Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments 6 NYCRR Part 248
1. Effect of rule:
As defined in the proposed regulation, "on behalf of" means "all heavy duty vehicles used to perform regulated entity work by a prime contractor. Those vehicles include, but are not limited to, heavy duty vehicles owned, operated or leased by a prime contractor."
As defined in the regulation, "Prime contractor means any person or entity that contracts directly with the regulated entity to perform regulated entity work ("prime contract") and who is responsible for the completion of the contract with the regulated entity. This definition shall not include subcontractors." Prime contractors could include affected small businesses and some local governments. Prime contractors include anyone that performs work for the state or public authority whether on or off state/public authority property. Regulated entities include affected state agencies and state and regional public authorities.
2. Compliance requirements:
Affected small businesses and contracted local governments continue to be required to comply with the ULSD and BART. The ULSD requirement was effective February 12, 2007. Affected small businesses and contracted local governments will be required to install BART on their applicable HDV's on or before December 31, 2013. A useful life waiver provision will be included in the regulation which allows the Department to issue a waiver of the requirements of this part to a BART regulated entity or prime contractor upon receipt of request from such entity or prime contractor provided that such vehicle will be permanently taken out of service in New York State on or before December 31, 2013 pursuant to recent revisions to ECL Section 19-0323.
3. Professional services:
No specific professional services are required by this revision to Part 248.
4. Compliance Costs:
The Regulatory Impact Statement addresses compliance costs in detail on a per vehicle basis. We adopt those costs for purpose of this document.
5. Economic and technological feasibility:
The economic feasibility for both affected small businesses and contracted local governments to comply with the proposed regulatory requirements is difficult to determine and unknown since the total cost to comply with the proposed regulation is unknown. Total cost is based on the number of affected HDVs and the specific retrofit device to be installed on those HDVs which are currently unknown. Affected small businesses and contracted local governments also have the option to replace an existing HDV with a 2007 or newer HDV, replace with an alternative fuel HDV, or retire the HDV in lieu of retrofitting the HDV with a BART device, or obtain a useful life waiver or BART device waiver for the vehicle, which adds more uncertainty as to the total cost to comply with the regulation. The specific option that affected small businesses and contracted local governments will choose to comply with the regulatory requirements is unknown. The proposed revisions to Part 248 may reduce the cost for small businesses given that subcontractors will no longer be subject to the regulation. There are specific capital costs for the retrofit devices as mentioned in the RIS. As a result of incurred costs by affected small businesses to comply with the regulatory requirements, businesses may elect to reduce the number of their employees to cover the costs of purchasing/installing BART devices on their affected HDVs or place higher bids on state contracts. Affected local governments may also elect to reduce the number of their employees to cover the costs of the BART devices. Affected small businesses may also choose not to bid on state agency/public authority projects and local governments may choose not to enter or renew contracts with state agencies/public authorities.
6. Minimizing adverse impacts:
The legislation and proposed revised regulation include provisions for an HDV owner/operator to apply for a waiver from the ULSD or BART requirement in certain instances. If specified criteria are met as proposed in the regulation, the department will issue a waiver.
7. Small business and local government participation:
There will be a public comment period in which interested parties can submit written comments on the proposed revisions to the regulation. One stakeholder meeting was held on July 7, 2011 with those representing regulatory affected entities including various contractor associations and state agencies/public authorities to discuss the legislation and proposed revised regulatory requirements.
8. Cure Period
Pursuant to NYS State Administrative Procedures Act (SAPA) Section 202-b, this rulemaking does not include a cure period because the Department is undertaking this rulemaking to comply with changes to state legislation and recent court decisions. The court decisions required the Department to remove a class of entities previously subject to Part 248, specifically subcontractors, thereby removing those entities from any penalties for violations of Part 248. In addition, changes are being made to conform with more generous deadlines imposed upon the program by State legislation.