
25 that minimizes any unnecessary adverse economic impacts on businesses
26 nor should such rules impose needless, overly strict or burdensome
27 rules, mandates or administrative requirements on existing businesses
28 that operate in this state or on potential future businesses that may
29 locate in this state; and
30 3. Retaining the current base of business enterprises and attracting
31 new firms to this state can help to promote the health, safety and
32 general welfare of its citizens by providing better employment opportu-
33 nities to enhance our citizens economic and social wellbeing, and add
34 new tax revenues to support private and governmental programs related to
35 providing quality health care, supporting quality educational facilities
36 and other vital public programs.
37 § 876. Definitions. When used in this article:
38 1. "Agency" means an agency as defined in subdivision one of section
39 one hundred two of the state administrative procedure act.
40 2. "Council" means the advisory council of the office, established
41 pursuant to section eight hundred eighty of this article.
42 3. "Department" means the department of state.
43 4. "Director" means the director of the office.
44 5. "Office" means the office of regulatory reform and administrative
45 procedure compliance established pursuant to section eight hundred
46 seventy-seven of this article.
47 6. "Person" means any individual, partnership, corporation, associ-
48 ation, or public or private organization of any character other than an
49 agency engaged in the particular rule making, declaratory ruling or
50 adjudication.
51 7. "Rule" means a rule as defined in subdivision two of section one
52 hundred two of the state administrative procedure act.
53 8. "Secretary" means the secretary of state.
54 § 877. Office of regulatory reform and administrative procedure
55 compliance. 1. There is hereby created within the department an office
56 of regulatory reform and administrative procedure compliance. The head
S. 6449 3
1 of the office shall be the director who shall be appointed by the gover-
2 nor, by and with the advice and consent of the senate, and who shall
3 serve at the pleasure of the governor.
4 2. The director shall be the chief executive officer of the office and
5 administer its operations. The director may appoint such officers and
6 employees as he or she may deem necessary, prescribe their duties, fix
7 their compensation and provide for the reimbursement of their expenses,
8 upon approval of the secretary, all within amounts made available there-
9 for by appropriation.
10 3. The director shall directly report to the secretary and inform the
11 secretary of all of the activities of the office. Furthermore, the
12 director shall communicate with and keep the advisory council informed
13 on the activities of the office and accept recommendations from the
14 advisory council on activities and actions that should be undertaken by
15 the office.
16 4. The secretary, in working with agency heads concerned with economic
17 development and promotion activities, and the advisory council, shall
18 ensure that the activities of the office are fully coordinated with
19 related activities of agencies providing related services.
20 § 878. General functions, powers and duties. The office shall have
21 the following functions, powers and duties, to:
22 1. monitor agency actions and activities as they relate to compliance
23 with the state administrative procedure act and ensure that such agen-
24 cies comply with the provisions of such act;
25 2. engage in a dialog with agencies to ensure that such agencies
26 comply with all of the procedural and substantive provisions of the
27 state administrative procedure act and to assist such agencies with such
28 compliance efforts;
29 3. accept comments and information from regulated parties as it
30 relates to the proper compliance by agencies of the rule making process
31 and the substantive and procedural provisions of the state administra-
32 tive procedure act;
33 4. serve as an ombudsman for the business community with regard to
34 curtailing the promulgation of new rules that are unnecessary, over
35 burdensome, overly stringent or promulgated without adequate statutory
36 authority, or which hinder economic development and job creation activ-
37 ists in this state;
38 5. issue non-compliance notices for proposed rules which:
39 (a) do not comply with the substantive or procedural provisions of the
40 state administrative procedure act, or
41 (b) do not have adequate statutory authority to promulgate such rules;
42 6. identify antiquated, obsolete, redundant, unless or duplicative
43 rules that could be altered, revised or eliminated to better streamline
44 the operation of the state and local governments, reduce the business
45 operation costs, or make life generally easier for the general public;
46 and
47 7. adopt such rules, regulations, procedures, instructions and forms
48 as are required to carry out the functions, powers and duties of the
49 office.
50 § 879. Assistance of other agencies. To effectuate the purposes of
51 this article, the office may request and shall been entitled to receive
52 from any agency, and each agency is authorized to provide such assist-
53 ance, services and information as shall be necessary to enable the
54 office to carry out its functions, powers and duties.
S. 6449 4
1 § 880. Advisory council. 1. There shall be established, within the
2 office, an advisory council composed of seven members. The members of
3 the council are:
4 (a) the secretary, who shall be the chair of the council;
5 (b) a representative of the division of the budget, appointed by the
6 director of such division;
7 (c) the secretary to the governor;
8 (d) two representatives of the state's business community, appointed
9 by the governor;
10 (e) a member appointed by the temporary president of the senate; and
11 (f) a member appointed by the speaker of the assembly.
12 2. The members appointed by the governor and the legislative leaders
13 shall be appointed to terms of four years; provided, however, that of
14 the initial appointments: one member appointed by the governor shall
15 serve a term of one year; the member appointed by the temporary presi-
16 dent of the senate shall serve a term of two years; the member appointed
17 by the speaker of the assembly shall serve a term of three years; and
18 the other member appointed by the governor shall serve a term of four
19 years. Vacancies shall be filled in the same manner as the original
20 appointment for the unexpired term of the vacant office. The members of
21 the council shall receive no compensation for their services, but shall
22 be reimbursed for their reasonable expenses actually and necessarily
23 incurred by them in the performance of their duties. The council shall
24 meet not less than three times each calendar year. Special meetings of
25 the council shall be held at the call of the chair.
26 3. The council shall have the power to consider any matter relating to
27 the functions, powers and duties of the office. Furthermore, the council
28 may advise the office on policies, goals and operations related to the
29 advancement of the goals of the council and legislative findings
30 contained in section eight hundred seventy-five of this article.
31 4. The council may review proposed rules promulgated by agencies and
32 provide comments to the office thereon.
33 5. The council may submit recommendations to the office for the
34 improvement, modification or extension of the services of the office,
35 and for actions designed to eliminate, consolidate or simplify rules
36 promulgated by agencies or which already exists.
37 § 3. Subdivision 1 of section 202 of the state administrative proce-
38 dure act is amended by adding a new paragraph (g) to read as follows:
39 (g) Notwithstanding any other provision of this subdivision, upon the
40 filing with the secretary of state by the office of regulatory reform
41 and administrative procedure compliance of a non-compliance notice
42 related to a notice of proposed rulemaking, notice of revised rulemaking
43 or notice of adoption for such rulemaking shall not be published until
44 such non-compliance notice is rescinded.
45 § 4. Subparagraph (iii) of paragraph (a) of subdivision 9 of section
46 202 of the state administrative procedure act, as amended by chapter 230
47 of the laws of 2006, is amended to read as follows:
48 (iii) reject those notices which are not in substantial compliance
49 with the provisions of this [section] article or which relate to rule-
50 making notices that the office of regulatory reform and administrative
51 procedure compliance have issued a non-compliance notice, give prompt
52 notice of such rejection to the agency, and advise such agency on the
53 corrective action required; and
54 § 5. Section 102-a of the state administrative procedure act, as
55 amended by section 3 of part O of chapter 60 of the laws of 2011, is
56 amended to read as follows:
S. 6449 5
1 § 102-a. Small business regulation guides. For each rule or group of
2 related rules which significantly impact a substantial number of small
3 businesses, the agency which adopted the rule shall post on its website
4 and provide to the office of regulatory reform and administrative proce-
5 dure compliance one or more guides explaining the actions a small busi-
6 ness may take to comply with such rule or group of rules if the agency
7 determines that such guide or guides will assist small businesses in
8 complying with the rule, and shall designate each such posting as a
9 "small business regulation guide". The guide shall explain the actions a
10 small business may take to comply with a rule or group of rules. The
11 agency shall, in its sole discretion, taking into account the subject
12 matter of the rule and the language of relevant statutes, ensure that
13 the guide is written using sufficiently plain language that it is likely
14 to be understood by affected small businesses. Agencies shall cooperate
15 with other state agencies in developing such guides.
16 § 6. Paragraph (b) of subdivision 5 of section 202 of the state admin-
17 istrative procedure act, as amended by chapter 171 of the laws of 1994,
18 is amended to read as follows:
19 (b) Except with respect to any rule defined in subparagraph (ii) of
20 paragraph (a) of subdivision two of section one hundred two of this
21 chapter, each agency shall publish and make available to the public an
22 assessment of public comment for a rule adopted pursuant to this subdi-
23 vision or paragraph (e) of subdivision six of this section. Such assess-
24 ment shall be based upon any written comments submitted to the agency
25 and any comments presented at any public hearing held on the proposed
26 rule by the agency. The assessment shall contain: (i) a summary and an
27 analysis of the issues raised and significant alternatives suggested by
28 any such comments, (ii) a statement of the reasons why any significant
29 alternatives were not incorporated into the rule and (iii) a description
30 of any changes made in the rule as a result of such comments. If any
31 comments included estimates of projected costs of the proposed rule to
32 the state, local governments or regulated persons, which differed
33 significantly from those presented by the agency in its regulatory
34 impact statement, regulatory flexibility analysis, or rural area flexi-
35 bility analysis, the assessment shall also summarize the agency's
36 assessment of such estimates. If no comments have been received, the
37 notice of adoption shall state that no comments were received by the
38 agency. Comments submitted or presented to the agency by the office of
39 regulatory reform and administrative procedure compliance, a legislative
40 committee or commission or by a member or members of the senate or
41 assembly shall be considered public comment and shall be summarized and
42 analyzed in the assessment.
43 § 7. Paragraph (a) of subdivision 6-a of section 202 of the state
44 administrative procedure act, as amended by chapter 171 of the laws of
45 1994, is amended to read as follows:
46 (a) An agency shall transmit a copy of any rule making notice prepared
47 pursuant to this article to the governor, the temporary president of the
48 senate, the speaker of the assembly, the administrative regulations
49 review commission and the office of regulatory reform and [management
50 assistance] administrative procedure compliance at the time such notice
51 is submitted to the secretary of state for publication in the state
52 register. Such transmittal shall include the complete rule text, regula-
53 tory impact statement, regulatory flexibility analysis, rural area flex-
54 ibility analysis, or revisions thereof, and any other information
55 submitted to the secretary of state pursuant to this article.
S. 6449 6
1 § 8. Subparagraph (i) of paragraph (b) of subdivision 9 of section 202
2 of the state administrative procedure act, as added by chapter 230 of
3 the laws of 2006, is amended to read as follows:
4 (i) The secretary of state [may] shall, in addition to publication of
5 the state register, publish an electronic copy of the state register
6 which shall be freely available on the internet.
7 § 9. The opening paragraph of subdivision 2 of section 202-b of the
8 state administrative procedure act, as amended by chapter 611 of the
9 laws of 1996, is amended to read as follows:
10 In proposing a rule for adoption or in adopting a rule on an emergency
11 basis, the agency shall issue a regulatory flexibility analysis regard-
12 ing the rule being proposed for adoption or the emergency rule being
13 adopted. A copy of such analysis and any finding, and reasons for such
14 finding, pursuant to subdivision three of this section, shall be submit-
15 ted to the governor, the temporary president of the senate, the speaker
16 of the assembly, the office of [business permits and] regulatory
17 [assistance] reform and administrative procedure compliance and the
18 administrative regulations review commission at the time such analysis
19 is submitted to the secretary of state for publication and, upon written
20 request, a copy shall be sent to any other person. Each regulatory flex-
21 ibility analysis shall contain:
22 § 10. Section 206 of the state administrative procedure act, as
23 amended by chapter 261 of the laws of 1985, is amended to read as
24 follows:
25 § 206. Overlapping regulations; compliance determinations. 1. It is
26 the declared policy of this state to protect and encourage jobs, invest-
27 ment and economic activity and to promote the public health, safety and
28 welfare by administering all regulatory requirements imposed by the
29 state in a fair and reasonable manner.
30 2. Any person subject to a requirement imposed by a state statute or
31 rule and to a similar requirement imposed by the federal government, may
32 pursuant to section two hundred four of this chapter, petition the agen-
33 cy administering the state requirement for a declaratory ruling and/or
34 petition the office of regulatory reform and administrative procedure
35 compliance as to whether compliance with the federal requirement will be
36 accepted as compliance with the state requirement. Upon receipt of such
37 petition, the agency shall submit a copy thereof to the office of [busi-
38 ness permits and] regulatory [assistance] reform and administrative
39 procedure compliance.
40 3. If the agency or such office determines that compliance with the
41 federal requirement would not satisfy the purposes or relevant
42 provisions of the state statute involved, the agency or the office shall
43 so inform the petitioner in writing stating the reasons therefor and may
44 issue a declaratory ruling to that effect. A copy of such written state-
45 ment of reasons and any such declaratory ruling shall be submitted by
46 the agency to the office of [business permits and] regulatory [assist-
47 ance] reform and administrative procedure compliance.
48 4. If the agency or the office of regulatory reform and administrative
49 procedure compliance determines that compliance with the federal
50 requirement would satisfy the purposes and relevant provisions of the
51 state statute involved but that it would not satisfy the relevant
52 provisions of the state rule involved, the agency or such office shall
53 so inform the petitioner and the office of [business permits and] regu-
54 latory [assistance] reform and administrative procedure compliance and
55 may initiate a rulemaking proceeding in accordance with this chapter to
56 consider revising such rule to accept compliance with such federal
S. 6449 7
1 requirement in a manner that is consistent with the requirements and
2 purposes of the state statute.
3 5. If the agency or the office of regulatory reform and administrative
4 procedure compliance determines that compliance with the federal
5 requirement would satisfy the purposes and relevant provisions of the
6 state statute involved, and that it would satisfy the relevant
7 provisions of the state rule involved, the agency shall issue a declara-
8 tory ruling indicating its intention to accept compliance with the
9 federal requirement as compliance with the state requirement, and the
10 terms and conditions under which it intends to do so. A copy of such
11 declaratory ruling shall be submitted by the agency to the office of
12 [business permits and] regulatory [assistance] reform and administrative
13 procedure compliance.
14 6. The office of [business permits and] regulatory [assistance] reform
15 and administrative procedure compliance may consider agency compliance
16 with this section when performing its review function [under section two
17 hundred two-c of this chapter] pursuant to article thirty-nine of the
18 executive law.
19 § 11. Subdivision 5 of section 207 of the state administrative proce-
20 dure act, as amended by chapter 327 of the laws of 2003, is amended to
21 read as follows:
22 5. This section shall not apply to any rule which was adopted as a
23 consensus rule or as a minor[, obsolete or invalid] rule, or to a rule
24 defined in subparagraph (ii) of paragraph (a) of subdivision two of
25 section one hundred two of this chapter.
26 § 12. This act shall take effect immediately; provided, however, that
27 sections one and three through eleven of this act shall take effect on
28 the first of January next succeeding the date on which it shall have
29 become a law.
