Bill Text: NY A05777 | 2017-2018 | General Assembly | Amended
Bill Title: Establishes procedures for negotiated rule making.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2018-03-06 - print number 5777a [A05777 Detail]
Download: New_York-2017-A05777-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5777--A 2017-2018 Regular Sessions IN ASSEMBLY February 15, 2017 ___________ Introduced by M. of A. SIMOTAS, HAWLEY -- read once and referred to the Committee on Governmental Operations -- recommitted to the Committee on Governmental Operations in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the state administrative procedure act, in relation to negotiated rule making The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "small business negotiated rule making act of 2018". 3 § 2. Legislative intent. The legislature hereby finds that providing 4 additional opportunities for direct small business and public partic- 5 ipation in the development of potentially controversial rules can 6 enhance the ability of the agency to develop the most appropriate and 7 effective regulatory language, and can reduce the time and expense occa- 8 sioned by litigation over the rule. Negotiated rule making provides a 9 means of improving the substance and increasing the acceptability of 10 rules, by affording to the agency, regulated small businesses and the 11 public the opportunity for face-to-face negotiations over a rule making 12 proposal which is under development by the agency. The opportunity for 13 representatives of the various persons and small businesses interested 14 in a rule to meet and communicate with each other provides a framework 15 for the sharing of information, knowledge and expertise in order to 16 develop a consensus on the most effective and appropriate rule making 17 proposal. Fair representation of all interested parties and a skilled 18 facilitator are essential elements of a successful negotiated rule 19 making process. 20 Therefore, the legislature declares it to be in the public interest to 21 set forth a statutory process for negotiated rule making in the state EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02219-03-8A. 5777--A 2 1 administrative procedure act as an alternative means of developing 2 appropriate and effective proposed rules. 3 § 3. The state administrative procedure act is amended by adding a new 4 article 2-A to read as follows: 5 ARTICLE 2-A 6 NEGOTIATED RULE MAKING 7 Section 250. Purpose of article. 8 251. Definitions. 9 252. Determination of the need for negotiated rule making. 10 253. Notice of proposed committee formation. 11 254. Committee establishment. 12 255. Conduct of committee activities. 13 256. Committee termination. 14 257. Services, facilities and payment of expenses of committee 15 members. 16 258. Judicial review. 17 § 250. Purpose of article. The purpose of this article is to establish 18 a statutory framework for the selection of appropriate subjects for 19 negotiated rule making, and for the conduct of negotiated rule making. 20 Nothing in this article is intended to limit other innovative rule 21 making procedures otherwise authorized by statute. 22 § 251. Definitions. As used in this article: 23 1. "Consensus" means unanimous concurrence among the interests repres- 24 ented on a negotiated rule making committee established pursuant to this 25 article, unless such committee by unanimous concurrence (a) agrees to 26 define such term to mean a general but not unanimous concurrence; or (b) 27 agrees upon another specified definition. 28 2. "Facilitator" means a person who impartially aids in the 29 discussions and negotiations among the members of a negotiated rule 30 making committee in developing a proposed rule. 31 3. "Interest" means, with respect to an issue or matter, multiple 32 parties which have a similar point of view or which are likely to be 33 affected in a similar manner. 34 4. "Negotiated rule making" means rule making through the use of a 35 negotiated rule making committee. 36 5. "Negotiated rule making committee" or "committee" means an advisory 37 committee established by an agency in accordance with the provisions of 38 this article to consider and discuss issues for the purpose of reaching 39 a consensus in the development of a proposed rule. 40 § 252. Determination of the need for negotiated rule making. 1. An 41 agency may propose to establish a negotiated rule making committee to 42 negotiate and develop a proposed rule, if the head of the agency deter- 43 mines that the use of negotiated rule making is appropriate and in the 44 public interest. In making this determination the head of the agency 45 shall consider whether: 46 (a) there is a need for a rule; 47 (b) there are a limited number of identifiable interests or small 48 businesses that will be significantly affected by the rule; 49 (c) there is a reasonable likelihood that such a committee can be 50 convened with balanced representation of persons who can adequately 51 represent the interest identified under paragraph (b) of this subdivi- 52 sion and who are willing to negotiate in good faith to reach a consensus 53 on a proposed rule;A. 5777--A 3 1 (d) there is reasonable likelihood that such a committee will reach a 2 consensus on the proposed rule within a fixed period of time; 3 (e) use of negotiated rule making will not unreasonably delay the 4 notice of proposed rule making and the issuance of a final rule; 5 (f) the agency has adequate resources and is willing to commit such 6 resources as may be needed, including technical assistance, to a negoti- 7 ated rule making committee; 8 (g) the negotiated rule making will not impose a disadvantage on 9 persons whose participation is essential but who lack the resources to 10 participate, or, if participation would impose such disadvantage, it is 11 likely that the agency may obtain and make available such resources in a 12 manner consistent with section two hundred fifty-seven of this article; 13 and 14 (h) the agency will use the consensus of the committee with respect to 15 the proposed rule as the basis for a rule proposed by the agency for 16 notice and comment. 17 2. An agency which determines that the proposal of a negotiated rule 18 making proceeding is appropriate and in the public interest shall 19 propose such action to the committee. Such proposal shall indicate the 20 basis for the agency's determination, and shall list the interests which 21 the agency believes to be necessary for representation in the negotiated 22 rule making proceeding and the basis for determining that the proposed 23 list of interests is fair and balanced. The agency's proposal shall be 24 made available to the public on request. 25 § 253. Notice of proposed committee formation. 1. If an agency 26 approves the proposal to conduct a negotiated rule making proceeding, 27 then the agency shall publish in the state register and such trade and 28 other specialized publications, and by such electronic means as it deems 29 appropriate a notice which shall include: 30 (a) an announcement that the agency intends to establish a negotiated 31 rule making committee to negotiate and develop a proposed rule; 32 (b) a description of the subject and scope of the rule to be devel- 33 oped, and the issues to be considered; 34 (c) a list of small businesses and other interests which have been 35 determined to be likely to be significantly affected by the rule; 36 (d) a list of the persons proposed to represent such interests and the 37 person or persons proposed to represent the agency; 38 (e) a proposed agenda and schedule for completing the work of the 39 committee, including a target date for publication by the agency of a 40 proposed rule for notice and comment; 41 (f) a description of administrative support to be provided to the 42 committee by the agency; 43 (g) a solicitation of comments on the proposal to establish a commit- 44 tee, and the proposed membership of the committee; and 45 (h) an explanation of how a person may apply to nominate another 46 person for membership on the committee, as provided in subdivision three 47 of this section. 48 2. Special efforts shall be made by the agency to solicit partic- 49 ipation by small businesses, residents of rural areas, inner-city urban 50 areas, minority and disadvantaged groups, and other interests who may 51 otherwise not be represented or may be underrepresented in the negoti- 52 ated rule making proceeding. 53 3. Persons who would be significantly affected by a proposed rule and 54 who believe that their interests would not be adequately represented by 55 any person proposed by the agency to represent their interests, or who 56 believe that the proposed representation of interests on the committeeA. 5777--A 4 1 will not be fair and balanced, may apply for or nominate another person 2 for membership on the committee to represent such interests or to 3 achieve such balance. Each application or nomination shall include: 4 (a) the name of the applicant or nominee and a description of the 5 interests such person shall represent; 6 (b) information that the applicant or nominee is qualified to repre- 7 sent such interests; 8 (c) a written commitment that the applicant or nominee shall actively 9 participate in good faith in the development of the rule under consider- 10 ation; and 11 (d) the reasons for believing that any person or persons proposed to 12 represent interests in the notice published pursuant to subdivision one 13 of this section would not adequately represent the interests of the 14 person submitting the application or nomination. 15 4. The agency shall provide for a period of at least thirty calendar 16 days for the submission of comments and applications under this section. 17 5. Any small business or person who is dissatisfied with an agency 18 decision that: 19 (a) it is not necessary to provide for representation of the interest 20 which such business or person proposes to represent; or 21 (b) an individual is not the best qualified person to represent an 22 interest, may appeal such decision to the agency. Such business or 23 person shall advise the agency of such appeal and shall provide the 24 committee and agency with a statement of the basis for such appeal. In 25 making a decision on representation of an interest, evidence that an 26 organization has authorized a person to represent it shall be sufficient 27 to demonstrate that such individual is best qualified to represent that 28 organization. The agency shall notify the proposed committee members of 29 the appeal. The decision by the agency shall be issued within thirty 30 days and shall be final. 31 § 254. Committee establishment. 1. After considering comments and 32 applications submitted pursuant to section two hundred fifty-three of 33 this article, the agency shall determine whether a negotiated rule 34 making committee can adequately represent, in a fair and balanced 35 manner, all interests that will be significantly affected by the 36 proposed rule, and whether it would be feasible and appropriate to 37 establish a committee for a particular rule making. In establishing and 38 administering a committee, the agency shall comply with the intent of 39 this article. 40 2. The agency shall promptly publish notice of its determination and 41 the reasons therefor in the state register, in such trade or other 42 specialized publications, or by electronic means as it deems appropri- 43 ate. In addition, a copy of such notice shall be sent to any person who 44 applied for or nominated another person for membership on such commit- 45 tee. 46 3. The agency shall provide appropriate administrative support to the 47 committee, including technical assistance. 48 § 255. Conduct of committee activities. 1. Each negotiated rule making 49 committee established pursuant to this article shall consider the 50 matters proposed for consideration by the agency and shall attempt to 51 reach consensus on a proposed rule with respect to such matters. 52 2. The person or persons representing the agency on a committee shall 53 participate in the deliberations and activities of the committee with 54 the same rights and responsibilities as the other members of the commit- 55 tee, and shall be authorized to fully represent the agency in the 56 discussions and negotiations of the committee.A. 5777--A 5 1 3. The agency shall nominate a person to serve as a facilitator for 2 the negotiations of the committee, subject to the approval of the 3 committee by consensus. If the committee does not approve the nominee of 4 the agency as facilitator, the committee shall select by consensus a 5 person to serve as the facilitator. A person designated to represent the 6 agency in negotiation of substantive issues shall not serve as facilita- 7 tor or chair of the committee. 8 4. A facilitator approved or selected by a committee shall: 9 (a) chair the meetings of the committee in an impartial manner; 10 (b) impartially assist the members of the committee in conducting 11 discussions and negotiations; 12 (c) manage the keeping of committee minutes, except that any personal 13 notes and materials of the facilitator or members of the committee shall 14 not be subject to this section; and 15 (d) at the conclusion of the proceeding, provide the agency with his 16 or her observations and comments on the usefulness and effectiveness of 17 the negotiated rule making proceeding, and such other comments as he or 18 she deems pertinent. 19 5. A committee established pursuant to this article may adopt proce- 20 dures governing its operation not inconsistent with the law. 21 6. (a) If a committee reaches a consensus on a proposed rule, at the 22 conclusion of negotiations the committee shall transmit to the agency 23 which established the committee a report containing such proposed rule, 24 which shall be proposed for adoption by the agency within sixty days of 25 receipt of the report. If the committee does not reach consensus on a 26 proposed rule, the committee may transmit to the agency a report speci- 27 fying any areas in which the committee reached a consensus. The commit- 28 tee may include in the report and other information, recommendations or 29 materials that the committee considers appropriate. Any committee member 30 may include as an addendum to the report additional information, recom- 31 mendations or materials. 32 (b) Any report transmitted pursuant to this section shall be provided 33 to the committee at the same time such report is provided to the agency. 34 7. In addition to the report required by subdivision six of this 35 section, a committee shall submit to the agency the records, materials 36 and reports that were used to arrive at its recommendations. All such 37 records shall be made available to the public for inspection and copy- 38 ing. 39 8. All records and reports made pursuant to this section, except for 40 any personal notes and materials of the facilitator or members of the 41 committee, shall be open and accessible to the public for inspection and 42 copying. 43 § 256. Committee termination. A negotiated rule making committee shall 44 terminate upon promulgation of the final rule under consideration, 45 unless the committee's charter contains an earlier termination date. 46 § 257. Services, facilities and payment of expenses of committee 47 members. 1. An agency may employ or enter into contracts for the 48 services of an individual or organization to serve as the facilitator 49 for a negotiated rule making committee under this article, or may use 50 the services of a state employee to act as the facilitator for such a 51 committee. 52 2. For the purposes of this section, an agency may use the services 53 and facilities of other state agencies, and public and private agencies 54 and instrumentalities, with the consent of such agencies and instrumen- 55 talities, and may receive and accept voluntary and uncompensated 56 services from them.A. 5777--A 6 1 3. Members of a committee shall be responsible for their own expenses 2 of participation on such committee. 3 § 258. Judicial review. Any action relating to establishing, assisting 4 or terminating a negotiated rule making committee pursuant to this arti- 5 cle shall not be subject to judicial review. Nothing in this section 6 shall bar judicial review of a rule if such judicial review is otherwise 7 provided by law. A rule which is the product of negotiated rule making 8 and is subject to judicial review shall not be accorded any greater 9 deference by a court than a rule which is the product of other rule 10 making procedures. 11 § 4. The provisions of this act shall preempt and supersede any incon- 12 sistent executive order relating to negotiated rule making. 13 § 5. This act shall take effect immediately.
