Establishes procedures for negotiated rule making

Summary of provisions

Section one establishes the title of the act as "the small business negotiated rule making act of 2016."

Section two establishes the legislative intent.

Section three establishes a new Article 2-A to the State Administrative Procedure Act (SAPA) which will encourage state agencies to use a process for selecting rule proposals as candidates for negotiated rule making, and for the identification and nomination of representatives of interests necessary to negotiated rule making proceedings.

Section 250 sets forth the article's purpose: to establish a statutory framework for the opportunity to select appropriate subjects for negotiated rule making and the conduct of negotiated rule making.

Section 251 sets forth definitions for terms used in this article. "Consensus" is defined ((as in Federal Negotiated Rule Making Act of 1990 (P.L. 101-648)) as unanimous concurrence of all represented interests, unless they all agree to another definition.

Section 252 sets forth the process and standards for agency determinations of the need for negotiated rule making for a specific rule. To be a candidate for negotiated rule making, a rule must significantly affect a limited number of small business and identifiable interests, and it must be possible to put together a balanced committee of representatives of these interests, who are willing to negotiate in good faith to reach a consensus on a proposed rule.

Section 253 sets forth the process for notice and comment on the proposed formation of a negotiated rule making committee, once a rule has been approved for negotiated rule making. Small businesses or persons who believe their interests will not be adequately represented, or the committee as proposed is not fair and balanced, may nominate alternate or additional persons to serve on the committee. Special efforts must be made to include small businesses, residents of rural areas, inner-city urban areas, minority and disadvantaged groups and other interests who may otherwise be underrepresented in the negotiated rule making process. Decisions of

the agency regarding committee membership may be appealed to the agency, which shall decide appeals within 30 days.

Section 254 sets forth the process for formal establishment of the committee.

Section 255 codifies standards for conducting committee activities, including the selection of an impartial facilitator to assist in the committee to reach consensus on aspects of the proposed rule. The committee shall issue a report indicating those matters on which it has reached consensus to the agency. All reports are made open and accessible to the public for inspection and copying.

Section 256 provides that the committee shall terminate upon promulgation of the final rule under consideration, unless an earlier date is contained in the committee's charter, or unless the agency decides otherwise.

Section 257 provides for support services for the committee's functioning.

Section 258 follows the federal law in providing that actions relating to establishing, assisting or terminating a negotiated rule making committee shall not be subject to judicial review.

Section four states that the provisions of the act shall preempt and supersede any inconsistent executive order relating to negotiated rule making.

Section five establishes the effective date.

Justification

Currently, small businesses and the regulated public have no means to negotiate with state agencies concerning the outcome of regulatory proposals with the exception of normal notice-and-comment rule making process. In many instances, public comments are not adequately taken in to account and acted on by the agency, resulting in no consideration of small businesses or the public's concerns. Negotiated rule making, if planned and conducted properly and in a spirit of openness and fairness, can counteract systemic tendencies toward confrontation and onerous rule making.

Legislative history

New bill

Fiscal implications

None to the state

Effective date

Immediately.