Establishes the office of regulatory reform and administrative procedure compliance, and repeals provisions of law establishing the office of business permits

Summary of provisions

Section 1: Amends the Executive Law section 146, which lays out the notice and publication provisions that govern the printing of the State Register. Under the Executive Law, the Department of State is responsible for publishing the State Register. Hence, it is best to place the Office of Regulatory Reform and Administrative Procedure Compliance (ORRAPC) within the Department of State since all rulemakings are filed with this agency already. Under this provision, it clarifies the Department's ability to refuse to publish a rule making notice, if the Department does not believe that such agency has complied with substantive or procedural requirements of SAPA. Under this provision, the ORRAPC may review all notices of rulemakings that are filed with the Department of State (DOS) and render an opinion that such filing does not comply with SAPA and that such notice should not be published in the State Register.

Section 2: Adds a new Executive Law Article 39 to establish the Office of Regulatory Reform and Administrative Procedure. This provision lays out the legislative findings that necessitate that such an Office should be established. It is made very clear in Article 39 that the functions of the Office are to be contained in DOS and that it shall be the focal point for functions that DOS is now currently providing with regard to the enforcement of SAPA.

Among the Office's functions are to: 1) monitor agency actions that relate to compliance with SAPA, 2) engage in a dialog with state agencies to ensure that such agencies comply with all of the procedural and substantive provisions of SAPA, 3) accept comments from regulated parties as it relates to the proper compliance with SAPA 4) serve as an ombudsman for the business community with regard to curtailing the promulgation of new rules that are unnecessary, over burdensome, overly stringent, were promulgated without adequate statutory authority, or 5) may hinder economic development and job creation activities in this State.

The Office may issue a Non-compliance Notice for proposed rules that: 1) do not comply with the substantive or procedural requirements of SAPA, 2) do not have adequate statutory authority to promulgate such rules.

To better integrate the operations of the Office with other executive branches, an Advisory Council is established to provide guidance to the Office. The Chair of this Advisory council is the Secretary of State, and representatives from the Division of the Budget and Secretary to the Governor. The Governor shall also appoint two members from the State's business community to the council. In addition, the Temporary President of the Senate and Assembly speaker shall appoint one member to this Council.

Sections 3: Amends SAPA section 202 (1) to clearly institute in SAPA that the DOS, through the Office, may refuse to publish a notice of proposed rule making if such notice does not comply with substantive or procedural requirements of SAPA.

Section 4, 5, 6, 7, and 8: These provisions amend SAPA section 202 that relates to the publication of various rule making notices in the State Register.

Section 9: Amends SAPA section 202-b to eliminate an old reference to the Office of Business permits and Regulatory Assistance (OBPRA) and to add in the new Office of Regulatory Reform and Administrative Procedure compliance.

Section 10: Amends SAPA section 206 which involves compliance determinations related to overlapping regulations. This provision deletes references to OBPRA and add references to the ORRAPC.

Section 11: Amends SAPA section 207(5) to delete references to obsolete or invalid rules.

Justification

Under current law, while the DOS, with the assistance of the Division of Budget, has the ability to review rule making notices before such notices are published in the State Register, there is nothing codified in statute that establishes a procedure for such review. More importantly, there is nothing in statue to ensure that state agencies comply with SAPA. While state agencies are supposed to comply with the substantive and procedural requirements of SAPA when promulgating a rule, there is no established procedure embodied in the law which can compel compliance, unless a regulated party litigates the subject and a court throws out such promulgated rule on procedural grounds.

The current state of the law actually encourages regulated parties to sue in court to stop a rule that was promulgated in violation of SAPA or which does not have adequate statutory authority. Under this bill, an office (within DOS, the same agency that publishes the State Register) would be established in which regulated parties could contact to object to a proposed rule making if it was illegally promulgated or for which there is inadequate statutory authority to promulgate such a rule.

This bill strengthens the enforcement of SAPA and makes state agency actions more accountable to the general public. Further, it will give regulated parties a better opportunity to review and comment on proposed rules before they are adopted. Further, by offering a more meaningful ability to comment on proposed rules, hopefully, such rules will become more well thought out and reduce unnecessary burdens or costs imposed on regulated parties including job creating businesses.

Legislative history

New Bill.

Fiscal implications

None.

Effective date

Immediate.