S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5791
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 1, 2017
                                ___________
 
 Introduced  by  Sen.  JACOBS -- 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
   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:
   § 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;
   (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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02333-01-7

 S. 5791                             2
 
   (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
 specifically authorized by law to  waive  such  provision.  An  approval
 shall  include a timetable for agency evaluation of the effectiveness of
 the alternate method.

 S. 5791                             3
 
   (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
 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.

 S. 5791                             4
 
   [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.
   § 2. This act shall take effect on the first of January after it shall
 have become a law.