N.Y. State Administrative Procedure Act § 202-b: Regulatory flexibility for small businesses

§ 202-b. Regulatory flexibility for small businesses. 1. In developing

a rule, the agency shall consider utilizing approaches that will

accomplish the objectives of applicable statutes while minimizing any

adverse economic impact of the rule on small businesses and local

governments. Consistent with the objectives of applicable statutes, the

agency shall consider such approaches as:

(a) the establishment of differing compliance or reporting

requirements or timetables that take into account the resources

available to small businesses and local governments or the time needed

by small businesses or local governments to come into compliance with

the rule;

(b) the use of performance rather than design standards; and

(c) an exemption from coverage by the rule, or by any part thereof,

for small businesses and local governments so long as the public health,

safety or general welfare is not endangered.

1-a. In developing a rule for which a regulatory flexibility analysis

is required and which involves the establishment or modification of a

violation or of penalties associated with a violation, the agency shall:

(a) include a cure period or other opportunity for ameliorative action,

the successful completion of which will prevent the imposition of

penalties on the party or parties subject to enforcement; or (b) include

in the regulatory flexibility analysis an explanation of why no such

cure period was included in the rule.

2. In proposing a rule for adoption or in adopting a rule on an

emergency basis, the agency shall issue a regulatory flexibility

analysis regarding the rule being proposed for adoption or the emergency

rule being adopted. A copy of such analysis and any finding, and reasons

for such finding, pursuant to subdivision three of this section, shall

be submitted to the governor, the temporary president of the senate, the

speaker of the assembly, the office of business permits and regulatory

assistance and the administrative regulations review commission at the

time such analysis is submitted to the secretary of state for

publication and, upon written request, a copy shall be sent to any other

person. Each regulatory flexibility analysis shall contain:

(a) a description of the types and an estimate of the number of small

businesses and local governments to which the rule will apply;

(b) a description of (i) the reporting, recordkeeping and other

compliance requirements of the rule, and (ii) the kinds of professional

services that a small business or local government is likely to need in

order to comply with such requirements;

(c) an estimate of the initial capital costs and an estimate of the

annual cost of complying with the rule, with an indication of any likely

variation in such costs for small businesses or local governments of

different types and of differing sizes;

(d) an assessment of the economic and technological feasibility of

compliance with such rule by small businesses and local governments;

(e) an indication of how the rule is designed to minimize any adverse

economic impact of such rule on small businesses and local governments,

including information regarding whether the approaches suggested in

subdivision one of this section or other similar approaches were

considered; and

(f) a statement indicating how the agency complied with subdivision

six of this section.

3. (a) This section shall not apply to any rule defined in

subparagraph (ii) of paragraph (a) of subdivision two of section one

hundred two of this chapter, nor shall it apply to any rule which does

not impose an adverse economic impact on small businesses or local

governments and which the agency finds would not impose reporting,

recordkeeping or other compliance requirements on small businesses or

local governments. The agency's finding and the reasons upon which the

finding was made, including what measures the agency took to ascertain

that the rule would not impose such compliance requirements, or adverse

economic impact on small businesses or local governments, shall be

included in the rule making notice as required by section two hundred

two of this chapter.

(b) A rule determined by an agency to be a consensus rule and proposed

pursuant to subparagraph (i) of paragraph (b) of subdivision one of

section two hundred two of this article shall be exempt from the

requirements of this section.

4. In order to avoid duplicative action, an agency may consider a

series of closely related rules as one rule for the purpose of complying

with subdivision two of this section.

5. In complying with the provisions of subdivision two of this

section, an agency may provide either a quantifiable or numerical

description of the effects of a rule or more general descriptive

statements if quantification is not practicable or reliable.

6. When any rule is proposed for which a regulatory flexibility

analysis is required, the agency shall assure that it has actively

solicited the participation of small businesses and local governments in

the rule making through activities in addition to publication in the

state register and posting on the agency's website, such as:

(a) the publication of a general notice for the proposed rule making

in publications likely to be obtained by small businesses and local

governments of the types affected by the proposed rule;

(b) the direct notification of interested small businesses and local

governments affected by the proposed rule or organizations representing

the interests of such entities;

(c) the conduct of special open conferences concerning the proposed

rule for small businesses and local governments affected by the rule;

and

(d) the adoption or modification of agency procedural rules to reduce

the cost or complexity of participation in the rule making by small

businesses and local governments.

7. Each agency shall issue a revised regulatory flexibility analysis

when:

(a) the information presented in the analysis submitted pursuant to

this section is inadequate or incomplete, provided, however, such

revised analysis shall be submitted as soon as practicable to the

secretary of state for publication in the state register, provided,

further, if such statement exceeds two thousand words, the notice shall

include only a summary of such statement in less than two thousand

words;

(b) a proposed rule contains any substantial revisions and such

revisions necessitate that such analysis be modified; or

(c) there are no substantial revisions in the proposed rule but there

are changes in the text of the rule as adopted when compared with the

text of the latest published version of the proposed rule and such

changes would necessitate that such analysis be modified.