Current through Register Vol. 46, No. 52, December 24, 2024
WHEREAS, Article Four, Section Three of the Constitution of
the State of New York provides that the Governor of the State of New York shall
take care that the laws of the State are faithfully executed;
WHEREAS, sections 202-a, 202-b and 202-bb of the State
Administrative Procedure Act direct agencies when developing rules to analyze
the costs and benefits of their rules and to consider utilizing regulatory
approaches designed to avoid undue deleterious or overly burdensome impacts on
regulated parties, the economy and the administration of state and local
governmental agencies, to the extent consistent with the objectives of
applicable statutes;
WHEREAS, section 103 of the State Administrative Procedure
Act provides that the provisions of such Act shall not be construed to limit or
repeal additional requirements imposed by statute or otherwise; and
WHEREAS, having determined that the development, proposal
and adoption of rules as well as the existing rules in New York State are in
need of careful examination in order to assure that they faithfully execute the
laws of the State without unduly burdening the State's economy and imposing
needless costs and requirements on the businesses, local governments and
citizens of this State;
NOW, THEREFORE, I, GEORGE E. PATAKI, Governor of the State
of New York, by virtue of the authority vested in me by the Constitution and
Laws of the State of New York, do hereby establish the position of State
Director of Regulatory Reform.
I.
Definitions
A. "Director" shall mean the
Director of Regulatory Reform.
B.
"Agency" shall mean any agency as defined in State Administrative Procedure Act
Section 102(1).
C. "Rule" shall
have the same meaning as defined in Section 102 of the State Administrative
Procedure Act.
II.
Responsibilities of the Director of Regulatory Reform
The State Director of Regulatory Reform shall have the
following responsibilities:
1. To
provide an oversight of the regulatory processes of State agencies through the
review and analysis of proposed and existing rules;
2. To encourage agencies to eliminate,
consolidate, simplify, expedite, or otherwise improve permits, permitting
procedures, and paperwork burdens affecting business and local government
undertakings and to offer permit assistance to businesses and local
governments;
3. To analyze or
require the analysis of the impact of proposed and existing rules on matters
such as but not limited to the public health, safety and welfare, and job
creation, and make recommendations for simplifying the regulations and
regulatory processes of state agencies;
4. Within available amounts, and subject to
the approval of the Director of the Budget, to enter into contracts and expend
money, and to employ such personnel as the Director of Regulatory Reform deems
necessary and desirable to carry out the powers and responsibilities provided
for in this Executive Order, and provide them with compensation and provide for
the reimbursement of their expenses, all within the amounts available
therefor;
5. Consistent with the
provisions of Part IV of this Executive Order, to require an agency to prepare
a cost-benefit analysis, risk assessment, and/or an analysis of the rule's
effect on the creation and retention of jobs in the State;
6. For any existing rule, to request an
agency to prepare a cost-benefit analysis, risk assessment, and/or an analysis
of the rule's effect on the creation and retention of jobs in the State and to
recommend to the Secretary to the Governor, the Counsel to the Governor, the
Director of State Operations and the Director of the Division of the Budget
that the agency be directed to prepare any such analysis or
assessment;
7. To require that any
cost-benefit analysis or risk assessment that is prepared for a rule undergo a
peer review, in accordance with such requirements and procedures as the
Director may establish;
8. To
entertain requests for and to issue determinations regarding whether any action
taken by an agency should be taken pursuant to a rule;
9. Consistent with the provisions of
paragraphs b, c and d of section 5 of Part IV of this Executive Order, to
direct any agency not to adopt on a temporary basis any rule that is the
subject of a notice of proposed or revised rulemaking published in the State
Register that, as proposed or revised, in the Director's judgment does not meet
the criteria contained in Part III of this Executive Order. Any such action
pursuant to this paragraph shall be in writing and shall be binding on such
agency unless subsequently superseded pursuant to Part V of this Executive
Order;
10. To request an agency, in
order to develop a rule for proposal, to initiate a policy dialogue with
interested parties, or to convene a negotiated rulemaking in an appropriate
case, wherein interested parties and the agency, with the assistance of a
neutral facilitator, negotiate to reach consensus on the terms of a
rule;
11. To propose to any agency
that it consider for amendment or repeal any existing rule which may be
obsolete, harmful to the economy or job growth in the State, or excessive in
view of State or federal statutes or regulations, and to recommend to the
Secretary to the Governor, the Counsel to the Governor, the Director of State
Operations and the Director of the Division of the Budget that any agency be
directed to develop a rulemaking to amend or repeal any such rule;
12. To exclude a particular rule or category
of rules, at the Director's initiative or at the request of an agency, from all
or part of the requirements contained in this Executive Order, based on a
determination by the Director that the application of the requirements of this
order to such rule or category of rules lacks a substantial public benefit;
and
13. To develop procedures for
the conduct of activities and the discharge of responsibilities established in
this Executive Order.
III. Criteria for Rules
The Director may evaluate rules using as criteria
whether:
1. The rule:
(a) is clearly within the authority delegated
by law,
(b) is consistent with and
necessary to achieve a specific legislative purpose,
(c) is clearly written so that its meaning
will be easily understood by those persons affected by it,
(d) does not unnecessarily duplicate or
exceed existing federal or state statutes or rules,
(e) is consistent with existing state
statutes and rules,
(f) consistent
with state statutory requirements, will produce public benefits which will
outweigh the costs, if any, imposed on affected parties,
(g) does not impose a mandate on local
governments or school districts which is not fully funded, except as
specifically required by state statute,
(h) prescribes methodologies or requirements
that allow regulated parties flexibility and encourage innovation in meeting
the legislative or administrative requirements and objectives underlying the
rule,
(i) is based on credible
assessments, using recognized standards, of the degree and nature of the risks
which may be regulated, including a comparison with everyday risks familiar to
the public,
(j) gives preference to
the least costly, least burdensome regulatory and paperwork requirements needed
to accomplish legislative and administrative objectives,
(k) is based upon the best scientific,
technical and economic information that can reasonably and affordably be
obtained, and
1. if possible and practical,
favors market-oriented solutions and performance standards over
command-and-control regulation.
2.
other than for existing rules, the agency has complied with the provisions of
sections two hundred two-a, two hundred two-b and two hundred two-bb of the
State Administrative Procedure Act and has provided information in the
regulatory impact statement, the regulatory flexibility analysis and the rural
area flexibility analysis prepared pursuant to such sections adequate to enable
interested persons to evaluate the impact of the rule.
IV. Procedures
1. Prior to submitting a notice of proposed
or revised rulemaking for publication in the State Register, the agency head
shall submit to the Director the complete text of the rule, any regulatory
impact statement, regulatory flexibility analysis or rural area flexibility
analysis which would be required by Article 2 of the State Administrative
Procedure Act in order to propose the rule; and any cost-benefit analysis, risk
assessment, analysis of the rule's effect on the creation and retention of jobs
in the State and/or the results of a negotiated rulemaking or policy dialogue
undertaken in conjunction with the development of the rule. The Director shall
review the agency's submission to determine whether it is complete and in
accordance with the goals, criteria and requirements of this Executive
Order.
2. If the Director
determines that the submission is complete, the Director shall submit it with a
recommendation to the Secretary to the Governor, the Counsel to the Governor,
the Director of State Operations and the Director of the Division of the Budget
for approval or disapproval. The Secretary to the Governor, the Counsel to the
Governor, the Director of State Operations and the Director of the Division of
the Budget, in consultation with the Director, may then: authorize the
submission by the agency of a notice of proposed or revised rulemaking for
publication in the State Register; prohibit the agency from proposing or
revising the rule; or prohibit the agency from proposing or revising the rule
unless such changes as may be specified are incorporated into the
rulemaking.
3. If the Director
determines the submission is not complete, the Director shall return it to the
agency, together with any direction that the agency: amend or prepare a
regulatory impact analysis, regulatory flexibility analysis, rural area
flexibility analysis, cost benefit analysis, risk assessment, analysis of the
rule's effect on the creation and retention of jobs in the State; and/or
undertake a negotiated rulemaking or policy dialogue to develop a rule for
proposal.
4. Consistent with the
provisions of sections 1, 2 and 3 of this Part, agencies shall continue to
follow the procedures established in Article 2 of the State Administrative
Procedure Act for the transmission of rulemaking notices for publication in the
State Register.
5. During any time
that the provisions relating to the review of proposed regulations by the
Office for Regulatory and Management Assistance pursuant to Article 2 of the
State Administrative Procedure Act shall lapse, agencies shall continue to
follow the procedures and requirements set forth in sections 1, 2 and 3 of this
Part, and the procedures in the following paragraphs for the purposes of this
Executive Order.
a. An agency shall transmit
all rulemaking notices provided for by the State Administrative Procedure Act,
including the complete rule text, regulatory impact statement, regulatory
flexibility analysis, rural area flexibility analysis, or revisions thereof,
and any other information submitted to the Secretary of State Pursuant to such
Article to the Director at the same time such notice is submitted to the
Secretary of State for publication in the State Register.
b. The Director shall review rulemakings
which are the subject of a notice of proposed or revised rulemaking submitted
for publication in the State Register for compliance with the criteria
contained in Part III of this Executive Order. If the Director determines the
proposed or revised rulemaking does not meet the criteria contained in Part III
of this Executive Order, the Director may so notify the agency within 45 days
of publication of the notice of proposed rulemaking or 30 days of the
publication of the notice of revised rulemaking in the State Register. The
determination shall indicate that the agency may not adopt the rule sooner than
30 days after it responds in writing to the Director. In the case of a proposed
or revised rulemaking which was reviewed pursuant to section 1 of this Part,
the Director may issue a notification pursuant to this paragraph only upon
finding changed circumstances or new information since such review.
c. The agency may, unless it decides to
withdraw the proposal, provide further clarifications or justifications of its
rule, regulatory impact statement, regulatory flexibility analysis or rural
area flexibility analysis; propose changes in the rule; or state that it will
submit a revised rulemaking pursuant to State Administrative Procedure Act
§ 202.
d. The Director may,
within 15 days after receipt of the agency's response, notify the agency not to
adopt the proposed or revised rule on a temporary basis.
V. Determinations on Rule
Adoptions
Upon issuance of a notification pursuant to paragraph d of
section 5 of Part IV of this Executive Order, the Director shall promptly
advise the Secretary to the Governor, the Counsel to the Governor, the Director
of State Operations and the Director of the Division of the Budget so they may
consider the matter in consultation with the Director.
After consideration of the Director's determination and any
information presented by the agency, the Secretary to the Governor, the Counsel
to the Governor, the Director of State Operations and the Director of the
Division of the Budget may confirm or modify the Director's determination or
authorize the agency to adopt the rule in whole or in part.
VI. Office for Regulatory and Management
Assistance
The Director of Regulatory Reform may also serve, at the
Governor's discretion, as the Director of the office for Regulatory and
Management Assistance, in which case the office may be referred to as the
Governor's office of Regulatory Reform.
VII. Construction
The powers and responsibilities provided by this Executive
Order to the Director of Regulatory Reform, the Secretary to the Governor, the
Counsel to the Governor, the Director of State Operations and the Director of
the Division of the Budget shall be construed and exercised consistently with
the duty of the Executive t:o ensure that the laws of the State are faithfully
executed. Nothing in this Executive Order shall be deemed to authorize the
Director of Regulatory Reform, the Secretary to the Governor, the Counsel to
the Governor, the Director of State Operations or the Director of the Division
of the Budget to act in contravention of statutory or constitutional
requirements.
VIII.
Revocation of Prior Executive Orders and Effective Date
Executive Order No. 108.1, promulgated on October 5, 1993,
Executive Order No. 27, promulgated on October 18, 1983, Executive Order No.
116, promulgated on December 28, 1988, and Executive Order No. 168, promulgated
on March 22, 1993 are revoked and superseded by this Executive Order as of the
date hereof.
Signed: George E. PatakiDated: November 30,
1995
