S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2829

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 4, 2009
                               ___________

Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Commerce, Economic  Devel-
  opment and Small Business

AN  ACT  to amend the state administrative procedure act, in relation to
  detailing the benefits and  costs  of  proposed  rules  in  regulatory
  impact statements

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The legislature finds that many  rules  of  state  agencies
have  a  substantial  impact  on  the lives of the public, and therefore
should be adopted through a process which provides for open and reasoned
consideration of the potential costs and benefits of regulatory  action.
To  this  end,  the  statutes governing the rulemaking process should be
improved to ensure that agency assessments of the costs and the benefits
of proposed rules are reasonably accurate and comprehensive.
  S 2. Paragraph (b) of subdivision 4-a of  section  202  of  the  state
administrative  procedure  act,  as  added by chapter 335 of the laws of
1992, is amended to read as follows:
  (b) Each agency shall publish and make  available  to  the  public  an
assessment  of public comment for a rule revised pursuant to this subdi-
vision. Such assessment shall be based upon any written comments submit-
ted to the agency and any comments presented at any public hearing  held
on  the proposed rule by the agency. The assessment shall contain: (i) a
summary and an analysis of the issues raised  and  significant  alterna-
tives  suggested  by  any such comments; (ii) a statement of the reasons
why any significant alternatives were not incorporated  into  the  rule;
and  (iii)  a description of any changes made in the rule as a result of
such comments. IF ANY COMMENTS INCLUDED ESTIMATES OF PROJECTED COSTS  OF
THE  PROPOSED RULE TO THE STATE, LOCAL GOVERNMENTS OR REGULATED PERSONS,
WHICH DIFFERED SIGNIFICANTLY FROM THOSE PRESENTED BY THE AGENCY  IN  ITS
REGULATORY  IMPACT  STATEMENT, REGULATORY FLEXIBILITY ANALYSIS, OR RURAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05502-01-9
              

S. 2829                             2

AREA FLEXIBILITY ANALYSIS, THE ASSESSMENT SHALL ALSO SUMMARIZE THE AGEN-
CY'S ASSESSMENT OF SUCH ESTIMATES.  COPIES  OF  COMMENTS  WHICH  INCLUDE
ESTIMATES  OF  PROJECTED COSTS WHICH DIFFER SIGNIFICANTLY FROM THE AGEN-
CY'S ESTIMATES SHALL ACCOMPANY THE ASSESSMENT OF PUBLIC COMMENT DISTRIB-
UTED  WITH  THE RULE MAKING NOTICE PURSUANT TO PARAGRAPH (A) OF SUBDIVI-
SION SIX-A OF THIS SECTION. If  no  comments  have  been  received,  the
notice of revised rule making shall state that no comments were received
by  the  agency.  Any  subsequent  assessment published pursuant to this
paragraph or paragraph (b) of subdivision five of this section need only
include comments not addressed in any previously published assessment of
public comment for the rule;  provided,  however,  that  the  notice  of
revised  rule  making  or  adoption  shall contain the date any previous
notice of revised rule making containing an assessment of public comment
was published in the state register.
  S 3. Paragraph (b) of subdivision 5 of section 202 of the state admin-
istrative procedure act, as amended by chapter 171 of the laws of  1994,
is amended to read as follows:
  (b)  Except  with  respect to any rule defined in subparagraph (ii) of
paragraph (a) of subdivision two of section  one  hundred  two  of  this
chapter,  each  agency shall publish and make available to the public an
assessment of public comment for a rule adopted pursuant to this  subdi-
vision or paragraph (e) of subdivision six of this section. Such assess-
ment  shall  be  based upon any written comments submitted to the agency
and any comments presented at any public hearing held  on  the  proposed
rule  by  the agency. The assessment shall contain: (i) a summary and an
analysis of the issues raised and significant alternatives suggested  by
any  such  comments, (ii) a statement of the reasons why any significant
alternatives were not incorporated into the rule and (iii) a description
of any changes made in the rule as a result of  such  comments.  If  any
comments  included  estimates of projected costs of the proposed rule to
the state,  local  governments  or  regulated  persons,  which  differed
significantly  from  those  presented  by  the  agency in its regulatory
impact statement, regulatory flexibility analysis, or rural area  flexi-
bility  analysis,  the  assessment  shall  also  summarize  the agency's
assessment of such estimates.  COPIES OF COMMENTS  WHICH  INCLUDE  ESTI-
MATES  OF  PROJECTED  COSTS WHICH DIFFER SIGNIFICANTLY FROM THE AGENCY'S
ESTIMATES SHALL ACCOMPANY THE ASSESSMENT OF PUBLIC  COMMENT  DISTRIBUTED
WITH  THE  RULE  MAKING  NOTICE PURSUANT TO PARAGRAPH (A) OF SUBDIVISION
SIX-A OF THIS SECTION. If no comments have been received, the notice  of
adoption  shall  state  that  no  comments  were received by the agency.
Comments submitted or presented to the agency by a legislative committee
or commission or by a member or members of the senate or assembly  shall
be considered public comment and shall be summarized and analyzed in the
assessment.
  S  4. Paragraphs (b), (c) and (d) of subdivision 3 of section 202-a of
the state administrative procedure act,  paragraph  (b)  as  amended  by
chapter 229 of the laws of 2000 and paragraphs (c) and (d) as amended by
chapter 520 of the laws of 1992, are amended to read as follows:
  (b)  Needs  and  benefits.  A  statement setting forth the purpose of,
necessity for, and benefits derived from the rule, a  citation  for  and
summary, not to exceed five hundred words, of each scientific or statis-
tical  study,  report or analysis that served as the basis for the rule,
an explanation of how it was used to determine  the  necessity  for  and
benefits derived from the rule, and the name of the person that produced
each study, report or analysis.  THE STATEMENT SHALL IDENTIFY THE CLASS-
ES OF PERSONS OR ENTITIES WHICH WOULD BENEFIT FROM ADOPTION OF THE RULE,

S. 2829                             3

SHALL  BRIEFLY DESCRIBE THE NATURE OF THE BENEFITS WHICH SUCH CLASSES OF
PERSONS OR ENTITIES WOULD DERIVE THEREBY, AND SHALL INDICATE THE  INFOR-
MATION AND METHODOLOGY UPON WHICH ITS ANALYSIS OF THE BENEFITS IS BASED;
  (c)  Costs.  A statement detailing the projected [costs] COST IMPACTS,
INCLUDING OPPORTUNITY COSTS AND OTHER  NON-MONETARY  COSTS  AS  WELL  AS
MONETARY COST, of the rule, which shall indicate:
  (i) [the] ANY POSITIVE OR ADVERSE IMPACTS ON costs for the implementa-
tion of, and continuing compliance with, the rule to regulated persons;
  (ii)  [the] ANY POSITIVE OR ADVERSE IMPACTS ON costs for the implemen-
tation of, and continued administration of, the rule to the  agency  and
to the state and its local governments; and
  (iii)  ANY POSITIVE OR ADVERSE IMPACTS ON COSTS OF PERSONS OR ENTITIES
WHO ARE NOT REGULATED PERSONS BUT ARE OTHERWISE AFFECTED  BY  THE  RULE;
AND  the  information,  including the source or sources of such informa-
tion, and methodology upon which the cost analysis is based; [or
  (iv) where an agency finds that it cannot fully provide a statement of
such costs, a statement setting forth its  best  estimate,  which  shall
indicate  the  information and methodology upon which such best estimate
is based and the reason or reasons why a complete cost statement  cannot
be provided;]
  (d)  Paperwork.  A  statement  describing  the  need for any reporting
requirements, including forms and other paperwork AND ANY  REPORTING  BY
ELECTRONIC MEDIA, which would be required as a result of the rule;
  S  5.  This  act  shall  take  effect  on  the first of September next
succeeding the date on which it shall have become a law, and shall apply
to any rule for which a notice of revised rule making  or  a  notice  of
adoption is first prepared on or after such date.