|Sheldon Silver, Speaker • Ruben Diaz, Jr., Chair • January 2006|
From the Chair
When people think of what a legislator does, they naturally think of passing laws and helping constituents in their dealings with government agencies. Another critically important activity that is less well-known is legislative oversight. To represent the people who elect us, we need to monitor how well government agencies carry out their responsibilities – this includes watching over finances, blowing the whistle on government corruption, and overseeing the adoption of rules and regulations.
As the Assembly Chairman of the Administrative Regulations Review Commission, it is my duty to keep an eye on agencies’ regulatory activities and try to ensure that their policies make sense and serve the interests of the public. Administrative rules can have a profound impact on our daily lives, our jobs and our neighborhoods. I am always gratified when I can help persuade a state agency to change a rule that was on the wrong track initially, or can point out a smarter way to proceed.
This newsletter discusses some of the issues we have been involved with over the past year, along with some recent legislation to make state regulators more open and accountable. I invite you to contact the ARRC office for more information on these topics or to share your views on other regulatory matters of concern to you.
The Administrative Regulations Review Commission (ARRC) is charged by law with oversight of the rules and regulations adopted by New York State agencies, and with developing and promoting new laws to reform the process used to create rules. Rules and regulations have the force and effect of law, and can have a major impact on the lives of New Yorkers.
In 2005, two of Assemblyman Diaz’s regulatory reform bills were signed into law:
A.4186 will make the rulemaking process more effective. Currently, unless an agency files a “notice of continuation” within 180 days after proposing a rule, it must start the whole process over from the beginning. This technicality serves no useful purpose, but only makes it harder to adopt detailed health and safety protections. For example, last year major “clean air” rules of the Department of Environmental Conservation were overturned in court because the agency missed the deadline to file a notice of continuation. A. 4186 eliminates the notice of continuation and gives agencies a full year to act on a proposed rule.
A.4186 also requires an agency withdrawing a proposed rule from consideration to give the public a brief explanation of the reasons for doing so. This will eliminate the need to guess why an agency abandoned a proposed rule change. A.4186 was signed into law as Chapter 441 of the Laws of 2005.
A.4189 makes technical changes to 2004 legislation developed by Assemblyman Diaz that became Chapter 730 of 2004. Chapter 730 required state agencies to publish a listing of all sub-regulatory “guidance documents” that they rely on to interpret rules and regulations. These documents are generally known by such names as guidelines, bulletins or policy memoranda. Instead of publishing a printed list, an agency could comply by posting a listing on its website. This year’s legislation makes additional progress in making the guidance documents used by state agencies more visible. It was signed into law as Chapter 253 of the Laws of 2005.
In addition to these new laws, Assemblyman Diaz introduced new legislation to address the impact of proposed rules on consumer prices.
A.8061 requires that, when proposing a rule, the agency shall assess the extent to which the rule is likely to result in changes in the prices paid by consumers for goods or services, and the probable amount or range of such price changes.
Communities of color are often prime targets for pollution-creating activities. “Environmental Justice” is a movement to provide these communities with the resources to advocate effectively against inappropriate siting of facilities and for cleanup measures — thereby ensuring that all segments of society share equally in environmental benefits and burdens. Assemblyman Diaz has led efforts to build environmental justice into the process of environmental regulation.
In addition to seeking passage of legislation and commenting on environmental regulations, this has involved questioning New York City’s commitment relating to environmental quality in school buildings. In 2005, Assemblyman Diaz has joined with members of the community to demand improvements in air quality in and around the Soundview Educational Campus. This school building is on the site of a former defense contractor and has been plagued by toxic dust from adjacent lots. This case is also expected to lead to a wider review of state school siting policies.
On the legislative front, 2005 saw the Assembly once again pass Assemblyman Diaz’s legislation to apply cutting-edge computer technology to help resolve environmental justice issues. A.5982 calls on the Department of Environmental Conservation (DEC) to analyze pollution data and identify those communities that are currently exposed to the highest toxic burden. This bill has been sent on to the Senate Environmental Conservation Committee.
Accomplishments: Regulatory Issues
One of the most important activities of ARRC is to review the rules and regulations of state agencies and to speak out when they become overly bureaucratic or burdensome or don’t make sense. The Assembly Chair of ARRC frequently comments on proposed rules that are felt to be illegal or that do not serve the public interest. Although in most cases agencies do not have to make the changes ARRC recommends, many times agency heads realize that their proposals can be improved if they listen to public input.
For example, the last ARRC update reported that Assemblyman Diaz and Assemblyman Pete Grannis commented to the Insurance Department on proposed rules that could let insurers force health care providers to supply voluminous documentation of their education and experience as a way of delaying payment of valid claims. The Department withdrew the proposed language in favor of further study.
Comments from Assemblyman Diaz also helped persuade the Health Department to add provisions for provisional hiring of nursing home staff when it adopted final rules on criminal history checks for nurse’s aides. Similarly, the Office of Temporary and Disability Assistance agreed with comments Assemblyman Diaz submitted with Assemblymember Deborah Glick, and exempted the earnings of students attending college part-time from eligibility determinations for public assistance. This change will encourage young people to continue to learn and work to achieve upward mobility.
Here are some of the regulatory issues addressed since the last ARRC update:
Safety of Camp Vehicles
Medicaid Utilization Thresholds
Admission to Residential Treatment Facilities
Immigrant Status in Foster Care Cases
Immigrants’ Drivers Licenses
Assemblyman Diaz complained that motorists were at the mercy of untrained motor vehicles clerks who frequently made errors in evaluating complicated immigration documents, and that the policy was causing hardship to families and employers who relied on immigrant drivers. In May, a judge enjoined the Department from enforcing its policy, and the case is still proceeding towards a final decision.
Public Access to Records
A second proposed change would allow DEC to prepare updates of its FOIL subject matter list “periodically” instead of not less than twice per year. As recounted below in the section on special reports, the Committee on Open Government had originally proposed to change its regulations to allow updates of subject matter lists “periodically” but had changed the frequency to “annually.” The Assemblymembers asked DEC to defer any action until the Committee had finalized its own legally-binding rules.
Community Reinvestment Act Reviews
Overdraft Protection Fees
Rent Control/Rent Stabilization
Accomplishments: Special Reports
The Freedom of Information Law (FOIL) is a well-known tool for the public to gain access to government documents. The law requires state and local agencies to respond in a timely manner to requests for records they maintain. It also places a number of other responsibilities on agencies, including the duty to maintain an up-to-date listing by subject matter of all categories of records in their possession.
Over the past several years, ARRC has been involved in an on-going review of how well state agencies comply with the “subject matter list” requirement. This project has been a shared effort with the Assembly Committee on Legislative Oversight, Analysis and Investigation, currently chaired by Assemblyman James Brennan of Brooklyn. In August, the findings were released in a report entitled Needle in a Haystack - FOIL’s Subject Matter List: Are Agencies Complying?
The study found that of the dozens of state agencies surveyed, many were not maintaining current and reasonably detailed subject matter lists. The Committee on Open Government, whose FOIL regulations apply to all agencies, has required for decades that lists of records be updated not less than twice each year. However, some lists were woefully outdated – the Thruway Authority had last updated its in 1988. Other agencies provided only cursory one-page lists that omitted many major categories of records. Some agencies – such as the Insurance Department and the Division of Parole – flat-out refused to maintain any subject matter list.
The report recommended new legislation to address the deficiencies in agencies’ compliance efforts. Bills will be introduced in the 2006 legislative session to provide for general guidance to state agencies on how to develop and maintain informative lists, require subject matter lists to be posted on agency websites and provide for online posting of other useful information on FOIL (e.g., names and addresses of records access officers, how to request records).
The report also recommended that, with better oversight and accountability, the requirement for agencies to update their lists could be changed from twice each year to once a year. This recommendation helped influence the Committee on Open Government’s FOIL regulations. The Committee had proposed in July to change its regulations from requiring semi-annual updates to requiring such updates “periodically.” However, the report’s findings helped convince the Committee to provide in its regulations for annual updates of subject matter lists.
The full Needle in a Haystack report can be accessed via the “Publications” link on Assemblyman Diaz’s Assembly web page (http://assembly.state.ny.us/mem/?ad=085&sh=postings).
Assemblyman Ruben Diaz, Jr.
Administrative Regulations Review Commission
Room 419 LOB • Albany, New York 12248
518.455.5514 • email@example.com
New York State Assembly
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