NY State Senate Bill 2015-S2384

Senate Bill S2384

2015-2016 Legislative Session

Authorizes the use of innovative techniques to enhance public participation in the rule making process

download bill text pdf

Archive: Last Bill Status - In Senate Committee Commerce, Economic Development And Small Business Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to commerce, economic development and small business
Jan 22, 2015	referred to commerce, economic development and small business

2015-S2384 (ACTIVE) - Details

See Assembly Version of this Bill:: A5829
Current Committee:: Senate Commerce, Economic Development And Small Business
Law Section:: State Administrative Procedure Act
Laws Affected:: Amd §102, add §202-f, St Ad Proc Act
Versions Introduced in Other Legislative Sessions:: 2009-2010: A8431
2011-2012: S1967, A1648
2013-2014: S589, A142
2017-2018: S2397, A6454, A9737
2019-2020: S1265, A6859
2021-2022: S155, A6267

2015-S2384 (ACTIVE) - Summary

Authorizes the use of innovative techniques to enhance public participation in the rule making process; provides that use of such techniques shall in no way otherwise diminish public participation in the rule making process; establishes a three year pilot project for seven major regulatory agencies to hold public hearings upon petition of 125 or more New York residents.

2015-S2384 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2384

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 Section 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 but has already been scheduled or held,
or for consensus rules or rules related to rate-makings. Subdivision 4
of Section 202-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, Financial Services, 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  every  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 for 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:

2014: Senate Bill # 589 (Gianaris) - Died in Senate Commerce, Economic
Development and Small Business Committee
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  #6350  (McLaughlin)  -  Passed  Assembly  134-0
(1/24/06); Passed Assembly 137-0 (5/2/05)
2004: Senate Bill #6991 (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 #3652 (Rath) - Died  in  Senate  Commerce,  Economic
Development and Small Business Committee
2002:  Assembly  Bill  #5218  (McLaughlin)  -  Passed  Assembly  142-0
(3/25/02); Passed Assembly 146-0 (3/26/01)
2000: Senate Bill #2946A (Rath) - Died in  Senate  Commerce,  Economic
Development and Small Business Committee
2000: Assembly Bill #1918 (Ramirez) - Passed Assembly 143-0 (3/29/00);
Passed Assembly 138-0 (4/21/99)
1998: Senate Bill #4852-B (Rath) - Died in Senate Rules Committee
1998:   Assembly  Bill  #5898-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  #7759-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 day of December of
the second calendar year following such effective date.

2015-S2384 (ACTIVE) - Bill Text download pdf

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

                                  2384

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 22, 2015
                               ___________

Introduced  by Sen. GIANARIS -- 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
  public hearings on proposed rules; and providing  for  the  repeal  of
  such provisions upon expiration thereof

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

  Section 1. Subdivision 1 of section 102 of  the  state  administrative
procedure act, as amended by section 155 of subpart B of part C of chap-
ter 62 of the laws of 2011, is amended to read as follows:
  1. "Agency" means any department, board, bureau, commission, division,
office,  council, committee or officer of the state, or a public benefit
corporation or public  authority  at  least  one  of  whose  members  is
appointed  by  the  governor, authorized by law to make rules or to make
final decisions in adjudicatory proceedings but shall  not  include  the
governor,  agencies  in  the legislative and judicial branches, agencies
created by interstate compact or international agreement,  the  division
of  military  and naval affairs to the extent it exercises its responsi-
bility for military and naval affairs, the division of state police, the
identification and intelligence unit of the division of criminal justice
services, the state insurance fund, the  unemployment  insurance  appeal
board, and except for purposes of subdivision one of section two hundred
two-d  AND  SECTION  TWO  HUNDRED  TWO-F  of  this chapter, the workers'
compensation board and except for purposes of article two of this  chap-
ter, the department of corrections and community supervision.
  S 2. The state administrative procedure act is amended by adding a new
section 202-f to read as follows:
  S  202-F.  PUBLIC  HEARINGS. 1. WHENEVER A PUBLIC HEARING IS HELD ON A
PROPOSED RULE PURSUANT TO THIS CHAPTER,  UNLESS  OTHERWISE  PROVIDED  IN
LAW, AN AGENCY IS AUTHORIZED TO UTILIZE INNOVATIVE TECHNIQUES TO ENHANCE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03169-01-5

S. 2384                             2

PUBLIC PARTICIPATION IN RULE MAKING, INCLUDING BUT NOT LIMITED TO ALLOW-
ING  THE  PUBLIC  TO  ASK QUESTIONS OF AGENCY PERSONNEL FOR A PORTION OF
SUCH HEARING, ORGANIZING SUCH HEARING AS A ROUNDTABLE DISCUSSION, SCHED-
ULING AN EVENING OR WEEKEND HEARING, AND USING BROADCASTING AND TELECON-
FERENCING TECHNOLOGIES; PROVIDED, HOWEVER, THAT NO SUCH INNOVATIVE TECH-
NIQUES  SHALL  BE  USED  IN  A MANNER WHICH DIMINISHES THE ABILITY WHICH
MEMBERS OF THE PUBLIC WOULD OTHERWISE HAVE TO COMMENT  ON  THE  PROPOSED
RULE AT A PUBLIC HEARING. EACH AGENCY LISTED IN SUBDIVISION FOUR OF THIS
SECTION  SHALL, AND ANY OTHER AGENCY MAY, INCLUDE IN ITS ANNUAL REPORT A
DESCRIPTION AND ANALYSIS OF ITS USE OF INNOVATIVE TECHNIQUES PURSUANT TO
THIS SUBDIVISION.
  2. EXCEPT AS PROVIDED IN SUBDIVISION THREE OF THIS SECTION, ANY AGENCY
LISTED IN SUBDIVISION FOUR OF THIS SECTION  WHICH  RECEIVES  A  PETITION
SUBSCRIBED BY NOT FEWER THAN ONE HUNDRED TWENTY-FIVE PERSONS RESIDING IN
THIS  STATE  REQUESTING A PUBLIC HEARING ON ANY RULE OR RULES WHICH HAVE
BEEN PROPOSED BY THE AGENCY, OR HAVE BEEN DESCRIBED  IN  THE  REGULATORY
AGENDA  SUBMITTED BY THE AGENCY PURSUANT TO SECTION TWO HUNDRED TWO-D OF
THIS ARTICLE, SHALL HOLD AT LEAST ONE PUBLIC  HEARING  ON  THE  RULE  OR
RULES;  PROVIDED,  HOWEVER,  THAT  ANY SUCH PETITION ON A RULE WHICH HAS
BEEN PROPOSED MUST BE RECEIVED BY THE AGENCY NOT LATER THAN THE  TWENTI-
ETH DAY BEFORE THE LAST DATE FOR SUBMISSION OF COMMENTS. ANY AGENCY THAT
RECEIVES  A  PETITION  AFTER  THE TWENTIETH DAY BEFORE THE LAST DATE FOR
SUBMISSION OF COMMENTS AND ANY AGENCY NOT LISTED IN SUBDIVISION FOUR  OF
THIS SECTION MAY ELECT TO HOLD A HEARING UPON RECEIPT OF A PETITION. DUE
CONSIDERATION SHALL BE GIVEN TO ANY REQUEST IN A PETITION THAT A HEARING
BE CONDUCTED IN A PARTICULAR REGION.
  3.  AN  AGENCY SHALL NOT BE REQUIRED TO HOLD A PUBLIC HEARING PURSUANT
TO SUBDIVISION TWO OF THIS SECTION (A) ON A RULE FOR WHICH A HEARING  IS
REQUIRED BY LAW AND HAS BEEN SCHEDULED OR HELD; (B) ON A CONSENSUS RULE;
OR (C) ON A RULE DEFINED IN SUBPARAGRAPH (II) OF PARAGRAPH (A) OF SUBDI-
VISION  TWO  OF  SECTION  ONE HUNDRED TWO OF THIS CHAPTER. WHEN A PUBLIC
HEARING HAS BEEN REQUESTED FOR ANY RULE DESCRIBED IN A REGULATORY  AGEN-
DA,  THE AGENCY SHALL NOT BE REQUIRED TO SCHEDULE A PUBLIC HEARING UNTIL
SUCH TIME AS THE RULE IS PROPOSED.
  4. THE FOLLOWING AGENCIES SHALL ENGAGE IN THE REPORTING  PROVIDED  FOR
IN  SUBDIVISION ONE OF THIS SECTION AND HOLD HEARINGS AS PROVIDED FOR IN
SUBDIVISIONS TWO AND THREE OF THIS SECTION:  THE  WORKERS'  COMPENSATION
BOARD  AND  THE  DEPARTMENTS  OF  EDUCATION, ENVIRONMENTAL CONSERVATION,
HEALTH, FINANCIAL SERVICES, LABOR AND FAMILY ASSISTANCE.
  S 3. This act shall take effect on the first of January next  succeed-
ing  the  date on which it shall have become a law, and shall expire and
be deemed repealed on the thirty-first day of  December  of  the  second
calendar  year  following  such  effective  date, and shall apply to all
rules for which a notice of proposed rule making or a description  in  a
regulatory agenda is published during such time period.

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