This regulatory impact statement, regulatory flexibility analysis, rural area flexibility analysis and/or job impact statement pertain(s) to a notice of Emergency rule making, I.D. No. DOS-22-15-00007-E, printed in the State Register on June 3, 2015.
Regulatory Impact Statement
1. Statutory Authority:
New York Executive Law § 91 and New York General Business Law (“GBL”) §§ 402(5); 404 and 405(2). Section 91 of the Executive Law authorizes the Secretary of State to: “adopt and promulgate such rules which shall regulate and control the exercise of the powers of the department of state.” In addition, Sections 401(5) and 404 of the GBL authorize the Secretary of State to promulgate rules specifically relating to the appearance enhancement industry.
2. Legislative Objectives:
Article 27 of the GBL was enacted, inter alia¸ to provide a system of licensure of appearance enhancement businesses and operators that would allow for the greatest possible flexibility in the establishment of regulated services, while establishing protective measures. Consistent with this legislative intent, the Department is empowered to issue regulations that accomplish these purposes.
3. Needs and Benefits:
This rule is needed to implement provisions of the GBL, specifically sections 404 and 404-b. The Department finds that these regulations which clarify existing requirements relating to availability of personal protective equipment will further the legislative intent of Section 404-b of the GBL.
4. Costs:
a. Costs to Regulated Parties:
Businesses which offer nail care services will be required pursuant to this rule to have available gloves, respirators and sufficient eye protection for practitioners. The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
b. Costs to the Department of State, the State, and Local Governments:
The Department does not anticipate any additional costs to implement the rule.
5. Local Government Mandates:
The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.
6. Paperwork:
This rule does not impose any new paperwork requirement.
7. Duplication:
This rule does not duplicate, overlap or conflict with any other state or federal requirement.
8. Alternatives:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is needed to protect the general welfare of approximately 162,000 individuals who practice nail specialty services.
9. Federal Standards:
The proposed rulemaking is necessary to implement the provisions of existing law and standards.
10. Compliance Schedule:
As stated in the emergency rule, this rule will be effective June 15, 2015.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule requires the provision and use of personal protective equipment. Businesses that offer nail care services will be required to provide such equipment as provided for by this rule to nail care providers without cost. There are approximately 26,753 appearance enhancement businesses and 7,764 area renters in New York State that may be subject to this rule.
2. Compliance requirements:
The rule implements statutory requirements established under Section 404-b of Article 27 of the General Business Law. Owners subject to this rule will be required to provide gloves, respirators and sufficient eye protection to practitioners. The rule does not impose reporting or recordkeeping on owners.
3. Professional services:
The Department does not anticipate the need for professional services.
4. Compliance costs:
The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
5. Economic and technological feasibility:
This proposal is economically and technically feasible. Based on the Department’s cost estimates and that the personal protective equipment provided for by this rule is readily available in retail stores and through online purchasing, businesses should have no difficulty complying with this rule.
6. Minimizing adverse impact:
The Department did not identify any feasible alternatives that would achieve the results of the proposed rule and also be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, and several advocacy and business groups and finds this rule is necessary to clarify and implement existing law relating to the provision and availability of personal protective equipment.
7. Small business and local government participation:
The Department, in conjunction with other state agencies, has consulted with small business interests that may be affected by this rule. In addition, the Department has conducted significant outreach to inform the public regarding this rule, including posting this rule on the Department’s website and participating in a public forum detailing, inter alia, the purpose of this rule. Publication of the rule in the State Register will provide further notice of the proposed rulemaking to all interested parties. Additional comments will be received and entertained during the public comment period associated with this rulemaking.
8. Compliance:
As stated in the emergency rule, this rule is effective June 15, 2015.
9. Cure period:
The Department is not providing for a cure period prior to enforcement of these regulations. The Department finds that the implementation of existing law relating to personal protective equipment requires emergency action and should be enforced without delay. Further, as this rule does not take effect until June 15, 2015, the Department believes that those impacted by this rule will have adequate time to comply.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to appearance enhancement businesses that are licensed pursuant to Article 27 of the General Business Law. There are approximately 26,753 appearance enhancement businesses and 7,764 area renters across New York State that may be subject to this rule. Licensed owners throughout the state, including those in rural areas, are responsible for complying with this rule.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule implements statutory requirements established under Section 404-b of Article 27 of the General Business Law. The rule does not impose reporting or recordkeeping on owners. Further, there are no additional professional services required as a result of this regulation. No different or additional requirements are applicable exclusively to rural areas of the state.
3. Costs:
The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
4. Minimizing adverse impact:
The proposed rulemaking will implement existing law relating to provision and use of personal protective equipment for nail care providers throughout the state, including rural areas. The Department has consulted with Department of Labor, Department of Health as well as several advocacy groups, but did not identify any feasible alternatives that would achieve the results of the proposed rules and also be less restrictive and less burdensome in terms of compliance.
5. Rural area participation:
No significant comments have been received regarding this rulemaking. Publication of the Notice in the State Register will provide notice to all interested parties, including those in rural areas. Additional comments received on this rulemaking will be considered and assessed during imminent Proposed Rule Making process on this matter.
Job Impact Statement
1. Nature of impact:
This rulemaking applies to all appearance enhancement owners and practitioners who offer nail care services. Pursuant to this rule, owners are required to provide at no cost and operators are required to use gloves, respirators and eye protection while offering certain services. Though the rule is intended to implement existing law, the Department finds that it will also improve the wellbeing of those working in the nail care industry, and as such the rule will have a positive impact on jobs and employment opportunities.
2. Categories and numbers affected:
There are approximately 30,000 owners which would potentially be subject to this rulemaking. Further, there are approximately 162,000 licensees who offer services specified by this rule.
3. Regions of adverse impact:
The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or lawful employment opportunities.
4. Minimizing adverse impact:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is immediately needed to clarify and implement existing law through rules regarding availability and use of personal protective equipment. The Department has consulted with Department of Labor, Department of Health and several advocacy groups, but did not identify any alternatives that would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
