NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8796
TITLE OF BILL:
An act to amend the state administrative procedure act, in relation to
public hearings on proposed rules; and to amend a chapter of the laws of
2021 amending the state administrative procedure act relating to public
hearings on proposed rules, as proposed in legislative bills numbers S.
155 and A. 6267, in relation to the effectiveness thereof
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to make amendments to Chapter 801 of the
Laws of 2021.
SUMMARY OF PROVISIONS:
This chapter amendment makes technical amendments to the chapter that
would adjust the number of petitions required to hold a hearing on a
regulation and the effective date of the chapter.
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
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:
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This act shall take effect immediately; provided that section one of
this act shall take effect on the same date and in the same manner as a
chapter of the laws of 2021 amending the state administrative procedure
act relating to public hearings on proposed rules, as proposed in legis-
lative bills numbers S.155 and A.6267, takes effect.
STATE OF NEW YORK
January 12, 2022
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 to amend a chapter of the laws
of 2021 amending the state administrative procedure act relating to
public hearings on proposed rules, as proposed in legislative bills
numbers S. 155 and A. 6267, in relation to the effectiveness thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 202-f of the state administrative procedure act, as
2 added by a chapter of the laws of 2021 amending the state administrative
3 procedure act relating to public hearings on proposed rules, as proposed
4 in legislative bills numbers S. 155 and A. 6267, is amended to read as
6 § 202-f. Public hearings. 1. Whenever a public hearing is held on a
7 proposed rule pursuant to this chapter, unless otherwise provided in
8 law, an agency is authorized to utilize innovative techniques to enhance
9 public participation in rule making, including but not limited to allow-
10 ing the public to ask questions of agency personnel for a portion of
11 such hearing, organizing such hearing as a roundtable discussion, sched-
12 uling an evening or weekend hearing, and using digital, broadcasting
13 and/or teleconferencing technologies; provided, however, that no such
14 innovative techniques shall be used in a manner which diminishes the
15 ability which members of the public would otherwise have to comment on
16 the proposed rule at a public hearing. Each agency listed in subdivision
17 four of this section shall, and any other agency may, include in its
18 annual report a description and analysis of its use of innovative tech-
19 niques pursuant to this subdivision.
20 2. Except as provided in subdivision three of this section, [any agen-
21 cy listed in subdivision four of this section which receives] if the
22 workers' compensation board, the state education department, the depart-
23 ment of financial services, the department of labor, or the office of
24 temporary and disability assistance receive a petition subscribed by not
25 fewer than [one] five hundred [twenty-five] persons residing in this
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 8796 2
1 state, or if the department of health or department of environmental
2 conservation receive a petition subscribed by not fewer than seven
3 hundred fifty persons residing in this state, requesting a public hear-
4 ing on any rule or rules which have been proposed by the agency, or have
5 been described in the regulatory agenda submitted by the agency pursuant
6 to section two hundred two-d of this article, which an agency may
7 require to be submitted on a petition form it has promulgated, such
8 agency shall hold at least one public hearing on the rule or rules;
9 provided, however, that any such petition on a rule which has been
10 proposed must be received by the agency not later than the [twentieth]
11 thirtieth day before the last date for submission of comments. Any rule
12 issued by the department of health that is also subject to review by the
13 public health and health planning commission shall not be subject to the
14 provisions of this subdivision. Any agency that receives a petition
15 after the [twentieth] thirtieth day before the last date for submission
16 of comments and any agency not listed in subdivision four of this
17 section may elect to hold a hearing upon receipt of a petition. Due
18 consideration shall be given to any request in a petition that a hearing
19 be conducted in a particular region.
20 3. An agency shall not be required to hold a public hearing pursuant
21 to subdivision two of this section (a) on a rule for which a hearing is
22 required by law and has been scheduled or held; (b) on a consensus rule;
23 [or] (c) on a rule defined in subparagraph (ii) of paragraph (a) of
24 subdivision two of section one hundred two of this chapter; or (d) a
25 rule adopted on an emergency basis until a notice of proposed rulemaking
26 has been issued. When a public hearing has been requested for any rule
27 described in a regulatory agenda, the agency shall not be required to
28 schedule a public hearing until such time as the rule is proposed pursu-
29 ant to this chapter.
30 4. The following agencies shall engage in the reporting provided for
31 in subdivision one of this section and hold hearings as provided for in
32 subdivisions two and three of this section: the workers' compensation
33 board and the departments of education, environmental conservation,
34 health, financial services, labor and family assistance.
35 § 2. Section 3 of a chapter of the laws of 2021, as added by a chap-
36 ter of the laws of 2021 amending the state administrative procedure act
37 relating to public hearings on proposed rules, as proposed in legisla-
38 tive bills numbers S. 155 and A. 6267, is amended to read as follows:
39 § 3. This act shall take effect on [the first of] January [next
40 succeeding the date on which it shall have become a law] 1, 2023, and
41 shall expire and be deemed repealed on the thirty-first day of December
42 of the second calendar year following such effective date, and shall
43 apply to all rules for which a notice of proposed rule making or a
44 description in a regulatory agenda is published during such time period.
45 § 3. This act shall take effect immediately; provided that section one
46 of this act shall take effect on the same date and in the same manner as
47 a chapter of the laws of 2021 amending the state administrative proce-
48 dure act relating to public hearings on proposed rules, as proposed in
49 legislative bills numbers S. 155 and A. 6267, takes effect.