SBE-41-16-00003-E Implementation of Independent Expenditure Disclosure Pursuant to the Election Law

10/12/16 N.Y. St. Reg. SBE-41-16-00003-E

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 41

October 12, 2016

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

EMERGENCY RULE MAKING

 

I.D No. SBE-41-16-00003-E

Filing No. 896

Filing Date. Sept. 23, 2016

Effective Date. Sept. 23, 2016

Implementation of Independent Expenditure Disclosure Pursuant to the Election Law

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of section 6200.10 of Title 9 NYCRR.

Statutory authority:

Election Law, section 14-107(7)

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

On August 24, 2016, the Governor signed into law Chapter 286 of the Laws of 2016, concerning, among other things, modifications and additions to the laws relating to the disclosure of Independent Expenditures, certain portions of which go into effect 30 days after being signed into law; which is September 23, 2016.

It has been long established that timely and accurate disclosure of campaign financial activity is of critical import to the electoral process, and that such disclosure also includes the disclosure of Independent Expenditure activity.

A conflict between the regulations of the Board and the statute would frustrate disclosure. It is therefore necessary for the general welfare of the public that Part 6200.10 of the NYCRR be amended on an Emergency Basis, to implement the disclosure of Independent Expenditures that are required by law.

Subject:

Implementation of independent expenditure disclosure pursuant to the election law.

Purpose:

The rule effectuates the amendments to article 14 of the Election Law resulting from chapter 286 of the Laws of 2016.

Substance of emergency rule:

The proposed amendment to 6200.10 implements changes in law resulting from Chapter 286 of the Laws of 2016. The rules provides for additional aspects to the definition of what is and what is not an independent expenditure, including a definition of activities that are coordination as well as activities that are not coordination. The rule provides for changes to the content and manner of disclosures required by independent expenditure entities. Political action committees are defined, and additional disclosures and limitations required by law are provided for.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 21, 2016.

Text of rule and any required statements and analyses may be obtained from:

Brian L. Quail, New York State Board of Elections, 40 North Pearl Street, Floor 5, Albany, New York 12207, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority: Election Law 14-107 requires the New York State Board of Elections to provide for reporting of independent expenditures, and this requires rules for implementation. Election Law 14-107[7] expressly authorizes the New York State Board of Elections to promulgate such rules and regulations.

2. Legislative objectives: The legislative objective furthered by the regulation is to provide the system of independent expenditure reporting that increases transparency in the election process. Specifically this regulation makes amendments to conform to amendment to Election Law 14-107 enacted by Chapter 286 of the Laws of 2016.

3. Needs and benefits: The regulation amends the independent expenditure reporting requirements of the Election Law and is required to implement Chapter 286 of the Laws of 2016. The rules provides for additional aspects to the definition of what is and what is not an independent expenditure, including a definition of activities that are coordination as well as activities that are not coordination. The rule provides for changes to the content and manner of disclosures required by independent expenditure entities. Political action committees are defined, and additional disclosures and limitations required by law are provided for.

4. Costs:

a. This regulatory amendment does not increase costs to regulated parties as the regulation reflects only existing statutory obligations. There is a cost to the time and effort required by regulated political committees to register and file reports.

b. There is no new agency or state costs created by this rulemaking.

c. This assessment of cost is based on the nature of the regulation.

d. This regulatory amendment does not create new costs as the reporting obligations are in Election Law 14-107.

5. Local government mandates: There are no additional responsibilities imposed by this rule upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This proposed rule imposes no new reporting or regulatory filing requirements not provided for by statute, but statutory compliance requires registering as a political committee if engaging in independent expenditure activity and filing appropriate reports.

7. Duplication: There is no jurisdictional duplication created by this rulemaking.

8. Alternatives: This rulemaking amends the existing regulations to conform to the requirements of Election Law 14-107 as amended by Chapter 286 of the Laws of 2016. There are no known alternatives, but public comment will be accepted.

9. Federal standards: Not applicable.

10. Compliance schedule: The rule provides no new compliance schedules not already expressly provided for by section 14-107 of the Election Law.

Regulatory Flexibility Analysis

1. Effect of rule: There is no impact on local government due to this rule. This rule will have a minimal impact on small business. Should a small business engage in independent expenditures, the existing statute and regulation would require the committee to register and report activity to the State Board of Elections. This rule reflects a statutory amendment to Election Law 14-107 in 2016.

2. Compliance requirements: If a small business engaged in independent expenditures, they are required under existing law to register with the State Board of Elections as a political committee and to comply with the provisions of Article 14 of the Election Law, as applicable. This rule has no impact on local governments.

3. Professional services: A small business that engages in independent expenditures may acquire accounting services to maintain and report activity to comply with the existing reporting requirements. This rule making, conforming the statute to the regulatory text, does not significantly change any such potential need.

4. Compliance costs: It is unclear what the compliance costs are for regulated business or industry to comply with this rule. This rule making, conforming the statute to the regulatory text, does not significantly change any such potential need. Nothing in this rule mandates any entity to engage in the activities triggering filing requirements.

5. Economic and technological feasibility: Our assessment of the economic and technological feasibility of compliance with this rule, as with the existing rule, is that a small business would need a computer to make required disclosures.

6. Minimizing adverse impact: The rule requires no mitigation of impacts on small businesses as it regulates independent expenditures and reporting by those entities which choose to engage in those activities on an equal basis. The rules does not require engaging in such activities. The rules has no impact on local governments.

7. Small business and local government participation: The State Board of Elections has solicited and will continue to solicit public comment. This would include comments that may suggest alternatives to minimize the impact on small businesses that choose to make independent expenditures regulated by Article 14 of the Election Law.

8. (IF APPLICABLE) For rules that either establish or modify a violation or penalties associated with a violation: Not applicable.

9. (IF APPLICABLE): Initial review of the rule, pursuant to SAPA § 207: Not applicable.

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, amending the rules for independent expenditure reporting as provided by Election Law section 14-107. The proposed rule does not create any new reporting, recordkeeping or other routine compliance requirements as they are already expressly required by law. Accordingly, this rule has no adverse impacts on any area.

Job Impact Statement

1. Nature of impact: This rule should have minimal or no impact on jobs as it amends existing independent disclosure requirements by political committees. Prior to this rule, which amends specific reporting requirements to reflect amendments to Election Law § 14-107 in 2016, committees already had obligations to register and disclose expenditure activity with the State Board of Elections.

2. Categories and numbers affected: This rule will impact committees which engage in independent expenditure activity. This rules will not create employment opportunities.

3. Regions of adverse impact. This rules has a statewide applicability, and has no disproportionate adverse impact on jobs or employment opportunities in any region.

4. Minimizing adverse impact: The State Board of Elections has not taken any measures to minimize adverse impact on existing jobs or promote the development of new employment opportunities because the State Board of Elections has determined this rule would not have an adverse impact on jobs.

5. (IF APPLICABLE) Self-employment opportunities: Not applicable.

6. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA § 207: Not applicable.

Assessment of Public Comment

The agency received no public comment since publication of the last assessment of public comment.