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.
STATE OF NEW YORK
________________________________________________________________________
7639--A
2013-2014 Regular Sessions
IN ASSEMBLY
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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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.
