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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6267
SPONSOR: Mamdani 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 mean-
ingfully in the rule-making process by permitting agencies to use inno-
vative 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 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 innova-
tive 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 subdivi-
sion 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 hear-
ing 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 petitioner the Workers'
Compensation Board and the Departments of Education, Environmental
Conservation, Health, Financial Services, Labor and Family Assistance.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
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 partic-
ipation. 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 signif-
icant 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:
2018: Passed Senate, Died in Assembly
2017: Died in Commerce, Economic Development and Small Business
2016: Died in Commerce, Economic Development and Small Business
2015: Died in Commerce, Economic Development and Small Business
2014: in Senate Commerce, Economic Development and Small Business
Committee
2012: - Died in Senate Commerce, Economic Development and Small Business
Committee
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.
STATE OF NEW YORK
________________________________________________________________________
6267
2021-2022 Regular Sessions
IN ASSEMBLY
March 12, 2021
___________
Introduced by M. of A. MAMDANI -- read once and referred to the Commit-
tee on Governmental Operations
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:
1 Section 1. Subdivision 1 of section 102 of the state administrative
2 procedure act, as amended by section 155 of subpart B of part C of chap-
3 ter 62 of the laws of 2011, is amended to read as follows:
4 1. "Agency" means any department, board, bureau, commission, division,
5 office, council, committee or officer of the state, or a public benefit
6 corporation or public authority at least one of whose members is
7 appointed by the governor, authorized by law to make rules or to make
8 final decisions in adjudicatory proceedings but shall not include the
9 governor, agencies in the legislative and judicial branches, agencies
10 created by interstate compact or international agreement, the division
11 of military and naval affairs to the extent it exercises its responsi-
12 bility for military and naval affairs, the division of state police, the
13 identification and intelligence unit of the division of criminal justice
14 services, the state insurance fund, the unemployment insurance appeal
15 board, and except for purposes of subdivision one of section two hundred
16 two-d and section two hundred two-f of this chapter, the workers'
17 compensation board and except for purposes of article two of this chap-
18 ter, the department of corrections and community supervision.
19 § 2. The state administrative procedure act is amended by adding a new
20 section 202-f to read as follows:
21 § 202-f. Public hearings. 1. Whenever a public hearing is held on a
22 proposed rule pursuant to this chapter, unless otherwise provided in
23 law, an agency is authorized to utilize innovative techniques to enhance
24 public participation in rule making, including but not limited to allow-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03263-01-1
A. 6267 2
1 ing the public to ask questions of agency personnel for a portion of
2 such hearing, organizing such hearing as a roundtable discussion, sched-
3 uling an evening or weekend hearing, and using broadcasting and telecon-
4 ferencing technologies; provided, however, that no such innovative tech-
5 niques shall be used in a manner which diminishes the ability which
6 members of the public would otherwise have to comment on the proposed
7 rule at a public hearing. Each agency listed in subdivision four of this
8 section shall, and any other agency may, include in its annual report a
9 description and analysis of its use of innovative techniques pursuant to
10 this subdivision.
11 2. Except as provided in subdivision three of this section, any agency
12 listed in subdivision four of this section which receives a petition
13 subscribed by not fewer than one hundred twenty-five persons residing in
14 this state requesting a public hearing on any rule or rules which have
15 been proposed by the agency, or have been described in the regulatory
16 agenda submitted by the agency pursuant to section two hundred two-d of
17 this article, shall hold at least one public hearing on the rule or
18 rules; provided, however, that any such petition on a rule which has
19 been proposed must be received by the agency not later than the twenti-
20 eth day before the last date for submission of comments. Any agency that
21 receives a petition after the twentieth day before the last date for
22 submission of comments and any agency not listed in subdivision four of
23 this section may elect to hold a hearing upon receipt of a petition. Due
24 consideration shall be given to any request in a petition that a hearing
25 be conducted in a particular region.
26 3. An agency shall not be required to hold a public hearing pursuant
27 to subdivision two of this section (a) on a rule for which a hearing is
28 required by law and has been scheduled or held; (b) on a consensus rule;
29 or (c) on a rule defined in subparagraph (ii) of paragraph (a) of subdi-
30 vision two of section one hundred two of this chapter. When a public
31 hearing has been requested for any rule described in a regulatory agen-
32 da, the agency shall not be required to schedule a public hearing until
33 such time as the rule is proposed.
34 4. The following agencies shall engage in the reporting provided for
35 in subdivision one of this section and hold hearings as provided for in
36 subdivisions two and three of this section: the workers' compensation
37 board and the departments of education, environmental conservation,
38 health, financial services, labor and family assistance.
39 § 3. This act shall take effect on the first of January next succeed-
40 ing the date on which it shall have become a law, and shall expire and
41 be deemed repealed on the thirty-first day of December of the second
42 calendar year following such effective date, and shall apply to all
43 rules for which a notice of proposed rule making or a description in a
44 regulatory agenda is published during such time period.
