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; and13. 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
N.Y. Comp. Codes R. & Regs. Tit. 9 § 5.20