2023 New York Laws › SAP - State Administrative Procedure Act › Article 2 - Rule Making › 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.