February 16, 2007 |
2007-R-0012 | |
REGULATORY FLEXIBILITY ANALYSES | ||
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By: John Rappa, Principal Analyst | ||
You wanted to know the extent to which state agencies have been preparing regulatory flexibility analyses.
SUMMARY
From 1997 to 2006, state agencies submitted 58 proposed regulations to the Department of Economic and Community Development (DECD), in accordance with the regulatory flexibility law. The records containing eight of these regulations included a regulatory flexibility analysis, which agencies must prepare when a proposed regulation could adversely affect small businesses. Two of these were found to adversely affect small businesses, but the agencies could not find any alternative methods that would achieve the regulation's purpose and minimize the burden on small businesses.
The records containing the other 50 regulations did not include a flexibility analysis. Most (32) contain a letter notifying DECD about the agency's intent to adopt regulations, but did not indicate whether the proposed regulation would adversely affect small businesses. In these cases, DECD reviewed the regulation to determine how the regulation could affect small businesses. The records contained no documents indicating the results of the review. The records for the remaining 18 regulations contained documents stating that DECD or the agency determined that the proposed regulation did not adversely affect small businesses.
The records show that agencies complied with the regulatory flexibility law in different ways. Some asked DECD to determine the impact while others did it themselves. Some prepared a narrative describing the regulation's effects while others stated only the finding. The lack of consistency could be due to the statute, which does not lay out a clear procedure for agencies to follow when preparing the analyses.
REGULATORY FLEXIBILITY ANALYSES
The statutory requirements triggering regulatory flexibility analyses provide a way to gauge the extent to which agencies have been preparing them. Each time an agency proposes a regulation, it must decide if it adversely affects small businesses and, if so, consider other regulatory methods that could reduce this burden and still achieve the regulation's purpose. If the agency determines that the proposed regulation could burden small businesses, it must notify DECD, which must help the agency prepare the flexibility analysis (CGS § 4-168 (a)(c)).
We reviewed DECD's records to identify agencies that prepared the analyses. The records go back to 1997; the flexibility requirement took effect in 1987. A flexibility analysis was included with the records of eight proposed regulations. As Table 1 shows, two regulations were determined to have an adverse impact on small businesses, but the agency found no reasonable regulatory alternative.
Table 1: Proposed Regulations Accompanied by Regulatory Flexibility Analysis
Agency |
Regulation |
Date Submitted |
Adverse Impact |
Alternative Adopted |
Department of Consumer Protection |
Motor Fuel Quality |
2004 |
No |
Not applicable (NA) |
Department of Environmental Protection (DEP) |
Aquifer Protection |
2000 |
Yes |
No alternatives |
DEP |
Air Quality Standards |
2004 |
Yes |
No alternatives |
Department of Public Safety (DPS) |
Tent and Portable Shelter |
1997 |
No |
NA |
DPS |
Nationally Recognized Laboratories |
1997 |
No |
NA |
DPS |
Fire Code |
2005 |
No |
NA |
DPS |
Wheelchair Lifts |
2005 |
No |
NA |
Department of Transportation |
State Airport Fees |
2005 |
No |
NA |
These agencies do not appear to use a standard format for preparing the regulatory flexibility analyses. For example, DEP's analysis of the aquifer protection regulation is a narrative explaining how it will affect only those businesses using hazardous materials (Attachment 2). But its analysis for the air qualify standards regulation is a form requiring the agency to choose among four standard outcomes. In this case, DEP checked the option indicating that the proposed regulation may adversely affect small businesses and that there is no regulatory alternative that could achieve the regulation's purpose and minimize this burden (Attachment 3).
The documents accompanying the other regulations submitted to DECD did not include the flexibility analysis, but some indicated that the agency or DECD completed it. For example, the records for five regulations included a form suggesting that DECD staff completed the analysis at the agency's behest (Attachment 4). The form requires the staff to check one of two statements indicating the results of the review.
On the other hand, the records for 13 regulations included a statement indicating that the agency completed the analysis. In some cases, the statement indicated that the agency completed the analysis and found no need to consider regulatory alternatives (Attachment 5). In others, the statement indicated that the agency considered the methods for reducing the regulatory burden, but did not indicate the results of its review (Attachment 6).
The records for over half of the proposed regulations contained a letter notifying DECD of the agency's intent to adopt regulations but no document indicating whether the analysis was performed. In these cases, DECD referred the proposed regulation to the staff in the department's industry cluster division knowledgeable about the types of businesses the regulation potentially affects, DECD's legislative liaison, Joe Oros, stated.
JR: ts
Attachment 1: Proposed Regulations Submitted to DECD under Regulatory Flexibility Law 1997-2006
DECD Notification Date |
Agency |
Proposed Regulation |
Finding (Agency making the finding) |
Analysis Supporting the Finding Included in File |
7/9/97 |
Agriculture |
Feed, seed, and fertilizer registration fee increases |
No adverse impact (DECD) |
No |
7/9/97 |
Banking |
Foreign banks |
No adverse impact (DECD) |
No |
1/23/04 |
Banking |
Department organization structure and procedures |
No adverse impact (Banking) (Boiler plate) |
No |
2/28/06 |
Banking |
Protection of public deposits |
No adverse impact (Banking) (Boiler plate) |
No |
5/3/06 |
Banking |
Creditors' collection practices |
No adverse impact (Banking) (Boiler plate) |
No |
9/8/06 |
Banking |
Interest payments on mortgage escrow accounts |
No adverse impact |
No |
10/21/01 |
Consumer Protection |
Home Inspections |
Silent |
No |
12/12/03 |
Consumer Protection |
Well Casing Extension & Low Voltage Electrical Licenses |
DECD determined likely probable adverse impact on small businesses |
No |
1/27/04 |
Consumer Protection |
Sanitary Standards |
Silent |
No |
9/17/04 |
Consumer Protection |
Motor Fuel Quality |
No adverse impact |
Yes |
10/20/04 |
Consumer Protection |
Home Inspector Interns |
Notified DECD that options were considered |
No |
1/13/05 |
Consumer Protection |
Electronic Data Intermediaries |
No adverse impact (DECD |
No |
8/11/05 |
Consumer Protection |
Regulations of classes of pharmacies |
Silent |
No |
10/13/05 |
Consumer Protection |
Sale of alcoholic liquors to minors |
Silent |
No |
2/22/06 |
Consumer Protection |
Influenza vaccine by pharmacists |
Silent |
No |
6/13/06 |
Consumer Protection |
Graduates of Foreign Pharmacy Schools |
Silent |
No |
6/14/06 |
Consumer Protection |
Nuclear Pharmacies |
Silent |
No |
6/29/06 |
Consumer Protection |
Motor vehicle advertising |
Silent |
No |
8/7/06 |
Consumer Protection |
Unit pricing for consumer commodities |
Silent |
No |
8/22/06 |
Consumer Protection |
Gifts and Novelties to consumers and real estate appraisers |
Silent |
No |
8/23/06 |
Consumer Protection |
Elevator installation, repair, and maintenance work exam board |
Silent |
No |
10/6/06 |
Consumer Protection |
Storage of controlled substances in safes |
Silent |
No |
10/13/06 |
Consumer Protection |
Occupation Licensing |
Silent |
No |
10/13/06 |
Consumer Protection |
Homemaker-Companion Agencies |
Silent |
No |
10/13/06 |
Consumer Protection |
Swimming Pool Licenses |
Silent |
No |
10/30/06 |
Consumer Protection |
Home Inspectors |
Silent |
No |
3/20/00 |
Environmental Protection |
Aquifer Protection |
Adverse Impact |
Yes |
1/21/04 |
Environmental Protection |
Air Quality |
Adverse Impact |
Yes |
5/24/04 |
Environmental Protection |
Mapping Wells in Stratified Drift Aquifers to Level A Mapping Regulations |
No “fiscal impact” on small businesses |
No |
7/28/97 |
Public Health |
Lead Poisoning Prevention and Control |
No (DPH notified DECD about possible adverse impact; no record of DECD review and finding) |
No |
6/27/97 |
Public Safety |
Tent and portable shelter |
No |
Yes |
11/4/97 |
Public Safety |
Connecticut Model Rocketry Code |
No adverse impact per DPS and DECD |
No |
11/4/97 |
Public Safety |
Nationally Recognized Laboratories |
No adverse impact per DPS and DECD |
Yes |
6/27/97 |
Public Safety |
Moving Picture Theater Code |
No adverse impact implied |
No |
8/14/97 |
Public Safety |
Rotational System for Summoning Wreckers |
FA cited in transmittal letter but not found in file |
|
9/28/04 |
Public Safety |
Chemical Testing of Blood, Breath, and Urine Building Code Licensure |
No adverse impact No adverse impact |
No No |
6/14/05 |
Public Safety |
Fire Code |
No adverse impact |
Yes |
12/20/05 |
Public Safety |
Wheelchairs |
No adverse impact |
Yes |
8/24/06 |
Public Safety |
DNA Data Bank |
No adverse impact |
No |
5/14/04 |
Labor |
Safety and health standards for general industry (Respiratory Protection) |
Silent |
No |
2/7/05 |
Labor |
Commercial diving safety and health standards |
Silent |
No |
2/14/05 |
Labor |
Unemployment compensation re absenteeism |
Silent |
No |
3/14/05 |
Labor |
REDON Testing Occupational safety and health standards |
Silent |
No |
3/14/05 |
Labor |
Occupational safety and health standards pertaining to fire protection in shipyard employment |
Silent |
No |
3/14/05 |
Labor |
Recording and reporting Occupational Injuries and Illnesses |
Silent |
No |
9/9/05 |
Labor |
Employer participation in predetermination hearings |
Silent |
No |
3/8/06 |
Labor |
Unemployment compensation fraud overpayment and administrative penalty chart |
Silent |
No |
8/9/06 |
Labor |
Safety and health standards for general construction and maritime industries |
Silent (DECD routing slip requesting Maritime Cluster's analysis |
No |
2/21/06 |
Motor Vehicles |
Diesel-powered commercial motor vehicle emission standards |
Silent |
No |
7/18/06 |
Motor Vehicles |
Substance Abuse Program Standards |
Silent |
No |
7/18/06 |
Motor Vehicles |
Diesel-Powered Motor Vehicle Emissions Standards |
Silent |
No |
7/18/06 |
Motor Vehicles |
Branding of Motor Vehicle Titles |
Silent |
No |
7/18/06 |
Motor Vehicles |
Minimum safety requirements of school bus construction and equipment |
Silent |
No |
10/18/06 |
Motor Vehicles |
Fire Apparatus |
Silent |
No |
10/18/06 |
Motor Vehicles |
Child Passenger Restraint Systems |
Silent |
No |
1/4/05 |
Transportation |
State Airport Fees |
Adverse impact on some small businesses; not expected to overburden small businesses |
Yes |
9/25/06 |
Special Revenue |
Operation of bazaars and raffles |
Request for DECD review, Silent |
No |