BILL NUMBER:S589

TITLE OF BILL:
An act
to amend the state administrative procedure act, in relation to public
hearings on proposed rules; and providing for the repeal of such
provisions upon expiration thereof

PURPOSE OR GENERAL IDEA OF BILL:
This bill enhances
the ability of the
public to participate more meaningfully in the rule-making process by
permitting agencies to use innovative techniques in organizing public
hearings on proposed rules, and establishes a 3-year pilot project
for seven major regulatory agencies to hold public hearings upon
petition of 125 or more New York residents.

SUMMARY OF SPECIFIC PROVISIONS:
Subdivision 1 of section 102 of the
State Administrative Procedure Act (SAPA), as amended by section 155
of subpart B of part C of chapter 62 of the laws of 2011, is amended
to include the Workers' Compensation Board as an "agency" for
purposes of implementing the new hearing provisions added by the
bill. A new S 202-f is added to SAPA authorizing agencies that hold
hearings on proposed rules under SAPA to use innovative means to
enhance public participation in rule making, such as:
              

- designating a segment of time for the public to address questions to
agency personnel;

- organizing hearings as roundtable discussions; scheduling evening or
weekend hearings; and

- using broadcast and teleconferencing technologies.

Agencies may include in their annual reports an analysis of the
innovative techniques used to enhance participation. Such techniques
shall not be used in a manner that will result in the diminished
ability of the public to comment on the proposed rule at the public
hearing.

Section 202-f also requires those agencies which are listed in
subdivision 4 to hold public hearings on proposed rules when they
receive written petitions from 125 or more people residing in New
York State, provided a sufficient petition is received not later than
the 20th day before the last date for public comment. Agencies which
receive petitions after such date and agencies which are not listed
in subdivision 4 of S202-f have the option of holding a public
hearing pursuant to such petitions. Agencies are required to give due
consideration to requests that a hearing be held in a particular
region.

Agencies are not required to hold public hearings for rules for which
a hearing is required by law and has already been scheduled or held,
or for consensus rules or rules related to rate-makings. Subdivision
4 of 5202-f specifies that the following agencies are required on a
pilot basis to hold hearings upon receipt of petitions: the Workers'


Compensation Board and the Departments of Education, Environmental
Conservation, Health, Insurance, Labor and Family Assistance.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
Currently, SAPA
does not contain any provisions concerning petitions for public
hearings on proposed rules, nor does it contain any authorization or
encouragement for the utilization by agencies of innovative hearing
techniques.

JUSTIFICATION:
If the rules adopted by state agencies are to have
minimal burdens and maximum effectiveness from the public's
perspective, it is crucial that very effort be made to solicit and
consider the views of the public in developing rules. Public hearings
are one effective means of doing so this bill would enhance their
effectiveness as a tool for public participation. Both the business
community and agency personnel have reported that, in many cases,
there are alternatives which are preferable to the standard model of
a public hearing, which involves limited interaction between agencies
and the public.

A Federal National Performance Review report recommended that one way
to improve regulatory systems at the Federal level was to encourage
the use of innovative hearing techniques by Federal agencies. This
bill would provide fox the same improvements in hearings required
under the State Administrative Procedure Act.

The bill also creates a pilot project whereby seven of the most active
regulatory agencies would be required to hold a hearing if requested
to do so by 125 or more persons. This will provide an additional way
of enhancing public participation by ensuring that these agencies
receive additional public input when a rule is of significant concern
to the public.

The 1981 Model State Administrative Procedure Act recommends that
states provide for public hearings if requested by the public. Many
other states require agencies to hold public hearings on proposed
rules if the public so requests, including California (request of any
interested person), Arizona (request of any 5 persons), Utah (request
of 10 persons) and Idaho, Illinois and New Hampshire (request of any
25 persons). States and Federal agencies which are subject to
petition requirements do not report any major increase in workload or
any significant difficulties with this process. However, the
effectiveness of the pilot project would be subject to evaluation
after some experience has been gained with the operation of such a
process in New York State.

This legislation passed both houses in 2008, but was vetoed by the
Governor, citing "technical flaws.' Language has been included in
this bill to address these concerns, by explicitly including the
Workers Compensation Board within the bill's ambit and by making the
scheduling of any hearing optional if the agency does not receive a
petition in a timely manner. The veto message also stated that
current opportunities for comment were sufficient to the extent that
the public agrees, the petition process would be used sparingly and
have little cost impact. However, if the public feels that a hearing


is necessary on a particular rule, the potential cost savings from
policy improvements would likely outweigh any minimal hearing costs.

PRIOR LEGISLATIVE HISTORY:
2012: Senate Bill
1967-A (Gianaris) - Died in Senate Commerce,
Economic Development and Small Business Committee
2012: Assembly Bill
1648-A (Kavanagh) - Died in Assembly
Government Operations Committee
2010: Assembly Bill
8431 (Gianaris) - Died in Assembly Government
Operations Committee
2008: Senate Bill
6781 (Young) - Passed Senate 61-0 (6/17/08)
2008: Assembly Bill
8075 (Gianaris) - Passed Assembly 139-0
(5/19/08)
2006: Senate Bill
2824 (Flanagan) - Died in Senate Rules Committee
2006: Assembly Bill 46350 (McLaughlin) - Passed Assembly 134-0
(1/24/06); Passed Assembly 137-0 (5/2/05)
2004: Senate Bill 46991 (Flanagan) - Died in Senate Commerce, Economic
Development and Small Business Committee
2004: Assembly Bill
2537 (McLaughlin) - Passed Assembly 147-0
(1/26/04); Passed Assembly 142-0 (2/24/03)
2002: Senate Bill 43652 (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee
2002: Assembly Bill 45218 (McLaughlin) - Passed Assembly 142-0 (3/25/02);
Passed Assembly 146-0 (3/26/01)
2000: Senate Bill 42946A (Rath) - Died in Senate Commerce, Economic
Development and Small Business Committee
2000: Assembly Bill 41918 (Ramirez) - Passed Assembly 143-0 (3/29/00);
Passed Assembly 138-0 (4/21/99)
1998: Senate Bill 44852-B (Rath) - Died in Senate Rules Committee
1998: Assembly Bill 45898-B (Ramirez) - Passed Assembly 144-1
(6/15/98); Passed Assembly 144-0 (6/18/97); Passed Assembly 144-0
(4/9/97)
1996: Assembly Bill 47759-A (Ramirez) - Passed Assembly 118-0
(1/9/96); Passed Assembly 142-2 (6/1/95)

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
No costs would
be incurred unless a timely petition for a public hearing is
received. Savings could accrue to agencies that avail themselves of
innovative, cost-effective techniques.

EFFECTIVE DATE:
The bill will take effect on the
first of January
succeeding the date of enactment and shall expire on the thirty-first
of the second calendar year following such effective date.