Enforcement Regulations of the Public Campaign Finance Board's Public Campaign Finance Prog...
NY-ADR
9/14/22 N.Y. St. Reg. SBE-46-21-00001-A
NEW YORK STATE REGISTER
VOLUME XLIV, ISSUE 37
September 14, 2022
RULE MAKING ACTIVITIES
STATE BOARD OF ELECTIONS
NOTICE OF ADOPTION
I.D No. SBE-46-21-00001-A
Filing No. 691
Filing Date. Aug. 30, 2022
Effective Date. Sept. 14, 2022
Enforcement Regulations of the Public Campaign Finance Board's Public Campaign Finance Program
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 6221 of Title 9 NYCRR.
Statutory authority:
Election Law, sections 14-207(1), (4) and 14-209(1)
Subject:
Enforcement regulations of the Public Campaign Finance Board's public campaign finance program.
Purpose:
Relates to how the Public Campaign Finance Board will enforce the public campaign finance provisions of the Election Law.
Substance of final rule:
The proposed rulemaking adds sections 6221.39-6221.46 to Subtitle V of Title 9 of the NYCRR. The new sections relate to how the Public Campaign Finance Board (“PCFB”) will enforce the public campaign finance provisions of the Election Law and the PCFB’s rules. Section 6221.39 provides how investigations are conducted by the PCFB. Section 6221.40 provides for a complaint procedure, where complaints alleging violations of Title 2 of Article 14 of the Election Law, or any provision of the PCFB''s regulations, may be filed with the PCFB. Section 6221.42 relates to notice provisions a campaign must receive upon a determination that a violation of Title 2 of Article 14 of the Election Law, or any provision of the PCFB''s regulations, occurred. Section 6221.43 provides for hearing officers, including the manner of selection and the qualifications and obligations. Section 6221.44 provides for commencement of fair hearing proceedings and various requisites related thereto. Section 6221.45 outlines the process for the PCFB to determine fines and penalties for infractions. Section 6221.46 provides for a schedule of penalties and fines for infractions.
Final rule as compared with last published rule:
Nonsubstantial changes were made in section 6221.39(a).
Revised rule making(s) were previously published in the State Register on
November 17, 2021 and May 25, 2022.
Text of rule and any required statements and analyses may be obtained from:
Nicholas R. Cartagena, State Board of Elections, Public Campaign Finance Board, 40 North Pearl Street, Suite 5, Albany, NY 12207, (518) 474-2063, email: [email protected]
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document.
Revised Regulatory Flexibility Analysis
Under SAPA 202-b(3)(a), when a rule does not impose an adverse economic impact on small business or local government and the agency finds it would not impose reporting, recordkeeping, or other compliance requirements on such entities, the agency may file a Statement in Lieu of. This rule will not impact small business operations or local government functions. This rule relates to how the Public Campaign Finance Board (“PCFB”) will enforce the public campaign finance provisions of the Election Law and the PCFB’s rules. It imposes no additional compliance, regulatory or reporting requirements on local governments or small businesses.
Revised Rural Area Flexibility Analysis
Under SAPA 202-bb(4)(a), when a rule does not impose an adverse economic impact on rural areas and the agency finds it would not impose reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas, the agency may file a Statement in Lieu of. This rule has statewide application and relates to how the Public Campaign Finance Board (“PCFB”) will enforce the public campaign finance provisions of the Election Law and the PCFB’s rules. The proposed rule does not create any materially new reporting, recordkeeping or other routine compliance requirements that will specifically impact rural areas. Accordingly, this rule has no adverse impact.
Revised Job Impact Statement
Under SAPA 201-a(2)(a), when it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities, the agency may file a Statement in Lieu of. This rulemaking, as is apparent from its nature and purpose, will not have an adverse impact on jobs or employment opportunities. This rule relates to how the Public Campaign Finance Board (“PCFB”) will enforce the public campaign finance provisions of the Election Law and the PCFB’s rules. This rulemaking imposes no regulatory burden on any facet of job creation or employment.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The New York State Public Campaign Finance Board (hereinafter “PCFB”) received 138 comments on its proposed regulations governing the administration of New York State’s public campaign finance program (SBE-33-21-00010-RP). The PCFB received five public comments from the following entities: the Brennan Center; staff from the Office of State Comptroller (“OSC”); a private citizen and two private election law attorneys.
Pursuant to Section 202(4-a) of the New York State Administrative Procedures Act (“SAPA”), the PCFB is publishing this Assessment of Public Comment addressing the comments PCFB received and the actions PCFB took in response to those comments alongside its notice of revised rulemaking. According to SAPA § 202(4-c)(ix), this Assessment of Public Comment must not exceed 2,000 words. However, in the interest of increased transparency and desire to involve stakeholders, PCFB is publishing an 16-page Report on Amended Proposed Regulations and Public Comments (available at: https://pcfb.ny.gov/system/files/documents/2022/08/pcfbsupplementalreport08102022.pdf, or by contacting Nicholas R. Cartagena, Esq., 40 North Pearl Street, Ste. 5, Albany, NY 12207; [email protected]; 518-474-2063), which provides a more comprehensive explanation for each change and an individualized response to each comment. This Assessment of Public Comment will serve to provide an overview of some of the more significant actions taken in response to the comments received by the PCFB.
Comments and revisions of enforcement regulations
(1) Enforcement Provision
The revised enforcement regulations explicitly state the PCFB has authority to enforce all of Article 14 of the Election Law with regard to participating candidates. The Brennan Center supports this addition, stating that this provision “accurately reflects the statutory design Section 14-207(8) gives the PCFB ‘sole authority. . . to enforce’ the provisions of the public financing program. Since Title II of Article 14 requires candidates to comply with Title I, among other things, in order to participate in the program and receive public funds, the PCFB necessarily enforces both titles in order to administer the program.”
(2) Definition of “Business Day”
The revised regulations references the term “business days” several times throughout the regulations, including when opinions from staff must be confirmed from counsel’s office, when disclosure statements and claims must be made, when overages from a contribution must be returned, and in measuring the response time in the hearing process.
The General Construction Law does not contain a definition of "business day." Courts have held that, in examining how the term is defined in different statutes, “business day” generally means any calendar day except Sunday or a legal holiday. (See Jesa Medical Supply, Inc. v. American Transit Ins. Co., 28 Misc. 3d 827, 905 N.Y.S.2d 842 (N.Y. City Civ. Ct. 2010); Miuccio v. Puppy City, Inc., 22 Misc. 3d 1132(A), 881 N.Y.S.2d 364 (N.Y. City Civ. Ct. 2009)). However, there are some statutes that exclude Saturdays from the term “business day.” Id.
To address this concern, PCFB staff recommends defining “business day” as having the same meaning as “filing” days under section 1-106 of the Election Law.
| End of Document |