S T A T E O F N E W Y O R K
________________________________________________________________________
2160
2013-2014 Regular Sessions
I N S E N A T E
January 14, 2013
___________
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
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:
Section 1. 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 DURING THE INITIAL DEVELOPMENT, PREPARATION AND
PROMULGATION OF SUCH PROPOSED RULE 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 state-
ment of the reasons why any significant alternatives were not incorpo-
rated into the rule; and (iii) a description of any changes made in the
rule as a result of such comments. 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 assess-
ment 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04827-01-3
S. 2160 2
S 2. 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
DURING THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION OF SUCH
PROPOSED RULE 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
area flexibility analysis, the assessment shall also summarize the agen-
cy's assessment of such estimates. 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 3. Subdivision 1 of section 202-a of the state administrative proce-
dure act, as amended by chapter 171 of the laws of 1994, is amended to
read as follows:
1. In [developing] THE INITIAL DEVELOPMENT, PREPARATION AND PROMULGA-
TION OF a rule, an agency shall, to the extent consistent with the
objectives of applicable statutes, consider utilizing approaches which
are designed to avoid undue deleterious economic effects or overly
burdensome impacts of the rule upon persons, including persons residing
in New York state's rural areas, directly or indirectly affected by it
or upon the economy or administration of state or local governmental
agencies. Such approaches shall include, but not be limited to, the
specification of performance standards rather than design standards.
PRIOR TO PROMULGATING SUCH RULE, THE AGENCY SHALL, BY SUCH PROMULGATION,
HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO ALL REGULATED PERSONS WHO MAY
BE ADVERSELY AFFECTED AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS AND
COST ESTIMATES THAT MAY BE IMPOSED UPON SUCH PERSONS.
S 4. Paragraphs (c), (d) and (g) of subdivision 3 of section 202-a of
the state administrative procedure act, as amended by chapter 520 of the
laws of 1992, are amended to read as follows:
(c) Costs. A statement detailing the projected costs of the rule,
which shall indicate:
(i) (A) the costs for the implementation of, and continuing compliance
with, the rule to regulated persons;
[(ii)] (B) the costs for the implementation of, and continued adminis-
tration of, the rule to the agency and to the state and its local
governments; and
[(iii)] (C) the information, including the source or sources of such
information, and methodology upon which the cost analysis is based; or
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[(iv)] (II) where an agency finds that, AFTER A REASONABLE GOOD FAITH
EFFORT HAS BEEN MADE, it cannot fully provide a statement of such costs,
a statement setting forth its best GOOD FAITH 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; AND
(III) (A) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED
PERSONS WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF
PROPOSED RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH
EFFORTS SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE
EFFECTS THAT MAY BE CAUSED BY ADOPTING SUCH RULE; AND
(B) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY FROM REGULATED
PERSONS, WHO MAY BE ADVERSELY AFFECTED BY SUCH PROPOSED RULE MAKING,
PURSUANT TO CLAUSE (A) OF THIS SUBPARAGRAPH.
(d) Paperwork. A statement describing the need for any reporting
requirements, including forms and other paperwork OR OTHER ADMINISTRA-
TIVE BURDENS, which would be required as a result of the rule;
(g) Alternative approaches. A statement indicating whether any signif-
icant alternatives to the PROPOSED rule OR PROVISIONS OF THE PROPOSED
RULE were considered by the agency, including a discussion of such
alternatives and the reasons why they were not incorporated into the
rule. IN ADDITION, SUCH STATEMENT SHALL DISCLOSE SIGNIFICANT ALTERNATIVE
APPROACHES SUGGESTED BY REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED
BY SUCH PROPOSED RULE MAKING PRIOR TO FILING A PROPOSED RULE MAKING WITH
THE SECRETARY OF STATE OBTAINED FROM OUTREACH EFFORTS CONDUCTED PURSUANT
TO SUBPARAGRAPH (III) OF PARAGRAPH (C) OF THIS SUBDIVISION;
S 5. Paragraph (i) of subdivision 6 of section 202-a of the state
administrative procedure act, as amended by chapter 850 of the laws of
1990, is amended to read as follows:
(i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES
presented in the statement is inadequate, MISLEADING or incomplete, AS
DETERMINED BY SUCH AGENCY OR BROUGHT TO THE ATTENTION OF SUCH AGENCY BY
REGULATED PERSONS BEFORE, DURING AND AFTER SUCH PROPOSED RULE WAS FILED
WITH THE SECRETARY OF STATE, provided, however, such revised statement
shall be submitted as soon as practicable to the secretary of state for
publication in the state register, provided, further, if such statement
exceeds two thousand words, the notice shall include only a summary of
such statement in less than two thousand words;
S 6. Subdivision 1 of section 202-b of the state administrative proce-
dure act, as amended by chapter 611 of the laws of 1996, is amended to
read as follows:
1. In [developing] INITIAL DEVELOPMENT, PREPARATION AND PROMULGATION
OF a rule, the agency shall consider utilizing approaches that will
accomplish the objectives of applicable statutes while minimizing any
adverse economic impact of the rule on small businesses and local
governments. THE AGENCY SHALL HAVE AN AFFIRMATIVE DUTY TO REACH OUT TO
ALL REGULATED PERSONS WHO MAY BE ADVERSELY AFFECTED BY THE PROMULGATION
OF A PROPOSED RULE MAKING AND OBTAIN FROM SUCH PERSONS THEIR COMMENTS
AND COST ESTIMATES OF ALL COSTS THAT MAY BE IMPOSED UPON SUCH PERSONS.
Consistent with the objectives of applicable statutes, the agency shall
consider such approaches as:
(a) the establishment of differing compliance or reporting require-
ments or timetables that take into account the resources available to
small businesses and local governments;
(b) the use of performance rather than design standards; [and]
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(c) an exemption from coverage by the rule, or by any part thereof,
for small businesses and local governments so long as the public health,
safety or general welfare is not endangered[.]; AND
(D) WERE OBTAINED FROM COMMENTS AND ALTERNATIVE APPROACHES THAT COME
FROM REGULATED PERSONS PRIOR TO FILING A PROPOSED RULE MAKING DERIVED
FROM AGENCY OUTREACH EFFORTS CONDUCTED PURSUANT TO SUBPARAGRAPH (III) OF
PARAGRAPH (C) OF SUBDIVISION THREE OF SECTION TWO HUNDRED TWO-A OF THIS
ARTICLE.
S 7. Paragraph (e) of subdivision 2 of section 202-b of the state
administrative procedure act, as amended by chapter 611 of the laws of
1996, is amended and two new paragraphs (e-1) and (e-2) are added to
read as follows:
(e) an indication of how the rule is designed to minimize any adverse
economic impact of such rule on small businesses and local governments,
including information regarding whether the approaches suggested in
subdivision one of this section or other similar approaches were consid-
ered; [and]
(E-1) A SUMMARY OF AGENCY OUTREACH EFFORTS MADE TO REGULATED PERSONS
WHO MAY BE ADVERSELY AFFECTED BY ANY RULE BEFORE THE NOTICE OF PROPOSED
RULE MAKING IS FILED WITH THE SECRETARY OF STATE. SUCH OUTREACH EFFORTS
SHALL ASK FOR COST ESTIMATES, ADMINISTRATIVE BURDENS AND ADVERSE EFFECTS
THAT MAY BE CAUSED BY ADOPTING SUCH RULE;
(E-2) A SUMMARY OF COMMENTS RECEIVED BY THE AGENCY, PURSUANT TO PARA-
GRAPH (E-ONE) OF THIS SUBDIVISION, FROM REGULATED PERSONS WHO MAY BE
ADVERSELY AFFECTED BY SUCH PROPOSED RULEMAKING; AND
S 8. Subdivision 6 of section 202-b of the state administrative proce-
dure act, as amended by chapter 611 of the laws of 1996, is amended to
read as follows:
6. When any rule is proposed for which a regulatory flexibility analy-
sis is required, the agency shall assure that small businesses and local
governments have been given an ADVANCED opportunity to participate in
[the] DEVELOPMENT, PREPARATION AND DRAFTING OF A PROPOSED rule making
through such activities as:
(a) the publication of a general notice for the proposed rule making
PRIOR TO BEING FILED WITH THE SECRETARY OF STATE in publications likely
to be obtained by small businesses and local governments of the types
affected by the proposed rule;
(b) the PRIOR direct notification of interested small businesses and
local governments THAT MAY BE affected by the proposed rule;
(c) the conduct of special open conferences concerning the proposed
rule PRIOR TO FILING WITH THE SECRETARY OF STATE for small businesses
and local governments THAT MAY BE ADVERSELY affected by the rule; and
(d) the adoption or modification of agency procedural rules to reduce
the cost or complexity of participation in the rule making PROCESS by
small businesses and local governments.
S 9. Paragraph (i) of subdivision 7 of section 202-b of the state
administrative procedure act, as amended by chapter 850 of the laws of
1990, is amended to read as follows:
(i) the information, COSTS, PAPERWORK OR ALTERNATIVE APPROACHES
presented in the analysis submitted pursuant to this section is inade-
quate, MISLEADING or incomplete, AS DETERMINED BY SUCH AGENCY OR BROUGHT
TO THE ATTENTION OF SUCH AGENCY BY REGULATED PERSONS BEFORE, DURING AND
AFTER SUCH PROPOSED RULE WAS FILED WITH THE SECRETARY OF STATE,
provided, however, such revised analysis shall be submitted as soon as
practicable to the secretary of state for publication in the state
register, provided, further, if such statement exceeds two thousand
S. 2160 5
words, the notice shall include only a summary of such statement in less
than two thousand words;
S 10. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.
