§ 202-B — Regulatory flexibility for small businesses

§ 202-b. Regulatory flexibility for small businesses. 1. In developing\na rule, the agency shall consider utilizing approaches that will\naccomplish the objectives of applicable statutes while minimizing any\nadverse economic impact of the rule on small businesses and local\ngovernments. Consistent with the objectives of applicable statutes, the\nagency shall consider such approaches as:\n (a) the establishment of differing compliance or reporting\nrequirements or timetables that take into account the resources\navailable to small businesses and local governments or the time needed\nby small businesses or local governments to come into compliance with\nthe rule;\n (b) the use of performance rather than design standards; and\n (c) an exemption from coverage by the rule, or by any part thereof,\nfor small businesses and local governments so long as the public health,\nsafety or general welfare is not endangered.\n 1-a. In developing a rule for which a regulatory flexibility analysis\nis required and which involves the establishment or modification of a\nviolation or of penalties associated with a violation, the agency shall:\n(a) include a cure period or other opportunity for ameliorative action,\nthe successful completion of which will prevent the imposition of\npenalties on the party or parties subject to enforcement; or (b) include\nin the regulatory flexibility analysis an explanation of why no such\ncure period was included in the rule.\n 2. In proposing a rule for adoption or in adopting a rule on an\nemergency basis, the agency shall issue a regulatory flexibility\nanalysis regarding the rule being proposed for adoption or the emergency\nrule being adopted. A copy of such analysis and any finding, and reasons\nfor such finding, pursuant to subdivision three of this section, shall\nbe submitted to the governor, the temporary president of the senate, the\nspeaker of the assembly, the office of business permits and regulatory\nassistance and the administrative regulations review commission at the\ntime such analysis is submitted to the secretary of state for\npublication and, upon written request, a copy shall be sent to any other\nperson. Each regulatory flexibility analysis shall contain:\n (a) a description of the types and an estimate of the number of small\nbusinesses and local governments to which the rule will apply;\n (b) a description of (i) the reporting, recordkeeping and other\ncompliance requirements of the rule, and (ii) the kinds of professional\nservices that a small business or local government is likely to need in\norder to comply with such requirements;\n (c) an estimate of the initial capital costs and an estimate of the\nannual cost of complying with the rule, with an indication of any likely\nvariation in such costs for small businesses or local governments of\ndifferent types and of differing sizes;\n (d) an assessment of the economic and technological feasibility of\ncompliance with such rule by small businesses and local governments;\n (e) an indication of how the rule is designed to minimize any adverse\neconomic impact of such rule on small businesses and local governments,\nincluding information regarding whether the approaches suggested in\nsubdivision one of this section or other similar approaches were\nconsidered; and\n (f) a statement indicating how the agency complied with subdivision\nsix of this section.\n 3. (a) This section shall not apply to any rule defined in\nsubparagraph (ii) of paragraph (a) of subdivision two of section one\nhundred two of this chapter, nor shall it apply to any rule which does\nnot impose an adverse economic impact on small businesses or local\ngovernments and which the agency finds would not impose reporting,\nrecordkeeping or other compliance requirements on small businesses or\nlocal governments. The agency's finding and the reasons upon which the\nfinding was made, including what measures the agency took to ascertain\nthat the rule would not impose such compliance requirements, or adverse\neconomic impact on small businesses or local governments, shall be\nincluded in the rule making notice as required by section two hundred\ntwo of this chapter.\n (b) A rule determined by an agency to be a consensus rule and proposed\npursuant to subparagraph (i) of paragraph (b) of subdivision one of\nsection two hundred two of this article shall be exempt from the\nrequirements of this section.\n 4. In order to avoid duplicative action, an agency may consider a\nseries of closely related rules as one rule for the purpose of complying\nwith subdivision two of this section.\n 5. In complying with the provisions of subdivision two of this\nsection, an agency may provide either a quantifiable or numerical\ndescription of the effects of a rule or more general descriptive\nstatements if quantification is not practicable or reliable.\n 6. When any rule is proposed for which a regulatory flexibility\nanalysis is required, the agency shall assure that it has actively\nsolicited the participation of small businesses and local governments in\nthe rule making through activities in addition to publication in the\nstate register and posting on the agency's website, such as:\n (a) the publication of a general notice for the proposed rule making\nin publications likely to be obtained by small businesses and local\ngovernments of the types affected by the proposed rule;\n (b) the direct notification of interested small businesses and local\ngovernments affected by the proposed rule or organizations representing\nthe interests of such entities;\n (c) the conduct of special open conferences concerning the proposed\nrule for small businesses and local governments affected by the rule;\nand\n (d) the adoption or modification of agency procedural rules to reduce\nthe cost or complexity of participation in the rule making by small\nbusinesses and local governments.\n 7. Each agency shall issue a revised regulatory flexibility analysis\nwhen:\n (a) the information presented in the analysis submitted pursuant to\nthis section is inadequate or incomplete, provided, however, such\nrevised analysis shall be submitted as soon as practicable to the\nsecretary of state for publication in the state register, provided,\nfurther, if such statement exceeds two thousand words, the notice shall\ninclude only a summary of such statement in less than two thousand\nwords;\n (b) a proposed rule contains any substantial revisions and such\nrevisions necessitate that such analysis be modified; or\n (c) there are no substantial revisions in the proposed rule but there\nare changes in the text of the rule as adopted when compared with the\ntext of the latest published version of the proposed rule and such\nchanges would necessitate that such analysis be modified.\n