N.Y. State Administrative Procedure Act § 204-a: Alternate methods for implementing regulatory mandates

§ 204-a. Alternate methods for implementing regulatory mandates. 1. As

used in this section:

(a) "local government" means any county, city, town, village, school

district, fire district or other special district;

(b) "regulatory mandate" means any rule which requires one or more

local governments to create a new program, increase the level of service

for an existing program or otherwise comply with mandatory requirements;

and

(c) "petition" means a document submitted by a local government

seeking approval of an alternate method for implementing a regulatory

mandate.

2. A petition shall include:

(a) an indication that submission has been approved by the governing

body of the local government or by an officer duly authorized by the

governing body to do so;

(b) an identification of the regulatory mandate which is the subject

of the petition and information sufficient to establish that the

proposed alternate method of implementation is consistent with and will

effectively carry out the objectives of the regulatory mandate;

(c) information on the process used by the local government to ensure

that all stakeholders have been appropriately involved in the process of

developing the alternate method, including where relevant the date of

any hearing, forum or other meeting to seek input on the alternate

method;

(d) documentation that the petition has been submitted to the

authorized agents of any certified or recognized employee organizations

representing employees who would be effected by implementation of the

alternate method;

(e) a proposed plan and timetable for compiling and reporting

information to facilitate evaluation of the effectiveness of the

alternate method;

(f) if the state provides financial assistance for complying with the

regulatory mandate, any proposed amount or percentage of such assistance

which would be returned to the state due to savings from implementing

the alternate method; and

(g) the name, public office address and telephone number of the

representative of the local government who will coordinate requests for

additional information on the petition.

3. Two or more local governments may submit a petition jointly,

provided that each local government meets the requirements of paragraphs

(a), (c), (d) and (g) of subdivision two of this section, and provided

that the petition addresses the manner in which responsibility for

implementation will be allocated between or among the participating

local governments.

4. The agency shall cause a notice of the petition to be published in

the state register and shall receive comments on the petition for a

period of thirty days. Such notice shall either include the full text of

the information set forth in the petition or shall set forth the address

of a website on which the full text has been posted. The notice shall

include the name, public office address and telephone number, and may

include a fax number and electronic mail address, of an agency

representative from whom additional information on the petition can be

obtained and to whom comments on the petition may be submitted.

5. (a) Not later than thirty days after the last day of the comment

period, the agency shall approve or disapprove the petition. The agency

may approve the petition without change or with such conditions or

modifications as the agency deems appropriate. Notice of the agency

determination shall be provided in writing to the local government and

shall be published in the state register. The agency shall not grant a

petition unless it determines that the petition has met the requirements

of subdivision two of this section and that the local government has

established that the alternate method is consistent with and will

effectively carry out the objectives of the regulatory mandate;

provided, however, that no petition shall be approved which would result

in the contravention of any environmental, health or safety standard or

would reduce any benefits or rights accorded by law or rule to third

parties. In approving a petition, an agency may waive a statutory

provision only if it is specifically authorized by law to waive such

provision. An approval shall include a timetable for agency evaluation

of the effectiveness of the alternate method.

(b) Notwithstanding the provisions of paragraph (a) of this

subdivision, upon receipt of an objection to a petition from the

authorized agent of any certified or recognized employee organization

representing employees who would be affected by implementation of the

alternate method, the agency shall provide any such organizations with

an opportunity for a hearing. If an adjudicatory proceeding is

requested, the petition shall not be approved unless the agency

determines by a preponderance of the evidence that implementing the

alternate method would not affect such employees by contravening any

environmental, health or safety standard, reducing any rights or

benefits or violating the terms of any negotiated agreement, and that

all other requirements of this section have been met. The provisions of

this subdivision are in addition to and shall not be construed to impair

or modify any rights of such employees under any other law, regulation

or contract.

6. Nothing in this section shall require a local government to

commence or continue an alternate method of implementation if it

determines in its sole discretion not to do so, except to the extent

that a local government has committed to commencing or continuing an

alternate method in a joint petition submitted pursuant to subdivision

three of this section. A state agency may rescind its approval of a

petition at any time if it determines, based on the information reported

pursuant to paragraph (e) of subdivision two of this section or other

information available to it, that the alternate method is not

effectively carrying out the objectives of the regulatory mandate or is

being implemented in a manner detrimental to the public interest.

7. Notwithstanding any other provision of law, implementation of an

alternate method approved by an agency pursuant to this section shall be

deemed to lawfully meet all requirements of the regulatory mandate. An

agency shall retain the authority to enforce compliance with the

alternate method in the same manner as it may enforce compliance with

the underlying rule. Any action on a petition by a state agency shall be

subject to review pursuant to article seventy-eight of the civil

practice law and rules.

8. In accordance with the timetable established pursuant to

subdivision four of this section, the agency shall evaluate the

effectiveness of the alternate method in carrying out the objectives of

the regulatory mandate. The evaluation shall identify any savings or

other benefits, and any costs or other disadvantages, of implementing

the alternate method, and shall address the desirability of

incorporating the alternate method into the rules of the agency. Notice

of availability of the evaluation shall be published in the state

register.