rule making activities - new york department of state...minimum pre-service, orientation health and...

RULE MAKINGACTIVITIES

Each rule making is identified by an I.D. No., which consistsof 13 characters. For example, the I.D. No. AAM-01-96-00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency01 -the State Register issue number96 -the year00001 -the Department of State number, assigned upon

receipt of notice.E -Emergency Rule Making—permanent action

not intended (This character could also be: Afor Adoption; P for Proposed Rule Making; RPfor Revised Rule Making; EP for a combinedEmergency and Proposed Rule Making; EA foran Emergency Rule Making that is permanentand does not expire 90 days after filing.)

Italics contained in text denote new material. Bracketsindicate material to be deleted.

Office of Children and FamilyServices

EMERGENCY/PROPOSED

RULE MAKING

NO HEARING(S) SCHEDULED

Minimum Pre-Service, Orientation Health and Safety TrainingRequirements in Child Day Care Programs

I.D. No. CFS-14-17-00003-EP

Filing No. 206

Filing Date: 2017-03-20

Effective Date: 2017-03-20

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-cedure Act, NOTICE is hereby given of the following action:

Proposed Action: Amendment of sections 414.14, 415.4, 416.14, 417.14,418-1.14 and 418-2.14 of Title 18 NYCRR.

Statutory authority: Social Services Law, sections 20(3)(d), 34(3)(f),390(2-a)(a), 390-a(3), 410(1) and 410-x(3)

Finding of necessity for emergency rule: Preservation of public health,public safety and general welfare.

Specific reasons underlying the finding of necessity: Section658E(c)(2)(I) of the Child Care and Development Block Grant Act of2014 (CCDBG) requires the Office of Children and Family Services (theOffice), establish minimum health and safety training in specified topic ar-eas for child day care providers, to be completed pre-service or during anorientation period. The federal Administration for Children and Familiesconsiders this health and safety training critical to reducing risk of injuryand death for children receiving assistance and is therefore requiring

compliance by September 30, 2017. The Office must proceed with anemergency rulemaking to allow sufficient time for all required individualsto complete the necessary training by September 30, 2017. These regula-tions will bring the State in compliance with the requirements of CCDBGand will help to protect the health and safety of children in child care. Anydirector, teacher or caregiver who has not completed the training by thecompliance date is not allowed to care for children unsupervised.

The Office of Children and Family Services (the Office) must changeNew York State child care regulations to achieve compliance and consis-tency with the federal mandate. In order to comply, the Office must adoptemergency regulations to protect the health, safety and general welfare ofchildren in care. OCFS is also simultaneously proceeding with a notice ofproposed rulemaking to Title 18 of the Official Compilation of Codes,Rules and Regulations of the State of New York (NYCRR) sections414.14, 415.4, 416.14, 417.14, 418-1.14 and 418-2.14.Subject: Minimum pre-service, orientation health and safety trainingrequirements in child day care programs.Purpose: To implement minimum pre-service, orientation health andsafety training requirements in child day care programs.Substance of emergency/proposed rule (Full text is posted at the follow-ing State website: ocfs.ny.gov): Family Day Care Homes and Group Fam-ily Day Care Homes

SSL Section 390-a(3)(d) requires family day care and group family daycare operators obtain training pertaining to the protection of the health andsafety of children, prior to the issuance of a registration or license by theOffice. This required training (a 15-hour health and safety classroom train-ing) was updated to include the federally required health and safety pre-service/orientation trainings topics, and was implemented August 1, 2016.Individuals who completed the 15-hour health and safety classroom train-ing on or after August 1, 2016 have complied with the new CCDBGrequirement. Individuals who completed the 15-hour health and safetyclassroom training before August 1, 2016 will need to take Office-approved training by September 30, 2017 to comply with the new CCDBGrequirement. Individuals seeking to operate a family day care or groupfamily day care after the effective date of these regulations will complywith the new CCDBG requirement upon completion of the 15-hour healthand safety classroom training course, prior to the Office issuing theregistration or license. Family day care and group family day care homespermitted to replace the person named as the provider, must have the indi-vidual complete the 15-hour health and safety classroom training beforebecoming the provider.

Every assistant, substitute, and volunteer with the potential for regularand substantial contact with children in care must complete Office-approved training that complies with the federal minimum health andsafety pre-service or three-month orientation period training requirements.

Every person in the position of assistant, substitute, or volunteer withthe potential for regular and substantial contact with children at the timethis regulation becomes effective must complete the Office-approved train-ing by September 30, 2017. Any assistant or substitute who does notcomplete this training by September 30, 2017 must not be left unsupervisedwith children in care until such time as the training has been completed.The person supervising the individual must have completed the Office-approved training that complies with the federal minimum health andsafety pre-service training requirements.

Every applicant for the position of assistant, substitute, or volunteerwith the potential for regular and substantial contact with children afterthis regulation becomes effective must complete the Office-approved train-ing, either pre-service or within three months of starting such position, orby September 30, 2017, whichever is later. Any assistant or substitute whohas not completed the training, but will be completing the training withinthe first three months of starting such position, must not be left unsuper-vised with children in care until such time as the training has beencompleted. The person supervising the individual must have completedthe Office-approved training that complies with the federal minimumhealth and safety pre-service training requirements.

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Language is being added to the family day care and group family daycare regulations to clarify that the pre-application orientation session is aseparate requirement from the new CCDBG health and safety pre-serviceor three-month orientation requirement.

Small Day Care Centers, Day Care Centers and School-age Child CarePrograms

Every director, teacher, caregiver, and volunteer with the potential forregular and substantial contact with children in care must complete Office-approved training that complies with the federal minimum health andsafety pre-service or three-month orientation period training requirements.

Every person in the position of director, teacher, caregiver, or volunteerwith the potential for regular and substantial contact with children at thetime this regulation becomes effective must complete the Office-approvedtraining by September 30, 2017. Any teacher or director who does notcomplete this training by September 30, 2017 must not be left unsupervisedwith children in care until such time as the training has been completed.The person supervising the individual must have completed the Office-approved training that complies with the federal minimum health andsafety pre-service training requirements.

Every applicant for the position of director, teacher, caregiver, or volun-teer with the potential for regular and substantial contact with children af-ter this regulation becomes effective must complete the Office-approvedtraining, either pre-service or within three months of starting such posi-tion, or by September 30, 2017, whichever is later. Any director or teacherwho has not completed the training, but will be completing the trainingwithin the first three months of starting such position, must not be leftunsupervised with children in care until such time as the training has beencompleted. The person supervising the individual must have completedthe Office-approved training that complies with the federal minimumhealth and safety pre-service training requirements.

Language is being added to the licensing and registration child careregulations to clarify that the pre-application orientation session is a sepa-rate requirement from the new CCDBG health and safety pre-service orthree-month orientation requirement.

Legally-Exempt Child Care ProgramsTo be enrolled by or to maintain enrollment with a legally-exempt

caregiver enrollment agency to provide child care services to familiesreceiving child care subsidies under the New York State Child Care BlockGrant Program, every legally exempt caregiver, employee with a caregiv-ing role, and volunteer with the potential for regular and substantial contactwith children in care, except for a grandparent, great grandparent, sibling(if living in a separate residence), aunt, or uncle providing care pursuant to415.1(h), must complete Office-approved training that complies with thefederal minimum health and safety pre-service training requirements.

For informal child care programs enrolled at the time this regulationbecomes effective, the required individuals must complete the Office-approved training by September 30, 2017.

For legally-exempt group child care programs enrolled at the time thisregulation becomes effective, the required individuals must complete theOffice-approved training by September 30, 2017. Any individual whodoes not complete the training by September 30, 2017 must not be leftunsupervised with children in care until such time as the training has beencompleted. The person supervising the individual must have completedthe Office-approved training that complies with the federal minimumhealth and safety pre-service training requirements.

For applicants seeking to be enrolled as an informal child caregiver af-ter this regulation becomes effective, the required individuals mustcomplete the Office-approved training pre-service or by September 30,2017, whichever is later.

For applicants seeking to be enrolled as a legally-exempt group childcare program after this regulation becomes effective, the required individu-als must complete the Office-approved training pre-service or by Septem-ber 30, 2017, whichever is later. Any required individual who has notcompleted the training by September 30, 2017 must not be left unsuper-vised with children in care until such time as the training has beencompleted. The person supervising the individual must have completedthe Office-approved training that complies with the federal minimumhealth and safety pre-service training requirements.

This notice is intended: to serve as both a notice of emergency adoptionand a notice of proposed rule making. The emergency rule will expireJune 17, 2017.

Text of rule and any required statements and analyses may be obtainedfrom: Public Information Office, New York State Office of Children andFamily Services, 52 Washington Street, Rensselaer, New York 12144,(518) 473-7793, email: [email protected]

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 45 days after publication of thisnotice.

This rule was not under consideration at the time this agency submittedits Regulatory Agenda for publication in the Register.

Regulatory Impact Statement1. Statutory authority:Section 20(3)(d) of the Social Services Law (SSL) authorizes the Com-

missioner of the Office of Children and Family Services (Office) to estab-lish rules, regulations, and policies to carry out the Office’s powers andduties under the SSL.

Section 34(3)(f) of SSL authorizes the Commissioner of the Office toestablish regulations for the administration of public assistance and carewithin the State.

Section 390(2-a)(a) of the SSL authorizes the Office to establish regula-tions to set minimum quality program requirements for licensed andregistered child day care programs, including staff training.

Section 390-a(3) of the SSL authorizes the Office to establish regula-tions requiring licensed and registered child day care providers to receivetraining.

Section 410(1) of the SSL authorizes a social services official of acounty, city, or town to provide day care for children at public expense andauthorizes the Office to establish criteria for when such day care is to beprovided.

Section 410-x(3) of the SSL requires the Office to establish in regula-tion minimum health and safety standards that must be met by child careproviders, funded under the New York State Child Care Block Grant, notrequired to be licensed or registered under section 390 of the SSL or to belicensed under the administrative code of the City of New York.

Section 658E(c)(2)(I) of the Child Care and Development Block GrantAct of 2014 (CCDBG) requires the Office to establish minimum healthand safety training in specified topic areas for child day care providers tobe completed pre-service or during an orientation period.

2. Legislative objectives:The regulations support the legislative objectives underlying of sections

390, 390-a and 410-x of the Social Services Law to protect the health andsafety of children in child care.

3. Needs and benefits:The regulations bring the State in compliance with the requirements of

the Child Care and Development Block Grant Act of 2014 (CCDBG) (42U.S.C. 9858 et seq.) and will help to protect the health and safety of chil-dren in child care. CCDBG and the Child Care and Development Fund(CCDF) regulations require all directors, teachers, and caregiving staff atlicensed, registered, and legally-exempt child care programs (except forcertain legally-exempt relative caregivers) obtain health and safety train-ing, either pre-service or during a three-month orientation period, as ap-propriate for the program setting. Section 98.44(b)(1)(i) of the CCDFregulations provide that this health and safety training must be completedbefore caregivers, teachers, and directors are allowed to care for childrenunsupervised. The required federal compliance date is September 30,2017.

SSL Section 390-a(3)(d) requires family day care and group family daycare operators obtain training pertaining to the protection of the health andsafety of children, prior to the issuance of a registration or license by theOffice. The 15-hour health and safety classroom training designated tosatisfy this requirement was updated to include the federally requiredhealth and safety pre-service/orientation trainings topics, and wasimplemented August 1, 2016. Individuals who completed the 15-hourhealth and safety classroom training before August 1, 2016 will need totake Office-approved training by September 30, 2017 to comply with thenew CCDBG requirement. Individuals who completed the 15-hour healthand safety classroom training on or after August 1, 2016 have compliedwith the new CCDBG requirement. Individuals applying to operate a fam-ily day care or group family day care after the effective date of theseregulations will comply with the CCDBG requirement upon completion ofthe 15-hour health and safety classroom training course, prior to the Officeissuing the registration or license. Family day care and group family daycare homes permitted to replace the person named as the provider, musthave the individual complete the 15-hour health and safety classroomtraining before becoming the provider. Failure to obtain the training by therequired date may result in regulatory violations, and potential enforce-ment action against the child care program.

Although SSL 390-a(3)(d) does not require that assistants and substi-tutes at family day care and group family day care homes take health andsafety training prior to licensure or registration, CCDBG requires theseindividuals obtain health and safety training, either pre-service or during athree-month orientation period. Additionally, SSL 390-a(3)(a) applies thestatutory training requirements to volunteers who have the potential forregular and substantial contact with children in care of family day carehomes and group family day care homes. Based on this, assistants,substitutes, and volunteers who have the potential for regular andsubstantial contact with children in care of family day care and group fam-ily day care homes must obtain health and safety training, either pre-

NYS Register/April 5, 2017Rule Making Activities

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mailto: [email protected]

service or during a three-month orientation period, or by September 30,2017, whichever is later. Any assistant or substitute who does not completethis training by the required date must not be left unsupervised with chil-dren in care until such time as the training has been completed. Failure toobtain the training by the required date may result in regulatory violations,and potential enforcement action against the child care program.

SSL 390-a(2) requires the development and implementation of proce-dures, prior to issuing a license or registration, that requires: review andevaluation of background information provided by an applicant to volun-teer at a day care center or school-age child care program, or by an ap-plicant to be a director, provider, or employee at a licensed or registeredprogram; establish minimal experiential and educational qualifications foremployees and directors at child care centers; adequate and appropriatesupervision of employees and volunteers of family day care homes, groupfamily day care homes, child day care centers, and school-age child careprograms; procedures to assure the safety of a child reported to thestatewide central register of child abuse and maltreatment; and, uniformvisitor control procedures.

SSL 390-a(3)(a) requires operators, directors, employees, assistants,and volunteers who have the potential for regular and substantial contactwith children in care of family day care homes, group family day carehomes, school-age child care programs, and day care centers receive thirtyhours of training every two years, provided that fifteen hours of such train-ing is received within the first six months of licensure, registration oremployment.

Directors, teachers, and volunteers with the potential for regular andsubstantial contact with children in care of school-age child care programsand day care centers may obtain the federally required training, either pre-service or during a three-month orientation period, or by September 30,2017, whichever is later. Directors and teachers located in school-agechild care programs and day care centers who have not completed thetraining by September 30, 2017 must not be left unsupervised with chil-dren in care until after such individuals have completed the training. Fail-ure to obtain the training by the required date may result in regulatoryviolations, and potential enforcement action against the child careprogram.

Legally-exempt child care programs are not subject to the SSL 390-a(2)pre-licensure or pre-registration requirements or the SSL 390-a(3) trainingrequirements, and there are no similar regulatory requirements as part ofthe legally-exempt enrollment process. Due to these differences in thelicensing/registration and legally-exempt enrollment processes, the Officehas determined that licensed and registered child care settings are ap-propriate settings to allow for completion of the federally required healthand safety training during a three-month orientation period; however, thisoption was not extended to legally-exempt child care programs.

The Office will not allow individuals at legally-exempt child careprograms to complete the required training during an orientation period.Those legally-exempt informal child caregivers who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Failure to complete the training by the required datewill result in termination of the caregiver’s enrollment. Individuals associ-ated with legally-exempt group child care programs who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Individuals at legally-exempt group child care programswho do not complete the training by the required date must not haveunsupervised contact with children in care. Failure to complete the train-ing by the required date may result in termination of the legally-exemptgroup child care program’s enrollment.

Language is being added to the licensing and registration child careregulations to clarify that the pre-application orientation session is a sepa-rate requirement from the new CCDBG health and safety pre-service orthree-month orientation requirement.

4. Costs:The implementation of emergency and proposed regulations may result

in costs to child care programs. The Office plans to offer a training, at nocost to programs, that will satisfy the federal requirement for pre-service/orientation health and safety training. For those that use the Office trainingcourse to satisfy this requirement, the costs will be minimal.

5. Local government mandates:The emergency and proposed regulations impose no new mandates on

local governments.6. Paperwork:Child care programs will have to keep a record of compliance with the

new training standards, as they are required to do with the current trainingstandards.

7. Duplication:The new requirements do not duplicate any existing State or federal

requirements.8. Federal standards:The regulations are consistent with the Child Care and Development

Block Grant Act of 2014 (42 U.S.C. 9858 et seq.), which requires the Of-fice to establish minimum health and safety training in specified topic ar-eas to be completed pre-service or during an orientation period.

9. Compliance schedule:The regulations are effective when filed, as the federal requirement is

already in effect, and States are required to have implemented the require-ment by September 30, 2017.

10. Alternative approaches:No alternative approaches were considered because such training is

required by federal statute and regulation, as a condition of receivingfederal CCDBG funding.Regulatory Flexibility Analysis

1. Effect on small businesses and local governments:The emergency and proposed regulations will affect all licensed and

registered family day care homes, group family day care homes, schoolage child care programs, and day care centers (outside of New York City),approximately 17,230 programs. Additionally, approximately 30,000legally-exempt child care programs statewide and 12,000 day care centersin New York City will be affected.

2. Compliance requirements:Child care programs will have to keep a record of compliance with the

new training standards, as they are required to do with the current trainingstandards.

CCDBG and the Child Care and Development Fund (CCDF) regula-tions require all directors, teachers, and caregiving staff at licensed,registered, and legally-exempt child care programs (except for certainlegally-exempt relative caregivers) obtain health and safety training, pre-service or during a three-month orientation period, as appropriate for theprogram setting. Section 98.44(b)(1)(i) of the CCDF regulations providethat this health and safety training must be completed before caregivers,teachers, and directors are allowed to care for children unsupervised. Therequired federal compliance date is September 30, 2017.

SSL Section 390-a(3)(d) requires family day care and group family daycare operators obtain training pertaining to the protection of the health andsafety of children, prior to the issuance of a registration or license by theOffice. The 15-hour health and safety classroom training designated tosatisfy this requirement was updated to include the federally requiredhealth and safety pre-service/orientation trainings topics, and wasimplemented August 1, 2016. Individuals who completed the 15-hourhealth and safety classroom training before August 1, 2016 will need totake Office-approved training by September 30, 2017 to comply with thenew CCDBG requirement. Individuals who completed the 15-hour healthand safety classroom training on or after August 1, 2016 have compliedwith the new CCDBG requirement. Individuals applying to operate a fam-ily day care or group family day care after the effective date of theseregulations will comply with the new CCDBG requirement upon comple-tion of the 15-hour health and safety classroom training course, prior tothe Office issuing the registration or license. Family day care and groupfamily day care homes permitted to replace the person named as theprovider, must have the individual complete the 15-hour health and safetyclassroom training before becoming the provider. Failure to obtain thetraining by the required date may result in regulatory violations, andpotential enforcement action against the child care program.

Assistants, substitutes, and volunteers who have the potential for regu-lar and substantial contact with children in care of family day care andgroup family day care homes must obtain health and safety training, eitherpre-service or during a three-month orientation period, or by September30, 2017, whichever is later. Any assistant or substitute who does notcomplete this training by the required date must not be left unsupervisedwith children in care until such time as the training has been completed.Failure to obtain the training by the required date may result in regulatoryviolations, and potential enforcement action against the child careprogram.

Directors, teachers, and volunteers with the potential for regular andsubstantial contact with children in care of school-age child care programsand day care centers may obtain the federally required training pre-serviceor during a three-month orientation period, or by September 30, 2017,whichever is later. Directors and teachers located in school-age child careprograms and day care centers who have not completed the training bySeptember 30, 2017 must not be left unsupervised with children in careuntil after such individuals have completed the training. Failure to obtainthe training by the required date may result in regulatory violations, andpotential enforcement action against the child care program.

Those legally-exempt informal child caregivers who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Failure to complete the training by the required datewill result in termination of the caregiver’s enrollment. Individuals associ-ated with legally-exempt group child care programs who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Individuals at legally-exempt group child care programs

NYS Register/April 5, 2017 Rule Making Activities

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who do not complete the training by the required date must not haveunsupervised contact with children in care. Failure to complete the train-ing by the required date may result in termination of the legally-exemptgroup child care program’s enrollment.

3. Professional services:No new professional services are required by small business or local

government to comply with this change.4. Compliance costs:The implementation of emergency and proposed regulations may result

in costs to child care programs. The Office plans to offer training, at nocost to programs, that will satisfy the federal requirement for pre-servicehealth and safety training. For those that use the Office training course tosatisfy this requirement, the costs will be minimal.

5. Economic and technological feasibility:No new economic or technology requirements for small business or lo-

cal government are expected.6. Minimizing adverse impact:To minimize the impact of the regulations on child care programs, the

Office is funding the development of an on-line training course that willmeet the federal requirements. The training course is constructed inmodular sessions and takes into consideration the time constraints on thechild care program and the individual. The training course is anticipated tobe available on the effective date of the emergency and proposed regula-tions and will be available at no cost to the participants.

7. Small business and local government participation:In the development of the 2016-2018 Child Care and Development

Fund Plan, the Office held three regional public hearings, in which thefederal training requirements were presented to child day care providersand local social services districts. The Office held a statewide webinar forchild day care providers that outlined these and other changes. The draft2016-2018 Child Care and Development Fund Plan was posted on the Of-fice website. Child day care providers, local governments, and the publicmade comments on the proposed 2016-2018 Child Care and DevelopmentFund Plan.

Rural Area Flexibility Analysis1. Types and estimated numbers of rural areas:The emergency and proposed regulations will affect day care centers,

school-age and home-based child care providers, and legally-exempt childcare providers located in all 44 rural areas of the State. Statewide, thereare approximately 17,230 child care programs, 30,000 legally-exemptchild care programs statewide, and 12,000 day care centers in New YorkCity that have to complete the required training course and will be affected.

2. Reporting, recordkeeping, and other compliance requirements andprofessional services:

Child care programs will have to keep a record of compliance with thenew training standards, as they are required to do with the current trainingstandards.

CCDBG and the Child Care and Development Fund (CCDF) regula-tions require all directors, teachers, and caregiving staff at licensed,registered, and legally-exempt child care programs (except for certainlegally-exempt relative caregivers) obtain health and safety training, pre-service or during a three-month orientation period, as appropriate for theprogram setting. Section 98.44(b)(1)(i) of the CCDF regulations providethat this health and safety training must be completed before caregivers,teachers, and directors are allowed to care for children unsupervised. Therequired federal compliance date is September 30, 2017.

SSL Section 390-a(3)(d) requires family day care and group family daycare operators obtain training pertaining to the protection of the health andsafety of children, prior to the issuance of a registration or license by theOffice. The 15-hour health and safety classroom training designated tosatisfy this requirement was updated to include the federally requiredhealth and safety pre-service/orientation trainings topics, and wasimplemented August 1, 2016. Individuals who completed the 15-hourhealth and safety classroom training before August 1, 2016 will need totake Office-approved training by September 30, 2017 to comply with thisCCDBG requirement. Individuals who completed the 15-hour health andsafety classroom training on or after August 1, 2016 have complied withthis CCDBG requirement. Individuals applying to operate a family daycare or group family day care after the effective date of these regulationswill comply with the CCDBG requirement upon completion of the 15-hour health and safety classroom training course, prior to the Office issu-ing the registration or license. Family day care and group family day carehomes permitted to replace the person named as the provider, must havethe individual complete the 15-hour health and safety classroom trainingbefore becoming the provider. Failure to obtain the training by the requireddate may result in regulatory violations, and potential enforcement actionagainst the child care program.

Assistants, substitutes, and volunteers who have the potential for regu-lar and substantial contact with children in care of family day care andgroup family day care homes must obtain health and safety training, either

pre-service or during a three-month orientation period, or by September30, 2017, whichever is later. Any assistant or substitute who does notcomplete this training by the required date must not be left unsupervisedwith children in care until such time as the training has been completed.Failure to obtain the training by the required date may result in regulatoryviolations, and potential enforcement action against the child careprogram.

Directors, teachers, and volunteers with the potential for regular andsubstantial contact with children in care of school-age child care programsand day care centers may obtain the federally required training, either pre-service or during a three-month orientation period, or by September 30,2017, whichever is later. Directors and teachers located in school-agechild care programs and day care centers who have not completed thetraining by September 30, 2017 must not be left unsupervised with chil-dren in care until after such individuals have completed the training. Fail-ure to obtain the training by the required date may result in regulatoryviolations, and potential enforcement action against the child careprogram.

Those legally-exempt informal child caregivers who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Failure to complete the training by the required datewill result in termination of the caregiver’s enrollment. Individuals associ-ated with legally-exempt group child care programs who are required tocomplete the training, must do so pre-service or by September 30, 2017,whichever is later. Individuals at legally-exempt group child care programswho do not complete the training by the required date must not haveunsupervised contact with children in care. Failure to complete the train-ing by the required date may result in termination of the legally-exemptgroup child care program’s enrollment.

3. Costs:The implementation of emergency and proposed regulations may result

in costs to child care programs. The Office plans to offer a training, at nocost to programs, that will satisfy the federal requirement for pre-servicehealth and safety training. For those that use the Office training course tosatisfy this requirement, the costs will be minimal.

4. Minimizing adverse impact:To minimize the impact of the regulations on child care programs, the

Office is funding the development of an on-line training course that willmeet the federal requirements. The training course is constructed inmodular sessions and takes into consideration the time constraints on thechild care program and the individual. The training course is anticipated tobe available on the effective date of the emergency and proposed regula-tions and will be available at no cost to the participants.

5. Rural area participation:In the development of the 2016-2018 Child Care and Development

Fund Plan, the Office held three regional public hearings, in which thefederal training requirements were presented to child care providers andlocal social services districts. The Office held a statewide webinar forchild care providers that outlined these and other changes. The draft 2016-2018 Child Care and Development Fund Plan was posted on the Officewebsite. Child day care providers, local governments, and the public madecomments on the proposed 2016-2018 Child Care and Development FundPlan.

Job Impact StatementThe emergency and proposed regulations are not expected to have a

negative impact on jobs or employment in either the public or privatesector.

Nature of Impact:The Office does not expect any reduction to the number of employees at

family day care homes, group family day care homes, day care centers,school age child care programs, or legally-exempt child care programsbased on the regulations.

Categories and Numbers Affected:There are no changes in categories or numbers.Regions of Adverse Impact:There are no regions where the regulations would have a disproportion-

ate adverse impact on jobs or employment opportunities.Self-Employment Opportunities:No measureable impact on opportunities for self-employment is

expected.

Department of Civil Service

NOTICE OF EXPIRATION

The following notices have expired and cannot be reconsideredunless the Department of Civil Service publishes new notices ofproposed rule making in the NYS Register.


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Jurisdictional Classification

I.D. No. Proposed Expiration DateCVS-11-16-00001-P March 16, 2016 March 16, 2017





Division of Criminal JusticeServices

REVISED RULE MAKING


Handling of Ignition Interlock Cases Involving Certain CriminalOffenders

I.D. No. CJS-25-16-00004-RP

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-cedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action: Amendment of sections 358.1-358.3, 358.4(a), (c), (d),358.5-358.8; and addition of section 358.10 to Title 9 NYCRR.

Statutory authority: Vehicle and Traffic Law, sections 1193(1)(g) and1198(5)(a)

Subject: Handling of Ignition Interlock Cases Involving Certain CriminalOffenders.

Purpose: To promote public/traffic safety, offender accountability andquality assurance through the establishment of minimum standards.

Substance of revised rule: The full text of the regulation can be viewed athttp://www.criminaljustice.ny.gov/.

These proposed amendments make substantive and technical changesto the Division of Criminal Justice Services rule, entitled “Handling ofIgnition Interlock Cases Involving Certain Criminal Offenders”. Overall,it updates, clarifies, and strengthens regulatory provisions to betterenhance public/traffic safety, achieve greater offender accountability, andguarantee quality assurance with respect to Ignition Interlock Device (IID)program service delivery.

Rule Sections 358.1 and 358.2 are amended to update the objectivesand applicability regulatory language to reflect recent statutory changes.

Rule Section 358.3 governing definitions, is amended to refine and/orreinforce certain definitional terms. Two new definitions of “EmergencyNotification Program” and “real time reporting” are also added to reflectnew programmatic features which are now operational.

Several proposed amendments are made to Rule Section 358.4 govern-ing Ignition Interlock Program Plans. Plan content is updated to incorpo-rate recent statutory changes as to imposition of IIDs in advance ofsentencing and to better ensure that plans reflect handling of interim proba-tion supervision cases. Additional proposed language will facilitate timelynotification procedures to monitors where a court approves reduction in abreath sample in accordance with new regulatory provisions.

Rule Section 358.5, governing the Approval Process and Responsibili-ties of Qualified Manufacturers, is amended with respect to applicationprocedures, including but not limited to, updating outdated language, andestablishing parameters surrounding open application process andcontractual term to promote consistency. Other proposed changes aresought to achieve greater offender and service delivery accountability. Forexample, new reporting language is proposed with respect to test results tobetter guarantee serious failed tests by operators are timely reported. Otherchanges strengthen provisions to establish timely DCJS notification of sig-nificant operational service delivery problems. Significantly, a new regula-tory provision establishes a mechanism consistent with National HighwayTraffic Safety Administration standards which will permit court authoriza-tion of a reduced breath sample for certain operators with certain health is-sues which prevent them from regular operational usage of the IID.

Rule Section 358.6 governing cancellation, suspension, and revocationof qualified manufacturers, installation and service providers and IIDs, ismodified to clarify that verbal and/or written notification or communica-

tion of disapproval, suspension in whole or in part, of revocation or cancel-lation of a manufacturer’s device, services, and/or operations by anotherstate or jurisdiction, may result in revocation of a certified IID or suspen-sion or removal of a qualified manufacturer or installation/service providerin New York State.

Proposed changes to Rule Section 358.7 governing monitoring and RuleSection 358.8 governing installation and costs, would update these regula-tory provisions to reflect recent statutory changes and reference interimprobation supervision. Additionally, Rule Section 358.7 sets forth revisedintrastate and interstate monitoring procedures to establish that for intra-state conditional discharge cases, the sentencing county monitor shallcontact the monitor in the county of residence to determine the class ofIID available and the sentencing county monitor shall perform monitorservices. Further where there is an Emergency Notification Program, themonitor shall notify the IID Manufacturer so that the designated lawenforcement agency within the county of residence shall receive all ap-plicable communications/notifications. Further, where an IID is to beimposed in advance of sentencing, the monitor in the county of residenceis to be similarly contacted by the monitor in the county where the courtorders installation to determine the specific class and features of the IIDavailable and an identical procedure will be required for EmergencyNotification Programming in the county of residence. With respect to in-terstate transfer, regulatory language is streamlined.

Among proposed regulatory changes are the following:D Reflects the imposition and monitoring of IIDs installed in conjunc-

tion with interim probation supervision and in cases prior to sentencingpursuant to a court order.

D Clarifies that the period of IID restriction will commence from theearlier of the date of sentencing, or the date of installation in advance ofsentencing and that a court may not authorize the operation of a motor ve-hicle by any individual whose license or privilege to operate a motor vehi-cle has been revoked.

D Establishes that monitors select the class and features of IIDs avail-able from an available manufacturer in the region where an operatorresides.

D Requires that the applicable monitor coordinate monitoring with theNYS Department of Corrections and Community Supervision (DOCCS)where the operator is under DOCCS supervision and promptly providesuch agency with reports of any failed tasks or failed reports.

D Requires a court authorization for a reduction in breath sample to beconsistent with NHTSA requirements and that every county plan estab-lishes a procedure whereby the probation department and any other moni-tor be notified no later than five (5) business days from any such courtapproval.

D Requires all jurisdictions to submit an IID plan reflective of all opera-tors who may be subject to IID installation and maintenance with monitor-ing ordered by a court in advance of sentencing or at sentencing, and tomake modifications or updates, as required by DCJS. DCJS has requiredsince 2014 that plans have procedures in this area and to amend plans tobe consistent with law and regulatory provisions.

D Clarifies recent statutory changes to better ensure that youth adjudi-cated as Youthful Offenders of DWI and/or other alcohol related offensesare subject to IID installation and related compliance provisions.

D Clarifies recent statutory change that affected operators provide proofof installation compliance with the IID requirement to the court and theapplicable monitor where such person is under probation or conditionaldischarge supervision.

D Requires that manufacturers:o Provide documentation and verification of their respective Standby

Letter of Credit (SLOC) as specified in the manufacturer’s contract withNew York State;

D The SLOC was previously incorporated in DCJS 2013 contracts withmanufacturers.

o Adhere to any county plan real time reporting and emergency notifica-tion program requirements;

o Provide immediate written notice to DCJS and the DOH whenevertheir IID devices, services, and/or operations has been compromised ordoes not function as intended in NYS or any other state or jurisdiction ordisapproved or suspended in whole or in part, revoked or otherwisecancelled by another state or jurisdiction or has received notice or com-munication from another state or jurisdiction that any such actions areimminent.

Additionally, as existing DOH regulations require prior approval withrespect to any operational modification of IIDs, new regulatory languagereiterates this requirement and for any manufacturer to provide necessarydocumentation to DOH and that any such manufacturer notify DCJS ofany intent to do so and provide a written summary of any requested or ap-proved modification.

Lastly, a new Section 358.10 is added which incorporates by referencethe National Highway Traffic Safety Administration’s Standards govern-


5

ing Model Specifications for Breath Alcohol Ignition Interlock Devicesand cites where these may be found.Revised rule compared with proposed rule: Substantial revisions weremade in sections 358.5(c)(3), (6), 358.7(c)(2), (d)(1), (2) and 358.10.

Text of revised proposed rule and any required statements and analysesmay be obtained from Linda J. Valenti, Assistant Counsel, Division ofCriminal Justice Services, Alfred E. Smith Office Building, Room 832, 80South Swan Street, Albany, NY 12210, (518) 457-8413, email:[email protected]



Revised Regulatory Impact Statement, Regulatory Flexibility Analysis,Rural Area Flexibility Analysis and Job Impact StatementChanges made to the last published rule do not necessitate revision to thepreviously published Regulatory Impact Statement, Regulatory FlexibilityAnalysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public CommentDuring the official public comment period, the New York State (NYS)

Division of Criminal Justice Services (DCJS) received five (5) writtencomments relative to the proposed regulatory amendments to Part 358governing the handling of ignition interlock cases involving certain crimi-nal offenders from the NYS Council of Probation Administrators (COPA),the NYS Probation Officers Association (POA), the Westchester CountyProbation Department (WPD), the Queens District Attorney’s Office, andSmart Start. Subsequently, the NYS Office of Court Administration (OCA)sent comments to DCJS.

COPA, POA and WPD all requested change to reduce the number ofregulatory enumerated events that require monitors notification to the ap-plicable Court and District Attorney (DA). Due to their claims of unneces-sary paperwork they sought change to establish that upon monitor notifica-tion of only four (4) misconduct behaviors that monitors instead conductan investigation and within three days, and when deemed appropriate bythem, DA and Court notification occur. In response to their comments,DCJS will eliminate the reporting requirement for start-up and rollingtests (initial tests) where the BAC is equal to or greater than.05% BAC.Since the inception of the IID Program in 2010, DCJS has documented anumber of events where a failed start-up test or rolling (initial) test mea-sured at.05% BAC is followed by a passing start-up retest or passing roll-ing retest. Accordingly, DCJS has determined that placing the emphasisand resources on the timely and accurate reporting of failed/missedconfirmatory (start-up or rolling) re-tests is the best use of monitoring re-sources and consistent with the interests of public safety. In addition, DCJSwill modify its existing regulatory provision in this area to extend thereporting period by monitors to the DA and Courts required by Rule Sec-tion 358.7(d)(1) from three (3) to five (5) days). This will provide moni-tors greater time to provide required reports to the DA and Courts,particularly in those instances that occur before a weekend and/or holiday.This extended reporting period will also provide operators additional daysin which to address/cure missed service visits, eliminating in numerous in-stances the need for monitors to report such events to the DA and Court.

DCJS believes that the failure to timely install an IID and tampering/circumvention of the IID are all serious non-compliant behaviors thatshould continue to be reported to the applicable Court and DA. Addition-ally, certain missed service visits and any failed/missed retests orconfirmatory tests are serious non-compliant behaviors necessitatingcontinued reporting as noted above. However, as stated earlier, DCJSagrees to regulatory changes in the area of monitor reporting to judicialand prosecutorial authorities which will only require missed service visitsto be reported if the vehicle has not been promptly serviced within thethree business days immediately following the missed serviceappointment. Further, monitor reporting of the failed start-up or rollingtest (initial test) where the BAC is.05% or greater is also being eliminated.Moreover, DCJS has not heard any concerns raised by prosecutorial agen-cies relative to paperwork notification of these specific reportable events,but have agreed to make certain regulatory modifications reflected abovebased upon comments received and our consultation with specific judgesand DA offices. Both the current rule and proposed regulatory amend-ments place emphasis and resources strategically on monitoring, reportingand enforcement of the operator through confirmatory tests—failed/missedstart-up and rolling re-tests. Confirmatory re-tests are prompted by failed/missed start-up or rolling tests indicating alleged operator intoxication. Itis important to consider that such operators have already been arrested,convicted/adjudicated, as applicable, of an underlying Leandra’s Lawcrime, and placed on probation or conditional discharge with monitoringbecause their behaviors pose a substantial risk to community safety, or incertain instances that defendants have agreed to undergo IID monitoringpre-sentence which may result in more favorable case outcomes. Accord-

ingly, with limited exceptions, all failed/missed retests are violations ofthe conditions under which they have been permitted to continue to oper-ate a motor vehicle by the Courts, and these failed/missed re-tests aretherefore, deserving of report notification for whatever action the DAand/or the Court determine(s) appropriate. COPA also raised a few otherscenarios where they felt DA and Court notification was not necessary-forexample, where a defendant missed a service visit due to being hospital-ized or missed a re-test due to driving on a highway. DCJS does not believethat it is necessary to create exceptions and any monitor has the op-portunity to make a recommendation when sending the notification. Fur-ther DCJS clarified to COPA that monitors are not required to report oth-ers who operate the motor vehicle that is equipped with an IID, for whomfailed or missed tests are logged. However, any evidence of a crime that isdiscovered through the operation of the IID (e.g. friend or family memberblowing into the IID and recorded on camera) should result in an appropri-ate response and referral to police for further action whereby suchindividuals can be subsequently charged with Vehicle and Traffic Law(VTL) § 1198 offenses and/or other crimes which may be applicable.

Additionally, the Queens District Attorney’s Office, sought change toexisting regulatory language that requires that any test at, or above, a.05%BAC result in the notification to the appropriate Court and DA. Ourproposed change in this area to no longer require the monitor report afailed start-up or rolling test (initial tests), where the BAC is.05% orgreater, yet maintain the reporting requirement as to confirmatory testsatisfactorily addresses their request. Their Office also sought clarificationof the term “service visit” and instances in which court and DA notifica-tion must occur. DCJS directly communicated with them to address theirquestions. Further their Office asked about the difference between a“temporary lockout” and “permanent lockout”. DCJS explained to themthat neither term exists in either the current or proposed regulation, andclarified the regulatory definition of “lockout mode” and when it occursthat requires court and DA notification.

Smart Start, a qualified manufacturer of IIDs, submitted specific com-ments on various regulatory sections. Italicized below is a summary oftheir suggestions followed by DCJS’ responses:

D Rule Section 358.3(b). Smart Start suggests that all monitors use astandardized “certificate of completion” form for purposes of removal andtransfers. DCJS already has a template which is accessible and availableto all monitors.

D Rule Section 358.3(bb). Smart Start suggests that additional wording,“with the intention to circumvent or alter the proper operation,” beincluded in the definition of “tamper.” DCJS rejects this additionallanguage as it would be unduly burdensome on monitors to verify intentand would lead to many violators escaping penalties for their wrongfulbehavior.

D Rule Section 358.3. Smart Start suggests the addition of other defini-tions (i.e. fixed site, equipment, service, lockout code, mobile service andcamera). DCJS does not believe that any new definitional terms are neces-sary at this time, in large part because certain suggested terms are not usedin the Rule and the remaining are commonly understood.

D Rule Section 358.4(d)(4). Smart Start suggests adding the require-ment that operators return the IID upon completion of their term of moni-toring or be held financially liable. As this is a contractual/business rela-tionship between the operator and the vendor, DCJS does not believe it isappropriate to establish a regulatory provision in this area.

D Rule Section 358.5(c)(2). Smart Start suggests adding the phrase “themost current” when referring to National Highway Traffic Safety Adminis-tration (NHTSA) standards. DCJS has incorporated by reference in thisamendment the most current NHTSA standards and should any revisionoccur similarly amend our rule to reflect the most up-to-date document.

D Rule Section 358.5(c)(3). Smart Start suggests adding language tomake sure that the Qualified Manufacturer is provided with proof of areduced breath sample. DCJS agrees to add language requiring proof beprovided to the applicable Qualified Manufacturer.

D Rule Section 358.5(c)(5). Smart Start suggests removing the option ofan installation service provider/Qualified Manufacturer use mobileservicing. DCJS rejects their suggestion. While this may not fit into theirbusiness model it does not mean that it should not be an option for thevendors that choose to utilize it.

D Rule Section 358.5(c)(6). Smart Start suggests adding language toprovide consistency with later portions of the regulation relative to timeperiods between service visits. DCJS agrees to make these changes.

D Rule Section 358.5(c)(13). Smart Start suggests the addition of“conducted on site at each facility” to the annual quality assurance auditslanguage. DCJS finds their suggestion unnecessary and instead willmaintain business flexibility as to the manner of conducting such audits.

D Rule Section 358.5(d)(4). Smart Start suggests striking language thatallows for the direct exchange method of servicing IIDs. DCJS agrees asall service visits shall be conducted in- person and the direct exchangemethod of servicing is no longer an option. This was previously incorpo-rated in the proposed rule amendments issued for public comment.


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D Rule Section 358.5(d)(9). Smart Start suggests removing the option ofan installation service provider/qualified manufacturer use mobileservicing. DCJS disagrees with their suggestion and will maintain thisoption. While this may not fit into Smart Starts business model it does notmean that it should not be an option for the vendors that choose to utilizeit.

D Rule Section 358.7(c)(2). Smart Start suggests certain technicalchanges relative to device heads. DCJS agrees to make additional changeswhich clarify that the device head should never be removed by theoperator. Additionally, as this section governs service visits, DCJS will beadding language to provide parameters on how, and when, unlock codesare to be provided to an operator when necessary for a service visit.

D Rule Section 358.7(d)(1). Smart Start suggests only reporting on .05or above if the test is confirmed. As earlier noted, DCJS agrees with thissuggestion.

In conclusion, while many of the aforementioned comments receivedwere accepted and incorporated into the new proposed regulations orresulted in additional modified regulatory language, others were deter-mined to be either outside the scope of this document, not necessary, ornot in the best interests of public safety and/or the interest of justice.

Education Department

PROPOSED RULE MAKING


State Aid for Library Construction, and School Library Systrems

I.D. No. EDU-14-17-00006-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-cedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: Amendment of sections 90.12 and 90.18 of Title 8NYCRR.

Statutory authority: Education Law, sections 207(not subdivided),215(not subdivided), 273-a (1) through (7), 282(not subdivided), 283(notsubdivided) and 284(not subdivided)

Subject: State Aid for Library Construction, and School Library Systems.

Purpose: To Implement Education Law, section 273-a and to UpdateTerminology Related to the Functions of school library systems.

Text of proposed rule: 1. Section 90.12 of the Regulations of the Commis-sioner of Education shall be amended, to read as follows:

§ 90.12 State Aid for Library Construction.(a) Definitions. As used in this section and in Education Law, section

273-a:(1) . . .(2) . . .(3) . . .(4) Acquisition means the purchase of a site for library purposes

and/or an existing building suitable for conversion to library purposes.(5) . . .(6) . . .(7) Broadband library services means providing a high speed internet

connection for library users, including but not limited to internal andexternal connections, at a minimum speed prescribed by the commissionerusing such means as wireless, fiber, cable, white space and similarproducts.

(b) Application procedures.(1) . . .(2) . . .(3) . . .(4) . . .(5) The library system board, upon request by the Commissioner,

shall provide the eligibility criteria for applications designated as projectsserving economically disadvantaged communities pursuant to EducationLaw § 273-a(2)(e), for each recommended application.

(c) . . .(d) . . .(e) Costs. Pursuant to Education Law, section 273-a:

(1) Costs eligible for approval shall include:(i) construction or acquisition [or] of a library building;(ii) . . .(iii) renovation or rehabilitation of leased property to be used for

library purposes;

(iv) acquisition of vacant land to be used for library purposes;(v) purchase and installation of initial equipment and furnishing as

a project component of subparagraphs (i), (ii) or (iii) of this paragraph;(vi) purchase, installation and replacement of a library building’s

broadband services infrastructure, including but not limited to internaland external connections, either as a stand-alone project or as a projectcomponent of subparagraphs (i), (ii) or (iii) of this paragraph;

(vii) site preparation and grading as a project component ofsubparagraphs (i), (ii) [or], (iii) or (iv) of this paragraph;

(viii) replacement of a library building’s mechanicals including butnot limited to heating, ventilation, air conditioning, cooling, electrical, andplumbing systems;

(ix) replacement of permanent components of a library buildingincluding but not limited to windows, doors, roofs, and lighting systems;

(x) purchase and installation of permanent signage (with orwithout lighting, internal or external), which is used for library purposes;

(xi) purchase and installation of one or more generators for librarypurposes;

(xii) purchase and installation of assistive listening devices andsystems for the deaf and hearing impaired, which shall include but not belimited to, hearing loops, FM systems and infrared systems; and

(xiii) [supervision] project management of the construction, reno-vation, rehabilitation or broadband library services infrastructure proj-ect;

(xiv) architectural and engineering plans for locally approved newor ongoing projects; and

(xv) such other costs as may be approved by the [commissioner]Commissioner.

(2) Costs ineligible for approval shall include, but shall not be limitedto:

(i) speculative architectural and engineering plans and feasibilitystudies;

(ii) . . .(iii) . . .(iv) . . .(v) ongoing service fees for telecommunications and broadband

services;(vi) landscaping; and(vii) routine maintenance.

(f) . . .(g) Reports. The following reports shall be made to the commissioner

on the forms and by the dates prescribed by the commissioner:(1) . . .(2) [Each] Upon request by the Commissioner, a library system board

shall report on the anticipated State aid necessary for eligible projects tobe completed in its service area.

(3) Upon request by the [commissioner] Commissioner, [each] alibrary system board shall submit [an annual] a report detailing the statusof each project for which an application was submitted by a memberlibrary and not recommended for approval, or was approved but for whichno State aid was provided.

(4) Any other reports the Commissioner shall deem necessary tocarry out the purpose of this program.

2. Paragraph (7) of subdivision (a) of section 90.18 of the Regulationsof the Commissioner of Education shall be amended, to read as follows:

(7) Coordinator of a school library system means a certified schoollibrary media specialist with a minimum of three years employment as aschool library media specialist and possessing a valid school administratorand supervisor (S.A.S.) certificate [or], a valid school building leader(S.B.L.) certificate or a valid school district leader (S.D.L.) certificate inaccordance with Part 80 of this Title, or an equivalent certificate title asdetermined by the Commissioner.

Text of proposed rule and any required statements and analyses may beobtained from: Kirti Goswami, State Education Department, Office ofCounsel, State Education Department, Room 148, 89 Washington Avenue,Albany, NY 12234, (518) 474-6400, email: [email protected]

Data, views or arguments may be submitted to: Carol Desch, State Educa-tion Department, State Education Department, CEC, Madison Avenue,Albany, NY 12230, (518) 474-7196, email: [email protected]


Regulatory Impact Statement1. STATUTORY AUTHORITY:Section 207 of the Education Law grants general rule-making authority

to the Board of Regents to carry into effect the laws and policies of theState relating to education.

Section 215 of the Education Law authorizes the Commissioner ofEducation to visit, examine, and inspect schools or institutions under theeducation supervision of the State and require reports from such schools.


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Education Law section 273-a(1-4) provides for State aid for projects forthe installation and infrastructure of broadband services, and for theacquisition of vacant land and the acquisition, construction, renovation orrehabilitation, including leasehold improvements, of buildings of publiclibraries and public library systems chartered by the Regents of the Stateof New York or established by act of the Legislature, upon approval by theCommissioner of Education. Subdivision (5) of section 273-a authorizesthe Commissioner of Education to adopt rules and regulations as are nec-essary to carry out the purposes and provisions of this section.

Sections 282, 283, and 284 of the Education Law provide for theestablishment and functions of and State aid for school library systems inBOCES, the Big Five city school districts (New York City, Buffalo, Syra-cuse, Rochester, and Yonkers) and school districts and nonpublic schoolsenumerated in a school library system plan of service approved by theCommissioner of Education.

2. LEGISLATIVE OBJECTIVES:The proposed amendment carries out the legislative objectives of the

above-referenced statutes by implementing Education Law section 273-a,as amended by Chapter 498 of the Laws of 2011, Chapter 148 of the Lawsof 2014 and Chapter 480 of the Laws of 2015 and by updating and clarify-ing certain terminology relating to the functions of school library systems.

3. NEEDS AND BENEFITS:The proposed amendments to section 90.12 of the Commissioner’s

regulations are necessary to implement Education Law § 273-a, asamended by Chapter 498 of the Laws of 2011, Chapter 148 of the Laws of2014, and Chapter 480 of the Laws of 2015. These amendments includethe following major changes:

D a definition of broadband library services was added;D requires each public library system to submit, upon request by the

Commissioner, the eligibility criteria for applications designated as proj-ects serving economically disadvantaged communities pursuant to Educa-tion Law § 273-a(2)(e), for each recommended application;

D clarifies certain costs that are eligible for approval, including but notlimited to the:

o acquisition of vacant land to be used for library purposes;o purchase, installation and replacement of a library building’s

broadband services infrastructure, including but not limited to internal andexternal connections, either as a stand-alone project or as a projectcomponent;

o purchase and installation of permanent signage (with or withoutlighting, internal or external), which is used for library purposes;

o purchase and installation of one or more generators for librarypurposes;

o purchase and installation of assistive listening devices and systemsfor the deaf and hearing impaired, which shall include but not be limitedto, hearing loops, FM systems and infrared systems;

o project management of the construction, renovation, rehabilitationor broadband library services infrastructure project; and

o architectural and engineering plans for locally approved new orongoing projects.

D clarifies certain costs that are ineligible for approval, including butnot limited to:

o speculative architectural and engineering plans and feasibility stud-ies; and

o ongoing service fees for telecommunications and broadbandservices.

D eliminates the requirement that a library system board must submit anannual report to the Commissioner detailing the status of each project andinstead, only requires the submission of a report upon request by theCommissioner. The proposed amendment also provides the Commissionerwith flexibility to require the library system board to submit any otherreport the Commissioner deems necessary to carry out the purpose of theprogram.

The proposed amendment also amends section 90.18 of the Commis-sioner’s regulations to update and clarify certain terminology relating toschool library systems in BOCES and the Big Five city school districts.Specifically, the proposed rule amends the definition of a “coordinator of aschool library system” to clarify that such a coordinator must possess ei-ther a valid certificate as a school administrator and supervisor (S.A.S.), aschool building leader (S.B.L.) or a school district leader (S.D.L.) in ac-cordance with Part 80 of the Commissioner’s regulations, or an equivalentcertificate title as determined by the Commissioner.

4. COSTS:(a) Costs to the State government: The amendment will not impose any

additional costs on State government, including the State EducationDepartment.

(b) Costs to local government: The proposed amendment will notimpose any additional costs upon local government.

(c) Costs to private, regulated parties: None.(d) Costs to regulating agency for implementation and continued

administration of this rule: None.

5. LOCAL GOVERNMENT MANDATES:The proposed amendment does not directly impose any additional

program, service, duty or responsibility upon local governments. Theproposed amendment implements Education Law section 273-a and clari-fies certain terminology.

6. PAPERWORK:The proposed amendment does not require any additional paperwork

requirements.7. DUPLICATION:The proposed amendment does not duplicate any existing State or

federal requirements.8. ALTERNATIVES:There were no viable alternatives to the proposed amendment, and none

were considered.9. FEDERAL STANDARDS:The proposed amendment does not exceed any minimum standards of

the federal government.10. COMPLIANCE SCHEDULE:The proposed amendment would take effect on its stated effective date.

It is anticipated that the regulated parties would come into compliancewith the amendment on or immediately in following such date. Because ofthe nature of the proposed amendment, no additional period of time isneeded to enable regulated parties to comply.

Regulatory Flexibility Analysis(a) Small Businesses:The purpose of the proposed amendment is to amend section 90.12 to

implement Education Law 273-a, as amended by Chapter 498 of the Lawsof 2011, Chapter 148 of the Laws of 2014 and Chapter 480 of the Laws of2015 relating to state aid for library construction and to amend section90.18 to update and clarify certain terminology relating to the functions ofschool library systems. The amendment does not impose any reporting,recordkeeping, or compliance requirements on small businesses and willnot have an adverse economic impact on small businesses. Because it isevident from the nature of the proposed amendment that it does not affectsmall businesses, no further steps were needed to ascertain that fact andnone were taken.

(b) Local Governments:1. EFFECT OF RULE:The proposed rule applies to 23 public library systems in New York

State and some 750 public and association libraries seeking state aid forlibrary construction under Education Law 273-a and the 41 school librarysystems in New York State, the 36 boards of cooperative educational ser-vices (BOCES), and the Big Five city school districts (New York City,Buffalo, Syracuse, Rochester and Yonkers).

2. COMPLIANCE REQUIREMENTS:The proposed amendments to section 90.12 of the Commissioner’s

regulations are necessary to implement Education Law § 273-a, asamended by Chapter 498 of the Laws of 2011, Chapter 148 of the Laws of2014, and Chapter 480 of the Laws of 2015. These amendments includethe following major changes:














D eliminates the requirement that a library system board must submit an


8

annual report to the Commissioner detailing the status of each project andinstead, only requires the submission of a report upon request by theCommissioner. The proposed amendment also provides the Commissionerwith flexibility to require the library system board to submit any otherreport the Commissioner deems necessary to carry out the purpose of theprogram.


3. PROFESSIONAL SERVICES:The proposed amendment will not require public and association librar-

ies, public library systems, school library systems, school districts orBOCES to employ additional professional services in order to comply.

4. COMPLIANCE COSTS:The amendment will not impose any costs on local governments, includ-

ing public and association libraries, public library systems, school districtsor BOCES.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:The proposed amendment does not impose any new technological

requirements or costs on local governments. As stated in “compliancecosts,” the amendment will not impose any costs on school districts orBOCES.

6. MINIMIZING ADVERSE IMPACT:Because the purpose of the proposed amendment is to implement statu-

tory changes, no alternatives were considered.7. LOCAL GOVERNMENT PARTICIPATION:Comments on the proposed rule amending 90.12 were solicited from

public library system directors, public and association library directors/managers and library boards of trustees in various regions of the State.Comments on the proposed rule amending 90.18 were solicited fromschool library system directors in various regions of the State.

Rural Area Flexibility Analysis1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:The proposed amendments to section 90.12 apply to 23 public library

systems and some 750 public and association libraries seeking State aidfor library construction under Education Law 273-a and the proposedamendment to section 90.18 applies to the 41 school library systemsestablished in New York State, the 36 boards of cooperative educationalservices (BOCES), and the Big Five city school districts (New York City,Buffalo, Syracuse, Rochester, and Yonkers). This includes libraries andlibrary systems located in the 44 rural counties and 71 towns in urbancounties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCEREQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendments to section 90.12 of the Commissioner’sregulations are necessary to implement Education Law § 273-a, asamended by Chapter 498 of the Laws of 2011, Chapter 148 of the Laws of2014, and Chapter 480 of the Laws of 2015. These amendments includethe following major changes:














D eliminates the requirement that a library system board must submit anannual report to the Commissioner detailing the status of each project andinstead, only requires the submission of a report upon request by theCommissioner. The proposed amendment also provides the Commissionerwith flexibility to require the library system board to submit any otherreport the Commissioner deems necessary to carry out the purpose of theprogram.


3. COSTS:The proposed amendment does not impose any additional costs on pub-

lic and association libraries, public library systems, school library systemsor BOCES located in rural areas.

4. MINIMIZING ADVERSE IMPACT:The proposed amendment to section 90.12 and 90.18 have been drafted

to implement statutory requirements. In order to ensure uniform, State-wide high standards for school library systems, the proposed amendmentto section 90.18 applies State-wide.

5. RURAL AREA PARTICIPATION:The proposed amendment to section 90.12 has been sent for comment

to public library system directors, public and association library directors/managers and library boards of trustees, including those in rural areas. Theproposed amendment to section 90.18 has been sent for comment to schoollibrary system directors in various regions of the State, including those inrural areas.

Job Impact StatementThe purpose of the proposed amendment is to amend 90.12 to implementEducation Law 273-a, as amended by Chapter 498 of the Laws of 2011,Chapter 148 of the Laws of 2014 and Chapter 480 of the Laws of 2015and to amend 90.18 to update and clarify certain terminology relating tothe functions of school library systems. Because it is evident from thenature of the proposed rule that it will have no impact on jobs and employ-ment opportunities, no affirmative steps were needed to ascertain that factand none were taken. Accordingly, a job impact statement is not required,and one has not been prepared.

Department of EnvironmentalConservation


HEARING(S) SCHEDULED

Prevention and Control of Environmental Pollution byRadioactive Materials

I.D. No. ENV-14-17-00001-P


Proposed Action: Amendment of Part 380 of Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, arts. 1, 3, 17, 19,27, 29 and 37

Subject: Prevention and Control of Environmental Pollution by Radioac-tive Materials.

Purpose: To amend regulations pertaining to disposal and release of ra-dioactive materials to the environment.

Public hearing(s) will be held at: 1:00 p.m., May 25, 2017 at Departmentof Environmental Conservation, 625 Broadway, Rm. 129, Albany, NY.

Interpreter Service: Interpreter services will be made available to hearingimpaired persons, at no charge, upon written request submitted within rea-sonable time prior to the scheduled public hearing. The written request


9

must be addressed to the agency representative designated in the paragraphbelow.

Accessibility: All public hearings have been scheduled at places reason-ably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following Statewebsite: http://www.dec.ny.gov/regulations/106149.html): The New YorkState Department of Environmental Conservation (DEC) proposes toamend 6 NYCRR Part 380, which regulates the disposal and release of ra-dioactive material to the environment pursuant to Articles 1, 3, 17, 19, 27,29, and 37 of the Environmental Conservation Law (ECL) and the State ofNew York’s agreement with the United States Nuclear Regulatory Com-mission (NRC).

The current Part 380 contributes to meeting the legislative goals ofconserving, improving, and protecting the State’s natural resources andenvironment and preventing, abating and controlling water, land, and airpollution. This is done through several provisions in the rule. Part 380 setslimits on the radiation dose to members of the public due to releases of ra-dioactive material to the environment. It requires parties to obtain permitsfor most releases of radioactive material made directly to the environment.Radiation exposures in uncontrolled areas in the environment are requiredto be kept as low as reasonably achievable. The regulations also restrictthe disposal of radioactive material to only those methods approved in theregulations or by DEC in a permit.

The proposed amendments would not change the general requirementsfor disposal of radioactive material or obtaining permits, or the require-ment that exposures be kept as low as reasonably achievable. New provi-sions that would contribute to meeting the legislative goals include apply-ing a constraint on emissions to the air, which is lower than the currentlimit.

The proposed amendments to Part 380 would update several provisionsthat are required for compatibility with federal regulations, simplify andupdate language, and add several needed provisions that have been absentfrom the regulations. The following outline highlights the proposedchanges.

In subpart 380-1, several changes to the general provisions will be madefor the purpose of improving clarity and to fill regulatory gaps. Referenceto Article 37 of the ECL has been added, as it had been previouslyinadvertently omitted. Applicability has been expanded to include the useof licensed radioactive material in the environment (e.g., in environmentalstudies). Because the use of radioactive material in the environment is notcurrently specifically identified in regulation as being subject to Part 380,DEC cannot issue Radiation Control Permits for such uses until theproposed amendment is adopted. This subpart has also been expanded toclarify that certain types of radioactive materials are not subject to Part380, such as intact smoke detectors, household waste containing excretedresidues of radiopharmaceuticals, or naturally occurring radioactive mate-rial in natural isotopic abundance. This clarification should help avoidconfusion about the disposal of radioactive materials that are not subjectto regulatory control. In addition, a paragraph has been added to clarifythat sites containing buried radioactive waste are subject to Part 380.

In subpart 380-2, several additions and changes in definitions will bemade to maintain compatibility with federal regulations, improve clarity,and incorporate commonly used terms of art. The definition changes arehighlighted below.

“Disposal” has been added, as it is not currently defined in Part 380.“Release” has been added, as it replaces the former use of the term“discharges” throughout the regulation. “Discharge” has been revised toapply only to the release of material to ground or surface water. The termcurrently applies to the release of radioactive material to both air and water.“Emission” has been added for the release of material to the air. “Effluent”has been added to mean material released to air or water, as this term ap-pears in the Table of Concentrations in section 380-11.7. “Effluent treat-ment” has been added as it is referenced in section 380-3.4. “Incineration”is defined as a process, instead of the equipment used. “Incinerator” hasbeen deleted. “Permit” has been expanded to apply to the use of radioac-tive material in the environment, and for the maintenance of a former ra-dioactive waste land burial site. “Permittee” has been updated for consis-tency with language used in other DEC regulations. “Loss of control ofradioactive material” has been revised because the previous definition waslimited to licensed radioactive material. “Uncontrolled release” has beenadded for unplanned releases of radioactive material to the environment.This term is referenced in section 380-9.2 and is needed to differentiatefrom controlled releases of radioactive material to the environment as au-thorized under the Part 380 regulations. “TENORM” has been added toclarify that technologically enhanced naturally occurring radioactive ma-terial (TENORM) is the same as processed and concentrated naturally oc-curring radioactive material, which is regulated radioactive material.

Other definitions will be added or revised as required for compatibilitywith federal regulations issued by the NRC in 10 CFR 20. Definitions for

“dose constraint” and “public dose” will be added. Likewise, the defini-tions for “total effective dose equivalent” and “member of the public” willbe revised as required to maintain compatibility with federal rules.

In subpart 380-3, permit requirements will be clarified to identify eachtype of disposal or release of radioactive material that can only be under-taken as authorized by DEC in a permit. Also, the required content ofpermit applications has been expanded to establish in regulation the mini-mum information that must be included in a permit application. Thesecriteria have already been used to evaluate the sufficiency of submittedpermit applications for many years.

In subpart 380-4, language has been added so that all allowed wastedisposal methods for radioactive material are now referenced in thissubpart. The disposal of a specific category of wastes (the so-calledbiomedical exemption) has been expanded to include animal beddingmeeting certain criteria, which supports the longstanding disposal exemp-tion that exists for animal tissue containing small amounts of radioactivematerial.

In subpart 380-5, which pertains to radiation dose limits for individualmembers of the public, a 10 millirem (mrem) constraint on airborne emis-sions has been added to maintain compatibility with federal rules. Thisdose constraint has already been implemented by permit condition for sev-eral years. Also, the reference to 40 CFR 190 has been deleted because itwas inappropriately included in Part 380.

In subpart 380-6, annual calibrations are now required for instrumentsused to measure effluent flow rates. This requirement has already beenimplemented by permit condition for several years.

No significant changes were made to subpart 380-7, Release Minimiza-tion Programs.

In subpart 380-8, which pertains to records, regulated persons are nowauthorized to record quantities of radioactivity in the International Systemof Units (also known as SI). Two new requirements will be added: (1) datamaintained in electronic format must be made available to DEC viahardcopy upon request; and (2) records required by Part 380 must betransferred from the old permittee to the new permittee when a permit istransferred. These requirements would ensure that inspectors can obtaininformation and raw data that may only exist on a computer system, andwould ensure that records relevant to Part 380 compliance are properlytransferred when a permit is transferred.

In subpart 380-9, which pertains to reports, the requirement for a permit-tee to submit annual reports has been expanded to require reporting ofenvironmental dosimeter results when the acquisition of such data isrequired by the permit. This requirement has already been implemented bypermit condition for several years. Several requirements have changedregarding Notification of Incidents; some changes were required tomaintain compatibility with federal regulations, and other changes wereadded to lower the reporting thresholds because the federal rules requiringnotification of incidents only involve large exposures. Reports are nowrequired for: (1) uncontrolled releases or events that could cause releases;(2) exceedance of any permit or regulatory limit (this requirement has al-ready been implemented by permit condition for several years); or (3)exceedance of the dose constraint. The contents of reports and timeframesare specified.

In subpart 380-10, which includes the “General Regulatory Require-ments,” several additions will be made. The new prohibition of engagingin deliberate misconduct is required for compatibility with federal rules.This prohibits the deliberate submission of inaccurate or incomplete infor-mation to DEC, and applies to permittees, applicants and contractors.Also, information submitted to DEC must be complete and accurate, and aprohibition has been added against uncontrolled releases, unauthorizedtransfers, or abandonment of radioactive material or failure to complywith any requirement in Part 380. These additions would strengthen DEC’senforcement capabilities in the event that violations of Part 380 areidentified.

In subpart 380-11, two new isotopes will be added to the Tables ofConcentrations: N-13 and O-15. These additions are required to maintaincompatibility with the federal rules issued by NRC in 10 CFR 20.

In summary, the proposed amendment to Part 380 would: (1) updateseveral provisions that are required for compatibility with federal regula-tions; (2) simplify, clarify and update language; and (3) add several neededprovisions that have been absent from the regulations when it was previ-ously promulgated.

Text of proposed rule and any required statements and analyses may beobtained from: Sandra Hinkel, NYS Department of Environmental Con-servation, 625 Broadway, Albany, NY 12233-7255, (518) 402-9625, email:dec.sm.Regs.Radiation


Public comment will be received until: June 5, 2017.

Additional matter required by statute: Short Environmental AssessmentForm, which includes determination of significance, and Coastal Assess-ment Form have been completed for this proposed rule making.


10

http://www.dec.ny.gov/regulations/106149.html

mailto: dec.sm.Regs.Radiation

Summary of Regulatory Impact StatementFull text of the Regulatory Impact Statement is available on the New

York State Department of Environmental Conservation’s website at http://www.dec.ny.gov/regulations/106149.html

1. STATUTORY AUTHORITYThe New York State Department of Environmental Conservation (DEC)

regulates the disposal and release of radioactive material to the environ-ment pursuant to Articles 1, 3, 17, 19, 27, 29, and 37 of the EnvironmentalConservation Law (ECL) and the State of New York’s agreement with theUnited States Nuclear Regulatory Commission (NRC).

New York State Agreement State Program:The Atomic Energy Act (AEA) of 1954 created the federal program for

controlling the use of most radioactive materials and for limiting the pub-lic exposure to radiation resulting from that use. In 1960, the AEA wasamended to allow states to enter into agreements with the NRC wherebythe authority to license most uses of radioactive material is relinquished tothe state. New York State became an Agreement State in 1962. The State’sagreement is implemented by the New York State Department of Health(DOH), the New York City Department of Health and Mental Hygiene(NYCDHMH), and DEC.

ECL Articles 1 and 3:The ECL vests in DEC broad powers with respect to the discharge of

pollutants into the environment. Those powers are set forth in ECL section1-0101(1). DEC further implements this policy by ECL section 3-0301(1).There is not a separate ECL Article that comprehensively governs theregulation of radioactive materials. Rather, the source of legal authority isdivided among the following ECL Articles: Article 17 (Water), Article 19(Air), and Article 27 (Solid Waste), Article 29 (Low-Level RadioactiveWaste Facilities), and Article 37 (Substances Hazardous or Acutely Haz-ardous to Public Health, Safety or the Environment).

2. LEGISLATIVE OBJECTIVESThe current Part 380 contributes to meeting the legislative goals of

conserving, improving, and protecting the State’s natural resources andenvironment and preventing, abating, and controlling water, land, and airpollution.

The proposed amendments would not change the current requirementsgoverning the disposal of radioactive material, obtaining permits forreleases of radioactive material to the environment, or the requirementthat exposures be kept as low as reasonably achievable. New provisionsthat would contribute to meeting the legislative goals include applying aconstraint on emissions to the air, which is lower than the current limit.

3. NEEDS AND BENEFITSThe purpose of Part 380 is to control the release of radioactive material

to the environment in order to protect the public health and theenvironment. The regulations apply to all State-regulated parties thatdispose of or release radioactive materials to the environment.

These amendments are needed because of New York State’s agreementwith the NRC: the State is required to have regulations that are compatiblewith the federal regulations. This amendment is needed to incorporate ap-plicable federal changes to 10 CFR 20, the federal standards for protectionagainst radiation, that were made from 1991 through 2008.

The proposed amendments would also simplify language, define com-monly used terms of art, and clarify several regulatory provisions. Theseclarifications would benefit the regulated community whose operations areregulated by Part 380, and strengthen DEC’s enforcement capabilitiesregarding these regulatory provisions.

In subpart 380-1, several changes to the general provisions will be madefor the purpose of improving clarity and to fill regulatory gaps.

In subpart 380-2, several additions and changes to the definitions willbe made to maintain compatibility with federal regulations, improve clar-ity, and incorporate commonly used terms of art.

In subpart 380-3, permit requirements will be clarified to identify eachtype of disposal or release of radioactive material that can only be under-taken as authorized in a permit. Also, the required content of permit ap-plications will be expanded to establish the minimum information thatmust be included in a permit application.

In subpart 380-4, language will be added so that all allowed waste dis-posal methods are referenced in this subpart.

In subpart 380-5, a 10 millirem (mrem) constraint on airborne emis-sions will be added, as required to maintain compatibility with federalregulations.

In subpart 380-6, annual calibrations will be required for instrumentsused to measure effluent flow rates.

No significant changes were made to subpart 380-7.In subpart 380-8, regulated parties will be authorized to record quanti-

ties of radioactivity in SI units. Also, two new requirements will be added:data maintained in electronic format must be made available to DEC viahardcopy upon request, and records required by Part 380 must betransferred from the old permittee to the new permittee when a permit istransferred.

In subpart 380-9, the requirement for a permittee to submit annualreports will be expanded to require reporting of environmental dosimeterresults when the acquisition of such data is required by the permit. Severalrequirements have changed regarding Notification of Incidents - - somechanges were required to maintain compatibility with federal regulations;others were made to lower the reporting thresholds.

In subpart 380-10, several additions will be made to the General Regula-tory Requirements. The new prohibition of engaging in deliberatemisconduct is required for compatibility with federal regulations. Also, in-formation submitted to DEC must be complete and accurate, and a prohi-bition will be added against uncontrolled releases, unauthorized transfers,or abandonment of radioactive material, or failure to comply with anyrequirement in Part 380.

In subpart 380-11, two new isotopes will be added to the Tables ofConcentrations: N-13 and O-15. These additions are required to maintaincompatibility with federal regulations.

4. COSTSCosts to Regulated Parties:Part 380 applies to all state-regulated parties that use or dispose of ra-

dioactive material in quantities and concentrations that are subject toregulation by the licensing agencies of New York State (i.e., DOH andNYCDOHMH).

In 2012, there were 28 persons holding one or more Part 380 permits.Those 28 permittees held a total of 30 permits: 1 for the incineration of ra-dioactive material, 26 for releases to the air, 1 for discharges to surfacewater, and 2 for the maintenance of former radioactive waste burial sites.

There should be no additional costs to regulated persons due to therequirements to meet the 10 mrem dose constraint on airborne emissionsor to report environmental dosimeter results in their annual reports,because permittees have already been subject to this requirement viapermit condition for several years. There may be some additional costs toregulated persons due to the lower threshold for reporting of incidents, viaexpenditure of staff time to prepare and submit reports of incidents andfollow up actions.

Costs to the Department, State, and Local Government:DEC would expend resources and staff time preparing to implement the

proposed revision. Guidelines and explanatory documents distributed toregulated persons must be written, and staff must be trained in theimplementation of the new regulations. This would require several monthsof staff time. After the initial preparation and training period, the routineimplementation of the amended regulations is not expected to cost more(on a cost per regulated person basis) than the implementation of the cur-rent Part 380 program.

In addition to the cost to DEC, the other State agency in the AgreementState program, DOH, would expend some staff time becoming familiarwith DEC’s amended regulation. This may require one or two days of stafftime. At least two state agencies and one campus of the state universitysystem have been issued Part 380 permits. Their costs as regulated personsare described above.

The proposed amendment does not place any requirements directly onlocal governments, except where local governments operate facilities thatpossess radioactive material. In that case, the cost to the local governmentwould be the same as that to other regulated parties. Currently, none of theentities that have been issued Part 380 permits are owned by localgovernments.

NYCDHMH, as one of the three Agreement State agencies in New YorkState, would probably expend one or two staff days becoming familiarwith the revised Part 380.

5. LOCAL GOVERNMENT MANDATESThe adoption of this proposed amendment would not place any

mandates on local governments except for those local governments operat-ing facilities that are regulated parties. In those cases, local governmentsmust meet the requirements placed on all regulated parties. Becausecontrol of radioactive materials is preempted by the federal governmentand only relinquished to Agreement States, local governments, other thanNew York City, have no regulatory responsibilities over the release or dis-posal of radioactive materials.

6. PAPERWORKSeveral provisions in the proposed amendment would require the prep-

aration and submission of additional paperwork. The amendment clarifiesthe information that must be included in a permit application. Theimplementation of lower thresholds for notification of incidents wouldrequire reports to be submitted for uncontrolled releases or events thatcould cause releases, exceedance of any permit or regulatory limit, orexceedance of the dose constraint. The required submission of annualreports will be expanded to include reporting of environmental dosimeterresults from permittees whose permit requires the aquisition of environ-mental dosimetry data.

7. DUPLICATIONThe New York State Agreement State program is divided among three


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agencies. The two agencies other than DEC have the authority to licensethe possession and use of radioactive materials. It is only when that mate-rial is disposed of or released to the environment that it comes under thejurisdiction of DEC. Thus, there is no overlap between the regulatoryprograms of the licensing agencies and that of DEC.

Because the proposed amendments to Part 380 must be compatible with10 CFR, many sections in Part 380 are identical, or very similar, to thefederal rules. However, 10 CFR applies to federally-regulated facilities,while Part 380 applies to state-regulated facilities, and thus there is noduplication of regulation.

8. ALTERNATIVESThe alternatives available to DEC in developing the proposed amend-

ments to Part 380 are limited by its role as an Agreement State agency. Asexplained above, an Agreement State’s regulations must be compatiblewith 10 CFR, and be adopted essentially verbatim.

Because DEC’s regulations must be compatible with NRC’s regula-tions, DEC was precluded from considering alternatives to them. The af-fected provisions are definitions, dose limits, notification of incidents, theconstraint rule, deliberate misconduct, and the addition of O-15 and N-13to the Tables of Concentrations. Thus, DEC did not consider alternativesto those provisions of the proposed rule.

For those portions of the proposed amendments that are required byfederal rule, taking the no-action alternative would not be consistent withNew York State’s agreement with the NRC. If Part 380 is not revised, notonly would it be obsolete, but it would be inconsistent with the regulationsof the radioactive materials licensing agencies in New York State. Thus,not revising Part 380 for compatibility with federal rules could jeopardizeNew York’s agreement with NRC.

For those changes that were not based on federal rules, taking the no-action alternative would result in not simplifying regulatory language, notclarifying regulatory provisions, and not filling regulatory gaps which hadbecome apparent through years of implementing the existing Part 380regulations.

9. FEDERAL STANDARDSThe proposed amendments are more stringent than federal regulations

regarding several requirements for reporting of incidents. The amendmentwould require reporting of uncontrolled releases of radioactive material orevents that could cause releases or the exceedance of any regulatory limit.These provisions are more restrictive than the federal rules, which requirereporting only when dose limits are greatly exceeded. Lower severityevents are more common, but are not currently required to be reported.The amendments require lower severity events to be reported; facilitycompliance with this new requirement would enable DEC to ensure thatprompt and appropriate actions are taken to resolve such events.

10. COMPLIANCE SCHEDULESection 380-1.5 establishes the transition rules for these amendments.

In general, all provisions in the proposed amendments would become ef-fective on the effective date of the rulemaking. The new 10 mrem doseconstraint on airborne emissions has already been in effect as a permitcondition for several years. Permittees have also been required to reportenvironmental dosimetry results in their annual reports and report theexceedance of any permit limit, in accordance with permit conditions, forseveral years.

Regulatory Flexibility Analysis1. EFFECT OF RULEThe proposed amendments to 6 NYCRR Part 380 would affect small

businesses that release radioactive material to the environment. (Smallbusinesses that possess radioactive material in a form that is not normallyreleased to the environment are only subject to the disposal restrictions inthe existing Part 380. These requirements will not be changed by the Part380 amendments.) Affected parties may include such small businesses asmedical practices, radioactive waste brokers, small research or diagnosticlaboratories, radioisotope production facilities, and manufacturers that useradioactive material in their production or quality control processes.

Only one of the parties that currently have a Part 380 permit is a smallbusiness. It is a company that produces isotopes for use in medicalimaging. Another type of small business that would be affected by thisregulation is health physics consultants that may be hired by regulatedparties to assist in implementing these amendments. These businesses maybenefit from increased business due to these proposed amendments, al-though they would also need to invest time and resources in becoming fa-miliar with the new rules.

2. COMPLIANCE REQUIREMENTSThe current Part 380 sets limits on the radiation dose to members of the

public that could be received from the release of radioactive material tothe environment. Regulated parties must restrict their releases so that thosedose limits are not exceeded. The proposed amendments to Part 380 add anew 10 millirem dose constraint for members of the public that couldresult from radioactive airborne emissions in one year. Regulated partiesare not expected to have to change their operations to comply with this

amendment because the doses from all currently regulated releases are al-ready below the proposed new dose constraint. Part 380 Radiation ControlPermitees have already been subject to the 10 millirem dose constraint bya permit condition for the past several years.

The proposed amendments lower the reporting threshold requiringregulated parties to notify the New York State Department of Environmen-tal Conservation (DEC) of any release of radioactive material to theenvironment. Reports would be required for uncontrolled releases orevents that could cause releases, for exceedance of any permit or regula-tory limit, or for exceedance of the dose constraint; the contents of reportsand timeframes are specified in the proposed amendments.

The proposed amendments expand the requirement for permitees tosubmit annual reports to also require reporting of environmental dosimeterresults when the acquisition of such data is required by the permit.Regulated parties are not expected to have to change their operations tocomply with this amendment because this requirement has already beenimplemented by a permit condition for several years.

The proposed amendments expand the requirement for annual calibra-tion of radiation detection instruments to include instruments used to mea-sure effluent flow rates. Permittees are not expected to have to changetheir operations to comply with this amendment because this requirementhas already been implemented by a permit condition for several years.

3. PROFESSIONAL SERVICESThe proposed amendments to Part 380 do not set any requirements that

require any professional services beyond those needed to comply with thecurrent Part 380. To comply with the existing regulations, regulated par-ties should have on staff one or more professionals knowledgeable in theprinciples of health physics, radiation protection, and control and monitor-ing of releases to the environment. In the past, some small businesses havehired consultants to prepare part or all of their permit applications. Thispractice is expected to continue after the regulations have been amended.

4. COMPLIANCE COSTSThe proposed amendments to Part 380 include a 10 millirem dose con-

straint for members of the public that could result from radioactive emis-sions to the air. No regulated party will have to make any initial capital ornon-capital investments to meet this requirement as they are alreadycomplying with the 10 millirem dose constraint.

The proposed amendments lower the reporting threshold requiringregulated parties to notify DEC of any uncontrolled release of radioactivematerial to the environment. This requirement will result in expenditure ofstaff time to prepare and submit reports of incidents and conduct follow upactions, should a reportable incident occur. Historically, such reports haveusually been voluntarily submitted by permittees, as good practice. Areportable incident would require several hours to investigate, document,and institute corrective actions; such work would likely be conducted bythe facility’s on-site radiation protection staff. Such incidents do not occurfrequently.

The proposed amendments expand the requirement for permittees tosubmit annual reports to also require reporting of environmental dosimeterresults when the acquisition of such data is required by the permit. Therewill be no increase in costs to regulated parties as they are already comply-ing with this requirement.

The proposed amendments expand the requirement for annual calibra-tion of radiation detection instruments to include instruments used to mea-sure effluent flow rates. There will be no increase in costs to regulated par-ties as they are already complying with this requirement.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITYImplementation of the proposed amendments would be economically

and technologically feasible for small business and local governments.Regulated parties currently manage the possession, use and disposal of ra-dioactive material in accordance with a host of existing regulatory require-ments which address the sufficiency of facilities, equipment, and staffexpertise necessary to conduct operations safely. Most of the changesproposed in the amendments to Part 380 are already being met by regulatedparties by permit conditions, thus demonstrating that the proposed amend-ments are economically and technologically feasible.

6. MINIMIZING ADVERSE IMPACTThe provisions in the proposed amendments to Part 380 would not have

an adverse impact on small businesses, as most provisions are already be-ing met by regulated parties. DEC did not have the option of relaxingthese requirements for small businesses. The alternatives available to DECin writing the proposed amendments to Part 380 are limited by DEC’sstatus as an Agreement State agency. Under New York State’s (State)agreement with the United States Nuclear Regulatory Commission (NRC),in which NRC has relinquished its authority to regulate the use and pos-session of most radioactive material to the State, DEC’s Part 380 regula-tions must be compatible with the federal regulations promulgated by theNRC.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPA-TION


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As a public outreach initiative in early 2010, information on thisrulemaking was mailed to all Part 380 permittees and applicants, radioac-tive materials licensees, and environmental and public interest groups inthe State. Also, a preliminary draft of the amendment was posted on DEC’swebsite and a notice was published in DEC’s Environmental NoticeBulletin.

8. CURE PERIOD OR OTHER OPPORTUNITY FOR AMELIORA-TIVE ACTION

DEC does not believe that there is a need for a cure period for theproposed Part 380. Significant proposed amendments (summarized below)are already implemented, as these requirements have been included aspermit conditions for the past several years. Such amendments required bya permit condition are: (1) 10 millirem dose constraint for members of thepublic that could result from radioactive airborne emissions in one year;(2) notification of uncontrolled release, or incidents that are in exeedanceof any permit or regulatory limit; (3) annual reporting of environmentaldosimeter results when a permit requires acquisition of such data; and (4)annual calibration of instruments used to measure effluent flow rates. Sincethese requirements are already provided as permit conditions, they are notimposed to the regulated community without prior notice and a cure pe-riod is not needed. The regulated community would be required to complywith the proposed amendments upon the effective date, which is 30 daysafter DEC files the Notice of Adoption with the State Department of State.Furthermore, no new penalties are created by proposed Part 380 becauseenforcement is governed by statutory language which is set forth in Article71 of the Environmental Conservation Law.

9. INITIAL REVIEW OF THE RULEDEC will conduct an initial review of the rule within three years of the

promulgation of the final rule.

Rural Area Flexibility Analysis1. TYPES AND ESTIMATED NUMBER OF RURAL AREASFor purposes of this Rural Area Flexibility Analysis, “rural area” means

those portions of the state so defined by Executive Law section 481(7).SAPA section 102(10). Under Executive Law section 481(7), rural areasare defined as “counties within the state having less than two hundredthousand population, and the municipalities, individuals, institutions, com-munities, programs and such other entities or resources as are foundtherein. In counties of two hundred thousand or greater population, ‘ruralareas’ means towns with population densities of one hundred fifty personsor less per square mile, and the villages, individuals, institutions, com-munities, programs and such other entities or resources as are foundtherein.” There are 44 counties in New York State that have populations ofless than 200,000 people and 71 towns in non-rural counties where thepopulation densities are less than 150 people per square mile. This rulewould apply statewide so it applies to all rural areas of the State.

2. REPORTING, RECORDKEEPING, OTHER COMPLIANCE RE-QUIREMENTS; AND NEED FOR PROFESSIONAL SERVICES

Several provisions in the proposed rule clarify and expand requirementsfor the preparation and submission of permit applications, notification ofincidents, and annual reports, as well as the maintenance of specific re-cords of disposals and releases. Such work is typically conducted by thefacility’s on-site facility radiation protection staff, although a regulated fa-cility may elect to hire a health physics contractor to assist in the prepara-tion of required records and reports.

3. COSTSRegulated parties subject to this proposed rule should experience little

or no increase in costs. Many provisions have already been in effect forseveral years via permit condition. The new, lower threshold for reportingof incidents would require the expenditure of staff time to prepare andsubmit reports of incidents, should they occur.

4. MINIMIZING ADVERSE IMPACTThis rule is not expected to generate any adverse impact to regulated

parties. As stated previously, there would be little or no increase in costsfor regulated parties.

5. RURAL AREA PARTICIPATIONA public outreach effort was conducted in early 2010: regulated and

interested parties were mailed an informational package regarding the pre-liminary draft of the proposed rule; this information was also posted onNew York State Department of Environmental Conservation’s (DEC) website and DEC’s Environmental Notice Bulletin. In addition, DEC wouldhold special meetings or workshops if the proposed rule generates suf-ficient interest or questions.

Job Impact StatementIn accordance with Section 201-a(2)(a) of the State Administrative

Procedures Act (SAPA), a Job Impact Statement has not been prepared forthis proposed rule as it is not expected to create a substantial adverseimpact on jobs and employment opportunities in New York State.

Part 380 requirements control the release of radioactive material to theenvironment. This rulemaking would update several provisions that are

required for compatibility with federal regulations, simplify and updatelanguage, and add several needed provisions that have been absent fromthe regulations. The parties affected by this amendment are facilities thatpossess regulated radioactive materials.

This proposed rule is not expected to cause the loss of jobs at facilitiesthat possess regulated radioactive material. Many of the new requirementsin this rule have already been in effect for several years through permitconditions. The new, lower threshold for reporting of incidents wouldrequire the expenditure of staff time to prepare and submit reports ofincidents, should such incidents occur. Responsibility for ensuring compli-ance with this rulemaking would likely be designated to on-site facilityradiation protection staff, although a regulated facility that has experienceda serious incident may elect to hire a health physics contractor to assistwith the investigation, documentation, reporting, and correction of theroot causes of such an incident. Regulated facilities are located throughoutthe State and compliance with this rulemaking would not have any adverseimpact on jobs in any areas of the State.

Department of Financial Services

EMERGENCY

RULE MAKING

Public Retirement Systems

I.D. No. DFS-14-17-00002-E

Filing No. 205




Action taken: Amendment of Part 136 (Regulation 85) of Title 11NYCRR.

Statutory authority: Financial Services Law, sections 202 and 302; Insur-ance Law, sections 301, 314, 7401(a) and 7402(n)

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The Second Amend-ment to 11 NYCRR 136 (Insurance Regulation 85), effective November19, 2008, established new standards of behavior with regard to investmentof the assets of the New York State Common Retirement Fund (“Fund”),conflicts of interest, and procurement. In addition, it created new audit andactuarial committees, and greatly strengthened the investment advisorycommittee. The Second Amendment also set high ethical standards,strengthened internal controls and governance, enhanced the operationaltransparency of the Fund, and strengthened supervision by the Department.

Nevertheless, recent events surrounding how placement agents conductbusiness on behalf of their clients with regard to the Fund compel the Su-perintendent to conclude that the mere strengthening of the Fund’s controlenvironment is insufficient to protect the integrity of the state employees’retirement systems. Rather, only an immediate ban on the use of place-ment agents will ensure sufficient protection of the Fund’s members andbeneficiaries and safeguard the integrity of the Fund’s investments.

This regulation was previously promulgated on an emergency basis onJune 18, 2009, September 16, 2009, January 5, 2010, April 2, 2010, May28, 2010, July 29, 2010, September 23, 2010, November 19, 2010, Janu-ary 18, 2011, March 21, 2011, May 19, 2011, August 16, 2011, November10, 2011, February 7, 2012, May 7, 2012, August 3, 2012, October 31,2012, January 28, 2013, April 26, 2013, July 24, 2013, October 21, 2013,January 17, 2014, April 16, 2014, July 14, 2014, October 10, 2014, Janu-ary 7, 2015, April 6, 2015, July 3, 2015, September 30, 2015, December28, 2015, March 25, 2016, June 22, 2016, September 19, 2016, andDecember 21, 2016.

Subject: Public Retirement Systems.

Purpose: To ban the use of placement agents by investment advisersengaged by the State employees’ retirement systems.

Text of emergency rule: Section 136-2.2 is amended to read as follows:§ 136-2.2 Definitions.The following words and phrases, as used in this Subpart, unless a dif-

ferent meaning is plainly required by the context, shall have the followingmeanings:

[(a) Retirement system shall mean the New York State and Local Em-ployees’ Retirement System and the New York State and Local Police andFire Retirement System.]


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[(b) Fund shall mean the New York State Common Retirement Fund, afund in the custody of the Comptroller as trustee, established pursuant toSection 422 of the Retirement and Social Security Law, which holds theassets of the retirement system.]

[(c)](a) Comptroller shall mean the Comptroller of the State of NewYork in his capacity as administrative head of the Retirement System andthe sole trustee of the [fund] Fund.

[(d) OSC shall mean the Office of the State Comptroller.][(e)](b) Consultant or advisor shall mean any person (other than an

OSC employee) or entity retained by the [fund] Fund to provide technicalor professional services to the [fund] Fund relating to investments by the[fund] Fund, including outside investment counsel and litigation counsel,custodians, administrators, broker-dealers, and persons or entities thatidentify investment objectives and risks, assist in the selection of [money]investment managers, securities, or other investments, or monitor invest-ment performance.

(c) Family member shall mean any person living in the same householdas the Comptroller, and any person related to the Comptroller within thethird degree of consanguinity or affinity.

(d) Fund shall mean the New York State Common Retirement Fund, afund in the custody of the Comptroller as trustee, established pursuant toSection 422 of the Retirement and Social Security Law (“RSSL”), whichholds the assets of the Retirement System.

[f] (e) Investment manager shall mean any person (other than an OSCemployee) or entity engaged by the Fund in the management of part or allof an investment portfolio of the [fund] Fund. “Management” shallinclude, but is not limited to, analysis of portfolio holdings, and thepurchase, sale, and lending thereof. For the purposes hereof, any invest-ment made by the Fund pursuant to RSSL § 177(7) shall be deemed to bethe investment of the Fund in such investment entity (rather than in the as-sets of such investment entity).

(f) Investment policy statement shall mean a written document that,consistent with law, sets forth a framework for the investment program ofthe Fund.

(g) OSC shall mean the Office of the State Comptroller.[(g)] (h) Placement agent or intermediary shall mean any person or

entity, including registered lobbyists, directly or indirectly engaged andcompensated by an investment manager (other than [an] a regular em-ployee of the investment manager) to promote investments to or solicitinvestment by [assist the investment manager in obtaining investments bythe fund, or otherwise doing business with] the [fund] Fund, whethercompensated on a flat fee, a contingent fee, or any other basis. Regularemployees of an investment manager are excluded from this definition un-less they are employed principally for the purpose of securing or influenc-ing the decision to secure a particular transaction or investment by theFund.[obtaining investments or providing other intermediary serviceswith respect to the fund.] For purpose of this paragraph, the term “em-ployee” shall include any person who would qualify as an employee underthe federal Internal Revenue Code of 1986, as amended, but shall notinclude a person hired, retained or engaged by an investment manager tosecure or influence the decision to secure a particular transaction orinvestment by the Fund.

[(h) Investment policy statement shall mean a written document that,consistent with law, sets forth a framework for the investment program ofthe fund.]

[(i) Third party administrator shall mean any person or entity thatcontractually provides administrative services to the retirement system,including receiving and recording employer and employee contributions,maintaining eligibility rosters, verifying eligibility for benefits or payingbenefits and maintaining any other retirement system records. Administra-tive services do not include services provided to the fund relating to fundinvestments.]

(i) Retirement System shall mean the New York State and Local Em-ployees’ Retirement System and the New York State and Local Police andFire Retirement System.

(j) Third party administrator shall mean any person or entity thatcontractually provides administrative services to the Retirement System,including receiving and recording employer and employee contributions,maintaining eligibility rosters, verifying eligibility for benefits, payingbenefits or maintaining any other Retirement System records. “Administra-tive services” do not include services provided to the Fund relating toFund investments.

[(j)] (k) Unaffiliated Person shall mean any person other than: (1) theComptroller or a family member of the Comptroller, (2) an officer or em-ployee of OSC, (3) an individual or entity doing business with OSC or the[fund] Fund, or (4) an individual or entity that has a substantial financialinterest in an entity doing business with OSC or the [fund] Fund. For thepurpose of this paragraph, the term “substantial financial interest” shallmean the control of the entity, whereby “control” means the possession,direct or indirect, of the power to direct or cause the direction of the

management and policies of the entity, whether through the ownership ofvoting securities, by contract (except a commercial contract for goods ornon-management services) or otherwise; but no individual shall be deemedto control an entity solely by reason of his being an officer or director ofsuch entity. Control shall be presumed to exist if any individual directly orindirectly owns, controls or holds with the power to vote ten percent ormore of the voting securities of such entity.

[(k) Family member shall mean any person living in the same householdas the Comptroller, and any person related to the Comptroller within thethird degree of consanguinity or affinity.]

Section 136-2.4(d) is amended to read as follows:(d) Placement agents or intermediaries: In order to preserve the inde-

pendence and integrity of the [fund] Fund, to [address] preclude potentialconflicts of interest, and to assist the Comptroller in fulfilling his or herduties as a fiduciary to the [fund] Fund, [the Comptroller shall maintain areporting and review system that must be followed whenever the fund] theFund shall not [engages, hires, invests with, or commits] engage, hire,invest with or commit to[,] an outside investment manager who is usingthe services of a placement agent or intermediary to assist the investmentmanager in obtaining investments by the [fund] Fund. [, or otherwise do-ing business with the fund. The Comptroller shall require investmentmanagers to disclose to the Comptroller and to his or her designee pay-ments made to any such placement agent or intermediary. The reportingand review system shall be set forth in written guidelines and suchguidelines shall be published on the OSC public website.]

Section 136-2.5(g) is amended to read as follows:(g) The Comptroller shall:

(1) file with the superintendent an annual statement in the formatprescribed by Section 307 of the Insurance Law, including the [retirementsystem’s] Retirement System’s financial statement, together with anopinion of an independent certified public accountant on the financialstatement;

(2) file with the superintendent the Comprehensive Annual FinancialReport within the time prescribed by law, but no later than the time it ispublished on the OSC public website;

(3) disclose on the OSC public website, on at least an annual basis,all fees paid by the [fund] Fund to investment managers, consultants oradvisors, and third party administrators;

[(4) disclose on the OSC public website, on at least an annual basis,instances where an investment manager has paid a fee to a placement agentor intermediary;]

[(5)](4) disclose on the OSC public website the [fund’s] Fund’sinvestment policies and procedures; and

[(6)](5) require fiduciary and conflict of interest reviews of the [fund]Fund every three years by a qualified unaffiliated person.

This notice is intended to serve only as an emergency adoption, to bevalid for 90 days or less. This rule expires June 17, 2017.

Text of rule and any required statements and analyses may be obtainedfrom: Mark MacLeod, Department of Financial Services, One State Street,New York, NY 10004, (212) 480-4937, email: [email protected]

Regulatory Impact Statement1. Statutory authority: The Superintendent’s authority for the adoption

of the rule to 11 NYCRR 136 is derived from sections 202 and 302 of theFinancial Services Law (“FSL”) and sections 301, 314, 7401(a), and7402(n) of the Insurance Law.

FSL section 202 establishes the office of the Superintendent anddesignates the Superintendent to be the head of the Department ofFinancial Services (“DFS”).

FSL section 302 and Insurance Law section 301, in material part, au-thorize the Superintendent to effectuate any power accorded to him by theInsurance Law, the Banking Law, the Financial Services Law, or any otherlaw of this state and to prescribe regulations interpreting the InsuranceLaw.

Insurance Law section 314 vests the Superintendent with the authorityto promulgate standards with respect to administrative efficiency, dis-charge of fiduciary responsibilities, investment policies and financialsoundness of the public retirement and pension systems of the State ofNew York, and to make an examination into the affairs of every system atleast once every five years in accordance with Insurance Law sections310, 311 and 312. The implementation of the standards is necessarilythrough the promulgation of regulations.

As confirmed by the Court of Appeals in Matter of Dinallo v. DiNapoli,9 N.Y. 3d 94 (2007), the Superintendent functions in two distinctcapacities. The first is as regulator of the insurance industry. The second isas statutory receiver of financially distressed insurance entities. Article 74of the Insurance Law sets forth the Superintendent’s role and responsibili-ties in this latter capacity.

Insurance Law section 7401(a) sets forth the entities, including the pub-lic retirement systems, to which Article 74 applies.


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Insurance Law section 7402(n) provides that it is a ground for rehabili-tation if an entity subject to Article 74 has failed or refused to take suchsteps as may be necessary to remove from office any officer or directorwhom the Superintendent has found, after appropriate notice and hearing,to be a dishonest or untrustworthy person.

2. Legislative objectives: Insurance Law section 314 authorizes the Su-perintendent to promulgate and amend, after consultation with the respec-tive administrative heads of public retirement and pension systems and af-ter a public hearing, standards with respect to the public retirement andpension systems of the State of New York.

This rule, which in effect bans the use of an investment tool that hasbeen found to be untrustworthy, is consistent with the public policy objec-tives that the Legislature sought to advance in enacting Insurance Lawsection 314, which provides the Superintendent with the powers topromulgate standards to protect the New York State Common RetirementFund (the “Fund”).

3. Needs and benefits: The Second Amendment to 11 NYCRR 136(Regulation 85), effective November 19, 2008, established new standardswith regard to investment of the assets of the Fund, conflicts of interestand procurement. In addition, the Second Amendment created new auditand actuarial committees, and greatly strengthened the investment advi-sory committee. The Second Amendment also set high ethical standards,strengthened internal controls and governance, enhanced the operationaltransparency of the Fund, and strengthened supervision by the Department.

Nevertheless, recent allegations regarding “pay to play” practices,whereby politically connected individuals reportedly sold access to invest-ment opportunities with the Fund, compel the Superintendent to concludethat the mere strengthening of the Fund’s control environment is insuf-ficient to protect the integrity of the state employees’ retirement systems.The Third Amendment to Regulation 85 will adopt an immediate ban onthe use of placement agents to ensure sufficient protection of the Fund’smembers and beneficiaries, and safeguard the integrity of the Fund’sinvestments. Further, the rule defines “placement agent or intermediary”in a manner that both thwarts evasion of the ban while ensuring that suchban not extend to persons otherwise acting lawfully on behalf of invest-ment managers.

4. Costs: The rule does not impose any additional requirements on theComptroller, and no additional costs are expected to result from theimplementation of the ban imposed by this rule. There are no costs to theDepartment or other state government agencies or local governments.Investment managers, consultants and advisors who provide services tothe Fund, which are required to discontinue the use of placement agents inconnection with investment services they provide to the Fund, may loseopportunities to do business with the Fund.

5. Local government mandates: The rule imposes no new programs,services, duties or responsibilities on any county, city, town, village, schooldistrict, fire district or other special district.

6. Paperwork: No additional paperwork should result from the prohibi-tion imposed by the rule.

7. Duplication: This rule will not duplicate any existing state or federalrule.

8. Alternatives: The Superintendent considered other ways to limit theinfluence of placement agents, including a partial ban, increased disclosurerequirements, and adopting alternative definitions of placement agent orintermediary. The Department considered limiting the ban to include intenton the part of the party using placement agents, or defining “placementagent” in more general terms.

In developing the rule, the Superintendent and State Comptroller notonly consulted with one another, but also briefed representatives of: (1)New York State and New York City Public Employee Unions; (2) NewYork City Retirement and Pension Funds; (3) the Borough Presidents ofthe five counties of New York City; and (4) officials of the New York CityMayor’s Office, Comptroller’s Office and Finance Department. Theseentities agreed with the concerns expressed by the Department and intendto explore remedies most appropriate to the pension funds that theyrepresent.

Initially, the Superintendent concluded that only an immediate total banon the use of placement agents could provide sufficient protection of theFund’s members and beneficiaries and safeguard the integrity of the Fund’sinvestments. The proposed rule was published in the State Register onMarch 17, 2010. A Public Hearing was held on April 28, 2010. The fol-lowing comments were received:

Blackstone Group, a global investment manager and financial advisor,wrote to oppose the proposed ban on the use of placement agents by invest-ment advisors engaged by the New York State Common Retirement Fund(“The Fund”). It stated that the rule would lessen the number of invest-ment opportunities brought before the Fund, adversely affect small,medium-sized and women-and minority-owned investment firms seekingto do business with the Fund, and adversely affect a number of New York-headquartered financial institutions doing business as placement agents.

Blackstone suggested the inclusion of the following provisions in therule instead:

D A ban on political contributions by any employee of any placementagent seeking to do business with the Fund;

D A requirement that any placement agent seeking do to business withthe Fund be registered as a broker dealer with the SEC and ensure that itsprofessionals have passed the appropriate Series qualifications adminis-tered by Financial Industry Regulatory Authority (“FINRA”);

D A requirement that any placement agent seeking to do business inNew York register with the Department; and

D A requirement that any placement agent representing an investmentmanager before the Fund fully disclose the contractual arrangement be-tween it and the manager, including the fee arrangement and the scope ofservices to be provided.

The Securities Industry and Financial Markets Association (“SIFMA”),representing hundreds of securities firms, banks, and asset managers, com-mented that the proposed rule (1) inadvertently limits the access of smallerfund managers to the Fund; (2) restricts the number and types of advisersthat could be utilized by the Fund; (3) creates an inherent conflict betweenfederal and state law that would make it impossible to do business with theFund while complying with both; and (4) adds duplicative regulation in anarea already substantially regulated at the state level and that is primed forfurther federal regulation through the imminent imposition of a federalpay-to-play regime on all registered broker-dealers acting as placementagents. In addition, SIFMA provided language that it believes would beconsistent with the existing federal requirements on the use of placementagents. SIFMA requested that the Department either exclude from theproposed rule those placement agents who are registered as broker-dealersunder the Securities Exchange Act of 1934 or delay the enactment of theproposed rule until the federal and state placement agent initiatives arefinalized.

The Superintendent did consider other ways to limit the influence ofplacement agents, including a partial ban, increased disclosure require-ments, and adopting alternative definitions of placement agent orintermediary. The Department considered limiting the ban to include intenton the part of the party using placement agents, or defining “placementagent” in more general terms. At the time, the Superintendent concludedthat only an immediate, total ban on the use of placement agents couldprovide sufficient protection of the Fund’s members and beneficiaries andsafeguard the integrity of the Fund’s investments.

9. Federal standards: The Securities and Exchange Commission issueda “Pay-To-Play” regulation for financial advisors on July 1, 2010, whichmay have an impact on the issues addressed in the proposed rule.

10. Compliance schedule: The emergency adoption of this regulationon June 18, 2009 ensured that the ban would become enforceableimmediately. The ban needs to remain in effect on an emergency basisuntil such time as an amended regulation can be made permanent.

Regulatory Flexibility Analysis1. Effect of the rule: This rule strengthens standards for the manage-

ment of the New York State and Local Employees’ Retirement System andNew York State and Local Police and Fire Retirement System (collec-tively, “the Retirement System”), and the New York State Common Retire-ment Fund (“the Fund”).

The Second Amendment to 11 NYCRR 136 (Insurance Regulation 85),effective November 19, 2008, established new standards with regard toinvestment of the assets of the Fund, conflicts of interest and procurement.In addition, the Second Amendment created new audit and actuarial com-mittees, and greatly strengthened the investment advisory committee. TheSecond Amendment also set high ethical standards, strengthened internalcontrols and governance, enhanced the operational transparency of theFund, and strengthened supervision by the Department.

Nevertheless, recent allegations regarding “pay to play” practices,whereby politically connected individuals reportedly sold access to invest-ment opportunities with the Fund, compel the Superintendent to concludethat the mere strengthening of the Fund’s control environment is insuf-ficient to protect the integrity of the state employees’ retirement systems.The Third Amendment to Insurance Regulation 85 will adopt an immedi-ate ban on the use of placement agents to ensure sufficient protection ofthe Fund’s members and beneficiaries, and safeguard the integrity of theFund’s investments. Further, the rule defines “placement agent orintermediary” in a manner that both thwarts evasion of the ban while ensur-ing that such ban not extend to persons otherwise acting lawfully on behalfof investment managers.

These standards are intended to assure that the conduct of the businessof the Retirement System and the Fund, and of the State Comptroller (asadministrative head of the Retirement System and as sole trustee of theFund), are consistent with the principles specified in the rule. Most amongall affected parties, the State Comptroller, as a fiduciary whose responsi-bilities are clarified and broadened, is impacted by the rule. The StateComptroller is not a “small business” as defined in section 102(8) of theState Administrative Procedure Act.


15

This rule will affect investment managers and other intermediaries(other than OSC employees) who provide technical or professional ser-vices to the Fund related to Fund investments. The rule will prohibit invest-ment managers from using the services of a placement agent unless suchagent is a regular employee of the investment manager and is acting in abroader capacity than just providing specific investment advice to theFund. In addition, the rule is also directed to placement agents, who as aresult of this rule, will no longer be engaged directly or indirectly byinvestment managers that do business with the Fund. Some investmentmanagers and placement agents may come within the definition of “smallbusiness” set forth in section 102(8) of the State Administrative ProcedureAct, because they are independently owned and operated, and employ 100or fewer individuals.

The rule bans the use of placement agents in connection with invest-ments by the Fund. This may adversely affect the business of placementagents, who will lose opportunities to earn profits in connection withinvestments by the Fund. Nevertheless, as a result of recent allegationsregarding “pay to play” practices, whereby politically connected individu-als reportedly sold access to investment opportunities with the Fund, theSuperintendent has concluded that an immediate ban on the use of place-ment agents is necessary to protect the Fund’s members and beneficiariesand to safeguard the integrity of the Fund’s investments.

This rule will not impose any adverse compliance requirements or resultin any adverse impacts on local governments. The basis for this finding isthat this rule is directed at the State Comptroller; employees of the Officeof State Comptroller; and investment managers, placement agents, consul-tant or advisors - none of which are local governments.

2. Compliance requirements: None.3. Professional services: Investment managers, consultants and advisors

who provide services to the Fund, and are required to discontinue the useof placement agents in connection with investment services they provideto the Fund, may need to employ other professional services.

4. Compliance costs: The rule does not impose any additional require-ments on the Comptroller, and no additional costs are expected to resultfrom the implementation of the ban imposed by this rule. There are nocosts to the Department of Financial Services or other state governmentagencies or local governments. However, investment managers, consul-tants and advisors who provide services to the Fund, which are required todiscontinue the use of placement agents in connection with investmentservices they provide to the Fund, may lose opportunities to do businesswith the Fund.

5. Economic and technological feasibility: The rule does not imposeany economic and technological requirements on affected parties, exceptfor placement agents who will lose the opportunity to earn profits in con-nection with investments by the Fund.

6. Minimizing adverse impact: The costs to placement agents are lostopportunities to earn profits in connection with investments by the Fund.The Superintendent considered other ways to limit the influence of place-ment agents, including a partial ban, increased disclosure requirements,and adopting alternative definitions of placement agent or intermediary.But in the end, the Superintendent concluded that only an immediate totalban on the use of placement agents could provide sufficient protection ofthe Fund’s members and beneficiaries and safeguard the integrity of theFund’s investments.

7. Small business and local government participation: In developing therule, the Superintendent and State Comptroller not only consulted withone another, but also briefed representatives of: (1) New York State andNew York City Public Employee Unions; (2) New York City Retirementand Pension Funds; (3) the Borough Presidents of the five counties of NewYork City; and (4) officials of the New York City Mayor’s Office,Comptroller’s Office and Finance Department.

A public hearing was held on April 28, 2010. Comments were receivedfrom two entities recommending that the total ban on the use of placementagents be modified. The Department will continue to assess the commentsthat have been received and any others that may be submitted.

Rural Area Flexibility Analysis1. Types and estimated numbers of rural areas: Investment managers,

placement agents, consultants or advisors that do business in rural areas asdefined under State Administrative Procedure Act Section 102(10) will beaffected by this rule. The rule bans the use of placement agents in connec-tion with investments by the New York State Common Retirement Fund(“the Fund”), which may adversely affect the business of placement agentsand of other entities that utilize placement agents and are involved in Fundinvestments.

2. Reporting, recordkeeping and other compliance requirements; andprofessional services: This rule will not impose any reporting, recordkeep-ing or other compliance requirements on public or private entities in ruralareas, with the exception of requiring investment managers, consultantsand advisors who provide services to the Fund to discontinue the use ofplacement agents.

3. Costs: The costs to placement agents are lost opportunities to earnprofits in connection with investments by the Fund.

4. Minimizing adverse impact: The rule does not adversely impact ruralareas.

5. Rural area participation: A public hearing was held on April 28, 2010.Comments were received from two entities recommending that the totalban on the use of placement agents be modified. The Department willcontinue to assess the comments that have been received and any othersthat may be submitted.Job Impact StatementThe Department of Financial Services finds that this rule will have little orno impact on jobs and employment opportunities. The rule bans invest-ment managers from using placement agents in connection with invest-ments by the New York State Common Retirement Fund (“the Fund”).The rule may adversely affect the business of placement agents, who couldlose the opportunity to earn profits in connection with investments by theFund. Nevertheless, in view of recent events about how placement agentsconduct business on behalf of their clients with regard to the Fund, the Su-perintendent has concluded that an immediate ban on the use of placementagents is necessary to protect the Fund’s members and beneficiaries, andto safeguard the integrity of the Fund’s investments.

Office for People withDevelopmental Disabilities

NOTICE OF ADOPTION

Hearing Procedures Update

I.D. No. PDD-05-17-00001-A

Filing No. 208




Action taken: Amendment of section 602.5 of Title 14 NYCRR.

Statutory authority: Mental Hygiene Law, section 13.09(b)

Subject: Hearing Procedures Update.

Purpose: To correct a grammatical error in Title 14 NYCRR 602.5.

Text or summary was published in the February 1, 2017 issue of the Reg-ister, I.D. No. PDD-05-17-00001-P.

Final rule as compared with last published rule: No changes.

Text of rule and any required statements and analyses may be obtainedfrom: Office of Counsel, Bureau of Policy and Regulatory Affairs, Officefor People With Developmental Disabilities (OPWDD), 44 Holland Ave-nue, 3rd Floor, Albany, NY 12229, (518) 474-7700, email:[email protected]

Additional matter required by statute: Pursuant to the requirements of theState Environmental Quality Review Act, OPWDD, as lead agency, hasdetermined that the action described herein will have no effect on theenvironment and an E.I.S. is not needed.

Assessment of Public CommentThe agency received no public comment.

Public Service Commission

NOTICE OF WITHDRAWAL

PURSUANT TO THE PROVISIONS OF THE StateAdministrative Procedure Act, NOTICE is hereby given of thefollowing actions:

The following rule makings have been withdrawn fromconsideration:

I.D. No. Publication Date of ProposalPSC-21-00-00007-P May 24, 2000PSC-36-00-00039-P September 6, 2000


16

PSC-01-01-00023-P January 3, 2001PSC-39-03-00013-P October 1, 2003PSC-41-03-00008-P October 15, 2003PSC-42-03-00005-P October 22, 2003PSC-43-03-00036-P October 29, 2003PSC-43-03-00037-P October 29, 2003PSC-47-03-00024-P November 26, 2003

NOTICE OF ADOPTION

Use of Water Metering Equipment

I.D. No. PSC-25-16-00027-A




Action taken: On 3/9/17, the PSC adopted an order approving New YorkAmerican Water Company, Inc.’s (NYAW) petition to use the BadgerMeter, Inc. High Resolution Encoder with liquid crystal display (BadgerHR-E LCD) for water metering applications in New York State.Statutory authority: Public Service Law, section 89-d(1)Subject: Use of water metering equipment.Purpose: To approve NYAW’s petition to use the Badger HR-E LCD forwater metering applications in New York State.Substance of final rule: The Commission, on March 9, 2017, adopted anorder approving New York American Water Company, Inc.’s petition touse the Badger Meter, Inc. High Resolution Encoder with liquid crystaldisplay (HR-E LCD) for water metering applications in New York State,subject to the terms and conditions set forth in the order.Final rule as compared with last published rule: No changes.Text of rule may be obtained from: John Pitucci, Public Service Commis-sion, Three Empire State Plaza, Albany, New York 12223, (518) 486-2655,email: [email protected] An IRS employer ID no. or social secu-rity no. is required from firms or persons to be billed 25 cents per page.Please use tracking number found on last line of notice in requests.Assessment of Public CommentAn assessment of public comment is not submitted with this notice becausethe rule is within the definition contained in section 102(2)(a)(ii) of theState Administrative Procedure Act.(16-W-0245SA1)

NOTICE OF ADOPTION

Submetering of Electricity

I.D. No. PSC-43-16-00004-A




Action taken: On 3/9/17, the PSC adopted an order approving 50 WestStreet Condominium’s (50 West) notice of intent to submeter electricity at50 West Street, New York, New York.

Statutory authority: Public Service Law, sections 2, 4(1), 30, 32-48, 52,53, 65(1), 66(1), (2), (3), (4), (12) and (14)

Subject: Submetering of electricity.

Purpose: To approve 50 West’s notice of intent to submeter electricity.

Substance of final rule: The Commission, on March 9, 2017, adopted anorder approving 50 West Street Condominium’s notice of intent tosubmeter electricity at 50 West Street, New York, New York, located in theservice territory of Consolidated Edison Company of New York, Inc.,subject to the terms and conditions set forth in the order.

Final rule as compared with last published rule: No changes.

Text of rule may be obtained from: John Pitucci, Public Service Commis-sion, Three Empire State Plaza, Albany, New York 12223, (518) 486-2655,email: [email protected] An IRS employer ID no. or social secu-rity no. is required from firms or persons to be billed 25 cents per page.Please use tracking number found on last line of notice in requests.

Assessment of Public CommentAn assessment of public comment is not submitted with this notice becausethe rule is within the definition contained in section 102(2)(a)(ii) of theState Administrative Procedure Act.

(16-E-0538SA1)

NOTICE OF ADOPTION

Emergency Rule for Con Edison’s Tariff Amendments ExtendingTemporary Rate Credits

I.D. No. PSC-02-17-00002-A




Action taken: On 3/9/17, the PSC adopted an order approving the emer-gency rule on a permanent basis for Consolidated Edison Company ofNew York, Inc.’s (Con Edison) tariff amendments to P.S.C. No. 9 — Gas,extending temporary rate credits.Statutory authority: Public Service Law, section 66(12)Subject: Emergency rule for Con Edison’s tariff amendments extendingtemporary rate credits.Purpose: To approve the emergency rule on a permanent basis for ConEdison’s tariff amendments extending temporary rate credits.Substance of final rule: The Commission, on March 9, 2017, adopted anorder approving the emergency rule on a permanent basis for ConsolidatedEdison Company of New York, Inc.’s (Con Edison) tariff amendments toP.S.C. No. 9 – Gas, extending temporary rate credits, established in ConEdison’s existing rate plans, until gas rates are reset in Case 16-G-0061,subject to the terms and conditions set forth in the order.Final rule as compared with last published rule: No changes.Text of rule may be obtained from: John Pitucci, Public Service Commis-sion, Three Empire State Plaza, Albany, New York 12223, (518) 486-2655,email: [email protected] An IRS employer ID no. or social secu-rity no. is required from firms or persons to be billed 25 cents per page.Please use tracking number found on last line of notice in requests.Assessment of Public CommentAn assessment of public comment is not submitted with this notice becausethe rule is within the definition contained in section 102(2)(a)(ii) of theState Administrative Procedure Act.(13-G-0031SA6)

NOTICE OF ADOPTION

Emergency Rule for Con Edison’s Tariff Amendments ExtendingTemporary Rate Credits

I.D. No. PSC-02-17-00003-A




Action taken: On 3/9/17, the PSC adopted an order approving the emer-gency rule on a permanent basis for Consolidated Edison Company ofNew York, Inc.’s (Con Edison) tariff amendments to P.S.C. No. 10 andNo. 12 — Electricity, extending temporary rate credits.Statutory authority: Public Service Law, section 66(12)Subject: Emergency rule for Con Edison’s tariff amendments extendingtemporary rate credits.Purpose: To approve the emergency rule on a permanent basis for ConEdison’s tariff amendments extending temporary rate credits.Substance of final rule: The Commission, on March 9, 2017, adopted anorder approving the emergency rule on a permanent basis for ConsolidatedEdison Company of New York, Inc.’s (Con Edison) tariff amendments toP.S.C. No. 10 – Electricity and No. 12 – Electricity (New York PowerAuthority), extending temporary rate credits, established in Con Edison’sexisting rate plans, until electric rates are reset in Case 16-E-0060, subjectto the terms and conditions set forth in the order.Final rule as compared with last published rule: No changes.Text of rule may be obtained from: John Pitucci, Public Service Commis-sion, Three Empire State Plaza, Albany, New York 12223, (518) 486-2655,email: [email protected] An IRS employer ID no. or social secu-rity no. is required from firms or persons to be billed 25 cents per page.Please use tracking number found on last line of notice in requests.

Assessment of Public CommentAn assessment of public comment is not submitted with this notice becausethe rule is within the definition contained in section 102(2)(a)(ii) of theState Administrative Procedure Act.


17

(13-E-0030SA14)



Petition for Full-Scale Deployment of AMI and to Establish anAMI Surcharge

I.D. No. PSC-14-17-00017-P


Proposed Action: The Commission is considering a petition by New YorkState Electric & Gas Corporation and Rochester Gas and Electric Corpora-tion for authorization for full-scale deployment of Advanced MeteringInfrastructure (AMI) and to establish an AMI surcharge.Statutory authority: Public Service Law, sections 5, 65 and 66Subject: Petition for Full-Scale Deployment of AMI and to Establish anAMI Surcharge.Purpose: To consider the petition for Full-Scale Deployment of AMI andto Establish an AMI Surcharge.Public hearing(s) will be held at: 10:30 a.m., August 2, 2017 and continu-ing daily as needed*, at Department of Public Service, Agency Bldg. 3,19th Fl. Boardroom, Albany, NY *On occasion, there are requests toreschedule or postpone evidentiary hearing dates. If such a request isgranted, notification of any subsequent scheduling changes will be avail-able at the DPS website (www.dps.ny.gov) under Cases 17-E-0058 and17-G-0059.Interpreter Service: Interpreter services will be made available to hearingimpaired persons, at no charge, upon written request submitted within rea-sonable time prior to the scheduled public hearing. The written requestmust be addressed to the agency representative designated in the paragraphbelow.


Substance of proposed rule: The Commission is considering a petitionrequesting authorization for full-scale deployment of advanced meteringinfrastructure (AMI) and to establish an AMI surcharge. New York StateElectric & Gas Corporation and Rochester Gas and Electric Corporation(collectively, the Companies) filed the petition on December 20, 2016, asrevised on December 29, 2016, in Cases 17-E-0058 and 17-G-0059. Thepetition alleges that the AMI project will include installation of intelligentmeters (including new electric meters, new gas meters and new gasmodules to be retrofitted on existing gas meters, a supporting telecom-munications network and IT infrastructure that will include diverse mediasolutions (i.e., radio frequency, cell, dark fiber, etc.), and software applica-tions to process data and interact with field devices. The Companiesestimate that the capital costs for the full-scale AMI deployment will beapproximately $513.2 million, and they propose an increase in neededrevenues in the total amount of approximately $6.2 million in 2018. Untilthese amounts are incorporated into future rate plans, the Companiespropose to recover them through two surcharges, a fixed monthly chargefor AMI meter and communications costs and a variable monthly chargefor upfront intellectual property costs. The Companies also propose to al-low customers to opt out of an AMI meter, subject to certain opt-outcharges. Because all existing electric meters will be removed from serviceas part of the AMI implementation, the Companies also seek a waiver ofthe Commission’s in-service meter testing requirements (16 NYCRR92.10) for existing meters. The full text of the petition may be reviewedonline at the Department of Public Service web page: www.dps.ny.gov.The Commission may adopt, reject or modify, in whole or in part, the peti-tion and may resolve related matters.

Text of proposed rule and any required statements and analyses may beobtained by filing a Document Request Form (F-96) located on ourwebsite http://www.dps.ny.gov/f96dir.htm. For questions, contact: JohnPitucci, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 486-2655, email: [email protected]

Data, views or arguments may be submitted to: Kathleen H. Burgess,Secretary, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 474-6530, email: [email protected]

Public comment will be received until: Five days after the last scheduledpublic hearing.

Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.

(17-E-0058SP1)



Temperature for Daily Contact with DRCs, InterruptibleTemperature in Procedures and O&R to Follow Upstate DRCRules

I.D. No. PSC-14-17-00007-P


Proposed Action: The Commission is considering waiver requests adjust-ing the temperature for gas companies to commence daily contact withdemand response customers, to notify DRCs of interruptible temperaturein company procedures, and to treat O&R as an upstate utility.Statutory authority: Public Service Law, sections 65, 66(1) and (2)Subject: Temperature for daily contact with DRCs, interruptible tempera-ture in procedures and O&R to follow upstate DRC rules.Purpose: To consider waivers adjusting temperature, referencing actualtemperature in company procedures and allowing O&R to follow upstaterules.Substance of proposed rule: The Commission is considering waiverrequests from Central Hudson Gas & Electric Corporation, National FuelGas Distribution Gas Corp., New York State Electric & Gas Corporation,Niagara Mohawk Power Corporation d/b/a National Grid, and Orange andRockland Utilities, Inc. (the Parties). On December 16, 2016, the Com-mission’s Order Adopting New Communications Protocols (2016 Order)directed all local distribution companies (LDCs) with natural gas demandresponse tariffs to file amendments to those tariffs to implement newwinter communications protocols. In complying with the 2016 Order, sev-eral LDCs requested a waiver seeking Commission authorization allowingthe LDCs to use the lower temperature threshold of 15 degrees Fahrenheit,rather than the prescribed 20 degrees contained in the 2016 Order, as amaximum cold temperature threshold that will trigger the requirement ofdaily communications. The 2016 Order requires that, as soon as weatherforecasts project outside temperatures to be 20 degrees or below for theupcoming three consecutive days or during the times when three days ofconsecutive customer interruptions occur the LDCs must communicatedaily with their demand response customers. The parties seek a waiver ofthe prescribed 20-degree requirement as the threshold at which LDCswould commence daily LDC communications with all demand responseparties. The Parties request that they not be required to commence dailycommunications unless weather forecasts project a temperature of 15degrees rather than the prescribed 20 degrees. The LDCs note that the 20-degree threshold will require that daily communications become acontinual requirement given the average low temperatures in upstate areas.In reviewing the waiver requests, the Department of Public Service Staff(Staff) observed that since gas distribution network interruption require-ments may vary from year to year, it might be more administratively ef-ficient for the LDCs to notify demand response customers what eachLDC’s actual notification temperature will be using each LDC’s respectiveGas Transportation Operating Procedure Manual (GTOP). The GTOP,which demand response customers can readily access on each LDC’swebsite, can be amended from year to year as necessary without the needfor Commission-approved tariff changes. Therefore, while 15 degrees isthe threshold at which daily communications must begin, the Commissionis considering allowing each LDC to notify its demand response custom-ers in the LDC’s GTOP of the actual temperature at which each LDC willcommence daily communications in any given year. In reviewing thewaiver requests it also became apparent to Staff that Orange and RocklandUtilities, Inc. (O&R) should not be treated as a downstate LDC sinceO&R’s service territory does not include New York City, where the oilbarge hold-ups threatened, prompting the 2016 Order. Rather, Staffbelieves that O&R should be required to follow the requirements assignedto the upstate LDCs described in the 2016 Order. Doing so would allowO&R to not implement the requirements of the unannounced January test(#3), the customer affirmation of compliance (#4), and the inclusion of theoil supplier’s contact information (or alternate fuel supplier) (#5) unlessand only for specific O&R demand response customers that fail to inter-rupt as required by O&R’s tariff. Therefore, the Commission is consider-ing treating O&R as an upstate LDC. The full text of the proposals may bereviewed online at the Department of Public Service web page:www.dps.ny.gov. The Commission may adopt, reject, or modify, in wholeor in part, the waiver requests and may resolve related matters.



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mailto:[email protected]



Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.(15-G-0185SP2)



Waiver to the Prohibition on Service to Low-Income Customersby ESCOs

I.D. No. PSC-14-17-00008-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 31, 2017 by Starion Energy NY, Inc. seeking a waiver to the prohibi-tion on service to low-income customers by energy service companies(ESCOs).

Statutory authority: Public Service Law, sections 5(1)(b), 65(1), (2), (3),66(1), (2), (3), (5) and (8)

Subject: Waiver to the prohibition on service to low-income customers byESCOs.

Purpose: To consider the petition for a waiver to the prohibition on ser-vice to low-income customers by ESCOs.

Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 31, 2017 by Starion Energy NY, Inc. seek-ing a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.




Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.(12-M-0476SP18)




I.D. No. PSC-14-17-00009-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 31, 2017 by Just Energy New York Corporation seeking a waiver to

the prohibition on service to low-income customers by energy servicecompanies (ESCOs).Statutory authority: Public Service Law, sections 5(1)(b), 65(1), (2), (3),66(1), (2), (3), (5) and (8)Subject: Waiver to the prohibition on service to low-income customers byESCOs.Purpose: To consider the petition for a waiver to the prohibition on ser-vice to low-income customers by ESCOs.Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 31, 2017 by Just Energy New York Corpora-tion seeking a waiver to the prohibition on service by energy servicecompanies (ESCOs) to low-income customers (Petition). On December16, 2016, the Commission directed a prohibition on ESCO service to low-income customers (Prohibition Order). The Prohibition Order providedthat, if an ESCO can demonstrate that it is capable of providing a productto low-income customers that guarantees savings compared to what thecustomer would have otherwise paid as a full-service utility customer, itmay seek a waiver of the Prohibition Order from the Commission. The fulltext of the petition may be reviewed online at the Department of PublicService web page: www.dps.ny.gov. The Commission may adopt, reject ormodify, in whole or in part, the relief requested and may resolve relatedmatters.Text of proposed rule and any required statements and analyses may beobtained by filing a Document Request Form (F-96) located on ourwebsite http://www.dps.ny.gov/f96dir.htm. For questions, contact: JohnPitucci, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 486-2655, email: [email protected], views or arguments may be submitted to: Kathleen H. Burgess,Secretary, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 474-6530, email: [email protected] comment will be received until: 45 days after publication of thisnotice.Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.(12-M-0476SP22)




I.D. No. PSC-14-17-00010-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 27, 2017 by Stream Energy New York, LLC seeking a waiver to theprohibition on service to low-income customers by energy servicecompanies (ESCOs).




Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 27, 2017 by Stream Energy New York, LLCseeking a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.



19










I.D. No. PSC-14-17-00011-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 31, 2017 by M&R Energy Resources Corp. seeking a waiver to theprohibition on service to low-income customers by energy servicecompanies (ESCOs).




Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 31, 2017 by M&R Energy Resources Corp.seeking a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.








I.D. No. PSC-14-17-00012-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 30, 2017 by New Wave Energy Corp. seeking a waiver to the prohibi-

tion on service to low-income customers by energy service companies(ESCOs).Statutory authority: Public Service Law, sections 5(1)(b), 65(1), (2), (3),66(1), (2), (3), (5) and (8)Subject: Waiver to the prohibition on service to low-income customers byESCOs.Purpose: To consider the petition for a waiver to the prohibition on ser-vice to low-income customers by ESCOs.Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 30, 2017 by New Wave Energy Corp. seek-ing a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.








I.D. No. PSC-14-17-00013-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 30, 2017 by Agway Energy Services, LLC seeking a waiver to the pro-hibition on service to low-income customers by energy service companies(ESCOs).




Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 30, 2017 by Agway Energy Services, LLCseeking a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.



20










I.D. No. PSC-14-17-00014-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 30, 2017 by Drift Marketplace, Inc. seeking a waiver to the prohibitionon service to low-income customers by energy service companies(ESCOs).




Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 30, 2017 by Drift Marketplace, Inc. seekinga waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.








I.D. No. PSC-14-17-00015-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 30, 2017 by South Bay Energy Corp. seeking a waiver to the prohibi-

tion on service to low-income customers by energy service companies(ESCOs).Statutory authority: Public Service Law, sections 5(1)(b), 65(1), (2), (3),66(1), (2), (3), (5) and (8)Subject: Waiver to the prohibition on service to low-income customers byESCOs.Purpose: To consider the petition for a waiver to the prohibition on ser-vice to low-income customers by ESCOs.Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 30, 2017 by South Bay Energy Corp. seek-ing a waiver to the prohibition on service by energy service companies(ESCOs) to low-income customers (Petition). On December 16, 2016, theCommission directed a prohibition on ESCO service to low-incomecustomers (Prohibition Order). The Prohibition Order provided that, if anESCO can demonstrate that it is capable of providing a product to low-income customers that guarantees savings compared to what the customerwould have otherwise paid as a full-service utility customer, it may seek awaiver of the Prohibition Order from the Commission. The full text of thepetition may be reviewed online at the Department of Public Service webpage: www.dps.ny.gov. The Commission may adopt, reject or modify, inwhole or in part, the relief requested and may resolve related matters.Text of proposed rule and any required statements and analyses may beobtained by filing a Document Request Form (F-96) located on ourwebsite http://www.dps.ny.gov/f96dir.htm. For questions, contact: JohnPitucci, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 486-2655, email: [email protected], views or arguments may be submitted to: Kathleen H. Burgess,Secretary, Public Service Commission, 3 Empire State Plaza, Albany, NewYork 12223-1350, (518) 474-6530, email: [email protected] comment will be received until: 45 days after publication of thisnotice.Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.(12-M-0476SP23)




I.D. No. PSC-14-17-00016-P


Proposed Action: The Commission is considering a petition filed on Janu-ary 31, 2017 by Utility Expense Reduction, LLC seeking a waiver to theprohibition on service to low-income customers by energy servicecompanies (ESCOs).




Substance of proposed rule: The Public Service Commission is consider-ing a petition filed on January 31, 2017 by Utility Expense Reduction,LLC seeking a waiver to the prohibition on service by energy servicecompanies (ESCOs) to low-income customers (Petition). On December16, 2016, the Commission directed a prohibition on ESCO service to low-income customers (Prohibition Order). The Prohibition Order providedthat, if an ESCO can demonstrate that it is capable of providing a productto low-income customers that guarantees savings compared to what thecustomer would have otherwise paid as a full-service utility customer, itmay seek a waiver of the Prohibition Order from the Commission. The fulltext of the petition may be reviewed online at the Department of PublicService web page: www.dps.ny.gov. The Commission may adopt, reject ormodify, in whole or in part, the relief requested and may resolve relatedmatters.



21






Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact Statement

Statements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.

(12-M-0476SP21)



Deferral of Incremental REV Expenses and Recovery Through

Its Existing Miscellaneous Charge

I.D. No. PSC-14-17-00018-P


Proposed Action: The Commission is considering a petition filed byCentral Hudson Gas & Electric Corporation to defer and recover ap-proximately $1.9 million of incremental Reforming the Energy Vision(REV) electric expenses and carrying charges.

Statutory authority: Public Service Law, sections 4(1), 65, 66(1) and (12)

Subject: Deferral of incremental REV expenses and recovery through itsexisting Miscellaneous Charge.

Purpose: Consideration of the incremental REV expense deferral andrecovery petition filed by Central Hudson Gas & Electric Corporation.

Substance of proposed rule: The Public Service Commission (Commis-sion) is considering a petition filed by Central Hudson Gas and ElectricCorporation (the Company) on March 8, 2017, to defer costs associatedwith incremental Reforming the Energy Vision (REV) electric expenses.As of February 28, 2017, the Company has accumulated approximately$1.9 million in predominately labor related expenses and associated carry-ing costs related to Distributed System Implementation Plan, AdvancedMetering Infrastructure, and Earning Adjustment Mechanism costs. Goingforward, the Company expects to incur future REV expenses in the rangeof $2.9 million related but not limited to the development of an intercon-nection portal to facilitate the connection of Distributed Energy Resources(DER) to Central Hudson’s distribution system as well as a hosting capa-city analysis to determine how much DER can connect to each circuit onCentral Hudson’s distribution system. The Company requests to deferthese REV costs and carrying charges at its current pre-tax rate of returnand recover the costs on a volumetric basis through a separate componentof their monthly Miscellaneous Charge. The Company plans to providethe Commission an annual report every October 1 detailing deferred andrecovered REV costs in the prior rate year ending June 30. The full text ofthe petition may be reviewed online at the Department of Public Serviceweb page: www.dps.ny.gov. The Commission may adopt, reject, ormodify, in whole or in part, the petition proposed and may resolve otherrelated matters.




Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact Statement

Statements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.

(17-E-0113SP1)



Notice of Intent to Submeter Electricity

I.D. No. PSC-14-17-00019-P


Proposed Action: The Public Service Commission is considering a Noticeof Intent of 125 Metropolitan Owner LLC and 125 Metropolitan LI LLCto submeter electricity at 94 North 3rd Street, Brooklyn, NY and a waiverrequest of 16 NYCRR section 96.5(k)(3), requiring an energy audit.Statutory authority: Public Service Law, sections 2, 4(1), 30, 32-48, 52,53, 65(1), 66(1), (2), (3), (4), (12) and (14)Subject: Notice of Intent to submeter electricity.Purpose: To consider the Notice of Intent to submeter electricity at 94North 3rd St., Brooklyn, NY and waiver of 16 NYCRR section 96.5(k)(3).Substance of proposed rule: The Commission is considering the Noticeof Intent, filed by 125 Metropolitan Owner LLC and 125 Metropolitan LILLC (together, the “Owner”) on March 1, 2017, to submeter electricity at94 North 3rd Street, Brooklyn, New York, located in the service territoryof Consolidated Edison Company of New York, Inc. The Commission isalso considering the Owner’s request for a waiver of 16 NYCRR§ 96.5(k)(3), which requires proof that an energy audit has been conductedwhen 20 percent or more of the residents receive income-based housingassistance. The full text of the Notice of Intent and waiver request may bereviewed online at the Department of Public Service web page:www.dps.ny.gov. The Commission may adopt, reject or modify, in wholeor in part, the relief proposed and may resolve related matters.




Regulatory Impact Statement, Regulatory Flexibility Analysis, RuralArea Flexibility Analysis and Job Impact StatementStatements and analyses are not submitted with this notice because theproposed rule is within the definition contained in section 102(2)(a)(ii) ofthe State Administrative Procedure Act.(17-E-0107SP1)

Department of State



New York State Uniform Fire Prevention and Building Code (theUniform Code)

I.D. No. DOS-14-17-00004-P


Proposed Action: Amendment of sections 1220.1(b), (c), 1221.1(b), (c),1222.1(b), (c), 1223.1(b), (c), 1224.1(b), (c), 1225.1(b), (c), 1226.1(b),(c), 1227.1(b), (c), 1228.4, 1228.17, 1264.4, 1265.3; and repeal of section1226.1(d) of Title 19 NYCRR.

Statutory authority: Executive Law, sections 377, 382-a and 382-b

Subject: New York State Uniform Fire Prevention and Building Code (theUniform Code).

Purpose: To amend the existing Uniform Code and to make conformingchanges to 19 NYCRR Parts 1264 and 1265.

Public hearing(s) will be held at: 10:00 a.m., May 22, 2017 at Depart-ment of State, 99 Washington Ave., Rm. 505, Albany, NY.

Interpreter Service: Interpreter services will be made available to hearing


22




impaired persons, at no charge, upon written request submitted within rea-sonable time prior to the scheduled public hearing. The written requestmust be addressed to the agency representative designated in the paragraphbelow.


Substance of proposed rule (Full text is posted at the following Statewebsite: http://www.dos.ny.gov/DCEA/): This rule making would amendthe current versions of Parts 1220, 1221, 1222, 1223, 1224, 1225, 1226,and 1227 of Title 19 of the Official Compilation of Codes, Rules andRegulations of the State of New York by replacing references to the 2016Uniform Code Supplement with the new publication entitled the 2017Uniform Code Supplement. The individual Parts pertain to specified por-tions of the Uniform Fire Prevention and Building Code and are summa-rized below:

Part 1220 Residential ConstructionThe construction, alteration, movement, replacement, repair, equip-

ment, use, maintenance, removal and demolition of applicable residentialstructures and their accessory structures shall comply with the require-ments of the “2015 International Residential Code” published by theInternational Code Council, Inc. (hereinafter the 2015 IRC), incorporatedherein by reference, as amended in the manner specified in the “2017Uniform Code Supplement,” published in March 2017, by the NYSDepartment of State and incorporated herein by reference.

Applicable residential structures include detached one- and two-familydwellings and multiple single-family dwellings (townhouses), not morethan three stories in height above grade with a separate means of egress;such one-family dwellings converted to bed and breakfast dwellings; andcertain specified such dwellings under the supervision or jurisdiction of adepartment or agency of New York State (NYS).

Certain published standards are incorporated by reference into 19NYCRR Part 1220.

Part 1221 Building ConstructionThe construction, alteration, movement, enlargement, replacement,

repair, equipment, use and occupancy, maintenance, removal and demoli-tion of every building or structure, or appurtenance connected or attachedto any building or structure, shall comply with the requirements of thepublication entitled “2015 International Building Code” published by theInternational Code Council, Inc. (hereinafter the 2015 IBC), incorporatedherein by reference, as amended in the manner specified in the “2017Uniform Code Supplement,” published in March 2017, by the NYSDepartment of State and incorporated herein by reference.


Part 1222 Plumbing SystemsThe erection, installation, alteration, repair, relocation, replacement, ad-

dition to, use or maintenance of plumbing systems, nonflammable medicalgas systems, and sanitary and condensate vacuum collection systems, shallcomply with the requirements of the “2015 International Plumbing Code”published by the International Code Council, Inc. (hereinafter the 2015IPC), incorporated herein by reference, as amended in the manner speci-fied in the “2017 Uniform Code Supplement,” published in March 2017,by the NYS Department of State and incorporated herein by reference.


Part 1223 Mechanical SystemsThe design, installation, maintenance, alteration and inspection of

mechanical systems that are permanently installed and utilized to providecontrol of environmental conditions and related processes within build-ings shall comply with the requirements of the publication entitled “2015International Mechanical Code” published by the International CodeCouncil, Inc. (hereinafter the 2015 IMC), incorporated herein by refer-ence, as amended in the manner specified in the “2017 Uniform CodeSupplement,” published in March 2017, by the NYS Department of Stateand incorporated herein by reference.


Part 1224 Fuel Gas Equipment and SystemsThe design, installation, maintenance, alteration and inspection of fuel

gas piping and equipment, fuel gas-fired appliances and fuel gas fired ap-pliance ventilating systems shall comply with the requirements of the pub-lication entitled “2015 International Fuel Gas Code” published by theInternational Code Council, Inc. (hereinafter the 2015 IFGC), incorporatedherein by reference, as amended in the manner specified in the “2017Uniform Code Supplement,” published in March 2017, by the NYSDepartment of State and incorporated herein by reference.


Part 1225 Fire Prevention

Structures, processes and premises; the storage, handling or use ofstructures, materials or devices; the occupancy and operation of structuresand premises; and the construction, extension, repair, alteration or re-moval of fire suppression and alarms systems, shall comply with therequirements of the publication entitled “2015 International Fire Code”published by the International Code Council, Inc. (hereinafter the 2015IFC, incorporated herein by reference, as amended in the manner specifiedin the “2017 Uniform Code Supplement,” published in March 2017, bythe NYS Department of State and incorporated herein by reference.


Part 1226 Property MaintenanceAll existing residential and nonresidential structures, premises, equip-

ment and facilities, owners, operators and occupants of existing structuresand premises, and the occupancy of existing structures and premises, shallcomply with the requirements of the publication entitled “2015 Interna-tional Property Maintenance Code” published by the International CodeCouncil, Inc. (hereinafter the 2015 IPMC), and incorporated herein by ref-erence, as amended in the manner specified in the “2017 Uniform CodeSupplement,” published in March 2017, by the NYS Department of Stateand incorporated herein by reference.


Part 1227 Existing BuildingsThe repair, alteration, change of occupancy, addition and relocation of

existing buildings shall comply with the requirements of the “2015International Existing Building Code” published by the International CodeCouncil, Inc. (hereinafter the 2015 IEBC), incorporated herein by refer-ence, as amended in the manner specified in the “2017 Uniform CodeSupplement,” published in March 2017, by the NYS Department of Stateand incorporated herein by reference.


19 NYCRR Parts 1228, 1264, and 1265This rule making would amend 19 NYCRR Parts 1228, 1264, and 1265

to reference the 2017 Uniform Code Supplement, as opposed to the 2016Uniform Code Supplement.

Text of proposed rule and any required statements and analyses may beobtained from: Gerard Hathaway, Department of State, 99 WashingtonAvenue, Suite 1160, Albany, NY 12231, (518) 474-4073, email:[email protected]



Summary of Regulatory Impact StatementThe full text of the Regulatory Impact Statement can be viewed at http://

www.dos.ny.gov/DCEA.1. STATUTORY AUTHORITYArticle 18 of the Executive Law, entitled the New York State Uniform

Fire Prevention and Building Code Act, establishes the State Fire Preven-tion and Building Code Council (hereinafter “Code Council”) andauthorizes such council to formulate a code to be known as the UniformFire Prevention and Building Code (hereinafter “Uniform Code”). Execu-tive Law § 377 directs that the Uniform Code shall provide reasonablyuniform standards and requirements for construction and constructionmaterials for public and private buildings, including factory manufacturedhomes, consonant with accepted standards of engineering and fire preven-tion practices.

Executive Law § 378 provides that the Uniform Code shall addresscertain specified subjects. The subjects are listed in the full RegulatoryStatement.

Executive Law § 377(1) specifically states that the Code Council mayamend particular provisions of the Uniform Code and shall periodicallyreview the entire code to assure that it effectuates the purposes of Article18 of the Executive Law. This rule making would amend the existing textof the Uniform Code which is based upon the 2015 editions of eight indi-vidual model codes developed and published by the International CodeCouncil (ICC), as modified by the 2016 Uniform Code Supplement.Particularly, the 2016 Uniform Code Supplement will be replaced with anew publication entitled the 2017 Uniform Code Supplement. This publi-cation makes technical and editorial corrections to the Uniform Code thatare necessary for its proper application and to address statutoryrequirements.

19 NYCRR Part 1264 implements Executive Law § 382-a. ExecutiveLaw § 382-a provides that the Code Council shall promulgate rules andregulations it deems necessary to carry into effect the provision of thissection 382-a. 19 NYCRR Part 1265 implements Executive Law 382-b.Executive Law 382-b provides that the Code Council shall promulgaterules and regulations it deems necessary to carry into effect the provisions


23


of this section 382-b. Parts 1264 and 1265 currently include references tothe 2016 Uniform Code Supplement. This rule will amend Parts 1264 and1265 by changing the existing references to the 2016 Uniform CodeSupplement to references to the 2017 Uniform Code Supplement.

2. LEGISLATIVE OBJECTIVESExecutive Law § 371(2) declares that it shall be the public policy of the

State of New York to provide for promulgation of a Uniform Code ad-dressing building construction and fire prevention in order to provide a ba-sic minimum level of protection to all people of the State from the hazardsof fire and inadequate building construction. The Code Council was as-signed the task of formulating the Uniform Fire Prevention and BuildingCode which took effect January 1, 1984. However, in the years following1984, the Uniform Code did not keep pace with the evolving technologyof fire prevention and building construction. Furthermore, as the rest ofthe nation moved to using a nationally accepted set of model codes, NewYork continued to maintain the separate identity of its building and fireprevention code until January of 2003, when it repealed its entire code andreplaced it with text based primarily on the 2000 edition of the InternationalCodes.

The Uniform Code adopted in 2003 was based on International Codes,and represented the first major revision of the Uniform Code since itsinception in January 1984. The Uniform Code was revised again in 2007and 2010. The 2010 revision was based primarily on the 2006 edition ofthe International Codes. The 2016 revision was based primarily on the2015 edition of the International Codes. This rule making would revise theUniform Code once again, and replace the current version of the UniformCode with a new version still based primarily on the 2015 edition of theInternational Codes but modified by the 2017 Uniform Code Supplementin place of the 2016 Uniform Code Supplement. By updating the UniformCode in this manner, the Code Council seeks to better effectuate thepurposes, objectives, and standards set forth in Article 18 of the ExecutiveLaw and therefore concludes that the rule making conforms with the pub-lic policy objectives of Executive Law § 371.

3. NEEDS AND BENEFITSThe purpose of this rule making is to adopt new provisions for the

Uniform Code. This change is necessary if New York State is to remaincompetitive with the rest of the nation in matters involving buildingconstruction while at the same time providing an adequate level of safetyto its residents. It is also necessary if New York State wishes to keep pacewith evolving technology concerning fire prevention and buildingconstruction and to have a building and fire prevention code which is con-sistent with nationally accepted model codes.

Included in Item #3 of the full Regulatory Impact Statement, the Needsand Benefits of significant new provisions of the Uniform Code arediscussed.

4. COSTSa. COST TO REGULATED PARTIES FOR THE IMPLEMENTATION

OF, AND CONTINUING COMPLIANCE, WITH THE PROPOSEDRULE.

Further information concerning the costs of significant provisions of theUniform Code is discussed in the full Regulatory Impact Statement. Whilecosts vary depending on the construction or modification project, theDepartment does not anticipate that the costs will differ greatly from thecurrent codes. This rule reflects performance based regulatory require-ments that give regulated parties more alternatives to protect the occupantsand users of buildings while at the same time fulfilling programmatic spaceneeds with the most cost effective solution.

b. COSTS TO THE AGENCY, THE STATE AND LOCAL GOVERN-MENTS FOR THE IMPLEMENTATION AND CONTINED ADMINIS-TRATION OF THE RULE.

The Department of State, State agencies that administer and enforce theUniform Code, State agencies that own or construct buildings, and localgovernments that administer and enforce the Uniform Code can obtain acopy of the 2017 Uniform Code Supplement on the Department of State’swebsite at no cost.

Further information concerning costs and savings of the most signifi-cant of the new provisions of the Uniform Code are discussed within Item#3 of the full Regulatory Impact Statement.

5. LOCAL GOVERNMENT MANDATESThis rule making will impose some programs, services, duties and re-

sponsibilities upon counties, cities, towns, villages, school districts, firedistricts and other special districts. When any of the aforementionedgovernmental entities undertake the construction of a building or structure,the construction process is subject to the provisions of the proposed rule tothe same extent that the construction of a private building or structurewould be regulated.

Similarly, existing buildings and structures owned or under the controlof local government entities are potentially subject to maintenance or fireprevention provisions of the Uniform Code, and therefore, may becomesubject to maintenance and fire prevention provisions of the UniformCode, as amended by this rule.

Pursuant to Executive Law § 381, every city, town and village isresponsible for administering and enforcing the Uniform Code. Conse-quently, local government personnel will require training in the details ofthis rule. However, the Department of State, Division of Building Stan-dards and Codes has funding available to provide for training local govern-ment code enforcement officials. This training will provide knowledge toenable local government to enforce this regulation.

6. PAPERWORKThis rule will not impose any additional reporting or record keeping

requirements. No additional paperwork is anticipated.7. DUPLICATIONThe New York State Uniform Fire Prevention and Building Code

provides standards for the construction and maintenance of buildings andstructures and for the protection of buildings and structures and their oc-cupants from the hazards of fire. These are matters for which the federalgovernment does not impose comprehensive requirements. The federalgovernment has addressed the topic of accessible and usable facilities forthe physically disabled, however, through adoption of the Americans withDisabilities Act (ADA) and the Fair Housing Act. The new text proposedfor the Uniform Code also requires accessibility to buildings and structuresfor the physically disabled. Although the existence of federal and statestandards may raise issues of overlap or conflict, no such overlap orconflict exists with this proposed rule.

Several State agencies have promulgated regulations which imposerequirements upon buildings or structures which house activities whichare licensed or regulated by the particular agency. Such regulations mayimpose an additional layer of regulation upon the construction, mainte-nance, or use of certain categories of buildings. These other regulations,however, are focused upon activities or occupants regulated or protectedby the particular State agency and have been promulgated pursuant tostatutory authority other than Article 18 of the Executive Law.

8. ALTERNATIVESIt is the policy of the Department of State to modernize and amend the

Uniform Fire Prevention and Building Code, so as to maintain consistencywith the national model codes, to keep building practices in New YorkState consistent with practice nationally, and to incorporate new technicaldevelopments in a timely manner. Consequently, the alternative ofmaintaining existing provisions of the Uniform Code was rejected.

To assist the Code Council, staff at the Department of State, Division ofBuilding Standards and Codes reviewed the ICC Codes and made recom-mendations to the Code Council to ensure that the new provisions of theUniform Code would remain appropriate and applicable to continuallydeveloping design and construction issues and needs in New York State.

Proposed New York modifications made by staff at the Department ofState, Division of Building Standards and Codes were posted on the DOSwebsite for public inspection.

Public hearings will be held after a notice of proposed rule making hasbeen published in the State Register in accordance with the provisions ofthe State Administrative Procedure Act. A draft of the proposed code willalso be available on the Department’s website and an e-bulletin will besent announcing that fact.

9. FEDERAL STANDARDSThe federal government has adopted the Americans with Disabilities

Act (ADA) which requires certain facilities to be accessible and usable bythe physically disabled. The new text proposed for the Uniform Code alsoincludes provisions which require buildings and structures to be accessibleand usable by the physically disabled. The proposed rule would exceed theminimum standards established by the federal government.

10. COMPLIANCE SCHEDULEThe target date for publishing a notice of adoption for this rule making

is June 2017. Upon publication of the notice of adoption, the rule willbecome effective ninety (90) days thereafter in accordance with ExecutiveLaw § 378(15).

Regulatory Flexibility Analysis1. EFFECT OF RULE.This rule making would amend the current version of the Uniform Fire

Prevention and Building Code (Uniform Code) by replacing the 2016Uniform Code Supplement with a new publication entitled the 2017Uniform Code Supplement. The proposed new text of the Uniform Codeis based upon the new modifications to the 2015 editions of model codesdeveloped by the International Code Council, Inc. (ICC), as set forth inthe 2017 Uniform Code Supplement. The Uniform Code is applicable inall areas of the State with the exception of the City of New York.

This rule has the potential to affect small businesses that own or operatebuildings in all areas of the State except the City of New York as well assmall businesses that provide services, directly or indirectly, to buildingowners and operators. Small businesses that construct, own, or operatebuildings or structures are subject to provisions of the Uniform Code andtherefore will be required to comply with this rule. Businesses that provideservices to building owners, such as facility managers, design profession-


24

als (e.g., architects and engineers), general and specialty contractors(including home builders), and product suppliers, though not directlyregulated by this rule, will be impacted by this rule. It is not possible toestimate the exact number of businesses that will be affected by this rule,but the effect of the rule will be widespread. For example, according to theNew York State Department of Education, as of January 1, 2017, therewere 10,734 architects1, 14,949 engineers2 and 805 landscape architects3

with active licenses in New York State.There are approximately 1,605 local governments in New York, includ-

ing 932 towns, 554 villages, 62 cities, and 57 counties.4 Local govern-ments will be affected by this rule if the government constructs, owns, oroperates structures that are subject to the provisions of the Uniform Code.In those circumstances, a local government is in no different situation thanthat of any building owner or operator, public or private. Therefore, adop-tion of this rule making will affect all cities, towns, and villages of theState with the exception of the City of New York. In addition, ExecutiveLaw § 381 provides that every city, town, and village of the State shalladminister and enforce the Uniform Code within its boundaries, except inlimited specific circumstances. Consequently, in most instances, the cities,towns and villages of the State are responsible for enforcement of theUniform Code within their boundaries, and will be responsible for enforc-ing the new Uniform Code provisions proposed for adoption by this rulemaking.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCEREQUIREMENTS.

This rule making will not change local government responsibility foradministering and enforcing the Uniform Code. There will be no changein requirements for local governments concerning reporting, record keep-ing, and other compliance requirements.

As the owner, operator, or occupant of a building or structure, bothsmall businesses and local governments will be required to comply withrequirements for new building construction and for operation and mainte-nance of newly constructed buildings, as well as provisions of this rulethat apply to existing buildings.

3. PROFESSIONAL SERVICES.Regulated parties will continue to rely upon professionals to advise

them of the requirements of the Uniform Code. Building owners typicallyrely on professionals with respect to design, construction and operationand maintenance of buildings because of their expertise in buildingregulations.

4. COMPLIANCE COSTS.The adoption of new text for the Uniform Code will affect the construc-

tion, configuration and cost of new buildings. Remodeling or constructionof additions in existing buildings will be similarly affected. It is anticipatedthat regulated parties will see a change in construction costs and buildingoperation costs as a result of this rule making, with some increases andsome decreases depending on the project. There is such a broad range ofpotential projects that it is not possible to give a single estimate or even areasonably accurate range. For instance, under the proposed code change,a bed and breakfast operation would be required to post an evacuation no-tice on the occupied side of the entrance door of each new guest room.Compliance cost could be in the order of $260 per notice, depending uponthe level of detail and finish desired by the owner.

Code enforcement personnel employed by the cities, towns, villagesand counties that are required to administer and enforce the Uniform Codewill need to receive training regarding the new and changed provisions ofthe Uniform Code. However, such code enforcement personnel are al-ready required by regulation (19 NYCRR Part 1208) to receive 24 hoursof annual in-service training, and it is anticipated that the training neededto familiarize code enforcement personnel with the revised Uniform Codeto be implemented by this rule will be accomplished within that annual in-service training.

Regulated parties, local governments, and design professionals canobtain a copy of the 2017 Uniform Code Supplement on the Departmentof State’s website at no cost.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY.The new code provisions proposed for adoption by this rule making

will continue to provide regulated parties with a broad range of compli-ance options. These provisions are performance based and thereforeprovide an opportunity to select the most cost effective alternative forcompliance.

Regulatory change, like technological innovation, is constant in theconstruction industry. Regulated parties as well as those who provide ser-vices to them (i.e. architects, engineers, designers, contractors, and build-ers) are accustomed to such change. This rule making is expected toencourage innovation in the construction industry and to provide increasedopportunities for small businesses to grow.

This proposed rulemaking consists primarily of updating the UniformCode by adopting some additional New York modifications to the previ-ously adopted ICC model codes. Training resources are available for

impacted parties to learn the proposed new provisions of the UniformCode. The staff of the Division of Building Standards and Codes of theDepartment of State will provide training for local government enforce-ment personnel. In addition, when class size permits, courses are open todesign professionals and contractors. From time to time, the Departmentof State also offers specific courses to these groups relating to new coderequirements.

6. MINIMIZING ADVERSE IMPACT.The Department of State, Division of Building Standards and Codes

will provide training on the new provisions of the Uniform Code for all lo-cal government code enforcement personnel in the State. Article 18 andExecutive Law § 381(1) contemplate that the Uniform Code be enforcedin a meaningful and effective manner, and in accordance with Part 1203.Executive Law § 381 provides that local governments which do not wishto enforce the Uniform Code may relinquish that responsibility to thecounty in which they are located. In turn, a county may relinquish enforce-ment responsibility to the Department of State. As the health, safety, andsecurity of the people of the State are at issue, exemption from coverageby the rule was not considered an option for minimizing the impact on lo-cal governments and/or small businesses.

7. SMALL BUSINESS AND LOCAL GOVERNMENTPARTICIPATION.

The Department of State notified interested parties throughout the Stateof the proposed adoption of this rule by means of notices posted on theDepartment’s website and notices published in Building New York, anelectronic news bulletin covering topics related to the Uniform Code andthe construction industry. Building New York is prepared by the Depart-ment of State and is currently distributed to approximately 10,000subscribers, including local governments, design professionals and othersinvolved in all aspects of the construction industry. Further notificationand opportunity to participate in the rule making process involved withconsideration of adopting this rule on a permanent basis will be providedby way of a public comment period that will commence upon publicationof this Notice in the State Register. A draft of the proposed new code textwill also be available on the Department’s website and an e-bulletin willbe sent announcing that fact.

8. VIOLATIONS AND PENALTIES ASSOCIATED WITHVIOLATIONS.

This rule will not directly establish or modify a violation, and this rulewill not establish or modify penalties associated with a violation. However,part of this rule will add requirements to the Uniform Code. A violation ofthe requirements added by part of this rule will be a violation of theUniform Code. A violation of the Uniform Code can be punishable bypenalties as high as a fine of not more than one thousand dollars per day ofviolation, or imprisonment not exceeding one year, or both. See ExecutiveLaw § 382(2).

The Department of State believes that it would be inappropriate toinclude in this rule a “cure period or other opportunity for ameliorative ac-tion, the successful completion of which will prevent the imposition ofpenalties on the party or parties subject to enforcement.” Part 1203 provi-sions requiring AHJs to require building permits and certificates of oc-cupancy have been in effect for decades. Part 1203 provisions requiringAHJs to require operating permits have been in effect for 10 years.Regulated parties should be well familiar with the enforcement-relatedprovisions to be added to the Uniform Code by this rule. In addition, thegoal of this part of the rule is to ensure greater compliance with the firesafety and construction-related provisions of the Uniform Code, and not toimpose fines. The Department of State would encourage any governmentunit or agency responsible for enforcing the Uniform Code to considerexercising appropriate prosecutorial discretion with regard to any effort toimpose fines on any building owner who is attempting in good faith tocomply with Uniform Code, but who inadvertently fails to comply withone of the enforcement-related provisions to be added to the UniformCode by this rule.

———————————1 http://www.op.nysed.gov/prof/arch/archcounts.htm?_sm_au_=iVVhNh7WHRjWJZtP2 http://www.op.nysed.gov/prof/pels/pecounts.htm?_sm_au_=iVVhNh7WHRjWJZtP3 http://www.op.nysed.gov/prof/larch/larchcounts.htm?_sm_au_=iVVhNh7WHRjWJZtP4 NYSDOS Local Government Issues in Focus, October 2006 (Vol. 2,No. 3)

Rural Area Flexibility Analysis1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:This rule making would amend the current version of the Uniform Fire

Prevention and Building Code (Uniform Code), by replacing the 2016Uniform Code Supplement with a new publication entitled the 2017Uniform Code Supplement. The proposed new text of the Uniform Code


25

is based upon the new modifications to the 2015 editions of model codesdeveloped by the International Code Council, Inc. (ICC), as set forth inthe 2017 Uniform Code Supplement. The Uniform Code is applicable inall areas of the State with the exception of the City of New York. Therefore,adoption of this rule making will apply to all rural areas of the State.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCEREQUIREMENTS; AND PROFESSIONAL SERVICES:

This proposed rule-making will have no significant impact on reportingand record-keeping requirements in rural areas or elsewhere in New York.Building owners and operators in rural areas will continue to be requiredto comply with requirements of the Uniform Code for building construc-tion, for operation and maintenance of newly constructed buildings andfor maintenance of existing buildings. There will be some changes in theserequirements with the new text of the Uniform Code. Regulated partieswill continue to rely upon professionals to advise them of the require-ments of the Uniform Code. Building owners typically rely on profession-als for their expertise in building regulations with respect to design,construction and operation and maintenance of buildings. The need forprofessionals in rural areas does not differ from such need in non-ruralareas.

3. COSTS:The new provisions of the Uniform Code are expected to reduce some

building and development costs and increase others. In general, thosecosts are expected to increase slightly from the cost of construction basedon current Uniform Code provisions. According to the federal Departmentof Housing and Urban Development (HUD), the literature on the impactof building codes on the price of housing is extremely thin. Much of it isso old as to be useful only for historic interest. Among the handful of stud-ies completed after 1980, almost all are based on anecdotal accounts orpoorly specified models. The more quantitative studies suggest that theimpact of building codes on price is no more than five percent.1 This islikely to hold true for construction of smaller buildings typical of ruralareas. The proposed new provisions of the Uniform Code have beendeveloped in response to updates in the building and fire safety industry.Any associated costs are expected to occur in rural communities as well asurban and suburban areas of the State.

4. MINIMIZING ADVERSE IMPACT:The proposed rule requires uniform standards for building construction

and fire prevention in all areas of the State with the exception of New YorkCity, where only State buildings and structures must conform to theUniform Code. The proposed rule will require compliance and reportingrequirements similar to those required by the current provisions of theUniform Code. As the health, safety and welfare of the people of NewYork are at issue, exemption from coverage by the rule was not consideredan option for minimizing impact on rural areas.

5. RURAL AREA PARTICIPATION:The Department of State notified interested parties throughout the State

of the proposed adoption of this rule by means of notices posted on theDepartment’s website and notices published in Building New York, anelectronic news bulletin covering topics related to the Uniform Code andthe construction industry. Building New York is prepared by the Depart-ment of State and is currently distributed to approximately 10,000subscribers, including local governments, design professionals and othersinvolved in all aspects of the construction industry. Further notificationand opportunity to participate in the rule making process involved withconsideration of adopting this rule on a permanent basis will be providedby way of a public comment period that will commence upon publicationof this Notice in the State Register. A draft of the proposed new code textwill also be available on the Department’s website and an e-bulletin willbe sent announcing that fact.

———————————1 U.S. Department of Housing and Urban Development, Office of PolicyDevelopment and Research, David Listokin and David B. Hattis,Cityscape: A Journal of Policy Development and Research Volume 8Number 1, “Building Codes and Housing”, 2005. http://www.huduser.gov/periodicals/cityscpe/vol8num1/ch2.pdf

Job Impact StatementThe Department of State has determined that it is apparent from the

nature and purpose of the proposed rule making that it will not have asubstantial adverse impact on jobs and employment opportunities.

This rule making would amend the current version of the Uniform FirePrevention and Building Code (Uniform Code). The current version of theUniform Code (19 NYCRR Parts 1220 through 1227) became fully effec-tive on October 3, 2016. It is based upon the 2015 editions of model codesdeveloped by the International Code Council (ICC), with some New Yorkmodifications as set forth in the 2016 Uniform Code Supplement. Ifadopted, this rule would replace the 2016 Uniform Code Supplement witha new publication entitled the 2017 Uniform Code Supplement. The 2017Supplement is intended to make corrections to the 2016 Supplement andaddress topics specific to New York.

The ICC model codes incorporate the most current technology in the ar-eas of building construction and fire prevention. The ICC codes areupdated on a three-year cycle to stay current with industry practice andtechnical and life-safety evolution. The Department of State concludesthat this update, which is based upon the current edition of the ICC modelcodes with some New York modifications as set forth in the 2017 UniformCode Supplement, will continue to provide a greater incentive to construc-tion of new buildings and rehabilitation of existing buildings. Therefore,this rule making will not have a substantial adverse impact on jobs andemployment opportunities within New York.



State Energy Conservation Construction Code (the Energy Code)

I.D. No. DOS-14-17-00005-P


Proposed Action: Amendment of section 1240.3; and addition of sections1240.2(s), (t), 1240.4(c)(9) and 1240.5(b)(7) to Title 19 NYCRR.

Statutory authority: Energy Law, section 11-103(2)

Subject: State Energy Conservation Construction Code (the Energy Code).

Purpose: To amend the existing Energy Code.

Public hearing(s) will be held at: 10:00 a.m., May 22, 2017 at Depart-ment of State, 99 Washington Ave., Room 505, Albany, NY.

Interpreter Service: Interpreter services will be made available to hearingimpaired persons, at no charge, upon written request submitted within rea-sonable time prior to the scheduled public hearing. The written requestmust be addressed to the agency representative designated in the paragraphbelow.


Text of proposed rule: Section 1240.2 of Title 19 of the Official Compila-tion of Codes, Rules and Regulations of the State of New York is amendedby adding new subdivisions (s) and (t), to read as follows:

(s) 2016 Uniform Code Supplement. The term “2016 Uniform CodeSupplement” means the publication entitled 2016 Uniform Code Supple-ment (publication date: March 2016) published by the New York StateDepartment of State.

(t) 2017 Uniform Code Supplement. The term “2017 Uniform CodeSupplement” means the publication entitled 2017 Uniform Code Supple-ment (publication date: March 2017) published by the New York StateDepartment of State.

Section 1240.3 of Title 19 of the Official Compilation of Codes, Rulesand Regulations of the State of New York is amended to read as follows:

1240.3 Amendments made by and to the 2016 Energy Code supplement.(a) For the purposes of applying the 2015 IECC commercial provisions,

the 2015 IECC residential provisions, and ASHRAE 90.1-2013 in NewYork State:

[(a)] (1) the 2015 IECC commercial provisions shall be deemed to beamended in the manner provided in part 1 of the 2016 Energy Code supple-ment;

[(b)] (2) ASHRAE 90.1-2013 shall be deemed to be amended in themanner provided in part 2 of the 2016 Energy Code supplement; and

[(c)] (3) the 2015 IECC residential provisions shall be deemed to beamended in the manner provided in part 3 of the 2016 Energy Codesupplement.

(b) The 2016 Energy Code supplement shall be deemed to be amendedas follows: each reference in the 2016 Energy Code supplement to the2016 Uniform Code Supplement shall be deemed to be amended to be areference to the 2017 Uniform Code Supplement.

Subdivision (c) of section 1240.4 of Title 19 of the Official Compilationof Codes, Rules and Regulations of the State of New York is amended byadding a new paragraph (9) to read as follows:

(9) New York State Department of State. The following publicationpublished by the New York State Department of State is incorporatedherein by reference: 2017 Uniform Code Supplement (publication date:March 2017). Copies of the 2017 Uniform Code Supplement may beobtained from the publisher at the following address: New York StateDepartment of State, Division of Building Standards and Codes, One Com-merce Plaza, 99 Washington Avenue, Suite 1160, Albany, NY 12231-0001.The 2017 Uniform Code Supplement is available for public inspection andcopying at the Office of the New York State Department of State located atOne Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.

Subdivision (b) of section 1240.5 of Title 19 of the Official Compila-


26

http://www.huduser.gov/periodicals/cityscpe/vol8num1/ch2.pdf

http://www.huduser.gov/periodicals/cityscpe/vol8num1/ch2.pdf

tion of Codes, Rules and Regulations of the State of New York is amendedby adding a new paragraph (7) to read as follows:

(7) New York State Department of State. The following publicationpublished by the New York State Department of State is incorporatedherein by reference: 2017 Uniform Code Supplement (publication date:March 2017). Copies of the 2017 Uniform Code Supplement may beobtained from the publisher at the following address: New York StateDepartment of State, Division of Building Standards and Codes, One Com-merce Plaza, 99 Washington Avenue, Suite 1160, Albany, NY 12231-0001.The 2017 Uniform Code Supplement is available for public inspection andcopying at the Office of the New York State Department of State located atOne Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.

Text of proposed rule and any required statements and analyses may beobtained from: Gerard Hathaway, Department of State, 99 WashingtonAvenue, Suite 1160, Albany, NY 12231, (518) 474-4073, email:[email protected]



Regulatory Impact Statement1. STATUTORY AUTHORITY AND LEGISLATIVE OBJECTIVES19 NYCRR Part 1240 (“Part 1240”) and the publications incorporated

by reference in Part 1240 constitute the State Energy ConservationConstruction Code (the “Energy Code”) promulgated pursuant to Article11 of the Energy Law. The amended and updated version of the EnergyCode that became effective on October 3, 2016 incorporated by referencethe 2015 edition of the International Energy Conservation ConstructionCode (the “2015 IECC”) published by the International Code Council,Inc. and the 2013 edition of the Energy Standard for Building Except Low-Rise Residential Buildings (“ASHRAE 90.1-2013”) published by theAmerican Society of Heating, Refrigeration and Air-ConditioningEngineers, Inc. Under the amended and updated version of the EnergyCode, certain provisions of the 2015 IECC and certain provisions ofASHRAE 90.1-2013 are deemed to be amended in the manner provided inthe publication entitled 2016 Supplement to the New York State EnergyConservation Construction Code (revised August 2016) (the “2016 EnergyCode Supplement”).

The Legislative objectives of Article 11 of the Energy Law include theadoption of the Energy Code to protect the health, safety and security ofthe people of the State of New York and to assure a continuing supply ofenergy for future generations and that such code mandate that economi-cally reasonable energy conservation techniques be used in the design andconstruction of all public and private buildings in the State of New York.

The 2016 Energy Code Supplement includes a number of references tothe 2016 Uniform Code Supplement. Currently, there is a proposed rule toamend and update the Uniform Code by replacing the 2016 Uniform CodeSupplement with a new publication entitled the 2017 Uniform CodeSupplement. The State Fire Prevention and Building Code Council (the“Code Council”) is expected to vote on approving a rule amending andupdating the Uniform Code at the next meeting scheduled for June 14,2017.

This proposed rule will amend Part 1240 so that references in Part 1240to provisions in the prior version of the Uniform Code are changed to ref-erences to the corresponding provisions in the updated version of theUniform Code. Particularly, this proposed rule will amend Part 1240 sothat all references in the 2016 Energy Code Supplement to the 2016Uniform Code Supplement will be deemed to be references to the 2017Uniform Code Supplement. The proposed rule also amends the 2016Energy Code by incorporating by reference the 2017 Uniform CodeSupplement.

This rule makes no substantive changes to Part 1240.This rule will assure that the Legislative objectives of Article 11 of the

Energy Law will continue to be achieved after the effective date of theupdated version of the Uniform Code.

2. NEEDS AND BENEFITSUnder this rule, references in Part 1240 to provisions in the prior ver-

sion of the Uniform Code will be changed to references to the correspond-ing provisions in the updated version of the Uniform Code. In the absenceof this rule, Part 1240 will make references to the 2016 Uniform CodeSupplement which will have been replaced by the 2017 Uniform CodeSupplement. This rule will minimize confusion on the part of regulatedparties who must comply with Part 1240 and on the part of local govern-ments that must enforce Part 1240. This rule will assure that the Legisla-tive objectives of Article 11 of the Energy Law will continue to be achievedafter the effective date of the updated version of the Uniform Code.

3. COSTSWith respect to regulated parties, this rule imposes no new require-

ments and imposes no new costs. This rule will impose no new require-ments on the Department of State (“DOS”), the State of New York, or lo-

cal governments in the State. DOS does not anticipate that DOS, the Stateof New York, or local governments in this State will incur any additionalcosts for the implementation of, and continued administration of, this rule.

4. PAPERWORKThis rule imposes no new paperwork requirements.5. LOCAL GOVERNMENT MANDATESThis rule imposes no new mandates on local government.6. DUPLICATIONThis rule does not duplicate any rule or other legal requirement of the

State or Federal government known to DOS.7. ALTERNATIVESNo significant alternatives to this rule were considered by DOS. DOS

believes that the provisions of this rule are necessary to assure that Part1240 will continue to achieve the Legislative objectives of Article 11 ofthe Energy Law after the effective date of the updated version of theUniform Code.

8. FEDERAL STANDARDSThis rule does not exceed any minimum standards of the Federal

government for the same or similar subject areas known to DOS.9. COMPLIANCE SCHEDULEDOS anticipates that regulated parties will be able to comply with this

rule upon Notice of Adoption.

Regulatory Flexibility Analysis1. EFFECT OF RULE19 NYCRR Part 1240 (“Part 1240”) and the publications incorporated


Part 1240 applies in all parts of the State. Therefore, Part 1240 currentlyapplies to all small businesses and all local governments that constructbuildings in any part of the State.

In addition, local governments are required to enforce Part 1240.Therefore, Part 1240 currently applies to all of the local governments inthe State.



This rule makes no substantive changes to Part 1240.Small businesses and local governments that are currently subject to

Part 1240 will continue to be subject to Part 1240 as amended by this rule.This rule will apply to all small businesses and local governments that

are currently subject to Part 1240.2. COMPLIANCE REQUIREMENTSThis rule imposes no new reporting, recordkeeping or other compliance

requirement on small businesses or local governments.3. PROFESSIONAL SERVICESThis rule creates no new need for professional services.4. COMPLIANCE COSTSThis rule imposes no new initial capital costs of complying with Part

1240. This rule will not result in any variation in initial capital costs ofcomplying with Part 1240 for small businesses or local governments ofdifferent types and/or of differing sizes.

This rule imposes no new annual costs of complying with Part 1240 onsmall businesses or local governments. This rule will not result in any


27


variation in annual costs of complying with Part 1240 for small businessesor local governments of different types and/or of differing sizes.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITYThe Department of State believes that it has been economically and

technologically feasible for regulated parties to comply with the existingPart 1240, that no substantial capital expenditures have been imposed byexisting Part 1240, and that it has not been necessary to develop newtechnology for compliance with existing Part 1240.

This rule makes no substantive changes to Part 1240. Therefore, theDepartment of State believes that it will continue to be economically andtechnologically feasible for regulated parties to comply with Part 1240 asamended by this rule, that no substantial capital expenditures are imposedby Part 1240 as amended by this rule, and that it will not be necessary todevelop new technology for compliance with Part 1240 as amended bythis rule.

6. MINIMIZING ADVERSE IMPACTThis rule will have no adverse impact on small businesses and local

governments.7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPA-

TIONThe Department of State gave small business and local governments an

opportunity to participate in this rule making by publishing a notice regard-ing the intent to propose this rule for adoption as a permanent rule in Build-ing New York, a monthly electronic news bulletin covering topics relatedto the Uniform Code and the construction industry which is prepared bythe Department of State and which is currently distributed to approximately10,000 subscribers, including local governments, design professionals andothers involved in all aspects of the construction industry.

Rural Area Flexibility Analysis1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS19 NYCRR Part 1240 (“Part 1240”) and the publications incorporated


Part 1240 applies in all parts of the State. Therefore, Part 1240 appliesin all rural areas of the State.


This proposed rule will amend Part 1240 so that references in Part 1240to provisions in the prior version of the Uniform Code are changed to ref-erences to the corresponding provisions in the updated version of theUniform Code. Particularly, this proposed rule will amend Part 1240 sothat all references in the 2016 Energy Code Supplement to the 2016Uniform Code Supplement will be deemed to be references to the 2017Uniform Code Supplement. The proposed rule also amends the 2016Energy Code by incorporating by reference the 2017 Uniform CodeSupplement. This rule makes no substantive changes to Part 1240.

Since Part 1240 applies in all rural areas of the State, and since this ruleamends Part 1240, this rule will apply in all rural areas of the State.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCEREQUIREMENTS; AND PROFESSIONAL SERVICES

This rule imposes no new reporting, recordkeeping or other compliancerequirement. This rule creates no new need for professional services inany rural area.

3. COMPLIANCE COSTSThis rule imposes no new initial capital costs of complying with Part

1240. This rule will not result in any variation in initial capital costs ofcomplying with Part 1240 for different types of public and private entitiesin rural areas.

This rule imposes no new annual costs of complying with Part 1240.This rule will not result in any variation in annual costs of complying withPart 1240 for different types of public and private entities in rural areas.

4. MINIMIZING ADVERSE IMPACT

This rule will have no adverse impact on rural areas or on any otherarea in the State.

Establishing different compliance requirements for public and privatesector interests in rural areas and/or providing exemptions from coverageby the rule for public and private sector interests in rural areas was notconsidered because doing so (1) is not authorized by Article 11 of theEnergy Law and (2) would endanger the public safety and general welfare.

5. RURAL AREA PARTICIPATION

The Department of State notified interested parties throughout the State,including interested parties in rural areas, of an opportunity to participatein this rule making by publishing a notice regarding the intent to proposethis rule for adoption as a permanent rule in Building New York, a monthlyelectronic news bulletin covering topics related to the Uniform Code andthe construction industry which is prepared by the Department of Stateand which is currently distributed to approximately 10,000 subscribers,including local governments, design professionals and others involved inall aspects of the construction industry.

Job Impact Statement

The Department of State has concluded after reviewing the nature andpurpose of the rule that it will not have a “substantial adverse impact onjobs and employment opportunities” (as that term is defined in section201-a of the State Administrative Procedures Act) in New York.

19 NYCRR Part 1240 (“Part 1240”) and the publications incorporatedby reference in Part 1240 constitute the State Energy ConservationConstruction Code (the “Energy Code”) promulgated pursuant to Article11 of the Energy Law. The amended and updated version of the EnergyCode that became effective on October 3, 2016 incorporated by referencethe 2015 edition of the International Energy Conservation ConstructionCode (the “2015 IECC”) published by the International Code Council,Inc. and the 2013 edition of the Energy Standard for Building Except Low-Rise Residential Buildings (“ASHRAE 90.1-2013”) published by theAmerican Society of Heating, Refrigeration and Air-ConditioningEngineers, Inc. Under the amended and updated version of the EnergyCode, certain provisions of the 2015 IECC and certain provisions ofASHRAE 90.1-2013 are deemed to be amended in the manner provided inthe publication entitled 2016 Supplement to the New York State EnergyConservation Construction Code (revised August 2016) (the “2016 EnergyCode Supplement”).



This rule makes no substantive changes to Part 1240. This rule imposesno new reporting, recordkeeping or other compliance requirement onregulated parties, the State or local governments. This rule creates no newneed for professional services. This rule imposes no new initial capitalcosts of complying with Part 1240. This rule imposes no new annual costsof complying with Part 1240. The Department of State believes that it willcontinue to be economically and technologically feasible for regulatedparties to comply with Part 1240 as amended by this rule, that nosubstantial capital expenditures are imposed by Part 1240 as amended bythis rule, and that it will not be necessary to develop new technology forcompliance with Part 1240 as amended by this rule.

Consequently, this rule should have no substantial adverse impact onjobs and employment opportunities related to energy conservationtechniques used in the design and construction of buildings.


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Office of Temporary andDisability Assistance

NOTICE OF EMERGENCY

ADOPTION

AND REVISED RULE MAKING


Emergency Measures for the Homeless During Inclement WinterWeather

I.D. No. TDA-01-17-00002-ERP

Filing No. 185




Action Taken: Addition of Part 304 to Title 18 NYCRR.Statutory authority: Social Services Law, sections 17(a)-(b), (j), 20(2)(b),(3)(d), 34(3)(c)-(e) and (6)Finding of necessity for emergency rule: Preservation of public health,public safety and general welfare.Specific reasons underlying the finding of necessity: The Office ofTemporary and Disability Assistance (OTDA) finds that immediate adop-tion of the rule is necessary for the preservation of the public health, pub-lic safety, and general welfare, and specifically, to protect homelessindividuals from inclement winter weather in which air temperatures areat or below 32 degrees Fahrenheit, including National Weather Servicecalculations for windchill. The rule will help to ensure that homelessindividuals are directed to shelter during inclement winter weather thatcan cause hypothermia, serious injury and death. The State will assist lo-cal social services districts (SSDs) if the SSDs lack facilities, resources orexpertise.

Individuals experiencing homelessness are at much higher risk than thegeneral population for suffering exposure-related conditions such ashypothermia and frostbite. These risks are exacerbated by other chronicproblems often facing the homeless, including, but not limited to, inade-quate clothing, malnutrition, fatigue and various underlying illnesses andinfections. Many individuals facing homelessness also struggle withalcohol and/or drug addictions that can substantially increase theirsusceptibility to exposure-related conditions and thereby pose immediateand longer-term threats to their health, safety, and general welfare.

The rule will help ensure that individuals experiencing homelessnessare protected from inclement winter weather and exposure-related condi-tions such as hypothermia and frostbite by requiring SSDs to work withpolice agencies, including the New York State Police, and State agenciesto take necessary steps to identify individuals reasonably believed to behomeless and unwilling or unable to find the shelter necessary for protec-tion of their safety and health in inclement winter weather, and to directand offer to move such homeless individuals to appropriate shelters in ac-cordance with relevant law. The rule also directs SSDs to: take necessarysteps to extend shelter hours so that homeless individuals may remainindoors longer; instruct homeless service outreach workers to work withother relevant personnel and with police in relation to the involuntarytransport of individuals who refuse to go inside and who appear to bementally ill and at-risk for cold-related injuries for assessment consistentwith the provisions of § 9.41 of the Mental Hygiene Law; work incoordination with the State Police and local police agencies to ensure thathomeless individuals receive assistance as needed to protect them frominclement winter weather and exposure-related conditions such ashypothermia and frostbite; and ensure that all facilities used to shelterhomeless individuals during periods of inclement winter weather are safe,clean, well-maintained and supervised, and fully compliant with existingState and local laws, regulations, administrative directives, and guidelines.

Given the dangers faced by individuals experiencing homelessnesswhen exposed to inclement winter weather, OTDA asserts that proposingthis rule only as a “regular rule making” as provided by the StateAdministrative Procedure Act (“SAPA”) should not be required because todo so would be detrimental to the health, safety, and general welfare ofthose individuals.

Subject: Emergency measures for the homeless during inclement winterweather.

Purpose: To mitigate the effects and impact of inclement winter weatheron individuals experiencing homelessness.Text of emergency/revised rule: New Part 304 is added to Title 18 of theNYCRR to read as follows:

PART 304PROTECTION OF VULNERABLE HOMELESS PERSONS§ 304.1 Emergency Measures for the Homeless During Inclement

Winter Weather.(a) For purposes of this section, “inclement winter weather” shall mean

air temperatures at or below 32 degrees Fahrenheit, including NationalWeather Service calculations for windchill.

(b) In order to mitigate the effects of inclement winter weather and theresulting impacts of such weather on individuals experiencing homeless-ness, each social service district shall:

(1) work with police agencies, including the New York State Police,and state agencies to take all necessary steps to identify individuals rea-sonably believed to be homeless and unwilling or unable to find the shelternecessary for safety and health in inclement winter weather, and to directand offer to move such individuals to the appropriate sheltered facilities;

(2) take all necessary steps to extend, or to have providers extend,shelter hours, to allow individuals experiencing homelessness to remainindoors;

(3) instruct homeless service outreach workers to work with otherrelevant personnel and to work with local police in relation to the involun-tary transport of individuals who refuse to go inside and who appear to bementally ill and at-risk for cold-related injuries to appropriate facilitiesfor assessment consistent with the provisions of section 9.41 of the MentalHygiene Law;

(4) work in coordination with the State Police and all police agenciesto ensure that individuals facing homelessness receive assistance asneeded to protect their health and safety; and

(5) ensure that all facilities used to shelter homeless individuals dur-ing periods of inclement winter weather are safe, clean, and well-maintained and supervised, as required by state and local laws, regula-tions, administrative directives, and guidelines including local buildingand fire codes.

This notice is intended to serve as both a notice of emergency adoptionand a notice of revised rule making. The notice of proposed rule makingwas published in the State Register on January 4, 2017, I.D. No. TDA-01-17-00002-EP. The emergency rule will expire May 13, 2017.

Emergency rule compared with proposed rule: Substantial revisions weremade in section 304.1(b)(3).

Text of rule and any required statements and analyses may be obtainedfrom: Richard P. Rhodes, Jr., New York State Office of Temporary andDisability Assistance, 40 North Pearl Street, 16-C, Albany, NY 12243-0001, (518) 486-7503, email: [email protected]



Revised Regulatory Impact Statement1. Statutory Authority:Social Services Law (SSL) § 17(a)-(b) and (j) provide, in part, that the

Commissioner of the Office of Temporary and Disability Assistance(OTDA) shall “determine the policies and principles upon which publicassistance, services and care shall be provided within the [S]tate both bythe [S]tate itself and by the local governmental units …”, shall “makeknown his policies and principles to local social services officials and topublic and private institutions and welfare agencies subject to his regula-tory and advisory powers …”, and shall “exercise such other powers andperform such other duties as may be imposed by law.”

SSL § 20(2)(b) provides, in part, that the OTDA shall “supervise allsocial services work, as the same may be administered by any local unit ofgovernment and the social services officials thereof within the state, advisethem in the performance of their official duties and regulate the financialassistance granted by the state in connection with said work.” Pursuant toSSL § 20(3)(d), OTDA is authorized to promulgate rules, regulations, andpolicies to fulfill its powers and duties under the SSL.

SSL § 34(3)(c) requires OTDA’s Commissioner to “take cognizance ofthe interests of health and welfare of the inhabitants of the [S]tate wholack or are threatened with the deprivation of the necessaries of life and ofall matters pertaining thereto.” In addition, pursuant to SSL § 34(3)(d),OTDA’s Commissioner must exercise general supervision over the workof all social services districts (SSDs), and SSL § 34(3)(e) provides thatOTDA’s Commissioner must enforce the SSL and the State regulationswithin the State and in the local governmental units. Pursuant to SSL§ 34(6), OTDA’s Commissioner “may exercise such additional powersand duties as may be required for the effective administration of the depart-ment and of the [S]tate system of public aid and assistance.”


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2. Legislative Objectives:It is the intent of the Legislature in enacting the above statutes that

OTDA establish rules, regulations and policies to provide for the health,safety and general welfare of vulnerable individuals.

3. Needs and Benefits:The rule is necessary to protect homeless individuals from inclement

winter weather in which air temperatures are at or below 32 degreesFahrenheit, including National Weather Service calculations for windchill.The rule will ensure that homeless individuals are directed to shelter dur-ing inclement winter weather which can cause hypothermia, serious injuryand death. The State will assist SSDs lacking facilities, resources orexpertise.

Individuals experiencing homelessness are at much higher risk than thegeneral population for suffering exposure-related conditions such ashypothermia and frostbite. These risks are exacerbated by other chronicproblems often facing the homeless, including, but not limited to, inade-quate clothing, malnutrition, fatigue and various underlying illnesses orinfections. Furthermore, many individuals facing homelessness alsostruggle with alcohol and/or drug addictions that can substantially increasetheir susceptibility to exposure-related conditions and thereby pose imme-diate and longer-term threats to their health, safety, and general welfare.

The rule will help ensure that individuals experiencing homelessnessare protected from inclement winter weather and exposure-related condi-tions such as hypothermia and frostbite by requiring SSDs to work withpolice agencies, including the New York State Police, and State agenciesto take necessary steps to identify individuals reasonably believed to behomeless and unwilling or unable to find the shelter necessary for protec-tion of their safety and health in inclement winter weather, and to directand offer to move such homeless individuals to appropriate shelters in ac-cordance with relevant law. The rule further directs SSDs to take neces-sary steps to extend shelter hours of operation to and allow homelessindividuals to remain indoors, to instruct homeless service outreach work-ers to work with other relevant personnel and with police in relation to theinvoluntary transport of individuals who refuse to go inside and who ap-pear to be mentally ill and at-risk for cold-related injuries for assessmentconsistent with the provisions of § 9.41 of the Mental Hygiene Law(MHL), and to work in coordination with the State Police and local policeagencies to ensure that homeless individuals receive assistance as neededto protect them from inclement winter weather and exposure-related condi-tions such as hypothermia and frostbite. Finally, the rule helps to ensurethat facilities used for temporary housing assistance placements are safe,clean, well-maintained and supervised, and fully compliant with existingState and local laws, regulations, administrative directives, and guidelines.

In response to public comments received by OTDA, the rule has beenamended to clarify that: (a) homeless individuals who are appear to be ofsound mind may refuse to enter homeless shelters during periods ofinclement winter weather; and (b) only homeless persons who appear tobe both mentally ill and at risk for cold-related injuries should be involun-tarily transported to appropriate facilities for assessment consistent withthe provisions of MHL § 9.41.

4. Costs:This rule is based on and is substantially similar to Executive Order

(EO) 151, which was issued on January 5, 2016. In 2016, OTDA receivedplans for compliance with EO 151 from 55 SSDs, 38 of which requestedreimbursement. In total, the 38 SSDs sought $3,246,100 in funding. NewYork State approved plans totaling $3.4M in funding, and, at the program’sclose on October 31, 2016, a total of $994,333 had been claimed and paidby the State. If the participation level remains similar to last year, OTDAanticipates that the 2017 costs will be indicative of future expenses.

5. Local Government Mandates:Local governments are required to take steps necessary to expand

shelter hours or provide access to alternative facilities to shelter homelessindividuals during periods of inclement winter weather, so that personsexperiencing homelessness may remain indoors longer to escape the cold.Local governments also are responsible for working with police agencies,including the New York State Police, and State agencies to take necessarysteps to engage in outreach and identify individuals reasonably believed tobe homeless and unwilling or unable to find the shelter necessary for safetyand health in inclement winter weather, and to direct and offer to movesuch individuals to the appropriate sheltered facilities. Local governmentsare further required to instruct homeless service outreach workers to workwith other relevant personnel and local police in relation to the involun-tary transport of individuals who refuse to go inside and who appear to bementally ill and at-risk for cold-related injuries for assessment consistentwith the provisions of § 9.41 of the MHL. Finally, local governments mustensure that all facilities used to shelter homeless individuals during periodsof inclement winter weather are safe, clean, well-maintained and super-vised, and fully compliant with existing State and local laws, regulations,administrative directives, and guidelines.

6. Paperwork:

Compliance plans may need to be submitted if SSDs intend to seekreimbursement for expenditures incurred to comply with this rule. SSDsalso will be required to submit budget forms and narratives justifying theneed for funds if they seek reimbursement from the State.

7. Duplication:The rule does not duplicate, overlap, or conflict with any existing State

or federal regulations.8. Alternatives:Inaction would jeopardize the health, safety, and general welfare of

vulnerable homeless individuals by subjecting them to risks of exposure-related conditions such as hypothermia and frostbite; therefore, OTDAdoes not consider this a viable alternative to the rule. OTDA believes thatthe rule is necessary to protect homeless individuals from the dangers pre-sented by inclement winter weather.

9. Federal Standards:The rule does not conflict with federal statutes, regulations or policies.10. Compliance Schedule:To protect the public health, safety and general welfare of homeless

individuals, the rule will be effective immediately upon its filing date.

Revised Regulatory Flexibility Analysis1. Effect of rule:Pursuant to the State Administrative Procedure Act § 102(8), a “small

business,” in part, is any business which is independently owned and oper-ated and employs 100 or fewer individuals. Some operators of shelters andother facilities used to serve homeless individuals will be asked to extendtheir operating hours; however, their additional costs will be reimbursedby the social services districts (SSDs). In turn, the SSDs can seekreimbursement from the State for additional costs attributable to imple-mentation of this rule. The rule applies to all 58 SSDs in New York State.

2. Compliance requirements:The rule requires SSDs to work with police agencies, including the

New York State Police, and State agencies to take necessary steps toengage in outreach and identify individuals reasonably believed to behomeless and unwilling or unable to find the shelter necessary for safetyand health in inclement winter weather in which air temperatures are at orbelow 32 degrees Fahrenheit including National Weather Service calcula-tions for windchill, and to direct and offer to move such individuals to ap-propriate shelters in accordance with relevant law. SSDs also are requiredto instruct homeless service outreach workers to work with other relevantpersonnel and local police in relation to the involuntary transport ofindividuals who refuse to go inside and who appear to be mentally ill andat-risk for cold-related injuries for assessment consistent with the provi-sions of § 9.41 of the Mental Hygiene Law (MHL). SSDs also must takesteps to expand shelter hours and provide access to other facilities used toshelter homeless individuals during periods of inclement winter weather.SSDs further must ensure that facilities used to shelter homeless individu-als during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and lo-cal laws, regulations, administrative directives and guidelines.

In response to public comments received by OTDA, the rule has beenamended to clarify that: (a) homeless individuals who are appear to be ofsound mind may refuse to enter homeless shelters during periods ofinclement winter weather; and (b) only homeless persons who appear tobe both mentally ill and at risk for cold-related injuries should be involun-tarily transported to appropriate facilities for assessment consistent withthe provisions of MHL § 9.41.

3. Professional services:It is anticipated that the need for additional professional services will be

limited. The rule imposes obligations upon SSDs which OTDA anticipatesshould be fulfilled without the need for securing professional services.

4. Compliance costs:For SSDs that already have detailed and prescriptive policies to protect

the homeless from inclement winter weather, such as New York City’sDepartment of Homeless Services, there should be only marginal compli-ance costs. Other SSDs will incur costs, but may seek reimbursement fromthe State.

5. Economic and technological feasibility:SSDs already should have the economic and technological abilities to

comply with the rule.6. Minimizing adverse impact:The rule should not provide exemptions, because this would not serve

the purposes of protecting vulnerable homeless persons from inclementwinter weather that can cause hypothermia, serious injury, and death.

7. Small business and local government participation:It is anticipated that some operators of shelters and other facilities used

to serve homeless individuals will be asked to extend their operating hours.As discussed above, SSDs are required to coordinate with police and Stateagencies to engage in outreach to vulnerable homeless individuals andidentify individuals who refuse to go inside and who appear to be mentallyill and at-risk for cold-related injuries. SSDs are also required to ensure


30

that facilities used to shelter homeless individuals during periods ofinclement winter weather are safe, clean, well-maintained and supervised,and fully compliant with existing State and local laws, regulations,administrative directives, and guidelines.

Revised Rural Area Flexibility Analysis1. Types and estimated numbers of rural areas:The rule applies to the 44 rural social services districts (SSDs).2. Reporting, recordkeeping and other compliance requirements; and

professional services:Compliance plans may need to be submitted if rural SSDs wish to seek

reimbursement for expenditures made to comply with this rule. The ruleimposes obligations upon SSDs which OTDA anticipates should befulfilled without the need for securing professional services.

3. Costs:For rural SSDs, the fiscal impact of the rule is anticipated to be small

because of the relatively small number of homeless persons in those ruralSSDs. Moreover, rural SSDs may seek reimbursement from the State forexpenditures made to protect vulnerable homeless persons from inclementwinter weather which are consistent with this rule.

4. Minimizing adverse impact:The rule should not provide exemptions, because this would not serve

the purposes of protecting vulnerable homeless persons in rural SSDsfrom inclement winter weather that can cause hypothermia, serious injuryand death.

5. Rural area participation:Rural SSDs are required to coordinate with police and State agencies to

engage in outreach to vulnerable homeless individuals and identifyindividuals who refuse to go inside and who appear to be mentally ill andat-risk for cold-related injuries. Rural SSDs are also required to ensurethat facilities used to shelter homeless individuals during periods ofinclement winter weather are safe, clean, well-maintained and supervised,and fully compliant with existing State and local laws, regulations,administrative directives, and guidelines.

Revised Job Impact StatementA Revised Job Impact Statement is not required for this rule. The

purpose of the rule is to mitigate the effects of inclement winter weather ─specifically, air temperatures at or below 32 degrees Fahrenheit, includingNational Weather Service calculations for windchill ─ and the resultingimpacts of such inclement winter weather on individuals experiencinghomelessness.

The rule will help to ensure that homeless individuals are directed toshelter during inclement winter weather that can cause hypothermia, seri-ous injury, and death. The State will assist local social services districts(SSDs) lacking facilities, resources or expertise. The rule will help ensurethat individuals experiencing homelessness are protected from inclementwinter weather and exposure-related conditions such as hypothermia andfrostbite by requiring SSDs to work with police agencies, including theNew York State Police, and State agencies to take necessary steps toidentify individuals reasonably believed to be homeless and unwilling orunable to find the shelter necessary for protection of their safety and healthin inclement winter weather, and to direct and offer to move such home-less individuals to appropriate shelters in accordance with relevant law.The rule also directs SSDs to: take necessary steps to extend shelter hoursso that homeless individuals may remain indoors longer; instruct homelessservice outreach workers to work with other relevant personnel and withpolice in relation to the involuntary transport of individuals who refuse togo inside and who appear to be mentally ill and at-risk for cold-relatedinjuries to appropriate facilities for assessment consistent with the provi-sions of § 9.41 of the Mental Hygiene Law; work in coordination with theState Police and local police agencies to ensure that homeless individualsreceive assistance as needed to protect them from inclement winterweather and exposure-related conditions such as hypothermia andfrostbite; and ensure that all facilities used to shelter homeless individualsduring periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and lo-cal laws, regulations, administrative directives, and guidelines.

It is apparent from the nature and the purpose of the rule that it will nothave a substantial adverse impact on jobs and employment opportunitiesin the private sector, in the SSDs, or in the State.

Assessment of Public CommentThe Office of Temporary and Disability Assistance (OTDA) received

comments relative to the emergency regulation. The comments have beenreviewed and are duly considered in this Assessment of Public Comments.

One comment asserted that the intent of the emergency regulation is notconsistent with Mental Hygiene Law (MHL) § 9.41 and that the referenceto MHL § 9.41 in the emergency regulation “creates the inference that aperson who chooses not to come in from the cold is mentally ill, danger-ous and in need of involuntary transport to a hospital.” The comment fur-ther asserted that “[t]o extend the scope of [MHL § 9.41] to allow a person

to be taken into police custody because he or she is homeless and it is coldoutside is a misreading of the statute and, despite what might be the goodintent of the regulation, could lead to an illegal and unconstitutionalresult.”

MHL § 9.41 authorizes police officers to take into custody any personwho (a) appears to be mentally ill, and (b) is conducting himself or herselfin a manner which is likely to result in serious harm to the person or others.The term “likelihood to result in serious harm” is defined in MHL §§ 9.01and 9.39(a) to include “substantial risk of physical harm to himself asmanifested by … other conduct demonstrating that he is dangerous tohimself” (Boggs v. New York City Health & Hosps. Corp., 132 AD2d 340,368 [1st Dept 1987], quoting MHL § 9.39; app. dismissed, 70 NY2d 972[1988]). It is well settled that refusal to accept medical treatment does not,by itself, establish that a person is dangerous to himself (see Cruzan v.Dir., Missouri Dept. of Health, 497 US 261, 278 [1990]; Schoolcraft v.City of New York, 103 F. Supp 3d 465, 505 [SDNY 2015]). The New YorkState Court of Appeals has held that “every individual ‘of adult years andsound mind has a right to determine what shall be done with his ownbody’ ’’ (Rivers v. Katz, 67 NY2d 485, 492 [1986], quoting Schloendorffv. Socy. of the New York Hosp., 211 NY 125, 129 [1914]). However, asubstantial risk of physical harm can result from a “refusal or inability tomeet essential needs for food, clothing or shelter” (see Matter of Carl C.,126 AD2d 640 [2d Dept 1987]; see also Addington v. Texas, 441 US. 418,426 [1979] [state has legitimate interest, under its parens patriae powers,in providing care to citizens who, because of emotional disorders, are un-able to care for themselves]).

In view of the foregoing, OTDA agrees that only persons who appear tobe both mentally ill and at risk for cold-related injuries should be involun-tarily transported to hospitals for assessment consistent with the provi-sions of MHL § 9.41. Accordingly, OTDA revised the emergency regula-tion to clarify that social services districts (SSDs) shall instruct homelessservice outreach workers to work with other relevant personnel and towork with local police in relation to the involuntary transport of individu-als who refuse to go inside and who appear to be mentally ill and at-riskfor cold-related injuries to appropriate facilities for assessment consistentwith the provisions of MHL § 9.41.

One comment asserted that OTDA lacks authority to promulgate regula-tions interpreting the MHL. OTDA maintains that the emergency regula-tion does not, in fact, interpret the MHL, but merely directs SSDs toinstruct homeless service outreach workers to work with other relevantpersonnel and local police in relation to the involuntary transport ofindividuals who appear to be mentally ill and at-risk for cold-relatedinjuries.

Comments asserted that the emergency regulation’s threshold of an airtemperature of 32 degrees Fahrenheit with windchill limits the effective-ness of the emergency regulation in achieving the stated goal of reducingthe risk of cold-related injuries such as frostbite and hypothermia posed toindividuals experiencing homelessness, and therefore should be raised.OTDA maintains that, as a practical matter, it would not be feasible to suc-cessfully implement the emergency regulation if the definition of “inclem-ent winter weather” was expanded to include temperatures in excess of 32degrees Fahrenheit, including windchill.

One comment suggested that the emergency regulation be revised torequire that all emergency shelters remain open and accessible to home-less individuals for the entire duration of inclement weather, rather thanbetween certain defined hours – for example, between the hours of 4:00P.M. and 8:00 A.M. – during a given time period. OTDA notes that theemergency regulation already requires SSDs to “take all necessary steps toextend, or to have providers extend, shelter hours, to allow individualsexperiencing homelessness to remain indoors” during periods of inclem-ent winter weather, irrespective of the time of day or night. Consequently,OTDA believes that the suggested revision to the emergency regulation isunnecessary.

One comment asserted that the “regulation does not state for how long,or at what times of the day, the weather forecast must show temperaturesof 32 degrees or below, including wind-chill.” OTDA notes that furtherclarification will be more appropriately provided through issuance ofadministrative guidance, and maintains that amendment of the emergencyregulation to add clarifying language is unnecessary.

One comment contended that the emergency regulation is unclear as towhether an SSD must continue emergency measures in cases when inclem-ent winter weather is initially forecast, resulting in a “Code Blue” alert,but the forecast subsequently changes. OTDA reiterates that furtherclarification will be more appropriately provided through issuance ofadministrative guidance, and that amendment of the emergency regulationto add clarifying language is unnecessary.

One comment asserted that the emergency regulation does not specifyfor how long a period of time following the end of any forecasted “inclem-ent winter weather”’ the regulation’s emergency measures are to remain inplace. OTDA reiterates that further clarification will be more appropriately


31

provided through issuance of administrative guidance, and that amend-ment of the emergency regulation to add clarifying language isunnecessary.

One comment asserted that the emergency regulation does not indicateany limitations on a finding of “inclement winter weather” based on thetime of year – for example, whether an SSD would be required to imple-ment emergency measures if overnight temperatures were to fall below 32degrees Fahrenheit, including windchill, during the months of May orSeptember. 18 NYCRR § 304.1(a) clearly defines “inclement winterweather” as “air temperatures at or below 32 degrees Fahrenheit, includ-ing National Weather Service calculations for windchill.” This definitiontakes into account that weather conditions potentially harmful to the safetyand health of individuals experiencing homelessness are not necessarilylimited to traditional winter months; consequently, the emergency regula-tion requires the implementation of emergency measures whenever the airtemperature is at or below 32 degrees Fahrenheit, including NationalWeather Service calculations for windchill, irrespective of the calendarmonth during which the inclement winter weather occurs. In view of theforegoing, OTDA therefore believes that revision of the emergency regula-tion is unnecessary.

One comment asserted that inclusion of National Weather Servicecalculations for wind-chill in the determination of “inclement winterweather” increases the number of days on which SSDs are required underthe emergency regulation to implement emergency measures. OTDAagrees with this assertion.

Comments requested that the emergency regulation be revised to addlanguage providing that the State fund 100 percent of the costs relating toimplementation of the emergency regulation. It is not the purpose of theemergency regulation to address financial reimbursement to the SSDs;rather, the purpose of the emergency regulation is to mitigate the effectsand impact of inclement winter weather on individuals experiencinghomelessness. Consequently, revision of the emergency regulation isunnecessary.


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