S T A T E   O F   N E W   Y O R K
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                                 5353--A
    Cal. No. 927

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 13, 2015
                               ___________

Introduced  by  Sen.  MURPHY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Commerce, Economic  Devel-
  opment  and  Small Business -- reported favorably from said committee,
  ordered to first report, amended on first report, ordered to a  second
  report  and  ordered  reprinted,  retaining  its place in the order of
  second report

AN ACT to amend the state administrative procedure act, in  relation  to
  petitions for alternate methods of implementing regulatory mandates

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

  Section 1. Section 204-a of the state administrative procedure act, as
added by chapter 479 of the laws of 2001, is amended to read as follows:
  S 204-a. Alternate methods for implementing regulatory mandates. 1. As
used in this section:
  (a) "local government" means any county, city, town,  village,  school
district, fire district or other special district;
  (b)  "regulatory  mandate"  means  any rule which requires one or more
local governments to create a new program, increase the level of service
for an existing program or otherwise comply with mandatory requirements;
and
  (c) "petition" means a document submitted by  a  local  government  OR
GOVERNMENTS  seeking  approval of an alternate method for implementing a
regulatory mandate.
  2. A LOCAL GOVERNMENT, OR TWO OR MORE LOCAL GOVERNMENTS ACTING  JOINT-
LY,  MAY SEEK APPROVAL FOR AN ALTERNATE METHOD OF IMPLEMENTING A REGULA-
TORY MANDATE BY SUBMITTING TO THE APPROPRIATE STATE  AGENCY  A  petition
WHICH shall include BUT NOT BE LIMITED TO:
  (a)  FOR EACH INVOLVED LOCAL GOVERNMENT, an indication that submission
has been approved by the governing body of the local government or by an
officer duly authorized by the governing body to do so;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11023-03-5
              

S. 5353--A                          2

  (b) an identification of the regulatory mandate which is  the  subject
of  the  petition  and  information  sufficient  to  establish  that the
proposed alternate method of implementation is consistent with and  will
effectively carry out the objectives of the regulatory mandate;
  (c)  information  on [the] ANY process used by the local government OR
GOVERNMENTS to ensure, WHERE APPROPRIATE,  that  all  stakeholders  have
been [appropriately] involved in the process of developing the alternate
method, including where relevant the date of any hearing, forum or other
meeting to seek input on the alternate method;
  (d)  documentation that the petition has been submitted to the author-
ized agents  of  any  certified  or  recognized  employee  organizations
representing  employees  who would be [effected] AFFECTED by implementa-
tion of the alternate method;
  (e) [a proposed plan and timetable for compiling and reporting  infor-
mation  to  facilitate  evaluation of the effectiveness of the alternate
method;
  (f) if] WHETHER the state [provides] HAS PROVIDED financial assistance
for complying with the  regulatory  mandate[,  any  proposed  amount  or
percentage  of  such assistance which would be returned to the state due
to savings from implementing the alternate method]; [and
  (g)] (F) the name, public office address and telephone number  of  the
representative of [the] EACH PETITIONING local government who will coor-
dinate requests for additional information on the petition[.]; AND
  [3.  Two]  (G) WHERE TWO or more local governments [may submit a peti-
tion] HAVE PETITIONED jointly,  [provided  that  each  local  government
meets  the  requirements of paragraphs (a), (c), (d) and (g) of subdivi-
sion two of this section, and provided that  the  petition]  INFORMATION
WHICH  addresses  the  manner in which responsibility for implementation
will be allocated between or among the participating local governments.
  [4.] 3. The agency  shall  cause  a  notice  of  the  petition  to  be
published  in  the state register AND A NEWSPAPER OF GENERAL CIRCULATION
IN THE IMPACTED COMMUNITY and shall receive comments on the petition for
a period of thirty days. Such notice shall either include the full  text
of  the  information  set  forth  in the petition or shall set forth the
address of a website on which the full text has been posted. The  notice
shall  include the name, public office address [and], telephone number[,
and may include a fax number] and electronic mail address[,] of an agen-
cy representative from whom additional information on the  petition  can
be obtained and to whom comments on the petition may be submitted.
  [5.]  4.  (a)  Not  later  than  thirty days after the last day of the
comment period, the agency shall approve or disapprove the petition. The
agency may approve the petition without change or with  such  conditions
or  modifications  as the agency deems appropriate. Notice of the agency
determination INCLUDING ANY SUCH CONDITIONS OR  MODIFICATIONS  shall  be
provided  in  writing  to the local government and shall be published in
the state register. SUCH NOTICE SHALL EITHER INCLUDE THE  FULL  TEXT  OF
THE  DETERMINATION  OR SHALL SET FORTH THE ADDRESS OF A WEBSITE ON WHICH
THE FULL TEXT HAS BEEN POSTED. The agency shall  not  grant  a  petition
unless  it  determines  that  the  petition  has met the requirements of
subdivision two of this section and that the local government has estab-
lished that the alternate method is consistent with and will effectively
carry out the objectives of the regulatory mandate;  provided,  however,
that  no petition shall be approved which would result in the contraven-
tion of any environmental, health or safety standard or would reduce any
benefits or rights accorded by law or rule to third parties. In  approv-
ing  a petition, an agency may waive a statutory provision only if it is

S. 5353--A                          3

specifically authorized by law to  waive  such  provision.  An  approval
shall  include a timetable for agency evaluation of the effectiveness of
the alternate method.
  (b)  Notwithstanding  the provisions of paragraph (a) of this subdivi-
sion, upon receipt of an objection to a  petition  from  the  authorized
agent  of any certified or recognized employee organization representing
employees who would be affected by implementation of the alternate meth-
od, the agency shall provide any such organizations with an  opportunity
for  a hearing. If an adjudicatory proceeding is requested, the petition
shall not be approved unless the agency determines by a preponderance of
the evidence that implementing the alternate  method  would  not  affect
such employees by contravening any environmental, health or safety stan-
dard,  reducing  any  rights  or  benefits or violating the terms of any
negotiated agreement, and that all other requirements  of  this  section
have been met. The provisions of this subdivision are in addition to and
shall  not be construed to impair or modify any rights of such employees
under any other law, regulation or contract.
  5. NOT LATER THAN THE FIRST DAY OF FEBRUARY, ANY AGENCY THAT HAS  MADE
ONE  OR MORE DETERMINATIONS PURSUANT TO SUBDIVISION FOUR OF THIS SECTION
IN THE PRECEDING CALENDAR YEAR SHALL SUBMIT FOR PUBLICATION IN THE STATE
REGISTER A NOTICE IDENTIFYING, FOR EACH SUCH  DETERMINATION,  THE  LOCAL
GOVERNMENT  OR  GOVERNMENTS  THAT SUBMITTED THE PETITION, THE REGULATORY
MANDATE, THE ISSUE OF THE STATE REGISTER IN WHICH THE NOTICE OF DETERMI-
NATION WAS PUBLISHED, AND THE ADDRESS OF A WEBSITE  ON  WHICH  THE  FULL
TEXT  OF THE DETERMINATION HAS BEEN POSTED. THE FULL TEXT SHALL BE MAIN-
TAINED FOR THE ENTIRE PERIOD THAT A PETITION REMAINS APPROVED.
  6. Nothing in  this  section  shall  require  a  local  government  to
commence  or continue an alternate method of implementation if it deter-
mines in its sole discretion not to do so, except to the extent  that  a
local  government has committed to commencing or continuing an alternate
method in a joint petition submitted pursuant to subdivision [three] TWO
of this section.
  7. A state agency may rescind its approval of a petition [at any  time
if  it  determines,  based on the information reported pursuant to para-
graph (e) of subdivision two of this section or other information avail-
able to it, that the alternate method is not  effectively  carrying  out
the  objectives  of  the regulatory mandate or is being implemented in a
manner detrimental  to  the  public  interest]  ONLY  AFTER  A  HEARING,
PROVIDED,  HOWEVER,  THAT THE AGENCY MAY SUSPEND ITS APPROVAL OF A PETI-
TION PRIOR TO A HEARING IF IT FINDS THAT IMMEDIATE SUSPENSION IS  NECES-
SARY  TO  ADDRESS  AN  IMMINENT  THREAT TO HEALTH OR SAFETY. NOTICE OF A
HEARING MUST BE PROVIDED TO THE PETITIONER AT LEAST THIRTY DAYS PRIOR TO
THE HEARING AND MUST BE POSTED ON THE AGENCY'S  WEBSITE.    SUCH  NOTICE
MUST  STATE  THE  BASIS FOR THE AGENCY'S DECISION TO SEEK RESCISSION AND
INFORM THE LOCAL GOVERNMENT THAT IT MAY REQUEST INFORMATION RELIED  UPON
BY  THE  AGENCY  IN  MAKING ITS DETERMINATION, WHICH INFORMATION MUST BE
PROVIDED TO THE LOCAL GOVERNMENT AT LEAST SEVEN DAYS IN ADVANCE  OF  THE
HEARING.  AFTER SUCH HEARING, THE AGENCY MAY RESCIND ITS APPROVAL UPON A
FINDING THAT THE ALTERNATE METHOD OF IMPLEMENTATION  IS  NOT  CONSISTENT
WITH  OR DOES NOT EFFECTIVELY CARRY OUT THE OBJECTIVES OF THE REGULATORY
MANDATE.
  [7] 8.  Notwithstanding any other provision of law, implementation  of
an alternate method approved by an agency pursuant to this section shall
be  deemed  to lawfully meet all requirements of the regulatory mandate.
An agency shall retain the authority  to  enforce  compliance  with  the
alternate  method  in  the same manner as it may enforce compliance with

S. 5353--A                          4

the underlying rule. Any action on a petition by a state agency shall be
subject to review pursuant to article seventy-eight of the  civil  prac-
tice law and rules.
  [8]  9.    In  accordance  with  the timetable established pursuant to
subdivision [four] THREE of this section, the agency shall evaluate  the
effectiveness  of the alternate method in carrying out the objectives of
the regulatory mandate. The evaluation shall  identify  any  savings  or
other  benefits,  and  any costs or other disadvantages, of implementing
the alternate method, and shall address the desirability of  incorporat-
ing  the alternate method into the rules of the agency. Notice of avail-
ability of the evaluation shall be published in the state register.
  S 2. This act shall take effect on the first of January after it shall
have become a law.