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

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 § 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 and has already been scheduled or held, or for consensus rules or rules related to rate-makings. Subdivision 4 of §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, Insurance, 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 very 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 I 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

None.

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 of the second calendar year following such effective date.