Streamlines regulatory analysis documents

Summary of provisions

The bill makes changes to the provisions of the State Administrative Procedure Act (SAPA) concerning various statements documenting the impact of proposed regulations:

* §202-a requires, for most proposed rules, the preparation of a 'regulatory impact statement" (RIS) detailing the agency's authority and the need for the rule, and disclosing the fiscal and economic impact of the rule, and any new paperwork requirements or mandates.

* §202-b requires, for any rule that would impose any compliance or paperwork requirements or would otherwise have an adverse impact on small businesses or local governments, the preparation of a 'regulatory flexibility analysis" (RFA) detailing the outreach efforts undertaken by the agency to foster input by small businesses and/or local governments, the cost and paperwork impacts of the rule, and the measures the agency considered to make the rule more flexible in recognition of the differing compliance capabilities of small businesses and/or local governments (such as use of performance standards, exemptions from the rule, or less frequent reporting schedules).

* §202-bb requires, for any rule that would impose any compliance or paperwork requirements or would otherwise have an adverse impact on public or private entities in rural areas, the preparation of a 'rural area flexibility analysis" (RAFA) detailing in a manner similar to the RFA the agency's efforts to provide flexibility in the rule in recognition of the different nature of rural areas of the State.

* §201-a requires, for any rule that would have an adverse impact on jobs or employment opportunities, the preparation of a 'job impact statement" (RIS) detailing the alternatives considered by the agency to minimize the rule's impact on jobs.

Bill §§ 1, 3 & 5 amend the JIS, RFA and RAFA sections to clarify that a separate form is not needed when an agency determines that the rule would not have any adverse impact that would trigger the preparation of an analysis or statement. Instead, the agency may include information within the RIS explaining how the agency determined that there would be no such adverse impact or compliance requirements.

Bill §2 clarifies the RIS section to provide that in addition to being exempt from the requirement to prepare an RIS, a genuine technical amendment with no substantive impact is exempt from the requirements to prepare an RFA, RAFA and JIS provided the rulemaking notice includes a disclaimer that no such document is applicable.

Bill §§4 & 6 amend the RFA and RAFA sections to provide that, when proposing a rule involving compliance or paperwork requirements but no adverse impact on small businesses, local governments, and/or rural entities, information on such requirements may be summarized in the RFA or RAFA instead of duplicated from the RIS.

Existing law

Currently SAPA requires the preparation of an RFA or RAFA for any rulemaking that entails compliance of paperwork requirements on small businesses, local governments or rural entities, even if there would be no adverse impact. Also, it is not clear that an agency may include a statement that a rule would have no impact in the RIS, or may dispense with certain required statements when proposing a non-substantive technical amendment.

Justification

SAPA requires agencies to analyze the impact of their proposed rules on the public as a whole, and also to perform more targeted analyses to ensure that the proposals do not unthinkingly impose disproportionate costs and burdens on specific types of entities. For example, in recognition of the burden of regulatory provisions may fall quite differently on a small business than on a multinational corporation, SAPA requires agencies to consider "flexing" proposed rules to facilitate small business implementation. Similar analyses are required to recognize the different ways that rules can impact local governments and entities in rural areas, and to minimize the impact of proposals on jobs and employment opportunities.

Some agencies complain that SAPA requires the preparation of duplicative documents. In many cases, such duplication reflects mere pro forma compliance with SAPA in lieu of performing indepth analysis of regulatory options. However, two aspects of the SAPA process can be improved to minimize duplication while preserving needed analytical elements. First, when a proposal clearly does not impose any adverse impacts, there is no need to prepare a separate statement to that effect. Instead, the inclusion of succinct information in the RIS should be sufficient. The bill clarifies SAPA in this regard.

Second, the law provides that, even if there are no adverse impacts, an RFA and/or RAFA is still required if the rule would impose paperwork or compliance requirements on small businesses, local governments and/or rural entities. For example, a proposed rule may require small businesses to meet performance standards instead of requiring specific process controls, or require submission of two new reports in place of five old ones. In such cases, although costs and burdens would be eased, the agency still must analyze the new requirements (appropriately so, since the changes may fail to minimize burdens, or may unintentionally create new ones). This bill would provide agencies the option of summarizing information

on the new requirements in the RFA and/or RAFA and referring to the RIS or other document that addresses the requirements more fully.

The bill also clarifies that a non-substantive technical amendment which is exempt from the requirement to prepare an RIS is also exempt from the requirement to prepare the other regulatory analyses.

Legislative history

New bill - similar legislation was introduced as an Article VI bill in 2010 (A.9714/S.6614) but was not enacted.

Fiscal implications

State agencies that use the provisions of this bill will experience some savings in time and workloads by summarizing otherwise repetitive information in regulatory documents and by eliminating unnecessary notices for proposed rules that only represent technical amendments.

Local fiscal implications

State agencies that use the provisions of this bill will experience some savings in time and workloads by summarizing otherwise repetitive information in regulatory documents and by eliminating unnecessary notices for proposed rules that only represent technical amendments.

Effective date

First day of October after having become a law - applicable to all rule making notices initially prepared on or after such date