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-22-15-00008-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. Sections 401; 410(2) and 412 prohibit providing appearance enhancement services without an appropriate license.
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 measures to protect members of the public, including those who work in the industry. 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 provide greater public awareness regarding unlawful and potentially dangerous activities. Mandating public posting of findings of unlicensed activities and Notices of Violations will benefit the public by providing notice that the services that they may be receiving are being performing in contravention of law.
4. Costs:
a. Costs to Regulated Parties:
The Department does not anticipate any costs to regulated parties. The Department will provide Notices of Violations to parties who are impacted by this regulation. The Department anticipates that some unlicensed businesses and operators will suffer some loss of business, however the intent of the regulation is to curb unlawful activity; accordingly, the Department finds any loss of business associated with unlawful activity to be appropriate.
b. Costs to the Department of State, the State, and Local Governments:
The Department does not anticipate any additional costs to implement the rule. Existing staff will manage issuing Notices of Violations. Further, the Department has sufficient funds to produce Notice of Violation forms.
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. The Department will be issuing the Notices required pursuant to this rule. Affected entities are only required to post the same publically.
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 the public who seek appearance enhancement services. Requiring public posting will allow consumers to make informed decisions regarding the services that they may be receiving.
9. Federal Standards:
The proposed addition does not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance Schedule:
As stated in the emergency rule, this rule will be effective immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule requires public postings of Notices of Violations issued by the Department of State. The Department believes that the rule will provide greater public awareness of unlawful and potentially dangerous activities. Specifically, the rule will require persons and businesses who operate without a license and who have been served with a Notice of Violation to post the same. The rule applies to businesses that offer appearance enhancement services as well as to persons who engage in the following practices: nail specialty, waxing, natural hair styling, esthetics or cosmetology. Given that this rule applies to persons and businesses who are already operating unlawfully, the Department is not able to accurately estimate the number that will be affected by this rule.
2. Compliance requirements:
This rule requires that unlicensed persons and businesses subject to an administrative proceeding, commenced by the Department seeking an order directing the cessation of unlicensed activities, publically post a Notice of Violation in a manner which will inform the public of the same.
3. Professional services:
The Department does not anticipate the need for professional services.
4. Compliance costs:
The rule itself will not impose any cost on affected parties. The Department will provide appropriate notices for posting. The Department believes that once such notices are issued, previously unlicensed persons and businesses will seek an appropriate license. Pursuant to Article 27 of the General Business Law, the cost to obtain an appropriate license (depending on whether an examination is required) ranges from $45.00 to $60.00. Such costs do not include other fees, such as any education requirements or other business filings, which may be required.
5. Economic and technological feasibility:
The rule itself requires that unlicensed persons and business subject to a pending administrative hearing publically post notices of the same for the public benefit. Insomuch as the notices will be produced and provided by the Department, complying with this rule is both economically and technically feasible.
6. Minimizing adverse impact:
The Department did not identify any feasible alternatives which would achieve the results of the proposed rule and, at the same time, be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups and finds this rule necessary for the wellbeing of the public who seek appearance enhancement services.
7. Small business and local government participation:
The Department, in conjunction with other state agencies, has consulted with small business interests which 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 immediately.
9. Cure period:
The Department is not providing for a cure period prior to enforcement of these regulations. The Department finds that immediate posting of unlawful activity will help protect the public and as such a cure period is not appropriate.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to all unlicensed persons and business operating in the State of New York in rural and urban areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule requires unlicensed persons and businesses subject to a pending administrative proceeding seeking the cessation of unlicensed activity to post such notices so that they can be viewed by the public which may be seeking appearance enhancement services. No professional services are required to comply with this rule. No different or additional requirements are applicable exclusively to rural areas of the state.
3. Costs:
The rule itself will not impose any cost on affected parties. The Department will provide appropriate notices for posting. The Department believes that once such notices are issued, previously unlicensed persons and businesses will seek an appropriate license. Pursuant to Article 27 of the General Business Law the cost to obtain an appropriate license (depending on whether an examination is required) ranges from $45.00 to $60.00. Such costs do not include other fees such as any education requirements or other business filings which may be required.
4. Minimizing adverse impact:
The proposed rulemaking will improve the safety and wellbeing of the general public throughout the state, including rural areas that seek appearance enhancement services. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups, but did not identify any feasible alternatives which would achieve the results of the proposed rules and at the same time 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 requires that unlicensed businesses and operators publically post Notices of Violations seeking the cessation of unlicensed activity. Insomuch as the group affected by this rule is operating in violation of law, this rulemaking will not impact lawful business activities. The Department anticipates that some unlicensed businesses and operators will suffer some loss of business; however, the intent of the regulation is to curb unlawful activity. Accordingly, the Department finds any loss of business associated with unlawful activity to be appropriate.
2. Categories and numbers affected:
This rulemaking will affect all unlicensed persons and businesses operating in the state. Given the nature of the activities affected by this rule, the Department cannot estimate the number of unlawful operators and businesses in the state.
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 protect the general welfare of the public that seeks appearance enhancement services. The Department consulted with Department of Labor, Department of Health, and several advocacy groups but did not identify any alternatives which would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
